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NO. 07-11-00215-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
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SEPTEMBER 25, 2012
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CHARLES HAROLD FISHER, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
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FROM THE 100TH DISTRICT COURT OF CARSON COUNTY;
NO. 4409; HONORABLE STUART MESSER, JUDGE
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Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Charles Harold Fisher appeals from the trial court's judgment adjudicating him guilty of possession of marijuana, and sentencing him to twenty years of imprisonment. He presents two issues on appeal. We will affirm.
Appellant was charged via indictment with possession of marijuana in an amount of 2,000 pounds or less but more than 50 pounds. In March 2010, appellant and his wife plead guilty to that offense. The trial court deferred a finding of guilt and placed appellant on deferred adjudication community supervision for a period of two years. In February 2011, the trial court held a hearing concerning the State's allegations appellant violated the terms of his supervision. It found appellant violated certain terms, revoked his community supervision, adjudicated appellant guilty and imposed the sentence noted. This appeal followed.
On appeal, appellant seeks reversal of his conviction through two issues. In one, he argues his Sixth Amendment rights were violated because it was a conflict of interest for one court-appointed attorney to represent both appellant and his wife at the 2010 plea hearing. In the second, he argues his 2010 guilty plea was involuntary because he was ill at the time of the plea. We address the issues together.
A defendant who pleads guilty and is placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding only in an appeal taken when the trial court first orders deferred adjudication. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999); Tex. Code Crim. Proc. Ann. art. 42.12 § 23(b) (West 2011). Whether the original guilty plea was voluntary is an issue which must be raised on appeal following the trial court's decision to defer adjudication and place the defendant on community supervision. Manuel, 994 S.W.2d at 661-62; Clark v. State, 997 S.W.2d 365, 368 (Tex.App. -- Dallas 1999, no pet.). A defendant cannot wait until he is adjudicated to bring this issue. Clark, 997 S.W.2d at 368. The same is true regarding appellant's conflict of interest issue. Manuel, 994 S.W.2d at 661; see Hanson v. State, 11 S.W.3d 285, 287-88 (Tex.App. -- Houston [14[th] Dist.] 1999, pet. ref'd) (in appeal taken after revocation of deferred-adjudication community supervision and adjudication of guilt, court lacked jurisdiction to consider issue that ineffective assistance of counsel rendered plea of guilty at original plea hearing involuntary).
Here, appellant did not appeal from the imposition of deferred adjudication community supervision. In fact, the appellate record contains the trial court's certification pursuant to Rule of Appellate Procedure 25.2(d) certifying that appellant waived his right to appeal from the deferral of adjudication. Tex. R. App. P. 25.2(d).
Appellant did not raise his appellate issues relating to his original plea hearing in an appeal following that hearing, and we are without jurisdiction to consider them now. Manuel, 994 S.W.2d at 661. Accordingly, we dismiss both issues and affirm the trial court's judgment.
James T. Campbell
Justice
Do not publish.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7938
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL TRACY HARMON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (CR-99-23, CA-00-537)
Submitted: July 11, 2003 Decided: August 5, 2003
Before LUTTIG and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Michael Tracy Harmon, Appellant Pro Se. Robert Joseph Seidel, Jr.,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael Tracy Harmon seeks to appeal the district court’s
order denying relief on his motion filed under 28 U.S.C. § 2255
(2000). An appeal may not be taken from the final order in a § 2255
proceeding unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of
appealability will not issue for claims addressed by the district
court on the merits absent "a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2) (2000). We have
independently reviewed the record and conclude that Harmon has not
made the requisite showing. See Miller-El v. Cockrell, 537 U.S.
322 (2003). Accordingly, we deny a certificate of appealability
and dismiss the appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED
2
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19 F.3d 431
28 Fed.R.Serv.3d 514
JOHNSON INTERNATIONAL COMPANY, a Washington Corporation,Plaintiff-Appellee,v.JACKSON NATIONAL LIFE INSURANCE COMPANY, a MichiganCorporation, Defendant-Appellant.JOHNSON INTERNATIONAL COMPANY, a Washington Corporation,Plaintiff-Appellant,Cassem, Tierney, Adams, Gotch & Douglas, Attorneys forJohnson International Company, Sanctioned UnderFed.R.Civ.P. 36(a) and 37(c) by CourtMemorandum and Order DatedJanuary 27, 1993, Appellant,v.JACKSON NATIONAL LIFE INSURANCE COMPANY, a MichiganCorporation, Defendant-Appellee.
Nos. 93-1556, 93-1598.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 8, 1993.Decided March 25, 1994.
David M. Woodke, Omaha, NE, argued (Susan E. Norris, on the brief), for appellant.
Daniel J. Duffy, Omaha, NE, argued, for appellee.
Before BEAM, Circuit Judge, LAY, Senior Circuit Judge, and BOGUE,* Senior District Judge.
LAY, Senior Circuit Judge.
1
This is a diversity action brought by Johnson International Company ("Johnson International"), a Washington corporation, against Jackson National Life Insurance Company ("Jackson National"), a Michigan corporation, regarding a $250,000 "keyman" life insurance policy issued by Jackson National to Johnson International to cover one of the latter's key employees, Howard Warford. Warford died while on a business trip to Taiwan. Jackson National refused to pay Johnson International's claim on the keyman policy because the claim arose during the two-year contestability period for the policy, and, according to Jackson National, after Warford's death it discovered material misrepresentations in the policy application concerning Warford's health. Johnson International sued for breach of contract and negligence.1
2
The case went to trial before the Honorable Richard G. Kopf, United States District Judge for the District of Nebraska. Two issues were submitted to the jury: (1) whether there was a breach of contract by the insurer, Jackson National, in failing to pay the $250,000 face value of the policy, and (2) whether Jackson National's agent, Bill Yeager, was negligent in failing to advise Johnson International of certain risks arising out of the replacement of an earlier keyman policy issued by another company.2 The jury returned a special verdict finding in favor of Johnson International on both claims. The district court entered judgment on the verdict for the breach of contract, but it granted Jackson National's motion for judgment as a matter of law on the negligence claim, on the ground that it was time barred. Johnson Int'l Co. v. Jackson Nat'l Life Ins. Co., 812 F.Supp. 966 (D.Neb.1993). In addition, the court awarded plaintiff's counsel attorneys' fees, and it awarded fees and costs against the plaintiff and its counsel as sanctions stemming from certain pre-trial discovery rulings. Id. Jackson National appeals; Johnson International cross-appeals the dismissal of the negligence claim and the sanctions. We affirm in part, vacate in part, and remand.
I. BACKGROUND
3
This case centers around the allegedly fraudulent insurance application of the decedent, Howard Warford. The basic facts concern a change of keyman insurance policies issued to Johnson International through insurance agent William Yeager. Yeager originally sold Johnson International a policy issued by Summit National Insurance Company ("Summit"). Approximately three months later, however, Yeager advised Johnson International that if it replaced Summit's policy with one issued by Jackson National, it could lower its premiums, because Jackson National's rates for smokers like Warford were much lower than Summit's. Johnson International agreed and made the switch.
4
When Warford completed the application for the Summit National policy, he answered affirmatively the question of whether he had ever been treated for "chest pain, heart murmur, high or low blood pressure, heart attack; or any disease of the heart or blood vessels?" Handwritten on the application beneath the question, it states, "chest pain" in "April, 1978," "Dr. Farex, Beatrice, Nebr." At a paramedical examination conducted as part of the Summit application process, Warford again answered affirmatively when asked if he had ever had any indication of "chest pain, palpitation, high blood pressure, rheumatic fever, heart murmur, heart attack or other disorder of the heart or blood vessels?" The words "chest pain" on the application are circled, and the handwritten detail states, "Chest pain in 1976 hospitalized Luthern [sic] Hosp. five days 1200 S. 9th, Beatrice Neb. C.T. Frerichs, M.D. 114th So. 6th Beatrice, Nebr. EKG-negative--negative findings no problems since." On the application for the Jackson National policy, however, and on the form filled out at the paramedical examination for that policy, the questions regarding chest pains and heart problems are all answered negatively.
5
It appears that Warford had, in fact, suffered a heart attack in 1978 and had been prescribed nitroglycerin tablets throughout the years since. He was carrying nitroglycerin tablets at the time of his death in Taiwan. The issue at trial, therefore, was whether Warford had materially misrepresented his health during the application process and intentionally deceived Jackson National. Much of the trial testimony focused on the credibility of insurance agent Yeager, who had filled out both the Summit and the Jackson National policy applications, and on what role he may have played in disregarding Warford's heart problems on the Jackson National application form. Yeager testified that he told Warford that his 1978 chest pains did not need to be reported on the Jackson National application, because they had occurred more than five years earlier. Evidence that Warford had been out of town at the time the Jackson National policy application was completed allowed an inference that Warford had not actually met with Yeager to fill out the Jackson National application and that Yeager had acted on his own--perhaps, as Johnson International suggested, with the Summit policy application to guide him.3 Johnson International's negligence claim alleged that Yeager, as Jackson National's agent, had violated the replacement insurance regulations of the State of Washington by not providing Johnson International with proper written notice that it might lose benefits by changing the existing life insurance coverage it had for Warford.
II. DISCUSSION
A.
6
Jackson National's primary argument on appeal is that the district court erred in denying its motion for summary judgment. Jackson National states that on summary judgment, "the district court should have found as a matter of law that Warford had made material misrepresentations with a presumption of an intent to deceive or that were material to the risk or the hazard assumed by the insurer." Appellant's Br. at 29. Much of Jackson National's appellate brief is devoted to demonstrating that, based on the pretrial submissions of the parties, no genuine disputes as to material fact should have been found.
7
A ruling by a district court denying summary judgment is interlocutory in nature and not appealable after a full trial on the merits. Bottineau Farmers Elevator v. Woodward-Clyde Consultants, 963 F.2d 1064, 1068 n.5 (8th Cir.1992); see Reich v. ConAgra, Inc., 987 F.2d 1357, 1362 n.6 (8th Cir.1993); 15B Charles A. Wright et al., Federal Practice and Procedure Sec. 3914.28, at 210-11 & n.18 (2d ed. 1992). The final judgment from which an appeal lies is the judgment on the verdict. Bottineau, 963 F.2d at 1068 n.5. The judgment on the verdict, in turn, is based not on the pretrial filings under Federal Rule of Civil Procedure 56(c), but on the evidence adduced at trial. See id.
8
Summary judgment under Rule 56 is designed to eliminate prolonged litigation where, "after adequate time for discovery and upon motion, ... a party ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The primary question on summary judgment is whether there exists a genuine issue of material fact as to the elements of a party's claim. Id.; see, e.g., Wilson v. Myers, 823 F.2d 253, 256 (8th Cir.1987). Once the summary judgment motion is denied and the case proceeds to trial, however, the question of whether a party has met its burden must be answered with reference to the evidence and the record as a whole rather than by looking to the pretrial submissions alone. See Locricchio v. Legal Servs. Corp., 833 F.2d 1352, 1359 (9th Cir.1987).4 The district court's judgment on the verdict after a full trial on the merits thus supersedes the earlier summary judgment proceedings. See id.; Bottineau, 963 F.2d at 1068 n.5. Accordingly, we find the principal issue raised and briefed by Jackson National (and the response by Johnson International) not relevant to the issues properly before us.B.
9
Jackson National does argue, in one and one half pages of its fifty-page appellate brief, that the jury verdict on the breach of contract claim was contrary to the evidence and the law. Its claim, however, is essentially that the trial judge should have granted it summary judgment and that the testimony presented at trial on the breach of contract claim did not present anything new. Jackson National again asks this Court to "reverse the district court's order ... rejecting the magistrate's recommendation that summary judgment be granted." Appellant's Br. at 46. We are willing to assume, based on its phrasing of the issue in its Statement of Issues Presented for Review, that Jackson National has adequately preserved a proper challenge to the district court's denial of its motion for judgment as a matter of law or a new trial. We emphasize again, however, that the record at the time of summary judgment differs significantly from that existing after trial.
10
Even if the content of the testimony presented at trial is the same as that of the pleadings and the affidavits presented for review at summary judgment, a jury's verdict rests on assessments of the credibility of witnesses that a cold, paper pretrial record simply will not allow. For that reason, while we review a grant of summary judgment de novo and will reverse if we find in the submissions by the parties "sufficient evidence supporting a material factual dispute to require resolution by a trier of fact," Reich, 987 F.2d at 1360, we will reverse a jury's verdict only if "the evidence is susceptible to no reasonable inferences sustaining it," Cashman v. Allied Prods. Corp., 761 F.2d 1250, 1253 (8th Cir.1985).
11
We find that the evidence here is sufficient to allow reasonable minds to differ about whether Johnson International is entitled to recover under the issued policy. We therefore must affirm the judgment on the jury verdict. See Latham Seed Co. v. Nickerson Am. Plant Breeders, Inc., 978 F.2d 1493, 1497 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 3037, 125 L.Ed.2d 724 (1993). Under the laws of the State of Washington, it is a jury question whether Warford materially misrepresented his health on the Jackson National application, and if so, whether he had the intent to deceive that is necessary to justify denial of Johnson International's claim. See Wash.Rev.Code Sec. 48.18.090 (1984).5 The Washington Supreme Court has held that an intent to deceive can be presumed on the basis of knowing, material misrepresentations in an insurance application, but that that presumption can be rebutted in a number of ways. See Kay v. Occidental Life Ins. Co., 28 Wash.2d 300, 183 P.2d 181, 182 (1947). If, for example, an applicant could reasonably have believed that the misrepresented health condition was cured, then the question of intent is one of fact for the jury to resolve. Id. 183 P.2d at 187 (applicant had ulcer years before and was told it was cured).
12
Most relevant to this appeal are three decisions of the Washington Supreme Court reflecting the tenet "that the knowledge of the agent is the knowledge of the principal, without regard to whether the agent communicates the facts to it." Fox v. Bankers Life & Casualty Co., 61 Wash.2d 636, 379 P.2d 724, 726 (1963). Pursuant to this rule, the court in Fox found that an insurance applicant's partial disclosure of a back problem to the agent rebutted the presumption of deceit and was "sufficient to put the defendant on notice that a back injury may have been involved." Id. In Olson v. Bankers Life Insurance Co., 63 Wash.2d 547, 388 P.2d 136 (1964), the applicant had told the agent the whole truth, but the agent recorded incorrect answers and assured the applicant that it did not matter. The court held that:
13
When an insurer's agent construes the materiality of questions in an application to the prospective insured by stating that certain information is immaterial or not required, any misrepresentations resulting therefrom are not chargeable to the applicant but to the insurer, for the reason that the agent is not the agent of the applicant but of the insurer.
14
Id. 388 P.2d at 138. Finally, combining aspects of these two cases, the court in Levy v. North American Co. for Life & Health Insurance, 90 Wash.2d 846, 586 P.2d 845, 849-50 (1978), held that a question of fact for the jury existed where:
15
There was some conflict as to what Levy revealed to the agent. The circumstances could have indicated to him that his condition [bronchial problems] was immaterial since the agent, who was familiar with the information required by North American, did not inquire further [beyond applicant's response that he suffered periodic colds and needed an atomizer to clear his bronchial tubes].
16
Id. The presumed intent to deceive thus appears to drop from the picture when the applicant is at least partially forthcoming about his health problems and the agent's response indicates that they are not important.
17
Applying these principles to the case at bar, even if we assume that insurance agent Yeager did actually meet with Warford to complete the Jackson National application (despite the evidence presented at trial that Warford was out of town that day) and if we disregard whatever information Yeager learned about Warford's health when Warford applied for the Summit policy, we find that the verdict is supported by sufficient evidence. The jury heard testimony that Warford had informed Yeager of his prior chest pains and that Yeager told Warford that the pains did not need to be reported on the Jackson National application because they had occurred more than five years earlier. After this response, when Yeager and the nurse at the paramedical examination each allegedly asked Warford whether he had suffered a heart attack or had other heart problems in the past, Warford might reasonably have believed that the inquiry was limited to the last five years and that more complete disclosure was not required.
18
A jury considering the evidence might note that during the Summit application process, Yeager did not mention a five-year limit, and Warford reported the chest pains and his hospitalization to both Yeager and the nurse conducting the paramedical exam. In addition, since the policy was being sought by Johnson International as a keyman policy, and not by Warford personally, a jury might strongly doubt Warford's motive to deceive.6 Under these circumstances, a jury might reasonably conclude that, as in Fox, Olson and Levy, Warford had reported enough about his health history to put the agent, and thus Jackson National, on notice, and that Yeager, whether purposely or not, communicated to Warford that the information was not required. On this basis, the jury's implicit finding that Warford did not misrepresent his health history on the Jackson National application with the intent to deceive is supported by the evidence as it relates to the law of Washington.
19
Because a jury could reasonably have found that the misrepresentations in the application were not made with the intent to deceive and that Jackson National therefore breached its insurance contract with Johnson International, we affirm the district court's denial of the motion for judgment as a matter of law or a new trial on these grounds.C.
20
Jackson National alternatively moves for a new trial on the ground that the district court initially erred in allowing the plaintiff to amend its complaint to allege the count for negligence. Jackson National contends that the court's instructions to the jury blurred the distinctions between the claims and allowed evidence for one claim to be considered on the other. Our review of the record and the law, however, shows that the court's instructions were proper.
21
Jackson National objects to the court's instructions addressing the issues of agency and the imputation of knowledge. It states that had the district court properly dismissed the negligence cause of action prior to its submission to the jury, the imputation issue, and thus the question of what Yeager may have known as a result of his working on the Summit policy application, would not have been before the jury. As our analysis of the sufficiency of the evidence presented at trial indicates, however, agency and the imputation of knowledge are relevant to the contract claim as well as the claim for negligence.
22
Our conclusion is not altered by the fact that the court later ruled the negligence claim to be time barred. Jackson National's contention that the jury was confused by the presentation of evidence on the negligence and the breach of contract claims together is belied by the record. As the district court explained, the jury was able to distinguish between the two claims and explicitly considered them separately. We find no evidence that would lead us to conclude that the court's inclusion of the negligence claim that it later found to be time barred was anything other than harmless. Cf. Bone v. Refco, Inc., 774 F.2d 235, 243 n.10 (8th Cir.1985) (recognizing that in case with multiple claims, special verdict form "may enable an appellate court to salvage the portions of the verdict on the claims or theories properly submitted, thereby foregoing the unnecessary inconvenience, expense, and burden on the judicial system and the parties that results from having to retry the entire case").
D.
23
Finally, Jackson National launches what can only be termed a frivolous attack on the district court's award of attorneys' fees to the plaintiff's counsel. Jackson National first urges that the court erred in determining that Nebraska law should apply to the attorneys' fees question. The court's application of Nebraska law was proper. Nebraska Revised Statute section 44-359 provides in pertinent part:
24
In all cases when the beneficiary or other person entitled thereto brings an action upon any type of insurance policy ... against any company, person, or association doing business in this state, the court, upon rendering judgment against such company, person, or association, shall allow the plaintiff a reasonable sum as an attorney's fee in addition to the amount of his or her recovery, to be taxed as part of the costs.
25
Neb.Rev.Stat. Sec. 44-359 (1988). In City of Carter Lake v. Aetna Casualty & Surety Co., 604 F.2d 1052, 1062 (8th Cir.1979), we held that because Nebraska regards this statute to be procedural, see Hawkeye Casualty Co. v. Stoker, 154 Neb. 466, 48 N.W.2d 623, 624 (1951), it applies to federal diversity actions in Nebraska regardless of the substantive law governing the insurance contract involved. This holding, not mentioned in Jackson National's brief, is dispositive.
26
Jackson National next contends that even if Nebraska law does apply, the award was erroneous because plaintiff's counsel had a contingent fee contract with the plaintiff that granted counsel a share of any recovery plus any fees granted by the court. Jackson National asserts that "the plaintiff is not the real party in interest in the request for fees." Appellant's Br. at 48. The fact that a party has a fee contract with an attorney does not affect whether that party is the real party in interest. The real party in interest is the party holding the right sought to be enforced, not necessarily the party who will ultimately benefit from recovery. Farrell Const. Co. v. Jefferson Parish, La., 896 F.2d 136, 140 (5th Cir.1990). Under Nebraska law, the beneficiary under an insurance contract has a right to attorneys' fees after judgment is rendered against an insurance company. The beneficiary, Johnson International, is thus the real party in interest in enforcing that right.
III. THE CROSS-APPEAL
A.
27
On cross-appeal, Johnson International first urges that the district court erred in granting judgment as a matter of law on the claim for negligence. In its view, the negligence claim should have related back to the time of the original complaint, and thus should not have been barred by the three-year statute of limitations. We need not address the merits of this argument, because the relief sought on the negligence claim was identical to the relief on the claim for breach of contract. Both sought the face value of the policy--$250,000. Having affirmed the court's judgment on the contract claim above, the negligence claim has now become moot. See, e.g., Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1556 n.24 (9th Cir.1990); Consolidated Rail Corp. v. Fore River Ry., 861 F.2d 322, 326 (1st Cir.1988).
B.
28
Johnson International and its counsel, Cassem, Tierney, Adams, Gotch & Douglas ("Cassem"), together raise the other main claim in the cross-appeal, urging that the court erred in entering sanctions against them of $7,742.20 in expenses and attorneys' fees for their failure to admit certain items proved at trial. Cassem challenges the court's application of Federal Rules of Civil Procedure 36(a) and 37(c) to order the sanctions. It contends that these rules allow sanctions only against parties, not counsel.7
29
Regardless of the possible strength of Cassem's argument,8 we may affirm the district court's judgment and its imposition of sanctions on any basis supported by the record. See Monterey Dev. Corp. v. Lawyers' Title Ins. Co., 4 F.3d 605, 608 (8th Cir.1993) (judgment); Apex Oil, 855 F.2d at 1014 (sanctions). Our review of the record shows that sanctions were appropriate under Rule 26(g), see id., and that the order against Cassem was not an abuse of the district court's discretion,9 see Harlan v. Lewis, 982 F.2d 1255, 1259 (8th Cir.) (observing that "[w]e review all aspects of the imposition of sanctions under an abuse of discretion standard") (citing Chambers v. NASCO, Inc., 501 U.S. 32, ----, 111 S.Ct. 2123, 2138, 115 L.Ed.2d 27 (1991)), cert. denied, --- U.S. ----, 114 S.Ct. 94, 126 L.Ed.2d 61 (1993). By failing to admit such basic facts as Warford's 1978 heart problems, of which they had full knowledge prior to trial, Cassem and Johnson International clearly added unnecessary delay and expense to the litigation.
30
Cassem and Johnson International also contest certain amounts and expenses included by the court in the sanctions award. While a district court has broad discretion to fashion a reasonable sanction, In re Stauffer Seeds, Inc., 817 F.2d 47, 49 (8th Cir.1987), we believe a remand is warranted here to consider one aspect of the cross-appellants' claim. In ordering the sanctions, the court relied on an affidavit of fees and expenses submitted by Jackson National.10 The court disallowed certain expenses associated with witnesses Robert Felker, Jonathan Noll, and Andrew Branchesi, as well as those relating to interpreter Kate King. Cassem and Johnson International apparently contend that not all of the expenses relating to these individuals were deducted from the court's sanction. If true, we believe the award should be corrected to be brought into line with the court's order. We thus vacate the amount of the sanctions award and remand for reconsideration of this question.
IV. CONCLUSION
31
The judgment on the verdict finding Jackson National liable for breach of its insurance contract with Johnson International is affirmed, as is the court's award of attorneys' fees to Johnson International. The court's order of sanctions against Johnson International and its counsel is also affirmed. The case is remanded, however, for reconsideration of the amount of the sanctions award.
*
The HONORABLE ANDREW W. BOGUE, Senior United States District Judge for the District of South Dakota, sitting by designation
1
The parties agree that Washington law governs the substantive issues
2
The negligence claim had not been included in the original complaint. The district court allowed Johnson International to amend its complaint to add the negligence claim shortly before trial, exercising its authority under Federal Rules of Civil Procedure 15(a) and 16(e). After trial, the court held that the amendment would not relate back in time to the filing of the original complaint, and that therefore, the three-year statute of limitations period for the negligence claim had expired
3
At trial, Yeager testified that when he fills out an insurance application for somebody who recently acquired insurance through him with another company he routinely "may look" at the earlier application. He was emphatic, however, that he would "never" refer to the prior application to get information
4
The court in Locricchio explained:
To be sure, the party moving for summary judgment suffers an injustice if his motion is improperly denied. This is true even if the jury decides in his favor. The injustice arguably is greater when the verdict goes against him. However, we believe it would be even more unjust to deprive a party of a jury verdict after the evidence was fully presented, on the basis of an appellate court's review of whether the pleadings and affidavits at the time of the summary judgment motion demonstrated the need for a trial. After considerable research, we have found no case in which a jury verdict was overturned because summary judgment had been improperly denied.
833 F.2d at 1359.
5
The relevant provision of Washington law states:
(1) Except as provided in subsection (2) of this section, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or avoid the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.
(2) In any application for life or disability insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.
Wash.Rev.Code Sec. 48.18.090 (1984).
6
The jury also had before it Yeager's curious claim that his file on Warford had mysteriously disappeared prior to trial because he gave it to an unknown and unidentified lawyer who never returned it. Added to the conflict in the evidence over whether Yeager could have met with Warford on the date he said he did to fill out the Jackson National application, and Yeager's own financial motive to complete the sale of the policy, the jury might reasonably have concluded that Yeager's credibility overall was questionable
7
We assume that Cassem alone is making this argument, since if we were to agree that sanctions could not be awarded against counsel, the full burden of the court's order would fall on Johnson International. As a party, Johnson International is clearly within the scope of Rule 37(c)
8
Rule 37(c) authorizes sanctions against "a party [who] fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36," if the truth of that matter is later proved and none of rule's exceptions apply. Some courts and commentators have concluded that by its terms, Rule 37(c) thus does apply only to a party, and not its counsel, as Cassem suggests. See Apex Oil Co. v. Belcher Co. of New York, 855 F.2d 1009, 1014 (2d Cir.1988); 4A James W. Moore et al., Moore's Federal Practice p 37.04, at 37-116 (2d ed. 1993)
9
In particular, we see support for the district court's finding that it was "inexplicable," 812 F.Supp. at 987, that Johnson International and its counsel refused to admit that Warford died in Taiwan of an acute myocardial infarction, even though when Johnson International made the insurance claim, it had asserted this fact as true. The record shows that Johnson International had been provided copies of Warford's medical records from the hospital in Taiwan, written in both Chinese and English, and that there existed easy access by telephone to the doctors who had treated Warford. Nevertheless, Johnson International and its counsel still refused to admit that the doctors in Taiwan would testify that Warford died of an acute myocardial infarction
The record also supports the court's finding that Johnson International and its counsel's refusal to admit that Warford had suffered and been treated for a myocardial infarction in 1978 was "not justified," id. at 988. The record is clear that prior to the suit, Johnson International or one of its lawyers had a copy of Warford's medical records from the Nebraska hospital where he had been treated. Indeed, in a letter to Jackson National prior to the suit, Johnson International's counsel explicitly stated that it did "not deny that Mr. Warford had experienced heart problems which where not disclosed in the [policy] application."
Finally, the record supports the court's imposition of sanctions for Johnson International and Cassem's refusal to admit to Warford's prescription history. The record shows that Johnson International had a copy of Warford's prescription history prior to the suit, and it knew that at the time of Warford's death, Warford was carrying a prescription for nitroglycerine tablets issued by Dr. Frerichs of Beatrice, Nebraska. We agree with the district court that if Johnson International had had any doubts about the prescription history, it could have easily confirmed its authenticity by telephoning the pharmacist at the drugstore where the prescriptions were filled or the retired pharmacist who had owned the store previously. Ultimately, Johnson International could have qualified its answers, as provided in Rule 36(a), and admitted only part of what was requested and denied the rest.
10
The court also determined that fees under Rule 37(a)(4) should be awarded for prosecuting the motion for sanctions. Such an award is consistent with the purposes of sanctions under Rules 37 and 26(g)--to deter abuse and compensate the opposing party for " 'all expenses, whenever incurred, that would not have been sustained had the opponent conducted itself properly,' " In re Stauffer Seeds, 817 F.2d at 50 (citation omitted); see also Fed.R.Civ.Pro. 26(g) advisory committee's note (1983 amendment)
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690 F.2d 403
111 L.R.R.M. (BNA) 2473, 95 Lab.Cas. P 13,801
In re Charles K. SEWELL, Petitioner.
No. 82-1125.
United States Court of Appeals,Fourth Circuit.
Argued June 9, 1982.Decided Sept. 29, 1982.Rehearing and Rehearing En Banc Denial Nov. 17, 1982.
Walter W. Christy, New Orleans, La. (Kullman, Lang, Inman & Bee, New Orleans, La., on brief), for petitioner.
Robert F. O'Brien, Haddonfield, N.J. (Tomar, Parks, Seliger, Simonoff & Adourian, Haddonfield, N.J., on brief) and James Y. Callear, Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Margery E. Lieber, Deputy Asst. Gen. Counsel for Special Litigation, Washington, D.C., on brief), for respondent.
Before BUTZNER, WIDENER and ERVIN, Circuit Judges.
BUTZNER, Circuit Judge:
1
Charles K. Sewell seeks a writ in the nature of mandamus or prohibition requiring the district court to dismiss with prejudice an action instituted against him by the Glass Bottle Blowers Association, its local chapter, and several of its members (the union). The National Labor Relations Board, intervenor, joins Sewell's request for the writ.
2
We conclude that the district court's interlocutory order denying Sewell's motion to dismiss may be reviewed by a petition for mandamus and that federal labor law preempts the state law on which the union bases its action. Prosecution of the union's action would infringe the exclusive jurisdiction of the Board to adjudicate violations of § 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5), and the jurisdiction of this court to review bargaining orders issued by the Board. Consequently, a writ in the nature of mandamus is appropriate, and the union's action must be dismissed.
3
* For many years, employees of Sewell Plastics, Inc., have been represented by the union. In 1977 a petition to decertify the union as collective bargaining representative was filed with the Board's regional office. The union prevailed in the ensuing decertification election, and following resolution of objections filed by the company, the Board certified the union. The company, however, refused to bargain on the ground that its objections were improperly overruled and that certification was invalid. It stated that it would decline to bargain unless the Board's decision was judicially approved.
4
A complaint was issued on the union's charge that the company violated § 8(a) (5) of the Labor Act.1 The Board found the complaint had merit and issued a bargaining order,2 which this court subsequently enforced.3
5
After the Board's certification of the union, but before this court enforced the bargaining order, the union filed suit in a North Carolina state court against Charles K. Sewell, president of the company. Sewell removed the action to the district court on the basis of diversity and federal question jurisdiction.
6
The complaint contained two counts-one alleging wrongful interference with contractual relations, and the other charging Sewell with malice in preventing the union and the company from bargaining. Specifically, the complaint alleged that the Board had certified the union as the bargaining agent for employees at the Sewell Plastics plant in Charlotte, North Carolina, and that the union has both a statutory and a contractual duty to bargain collectively with the company. It also alleged that pursuant to § 8(a)(5) of the Act the company has a statutory duty to bargain with the union and that Sewell had prevented the company and the union from making a contract by committing the following acts:
7
a.) refusing to arrange on behalf of Sewell Plastics, Inc. a mutually convenient time and place for collective bargaining with (the union);b.) petitioning the NLRB on behalf of Sewell Plastics, Inc. to determine whether (the union) possesses the majority status requisite for participation in collective bargaining, despite the NLRB's recent certification of (the union) as the majority representative;4
8
c.) continuing to challenge, on behalf of Sewell Plastics, Inc., the majority status of (the union), despite the NLRB's reaffirmation of (the union's) majority status;
9
d.) refusing, in Sewell Plastics, Inc.'s name, to furnish (the union) with the names, addresses, and seniority status of employees at the Charlotte plant.5
10
The complaint also alleged that Sewell acted against the best interests of the company because he subjected it to potential penalties for violating § 8(a)(5) of the Act.
11
The complaint charges that the union and the local chapter have suffered the following harm:
12
a.) inability to perform their duty to Sewell Plastics, Inc. employees to bargain collectively with Sewell Plastics, Inc. on their behalf;
13
b.) administrative and legal expenses connected with their as-yet-unsuccessful attempts to engage in collective bargaining with Sewell Plastics, Inc.;
14
c.) loss of union dues normally deducted from the wages of Sewell Plastics, Inc. employees at the Charlotte plant.
15
It also alleges that the employees have suffered the following harm:
16
a.) loss of increased wages similar to those collectively bargained by (the union) on behalf of other similarly situated employees within the same geographical area;
17
b.) loss of other improved terms and conditions of employment similar to those collectively bargained by (the union) on behalf of other similarly situated employees within the same geographical area.
18
The complaint sought damages from Sewell for the union in the amount of lost union dues and administrative and legal expenses. It sought damages in favor of the employees for the amount of wages and benefits lost due to Sewell's wrongful acts. It also sought punitive damages in the amount of $10,000.
19
Sewell moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. The district court denied the motion, concluding that the complaint stated a claim under North Carolina law for tortious interference with the formation of a contract. With respect to Sewell's claim that federal labor law preempted state law, the court ruled:
20
The allegations of Plaintiffs' Complaint, if proven, would likewise bring Charles Sewell's conduct outside the area of exclusive jurisdiction of the National Labor Relations Board. Sewell's individual conduct as alleged is of the "outrageous" variety deemed by the U.S. Supreme Court in Farmer v. Carpenters, 430 U.S. 290 (97 S.Ct. 1056, 51 L.Ed.2d 338) (1977) to be outside the scope of the Board's exclusive jurisdiction. Although the Board might find Sewell Plastics, Inc. guilty of violating the National Labor Relations Act by failing to bargain in good faith, the Board does not have jurisdiction over Charles Sewell's individual conduct or jurisdiction to award punitive damages as requested in Plaintiffs' Complaint.6II
21
The first issue is whether the interlocutory order of the district court denying Sewell's motion to dismiss the union's complaint may appropriately be reviewed by a petition seeking relief in the nature of mandamus or prohibition pursuant to the All Writs Act, 28 U.S.C. § 1651(a).7
22
The union's complaint seeks recovery for Sewell's "continu(ed) ... challenge on behalf of Sewell Plastics, Inc. (of) the majority status of (the union) despite the NLRB's reaffirmation of (the union's) majority status." This continued challenge took the form of a refusal to bargain following the Board's certification of the union. Although couched in terms of the district court's lack of jurisdiction, the central theme of Sewell's motion to dismiss the complaint is that the federal labor law preempted the state tort law on which the complaint relies.
23
Sewell and the Board contend that mandamus is necessary to remedy the district court's reliance on preempted state law to usurp the Board's exclusive primary jurisdiction to adjudicate the lawfulness of Sewell's conduct, as agent for the company, in refusing to bargain. The union contends that mandamus cannot be used as a substitute for interlocutory appeal merely because the district court might have erred in assuming jurisdiction over the cause of action based on state law. Both sides marshal precedent for their positions but are unable to cite any decision precisely on point.
24
Resolution of the parties' contentions depends on (1) our power to issue the writ and (2) if empowered, whether this is an appropriate petition for the exercise of our discretion. See Roche v. Evaporated Milk Ass'n., 319 U.S. 21, 25-26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943).
25
An appellate court is authorized to issue a writ of mandamus in aid of its jurisdiction for the purpose "of confining an inferior court to a lawful exercise of its prescribed jurisdiction, or of compelling it to exercise its authority when it is its duty to do so." Ex Parte Peru, 318 U.S. 578, 583, 63 S.Ct. 793, 796, 87 L.Ed. 1014 (1943). Thus, we are empowered to issue the writ, but our discretion to do so is sharply circumscribed. "Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy." Moreover, the petitioner must show that he has "no other adequate means to attain the relief desired." Allied Chemical Corp. v. Daiflon, 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980). A showing of simple error is insufficient. Will v. United States, 389 U.S. 90, 98 n. 6, 88 S.Ct. 269, 275, 19 L.Ed.2d 305 (1967).
26
In United States Alkali Ass'n v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554 (1945), the Supreme Court reviewed an interlocutory order of a district court denying a motion to dismiss a suit brought by the government under the antitrust statutes. Lacking statutory authority to review interlocutory orders, the Court referred to its discretionary power to grant writs of mandamus and prohibition. The Court reviewed the order because of an asserted conflict between the exercise of the district court's jurisdiction and that of an administrative agency said to be charged with the duty of enforcing the antitrust laws with respect to the underlying dispute. It noted that if the motion to dismiss were well founded, the district court's denial would thwart the asserted purpose of Congress. 325 U.S. at 203, 65 S.Ct. at 1125.
27
Similarly, if Sewell's preemption claim is well founded, its denial would thwart the purpose of Congress to obtain uniform application of the Labor Act by confiding primary jurisdiction in the Board. See Garner v. Teamsters Union, 346 U.S. 485, 490, 74 S.Ct. 161, 165, 98 L.Ed. 228 (1953). Sewell's petition raises the question of the Congress's allocation of jurisdiction between the district court and the Board. Thus, we must determine whether the district court properly assumed jurisdiction under state law to subject a company official to litigation that seeks compensatory and punitive damages because he caused his company to pursue the procedures established by Congress for administrative determination and judicial review of the Board's certification of a union. Therefore, in accord with United States Alkali Ass'n, mandamus to review the district court's interlocutory order denying dismissal of the complaint is appropriate.
28
The requirement imposed by 28 U.S.C. § 1651(a)-the writ must be necessary or appropriate in aid of the court's jurisdiction-is also satisfied by a second aspect of this petition. The company's refusal to bargain was a prerequisite for judicial review of the Board's resolution of election challenges and certification of the union. See Magnesium Casting Co. v. NLRB, 401 U.S. 137, 139, 91 S.Ct. 599, 600, 27 L.Ed.2d 735 (1971).
29
Our review of Board orders will be encumbered if company officials are required to defend themselves against state tort claims because of their decision to challenge Board certification in this court. A threat of liability for taking the steps necessary for appellate consideration of Board orders inevitably will deter petitions for review. Preservation of our jurisdiction to enforce Board orders therefore justifies resort to mandamus for resolution of the claim that federal law has preempted state law on which the union bases its action.
30
Finally, we conclude that review of Sewell's preemption claim on appeal after entry of a final order will not afford him or the Board adequate relief. If the preemption claim is valid, the district court will have infringed the Board's primary jurisdiction in the labor relations field and our own jurisdiction to review orders of the Board. In this event, deferring determination of the validity of the preemption claim until the entry of a final order will subject both Sewell and the Board to the district court's usurpation of the Board's jurisdiction simply because Sewell followed the procedure Congress established in the Labor Act to obtain review of a Board certification decision.
31
Sewell and the Board have satisfied their burden of showing the propriety of mandamus to resolve the jurisdictional conflict presented by the petition. This in turn requires determination of the preemption claim.
III
32
We assume, without deciding, that the district court correctly held that the complaint alleged a cause of action against Sewell under state law for tortious interference with the formation of a contract. But, as the district court correctly recognized, the alleged violation of state law is not dispositive. The critical issue is whether, in the factual context of this case, federal labor law has preempted the state law on which the union predicates its suit.
33
In San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959), the Court explained the general principles for determining whether federal labor law has preempted state law:
34
When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law. Nor has it mattered whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations. Regardless of the mode adopted, to allow the States to control conduct which is the subject of national regulation would create potential frustration of national purposes. (footnote omitted)The Court then directed that these principles must be implemented by both state and federal courts:
35
When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.... If the Board decides, subject to appropriate federal judicial review, that conduct is protected by § 7, or prohibited by § 8, then the matter is at an end, and the States are ousted of all jurisdiction. 359 U.S. at 245, 79 S.Ct. at 779.
36
The Court has recognized that the principles set forth in Garmon cannot be applied inflexibly. In cases involving trespass, intentional infliction of mental distress, libel, violence, and threats of violence,8 "the Court has allowed a state to enforce certain laws of general applicability even though aspects of the challenged conduct were arguably prohibited by § 8 of the NLRA." Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 194-95, 98 S.Ct. 1745, 1756, 56 L.Ed.2d 209 (1978). For the purpose of our decision, the most instructive of these cases is Farmer v. Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977), on which both the district court and the union primarily rely.
37
In Farmer, the Court allowed a member to sue his union under state law for the intentional infliction of emotional distress. The Court observed that no provision of the Labor Act protects this "outrageous conduct." 430 U.S. at 302, 97 S.Ct. at 1064. The Court cautioned, however, that "(u)nion discrimination in employment opportunities cannot itself form the underlying 'outrageous' conduct on which the state-court tort action is based; to hold otherwise would undermine the pre-emption principle." 430 U.S. at 305, 97 S.Ct. at 1066. Consequently, the Court vacated the judgment in favor of the complainant and remanded because the trial was tainted with evidence pertaining to discriminatory hiring. 430 U.S. at 306-07, 97 S.Ct. at 1066.
38
There can be no doubt that the state has an interest in redressing both types of harm-intentional infliction of emotional distress and discriminatory hiring-exemplified by Farmer. The Court, however, explained the dichotomy of its ruling by reiterating that "concurrent state-court jurisdiction cannot be permitted where there is a realistic threat of interference with the federal regulatory scheme." 430 U.S. at 305, 97 S.Ct. at 1066.
IV
39
Tested by the principles set forth in Garmon, 359 U.S. at 244-45, 79 S.Ct. at 779, and Farmer, 430 U.S. at 305, 97 S.Ct. at 1066, the state law of tortious interference with contracts that the union seeks to apply to Sewell's conduct is preempted by the Labor Act. The gist of the union's complaint is that Sewell, acting on behalf of his company, refused to bargain, petitioned the NLRB on behalf of the company to determine whether the union possessed majority status despite certification of the union, continued to challenge the majority status of the union until the Board's order was judicially enforced, and refused to furnish the union information to which it was entitled. All of the company's conduct was subject to regulation by the Labor Act. Indeed, as we have chronicled in part I, this conduct was adjudicated to violate § 8(a)(5) by the Board and this court. State law which is invoked to redress conduct prohibited by § 8 of the Act falls squarely within Garmon's doctrine of preemption. See 359 U.S. at 244-45, 79 S.Ct. at 779. Moreover, Sewell's conduct does not fall within any of the exceptions to Garmon, which are cataloged in Sears, 436 U.S. at 195, 98 S.Ct. at 1756.
40
Other considerations also weigh heavily in favor of preemption. Farmer noted that a union's misconduct which violated the Act could not form the basis of outrageous conduct for purposes of state tort law. Therefore, contrary to the district court, we hold that an employer's violation of the Act cannot constitute outrageous conduct sufficient to invoke state law. Both "would undermine the pre-emption principle." Farmer, 430 U.S. at 305, 97 S.Ct. at 1066.
41
Also, Congress has structured the Act so that the only way an employer can invoke § 10 to obtain judicial review of a contested certification is to refuse to bargain and litigate the matter in a subsequent unfair labor practice proceeding under § 8(a)(5). See Magnesium Casting Co. v. NLRB, 401 U.S. 137, 139, 91 S.Ct. 599, 600, 27 L.Ed.2d 735 (1971). Moreover, Congress has set forth the scope of remedies available for a violation of § 8(a)(5). These remedies do not include punitive damages, Republic Steel Corp. v. NLRB, 311 U.S. 7, 10-13, 61 S.Ct. 77, 78-80, 85 L.Ed. 6 (1940), or compensatory relief, Ex-Cell-O Corp., 185 NLRB 107, 110 (1970). To permit a union to recover from company officials punitive and compensatory damages for refusing to bargain in violation of § 8(a)(5)-a refusal made necessary by the Act in order that the employer can contest certification in a court of appeals-would, in the words of Farmer, present a "realistic threat of interference with the federal regulatory scheme." 430 U.S. at 305, 97 S.Ct. at 1066.
42
It is of no moment that the union sued Sewell individually and alleged that he acted against the best interests of his company, without justification, and with malice. Section 2(2) of the Act defines an "employer" to include "any person acting as an agent of an employer...." Whatever Sewell's motives, and whatever the effect of his conduct on the company and on the union and its members, the Board imputed his actions to the company when it adjudicated the § 8(a)(5) charge. Thus, for the purpose of the Board's proceedings, Sewell and the company were identical. When the Board decides that an act is prohibited by § 8, "the matter is at an end, and the States are ousted of all jurisdiction." Garmon, 359 U.S. at 245, 79 S.Ct. at 779.
43
We therefore conclude that federal labor law vested exclusive jurisdiction in the Board to adjudicate the controversy over the contest of certification and the company's asserted justification for refusing to bargain, subject to judicial review by this court. Consequently, federal law preempts state law pertaining to the same controversy. A federal district court cannot invoke preempted state law to reexamine the company official's conduct. The court "must defer to the exclusive competence of the ... Board if the danger of state interference with national policy is to be averted." Garmon, 359 U.S. at 245, 79 S.Ct. at 779.
V
44
In sum, we hold that this action must be dismissed. Confident that the district court will act in accordance with this opinion, we will follow the procedure established by Chief Judge Parker in United States v. United States District Court, 238 F.2d 713, 723 (4th Cir. 1957). Accordingly, although Sewell and the Board are entitled to a writ of mandamus, the writ will not issue unless a further order is entered to that effect.
45
PETITION GRANTED.
1
Section 8(a)(5) of the Act, 29 U.S.C. § 158(a)(5), provides:
(a) It shall be an unfair labor practice for an employer-
(5) to refuse to bargain collectively with the representatives of his employees ....
2
Sewell Plastics, Inc., 247 NLRB 236 (1980)
3
NLRB v. Sewell Plastics, Inc., 642 F.2d 448 (4th Cir. 1981) (table)
4
Following the union's certification, the company filed a petition for a representation election. The petition was dismissed
5
The union filed a charge alleging that the company violated § 8(a)(5) and (1) of the Act by failing to submit employee lists to the union. This charge was settled, the company agreeing to furnish the requested information provided the court of appeals enforced any subsequent bargaining order
6
Another action brought by the union for tortious interference with a contract for refusal to bargain was dismissed on the grounds that federal law preempted state tort law. See Glass Bottle Blowers Ass'n v. Certainteed Corp., 93 Lab.Cas. (CCH) P 13,335 (M.D.Ga.1981)
7
28 U.S.C. § 1651(a) provides: "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."
8
See, e.g., Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978); Farmer v. Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977); Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966); Automobile Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958); Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151 (1957); Construction Workers v. Laburnum Constr. Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (1954)
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600 P.2d 708 (1979)
The STATE of Wyoming, Appellant (Defendant below),
v.
Richard E. BERGER, Appellee (Plaintiff below).
No. 5092.
Supreme Court of Wyoming.
September 13, 1979.
John D. Troughton, Atty. Gen., Cheyenne, and D. Terry Rogers, County and Pros. Atty., Teton County, Jackson, for appellant.
Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Laramie, for appellee.
Before RAPER, C.J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.
ROSE, Justice.
This action originated with a petition by Richard E. Berger for post-conviction relief under §§ 7-14-101, et seq., W.S. 1977.[1]
Berger was originally tried in the District Court of Teton County on a charge of assault and battery with intent to commit a felony, in violation of § 6-69, W.S. 1957, 1975 Cum.Supp. [now § 6-4-503, W.S. 1977]. He was found guilty and, on January 30, 1976, judgment and sentence was entered.
On May 28, 1976, Berger was brought before the trial court for proceedings under Rule 36, W.R.Cr.P.,[2] at which time his sentence *709 was reduced and he was informed of his right to appeal the verdict of the jury and the judgment. He was also told that if he could not afford an attorney, one would be appointed for him at County expense. The court said:
"... Mr. Berger, I would advise you that you have the right to appeal the verdict of the jury and the judgment of this Court to the Supreme Court. If you desire to make such appeal and cannot afford an attorney to prosecute this appeal, the Court will appoint an attorney to represent you at the expense of the County to prosecute this case...."
No appeal of the verdict of the jury or the judgment and sentence in the Teton County criminal action was ever taken by Richard E. Berger or anyone on his behalf.
On August 30, 1978, Berger filed a petition for post-conviction relief in the District Court of Teton County, Wyoming. On November 1, 1978, following a hearing on the petition, the trial court held that Berger had been denied his right to appeal the jury verdict as rendered in the Teton County criminal action aforesaid. This appeal by the State of Wyoming is taken from that decision of the trial court.
The only issue for decision is whether or not Berger was in fact denied his right of appeal from the judgment and sentence as rendered in the criminal case. We will find that Mr. Berger was not denied his right and will reverse the holding of the trial court.
Rule 33(a)(2), W.R.Cr.P., provides:
"(2) Notification of Right to Appeal. After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of his right to appeal and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis."
The trial court complied with the requirements of Rule 33(a)(2), W.R.Cr.P., during the proceedings on May 28, 1976, when it modified the original judgment and sentence and slightly reduced Richard E. Berger's sentence.
When Berger was re-sentenced on May 28, 1976, then-existing Rule 38, W.R.Cr.P., required that appeals to the supreme court "shall be taken within the time and in the manner provided for the taking of appeals by the Wyoming Rules of Civil Procedure." Rule 73, W.R.C.P., was then applicable and it required that an appeal permitted by law from a district court to the supreme court "shall be taken by filing a notice of appeal with the district court to the supreme court within thirty days from the entry of the judgment or final order appealed from."
We have held that the time limitation for filing a notice of appeal is mandatory and jurisdictional. Sun Land & Cattle Co. v. Brown, Wyo., 387 P.2d 1004 (1964); Jackson v. State, Wyo., 547 P.2d 1203 (1976); Carr v. Hopkin, Wyo., 556 P.2d 221 (1976); Johnson v. Hauffe, Wyo., 567 P.2d 735 (1977); Compton v. State, Wyo., 555 P.2d 232 (1976); McMullen v. McMullen, Wyo., 559 P.2d 37 (1977); and Bosler v. Morad, Wyo., 555 P.2d 567 (1976).
An individual is not deprived of his constitutional rights to an appeal in a criminal case so long as the rules governing appellate procedure are followed. Hudson v. State, 89 N.M. 759, 557 P.2d 1108 (1976).
This court has no jurisdiction to consider an appeal where the rules of appellate procedure with respect to notice of appeal have not been complied with. Jackson v. State Wyo., 547 P.2d 1203 (1976).
The argument is made in this case that the defendant wanted to appeal but the appeal was not perfected because of a misunderstanding with his attorney. Were *710 we to accept this excuse, we would effectively be renouncing the rule in all of the above-cited cases, which holds that the limitation for filing the notice of appeal is mandatory and jurisdictional. This we are not prepared to do.
The notice of appeal was not timely filed in fact, it was not filed at all and, therefore, the judgment of the trial court is reversed.
Reversed.
NOTES
[1] Section 7-14-101, W.S. 1977, provides:
"Any person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the constitution of the United States or of the state of Wyoming, or both, may institute proceedings under this act [§§ 7-14-101 to 7-14-108]. The proceeding shall be commenced by filing with the clerk of the court in which the conviction took place a petition verified by affidavit, together with a copy thereof, which copy shall be forwarded by the clerk of court to the attorney general of the state of Wyoming by certified or registered mail. The clerk shall docket the petition upon his receipt thereof and bring the same promptly to the attention of the court. No proceeding under this act shall be commenced more than five (5) years after the conviction and sentence of the accused, unless petitioner alleges facts showing that the delay was not due to his own neglect."
[2] Rule 36, W.R.Cr.P., provides:
"The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The court may reduce the sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of an order or judgment of the Supreme Court having the effect of upholding the judgment of conviction. The court may also reduce a sentence upon revocation of a probation as provided by law."
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124 Cal.Rptr.2d 857 (2002)
101 Cal.App.4th 1133
VILLAGE TRAILER PARK, INC., Petitioner,
v.
SANTA MONICA RENT CONTROL BOARD, Respondent, Vernon Van WIE et al., Real Parties in Interest.
No. B153024.
Court of Appeal, Second District, Division Two.
September 6, 2002.
As Modified September 24, 2002.
Review Denied November 26, 2002.
*860 Law Offices of Rosario Perry, Rosario Perry, Santa Monica, for Petitioner Village Trailer Park, Inc.
Doris M. Ganga, General Counsel, Joel Martin Levy, Staff Attorney, for Respondent Santa Monica Rent Control Board.
No appearance for Real Parties in Interest.
BOREN, P.J.
This dispute concerns the Santa Monica rent control law. The owner of a trailer park argues that the Santa Monica Rent Control Board has no jurisdiction to determine whether mobilehome leases are subject to rent control. The trial court found that the rent control board is entitled to determine whether the leases are exempt from rent control, and is authorized to impose excess rent penalties; however, the court remanded the matter to the rent control board for further proceedings. Both parties have appealed.
There is no final, appealable judgment. Nevertheless, we choose to treat the purported appeals as petitions for a writ of mandate. We conclude: (1) the rent control board has jurisdiction to determine whether mobilehome leases are exempt from local rent control; (2) an arbitration clause in a mobilehome lease does not prevent the rent control board from applying the rent control law to the landlord; (3) a landlord is not entitled to advance notice of a rent control violation before being assessed for charging excess rent; (4) the rent control board may award the tenant interest on the excess rent collected by the landlord; and (5) the board may exclude annual rent increases when calculating the amount of excess rent to induce the landlord to comply with the rent control law.
FACTS AND PROCEDURAL HISTORY
Village Trailer Park, Inc. (Village) operates its business in the City of Santa Monica (the City). The Santa Monica City Charter (City Charter), article XVIII, contains a rent control law (the Rent Control Law). The Rent Control Law is administered by the City's rent control board (the Board).
In 1999, 12 of Village's tenants filed complaints with the Board alleging that Village violated the Rent Control Law by charging "excess rent." Village objected that the Board has no jurisdiction to decide whether the tenants' leases are subject to (or exempt from) the Rent Control Law, and requested that the administrative proceedings be dismissed.
Village's objection was overruled by the administrative hearing officer, who proceeded to take evidence to determine if the leases at issue are exempt from rent control pursuant to the state Mobilehome Residency Law (MRL). (Civ.Code, § 798 et seq.) The hearing officer found that Village's leases do not satisfy the requirements for exemption under the MRL and are subject to the Rent Control Law. The tenants were awarded restitution of the excess rent. The total amount awarded to the 12 tenants was $63,677.87, including interest.
Village pursued an administrative appeal, renewing its argument that the Board has no power to interpret the MRL or invalidate the leases. The Board rejected Village's argument and adopted the hearing officer's decision.
Village petitioned the trial court for a writ of mandate. The trial court found that the Board's exercise of its administrative power did not violate the state constitutional clause regarding judicial powers, nor is the Board's action preempted by the MRL. In addition, the court concluded that the arbitration clause in the leases does *861 not bar administrative rent control regulation and that the Board's award of interest is authorized by the Rent Control Law. Finally, the court determined that the manner in which damages were calculated exceeded the Board's power. The court remanded the matter to the Board to reconsider the manner in which it calculated damages.
DISCUSSION
Appealability
The judgment partly granted the writ petition and remanded the proceeding to the Board. The peremptory writ of mandate commands the Board "to reconsider your action" with respect to the calculation of damages. A remand order to an administrative body is not appealable. (Board of Dental Examiners v. Superior Court (1998) 66 Cal.App.4th 1424, 1430, 78 Cal.Rptr.2d 653.) We may, however, exercise our discretion and treat an appeal as a petition for a writ of mandate. (Ibid.) This is an appropriate case for the exercise of our discretion; therefore, we treat the appeals from a nonappealable order as writ petitions.
Village's Appeal
1. The MRL Preemption Issue
The trial court concluded that the MRL does not preempt the City's rent control law. Village complains that the trial court erroneously relied upon the Board's interpretation of the MRL, and asserts that the local rent control law is preempted by state law.
Review of this issue is de novo. "[W]e independently determine the proper interpretation of the statute. As the matter is a question of law, we are not bound by evidence on the question presented below or by the lower court's interpretation." (Burden v. Snowden (1992) 2 Cal.4th 556, 562, 7 Cal.Rptr.2d 531, 828 P.2d 672.) Our objective is to ascertain and implement legislative intent by examining the statutory language with reference to the entire system of law of which it is a part. (Ibid.; American Federation of State etc. Employees v. County of San Diego (1992) 11 Cal.App.4th 506, 515, 14 Cal.Rptr.2d 51.) In an administrative mandamus proceeding, the court determines whether an agency has acted under an incorrect legal interpretation of a statutory provision. (Hawthorne Savings & Loan Assn. v. City of Signal Hill (1993) 19 Cal.App.4th 148, 157, 23 Cal.Rptr.2d 272.)
Local legislation cannot conflict with state law. "`A conflict exists if the local legislation "`duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.'"'" (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897, 16 Cal.Rptr.2d 215, 844 P.2d 534.) When a conflict arises between state and local laws, state law preempts the local legislation. (Ibid.)
The MRL does not prohibit local regulation of rents in mobilehome parks. (Griffith v. County of Santa Cruz (2000) 79 Cal.App.4th 1318, 1323, 94 Cal.Rptr.2d 801; Polos Verdes Shores Mobile Estates, Ltd. v. City of Los Angeles (1983) 142 Cal. App.3d 362, 373-374, 190 Cal.Rptr. 866.) Instead, the MRL delineates the limited circumstances under which a mobilehome rental agreement is exempt from local rent control measures. (Civ.Code, § 798.17.)[1] Village does not point to *862 any aspect in which the Rent Control Law "`"`duplicates, contradicts, or enters an area fully occupied""" by the MRL. (Sherwin-Williams v. City of Los Angeles, supra, 4 Cal.4th at p. 897, 16 Cal.Rptr.2d 215, 844 P.2d 534.)
Village relies on a case that does not address any conflict between the City's Rent Control Law and state law. The case, Mobilepark West Homeowners Assn. v. Escondido Mobilepark West (1995) 35 Cal.App.4th 32, 41 Cal.Rptr.2d 393 (Escondido ), concerned the validity of rent control ordinances adopted by the City of Escondido, which imposed additional requirements for long-term mobilehome lease agreements that went beyond the requirements provided in Civil Code section 798.17. In dicta, the appellate court stated that the additional requirements of the Escondido ordinances contradicted the MRL.[2]
Escondido is inapposite. Unlike the landlord in Escondido, Village does not contend that the Rent Control Law adds any further or contradictory requirements to Civil Code section 798.17. The appellate court's concern in Escondido was whether the Escondido City Council attempted to rewrite state law. The court in Escondido did not consider whether the city usurped a judicial function by applying Civil Code section 798.17 to a particular case.
Rent control of mobilehome parks is a valid exercise of the City's police power as "a rational curative measure" designed to alleviate a shortage of mobilehome spaces and rising rental rates. (Carson Mobilehome Park Owners' Assn. v. City of Carson (1983) 35 Cal.3d 184, 189, fn. 4, 197 Cal.Rptr. 284, 672 P.2d 1297.) The Board is vested with authority to administer and enforce the Rent Control Law. (Richman v. Santa Monica Rent Control Bd. (1992) 7 Cal.App.4th 1457, 1459, 9 Cal.Rptr.2d 690.) When the Board heard the tenants' claim that Village was violating the Rent Control Law by charging excess rents, the burden fell upon Village to present evidence proving that some or all of the leases in question are exempt from local regulation.
"An administrative agency may constitutionally hold hearings, determine facts, apply the law to those facts, and order reliefincluding certain types of monetary reliefas long as (i) such activities are authorized by statute or legislation and are reasonably necessary to effectuate the administrative agency's primary, legitimate regulatory purposes, and (ii) the `essential' judicial power (i.e., the power to make enforceable, binding judgments) remains ultimately in the courts, through review of agency determinations." (McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 372, 261 Cal. Rptr. 318, 777 P.2d 91.)
The Board's administration and enforcement of the Rent Control Law includes setting and regulating rents in the local housing market, as is authorized by the City Charter. Issuing excess rent decisions, though judicial in nature, is reasonably necessary to accomplish the Board's primary legitimate regulatory purposes. (McHugh v. Santa Monica Rent Control Bd., supra, 49 Cal.3d at p. 375, 261 Cal. *863 Rptr. 318, 777 P.2d 91.) The Board cannot be prevented from carrying out its regulatory function every time a landlord claims its leases are exempt from rent control. The landlord must present evidence at the administrative hearing that its mobilehome leases are exempt and the Board must apply Civil Code section 798.17 to resolve the question. If the landlord disagrees with the Board's application of section 798.17, judicial review is available by way of a petition for a writ of mandate.
Determining whether a mobilehome lease is exempt from rent control is not an exclusively judicial function. "Statutory interpretation is ultimately a judicial function. `Nevertheless, "the contemporaneous construction of a statute by an administrative agency charged with its administration and interpretation, while not necessarily controlling, is entitled to great weight and should be respected by the courts unless it is clearly erroneous or unauthorized...."'" (Carson Harbor Village, Ltd. v. City of Carson Mobilehome Park Rental Review Bd. (1999) 70 Cal. App.4th 281, 290, 82 Cal.Rptr.2d 569.) The same standard applies to local ordinances. (Ibid.; Van Wagner Communications, Inc. v. City of Los Angeles (2000) 84 Cal.App.4th 499, 509, fn. 9, 100 Cal.Rptr.2d 922.)
The threshold exemption question presented to the Board is analogous to the question presented to a state agency in Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 4 Cal.Rptr.2d 837, 824 P.2d 643. In Lusardi, the Director of the Department of Industrial Relations initiated action against a building contractor who was working on a public hospital, but was not paying its employees prevailing wage rates. The contractor objected that the Director did not have authority to determine whether a construction project is a "public work" subject to the prevailing wage rule. The Supreme Court rejected the contractor's argument, finding that even though there was no express statutory authorization, the Director's function of promoting the welfare of California wage earners gives him an implied power to interpret statutes to determine whether a construction project is a "public work" subject to prevailing wage regulations. (Id. at pp. 988-989, 4 Cal.Rptr.2d 837, 824 P.2d 643.)
The same reasoning applies here. Although Civil Code section 798.17 does not expressly direct rent control boards to determine whether a mobilehome lease is exempt from regulation, authority to make this determination may be implied from the local agency's function of enforcing local laws prohibiting landlords from charging excess rents.[3] The local rent control agency's determination is, of course, subject to judicial review. "Administrative adjudication in the course of exercising an administrative agency's regulatory power, if subject to judicial review, does not deny participants their right to judicial determination of their rights." (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 15, 32 Cal.Rptr.2d 244, 876 P.2d 1043.) By applying Civil Code section *864 798.17 to the leases before it, the Board did not usurp a judicial function.
2. Application of Civil Code Section 798.17
Village was afforded a lengthy evidentiary hearing. The administrative record is several thousand pages long. The Board determined that Village's mobilehome leases do not satisfy the requirements of Civil Code section 798.17 and are not exempt from rent control. Though Village pursued judicial review by filing a petition for a writ of mandate, it has not argued in the trial court or in this court that the Board's determination is factually insupportable. Village maintains that the Board exceeded its jurisdiction, but it has not taken the next step of elucidating why the Board's factual and legal conclusions are incorrect. Absent any effort by Village to point to evidence that would establish its claim to an exemption under Civil Code section 798.17, the argument is waived. We must assume that the Board's determination is fully supported by the evidence, and that Village is not entitled to an exemption under Civil Code section 798.17.
3. Village's Right to Arbitration
The leases signed by Village's tenants include an arbitration clause. The leases state that "any dispute between us with respect to the provisions of this agreement and tenancy in the community shall be submitted to arbitration conducted under the provisions of Code of Civil Procedure section 1280, et seq." Village maintains that the arbitration clause removes its leases from the ambit of the Rent Control Law.
There are several problems with Village's argument. First, Village cannot exempt itself from the operation of local law by simply announcing that its leases are subject to arbitration. If this were the case, every landlord would similarly announce a personal exemption from the law, thereby undermining a local government's legitimate exercise of its police power. (See Carson Mobilehome Park Owners' Assn. v. City of Carson, supra, 35 Cal.3d at p. 189, fn. 4, 197 Cal.Rptr. 284, 672 P.2d 1297.) Second, the Board is not a party to the leases and is not bound by any arbitration clause or declaration of exemption from rent control. Third, the leases by their own terms state that rent control laws do not apply to the tenancies; therefore, the parties did not contemplate that a dispute over rent control would be an arbitrable matter. Fourth, the local ordinance voids any provision in a rental agreement that purports to waive a tenant's right to pursue a claim under the Rent Control Law. Village's leases are thus void to the extent that they limit tenants' rights to file claims with the Board.
4. Due Process
Village asserts that its right to due process was violated because it had no advance notice that its lease agreements failed to satisfy the exemption requirements listed in the MRL, or that it was subject to the Rent Control Law. Village complains that it was not given notice or an opportunity to comply with the requirements of the MRL before it was obliged to repay its tenants the excess rent it charged in violation of the Rent Control Law.
All landlords in the City are subject to the Rent Control Law, unless they can establish their right to an exemption. The provisions of the MRL are clear with respect to what a landlord must do to avoid rent control. According to the administrative findings (the substance of which are not challenged on appeal), Village's leases did not specify that they were for a term of more than 12 months; the tenants were *865 not offered a 30-day period for acceptance or rejection of the agreements; and they were not given a 72-hour period to void the agreements.[4] Village's failure to comply with the mandates of the MRL does not protect Village from an assessment of excess rent for a violation of the Rent Control Law. A landlord who has ignored the dictates of state and local law cannot legitimately argue it has no notice of its wrongdoing until an administrative body or court rules on the issue.
5. Assessment of Interest
Village contends that the Rent Control Law does not authorize the assessment of interest. In support of its argument, Village cites a provision of the City Charter stating that a landlord is liable for excess rent "and may be liable for an additional amount not to exceed Five Hundred Dollars ($500), for costs, expenses incurred in pursuing the hearing remedy, damages and penalties." (City Charter, art. XVII, § 1809, subd. (b).) From this, Village deduces that the Rent Control Law does not allow for interest.
As it turns out, the Board adopted regulations in 1990 that allow for an assessment of interest. The Rent Control Law expressly authorizes the Board to issue rules and regulations to further the purposes of the law. (City Charter, art. XVII, § 1803, subd. (g).) Regulation 8030 provides that the landlord, in addition to making restitution to the tenant, is liable for "an award of interest of up to $500 on the amount of the excess rent for the period of time during which such excess rent was retained prior to the date of the filing of the complaint. The applicable rate of interest shall be the rate specified by law (California Constitution, Article XV) and shall be simple interest." The administrative decision in this case imposed interest pursuant to regulation 8030.
Village believes that section 1809 of the City Charter conflicts with regulation 8030. "`The scope of our review of an administrative agency's regulations is limited: we consider whether the challenged provisions are consistent and not in conflict with the enabling statute and reasonably necessary to effectuate its purpose. [Citation.] As a general proposition, administrative regulations are said to be "shielded by a presumption of regularity" [citation] and presumed to be "reasonable and lawful." [Citation.] The party challenging such regulations has the burden of proving otherwise. [Citation.]'" (301 Ocean Avenue Corp. v. Santa Monica Rent Control Board (1985) 175 Cal.App.3d 149, 154, 221 Cal.Rptr. 610.) "If the Regulations' necessity is reasonably debatable, we cannot second-guess the legislative determination." (Id. at p. 157, 221 Cal.Rptr. 610.)
The "damages and penalties" language contained in section 1809 of the City Charter encompasses an award of interest. "The lack of express authorization for interest ... is not significant: `Such a provision would be redundant, as the Legislature provided elsewhere, and generally, in Civil Code section 3287 ... for the recovery of interest ... the right to recover which is vested in the claimant on a particular day.'" (Currie v. Workers' Camp. Appeals Bd. (2001) 24 Cal.4th 1109, 1116, 104 Cal.Rptr.2d 392, 17 P.3d 749.) In Currie, the Supreme Court concluded that the prejudgment interest awarded by the Workers' Compensation Appeals Board to a bus driver who was terminated for discriminatory reasons made up for "the lost use" of wages he was deprived of before his employer was compelled to reinstate *866 him to his job. (Id. at pp. 1118-1119, 104 Cal.Rptr.2d 392, 17 P.3d 749.) Similarly, an award of interest to Village's tenants makes up for their lost use of rent monies wrongfully collected by Village each month during the period in question.
The Board's Appeal
The trial court found that the Board's "calculation of damages by retroactively revoking all annual rent increases ... constitutes the imposition of a penalty that exceeds the judicial power of the [Board]. By such calculation the [Board] exacts from the landlord more than the tenant would have had to pay if the landlord had complied with the [Rent Control Law]. Such a penalty is not authorized by any statute, and there is no showing that it is necessary to effectuate the administrative agency's primary, legitimate, regulatory purposes."
The Board argues that it did not exceed its power by excluding allowable general adjustments from the maximum lawful rent for purposes of its overcharge calculations. It points to a provision in the Rent Control Law stating, "No landlord shall increase rent under this Article if the landlord: (1) Has failed to comply with any provisions of this Article and/or regulations issued thereunder by the Board...." (City Charter, art. XVIII, § 1805, subd. (h)(1).) Based on this provision, the Board adopted a regulation that excludes rent increases for the preceding three years from the maximum lawful rent, for purposes of calculating overcharges, regulation 8024.
Administrative agencies "regularly exercise a range of powers designed to induce compliance with their regulatory authority (e.g., imposition of fines or penalties, awards of costs and attorney fees)...." (McHugh v. Santa Monica Rent Control Bd., supra, 49 Cal.3d at pp. 378-379, 261 Cal.Rptr. 318, 777 P.2d 91.) An agency cannot impose treble damages because it "poses a risk of producing arbitrary, disproportionate results that magnify, beyond acceptable risks, the possibility of arbitrariness inherent in any scheme of administrative adjudication." (Id. at p. 379, 261 Cal.Rptr. 318, 777 P.2d 91.)
There is nothing arbitrary or disproportionate about the regulatory provision at issue here. The Rent Control Law denies rent increases to landlords who have failed to comply with its provisions. When a landlord fails to comply with the law, as Village did here, the Board does not give the landlord the benefit of implementing regular rent increases that the landlord would have enjoyed had the law been obeyed. By denying regular rent increases to noncompliant landlords, the Board is taking reasonable, nonarbitrary measures to induce compliance with the Rent Control Law. Those who comply with the law get the benefit of authorized rent increases; those who do not comply are not entitled to claim the benefit of a rent increase.
If the inclusion of all unauthorized rent increases in the calculation of damages operates as a penalty upon landlords who fail or refuse to obey the Rent Control Law, it is the kind of permissible penalty agencies may impose to induce compliance with their regulatory authority. (McHugh v. Santa Monica Rent Control Bd., supra, 49 Cal.3d at p. 379, 261 Cal.Rptr. 318, 777 P.2d 91.) The Legislature limits penalties and sanctions against landlords subject to rent control. A landlord who is "in substantial compliance" with local rent control laws cannot be assessed a penalty for noncompliance. (Civ.Code, § 1947.7, subd. (b).) "Substantial compliance" means that the landlord "has made a good faith attempt to comply" with the law and has, after receiving notice of a deficiency, *867 "cured the defect in a timely manner...." (Ibid.)
Village has not shown how it was "in substantial compliance" with the Rent Control Law. Village failed to comply with the MRL's fundamental requirement that a tenant be offered the choice of a shortterm or a long-term lease. (Civ.Code, § 798.17, subd. (c).) According to the unchallenged administrative findings, Village made all of its tenants sign long-term leases declaring an exemption from rent control, even when tenants wanted shortterm, rent-controlled leases. Once the Board alerted Village to its violation of the Rent Control Law, Village made no effort to comply with the law. Under the circumstances, we cannot say that Village substantially complied with the Rent Control Law, or that the Board was precluded from imposing a penalty to induce Village's compliance with the Rent Control Law.
The trial court erred by finding that there is no authority for the Board's calculation of damages; furthermore, including all unauthorized rent increases in the damages calculation helps to effectuate the Board's primary, legitimate regulatory purpose of inducing landlords to comply with the Rent Control Law.
DISPOSITION
The petition for a writ of mandate filed by Village Trailer Park is denied. The petition for a writ of mandate filed by the Santa Monica Rent Control Board is granted. Let a writ of mandate issue directing the trial court to vacate its order remanding the cause to the Rent Control Board for further proceedings. Costs are awarded to the Rent Control Board.
We concur: NOTT and DOI TODD, JJ.
NOTES
[1] The MRL exempts from rent control mobilehome leases that are for a term of more than 12 months, if the homeowner (a) uses the rental as a personal residence, (b) is offered a 30-day period for acceptance or rejection of the rental agreement, (c) is afforded a 72-hour period to void the rental agreement, and (d) is given the choice of signing a short-term lease. (Civ.Code, § 798.17, subds.(b)-(c).)
[2] The court decided at the outset that the Escondido rent control ordinances were invalidly amended by the city council rather than through the initiative process. (Escondido, supra, 35 Cal.App.4th at pp. 40-43, 41 Cal.Rptr.2d 393.) Nevertheless, the court went on to address the substance of the invalid amendments as a matter of public interest. (Id. at p. 43, 41 Cal.Rptr.2d 393.)
[3] We observe that when the Legislature wants to limit the authority of a local rent control agency, it expressly says so. For example, Civil Code section 1947.10 authorizes an award of treble damages against a landlord who evicts a rent-controlled tenant by falsely claiming that the landlord (or his immediate relative) intends to occupy the unit. The statute specifies: "If a court determines that the eviction was based upon fraud by the owner ... a court may order the owner to pay treble the cost of relocating the tenant...." (Civ. Code, § 1947.10, subd. (a), italics added.) No similar limitation conferring power exclusively on the judiciary is stated in Civil Code section 798.17.
[4] See footnote 1, ante.
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Revised December 30, 2002
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11591
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FREDERICK PHILIP JETER,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
December 16, 2002
Before JOLLY and DUHÉ, Circuit Judges, and LITTLE,1 District Judge.
DUHÉ, Circuit Judge:
This appeal asks us to determine whether the district court
erred in rejecting defendant’s initial plea agreement, and whether
the district court engaged in plea negotiations. Finding no abuse
of discretion in the rejection of the initial plea agreement and no
engagement in plea negotiations by the district court, we affirm.
I.
Frederick Philip Jeter was indicted on charges of being a
1
F.A. Little Jr., Senior U.S. District Judge, Western District
of Louisiana, sitting by designation.
felon in possession of firearms (Count 1), using or carrying a
firearm during and in relation to a drug trafficking crime (Count
2), and possession with intent to distribute cocaine base (Count
3). Upon learning that the State of Texas was pursuing offenses
similar to those charged in Counts 2 and 3, the Government agreed
in the plea agreement to dismiss those counts; Jeter agreed to
plead guilty to Count 1, being a felon in possession of a firearm.
The district court expressed concern about the disparity
between the sentence Jeter would face if convicted of all charges
and the sentence Jeter would face under the plea agreement. The
plea agreement, the court said, would defeat one of the goals of
the sentencing guidelines, i.e., to ensure that repeat drug
offenders receive harsher sentences for subsequent drug crimes.
The court also indicated that it might be unable to accept the plea
agreement if unable to make the findings required by U.S.S.G.
§ 6B1.2(a), i.e., that the remaining charge adequately reflected
the seriousness of the offense and that accepting the agreement
would not undermine the statutory purposes of the guidelines.2 Due
2
This Guideline provides,
(a) In the case of a plea agreement that includes the dismissal
of any charges . . . the court may accept the agreement if the
court determines, for reasons stated on the record, that the
remaining charges adequately reflect the seriousness of the
actual offense behavior and that accepting the agreement will
not undermine the statutory purposes of sentencing or the
sentencing guidelines.
U.S.S.G. § 6B1.2.
2
to these concerns, the district court deferred acceptance of the
plea agreement.
After receiving additional information, the district court
noted that Jeter’s guideline sentencing range under the guilty plea
would be some 30 months lower than if Jeter were convicted of all
of the charges against him. The district court also determined
that accepting the plea agreement would undermine one of the
objectives of the sentencing guidelines, which is to ensure that
prior drug offenses are taken into account in the sentencing for
future drug offenses. Accordingly, the district court determined
that it could not make the findings contemplated by § 6B1.2 and
rejected the plea agreement.
Thereafter, the parties entered into a second plea agreement:
Jeter would plead guilty to Counts 2 and 3, using and carrying a
firearm during a drug trafficking crime and possession with intent
to distribute cocaine base, and the Government would dismiss Count
1, being a felon in possession of a firearm. The court accepted
that second plea agreement.
II.
Jeter first argues that the district court abused its
discretion when it rejected the initial plea agreement by usurping
the Government’s exclusive authority to determine when a
prosecution should be terminated. In addition, Jeter argues that
the district court’s reasons for rejecting the initial plea
agreement were misplaced.
3
We review a district court's rejection of a plea agreement for
abuse of discretion. See United States v. Crowell, 60 F.3d 199,
205 (5th Cir. 1995); see also United States v. Foy, 28 F.3d 464,
473 (5th Cir.), cert. denied, 513 U.S. 1031 (1994). “A district
court abuses its discretion if it bases its decision on an error of
law or a clearly erroneous assessment of the evidence.” United
States v. Mann, 161 F.3d 840, 860, (5th Cir. 1998), cert. denied,
566 U.S. 1117 (1999).
The Government’s authority in choosing what offenses a
defendant will face is tempered by the role of the district court
in accepting or rejecting plea agreements. Fed. R. Crim. P.
11(e)(2)(district court “may accept or reject the [plea]
agreement"); see also United States v. Adams, 634 F.2d 830, 835
(5th Cir. Unit A Jan. 1981) (Rule 11 does not limit a district
court's discretion in rejecting a plea agreement). Although the
Government initially believed that dismissing the counts similar to
pending state charges was appropriate, the district court correctly
pointed out that it could not accurately assume that those charges
would proceed in state court.
In rejecting the initial plea agreement, the district court
noted “a three-year discrepancy between the bottoms of the
guideline ranges and a 30-month discrepancy between the top.” In
doing so, the district court concluded that the sentence Jeter
would receive under the initial plea agreement might be unduly
lenient. The court's belief that the defendant would receive too
4
light a sentence is a sound reason for rejecting a plea agreement.
Crowell, 60 F.3d at 205-06; Foy, 28 F.3d at 472; United States v.
Bean, 564 F.2d 700, 704 (5th Cir. 1977).
The court also stated that it felt that a conviction under the
initial plea agreement would defeat the objectives of the
sentencing guidelines. For these reasons, the district court
concluded that it could not make the findings contemplated by
§ 6B1.2(a). A court may reject a plea agreement if it determines
that accepting the plea agreement will undermine the statutory
purposes of sentencing or the sentencing guidelines or if it finds
that the remaining charges do not adequately reflect the
seriousness of a defendant’s actual offense behavior. See U.S.S.G.
§ 6B1.2(a); Crowell, 60 F.3d at 206 (affirming rejection of
agreement since district court determined that plea would not meet
standards of § 6B1.2(a)); Foy, 28 F.3d at 473 n.15 (holding that
district court’s rejection of plea under § 6B1.2(a) criteria would
not be an abuse of discretion).
The district court relied on both the sentencing discrepancy
and its conclusion that the initial plea agreement did not satisfy
the objectives of the sentencing guidelines in rejecting the plea
agreement – both permissible grounds for rejecting a plea. See
Crowell, 60 F.3d at 205-06. Accordingly, we find no abuse of
discretion in the court’s rejection of that agreement.
III.
Jeter next argues that the district court violated Rule
5
11(e)(1) by engaging in plea negotiations. Jeter contends that in
rejecting the initial plea agreement, the district court made it
clear that it would not accept any subsequent plea agreement that
did not result in a drug conviction.3 Jeter argues that the
3
Jeter contends statements in evaluating the initial plea
agreement were actually suggestions for an appropriate
accommodation in a subsequent plea agreement. At the first re-
arraignment hearing, the district court expressed concerns about
the anticipated sentencing range and stated,
That’s always caused me some concern, that if a plea
agreement is accepted and a plea is made pursuant to a non-
drug offense, it sort of bypasses the intent of the statute
where if somebody who has committed a certain number of drug
offenses will receive a certain punishment. You frustrate
that objective if the plea -- if he’s committed a drug offense
but is pleading to something else.
During a later conference, the court reiterated,
Another issue that I’ve always had a concern about where
you’re trading off a drug conviction for something other than
a drug conviction, then you’re defeating an objective of the
sentencing provisions in the statute and that is that if he in
the future is convicted of a drug offense, then his punishment
at that time will be based in part on his history of drug
offenses. And when you have a plea agreement that
contemplates that he won’t plead guilty to a drug offense that
he, in fact, is guilty of, if that is the case, then that
defeats that statutory objective of sentencing.
Rejecting the initial plea agreement, the district court
discussed the requirements of Guideline § 6B1.2(a), noted the
discrepancy between the sentencing range after the plea and the
range after a conviction on all charges, and stated,
In other words, if I were to approve the plea agreement and
sentence on the basis of the plea agreement, then there would
not be a conviction for the drug offense with the consequence
that one of the objectives of sentencing, that is, the prior
drug offenses, be taken into account in the sentencing for
future drug offenses would be defeated. So, I’ve concluded
that I cannot make the determinations contemplated by Section
6B1.2; therefore, I’ve concluded that I cannot accept the plea
agreement.
Considering the second plea agreement, the district court again
expressed concern over the disparity in sentencing ranges. At
sentencing, the court stated:
I’m not going to approve the plea agreement in the sense
6
district court’s concerns dictated the outcome of his case.
A district court is absolutely prohibited from participating
in plea negotiations. Fed. R. Crim. P. 11(e)(1); United States v.
Miles, 10 F.3d 1135, 1139 (5th Cir. 1994). Judicial involvement
in the plea negotiation process is to be strictly limited to
rejection of the agreement and an explanation for the rejection.
See id. at 1139-40; Fed. R. Crim. P. 11(e)(3). Nevertheless, under
Rule 11 “a district court must actively participate in the
discussions that occur after a plea agreement is disclosed."
Crowell, 60 F.3d at 203.
The fact that the parties rely on the district court’s
comments in fashioning a subsequent plea agreement is not
determinative of whether the district court engaged in plea
negotiations. Id. at 204. Rather, when evaluating a district
court’s comments concerning a plea agreement, “[t]he proper inquiry
is whether the district court was actively evaluating a plea
agreement, as the court is required to do, or whether the court is
suggesting an appropriate accommodation for a subsequent plea
agreement, something this Court found prohibited in Miles.” Id.
contemplated by the guidelines because I can’t make the
findings that would be required for me to apply the -- approve
it under the standard proposed by the guidelines, and normally
I would not approve a plea agreement of this kind. But
somewhat because of the history of this case, I’m going to go
ahead and accept the plea agreement, but it’s not in a sense
that I approve it or think it’s a proper plea agreement. I’m
simply going to go forward with the sentencing and not reject
the plea agreement.
7
We observe that the district court did not engage in plea
negotiations; rather, it properly stated its reasons for rejecting
the plea agreement. The district court merely expressed its
concerns with the initial plea agreement, and did not suggest an
appropriate accommodation for a subsequent plea. Nowhere did the
district court state, as Jeter contends, that a plea would have to
result in a drug conviction in order to be acceptable. See supra
n.3; cf. Crowell, 60 F.3d at 203 (finding a violation of Rule 11 in
district court’s suggestion that, for a plea to be acceptable, “a
sentence significantly in excess of what [Crowell] likely would
serve under the prior . . . plea agreement would be required”).
In this case the district court neither interfered with
ongoing plea negotiations, as in Crowell, nor specified what plea
agreement would be acceptable, as in Miles. Accordingly the
judgment of the district court is
AFFIRMED.
8
| {
"pile_set_name": "FreeLaw"
} |
810 N.E.2d 96 (2004)
348 Ill.App.3d 498
284 Ill.Dec. 443
The PEOPLE of the State of Illinois Plaintiff-Appellee,
v.
Pierre JAMES Defendant-Appellant.
No. 1-02-2642.
Appellate Court of Illinois, First District, Third Division.
May 5, 2004.
Rehearing Denied June 2, 2004.
*99 Michael J. Pelletier, Deputy Appellate Defender of the State of Illinois (Jennifer L. Blagg, Assistant Appellate Defender, of counsel), for Appellant.
Richard A. Devine, State's Attorney of Cook County (Renee Goldfarb, Peter Fischer, Samuel Shim, Assistant State Attorneys, of counsel), for Appellee.
Justice KARNEZIS delivered the opinion of the court:
Defendant Pierre James was tried in a joint jury trial with codefendant Willie Bishop and was convicted of first degree murder and sentenced to 40 years' imprisonment.[1] On appeal, defendant contends: (1) the trial court erred in denying his request for a continuance to secure two alibi witnesses as well as an additional witness who would testify as to defendant's hairstyle at the time of the crime; (2) the trial court erred in denying his request for a severance and in permitting codefendant's tattoo to be introduced into evidence; (3) the trial court erred in admitting gang-related evidence; and, (4) Illinois Pattern Jury Instructions Criminal, No. 3.15 (4th ed.2000) (hereinafter IPI Criminal 4th No. 3.15) was erroneous. We affirm.
Defendant's conviction stems from a series of gang-related events in which the victim, Cory Boston, was shot and killed on June 26, 1998. The relevant events that led to the victim's death began on the afternoon of May 4, 1998. On that date, near the intersection of 111th Place and Aberdeen Street in Chicago, defendant exited a car driven by codefendant and began shooting at a group of men who were gathered outside a convenience store. The group of men were members of the Black Disciples, which was a rival gang of the Gangster Disciples, of which defendant and codefendant were alleged to be members. Defendant approached a car in which Robert Williams was sitting, pointed a gun at him and stated, "This is for my Folks, guy." Defendant pulled the trigger but the gun did not fire. Williams sped away and defendant ran back to codefendant's car. About a block later, the two cars crashed into one another. Codefendant fled the scene while defendant remained in the car partially unconscious. A group of men who were Black Disciples converged on the car and beat defendant until police officers arrived. Police officers recovered two guns near the car; however, the guns were never submitted for fingerprint analysis. Defendant was identified by eyewitnesses Robert Williams, Tyrice Jones and Marvin Dixon, all of whom testified to the above at trial.
Williams further testified he recognized defendant because he had seen defendant around the neighborhood about five or six times prior to that day. Jones also testified he knew defendant from the neighborhood and identified defendant as a Gangster Disciple. Jones was formerly a Gangster Disciple. Dixon further testified he had known defendant for about eight years because defendant used to "hang around" the high school Dixon attended. Dixon testified he is not a gang member.
The victim's uncle, Steven Boston, testified that sometime prior to June 26, 1998, he was driving in his car when the vehicle in front of him stopped and defendant exited the vehicle. Defendant approached his car and informed Boston that the victim had beat him while he was "down" or had "messed" up his face. Defendant then told Boston that he was going to "come after" the victim and the others who had beaten him.
*100 At about midnight on June 26, 1998, defendant, codefendant and a third, unknown individual returned to the same area near the intersection of 111th Place and Aberdeen Street. At that time, Marvin Dixon and Pierre Martin were outside covering his girlfriend's car. Tyrice Jones was sitting in a car parked across the street and the victim was sitting in his car, which was parked behind Jones' car. Ed Calmes was standing on the front porch of his home. Defendant, codefendant and the third individual approached the area on foot and fired shots at Dixon and Martin. They then approached the victim's car. One of the men approached the driver's side while the other two men approached the passenger side. The men then fired into the victim's car, killing him. Calmes, Jones and Dixon testified at trial, all identifying defendant and codefendant as two of the men who shot the victim.
Calmes further testified that he recognized defendant because he had seen defendant around the neighborhood about a dozen times prior to that evening. Calmes stated that defendant was the man who had approached the driver's side of the victim's car. He also stated that defendant's hair was in braids, like "corn rows." Calmes identified defendant in a lineup about two weeks later, but told officers defendant had changed his hairstyle. Defendant's braids had been cut off and he had one long braid down the back of his head. Calmes admitted to having several prior convictions.
Jones further testified he heard Dixon yell, "oh shit, there go Pierre," and then heard gunshots. He saw defendant at the driver's side of the victim's car. Jones described defendant's hairstyle that night as a long ponytail. Jones also admitted he had prior convictions.
Dixon further testified he saw defendant run down the middle of the street with a gun in his hand. Dixon yelled, "oh shit," and ran. Despite Jones' testimony, Dixon stated he did not say, "there go Pierre." Dixon then saw defendant shooting into the victim's car. Dixon also admitted he had prior convictions.
Prior to defendant's trial, Dixon had been arrested and was in jail awaiting trial. According to Dixon's testimony, when he was transported from the jail to the courthouse to testify at defendant's trial, he was placed in the same "bullpen" or lockup area as defendant and codefendant. Defendant and codefendant approached Dixon and defendant expressed remorse for the shooting and blamed the shooting on his "youthful actions." Defendant also told Dixon he could help Dixon with his case if Dixon did not testify at defendant's trial. Defendant stated he could "hurt" the witnesses in Dixon's case. Dixon understood that "hurt" meant to shoot the witnesses because defendant then made a shooting gesture like he was pulling a trigger. Dixon informed the assistant State's Attorney what had happened in the lockup area and Dixon was placed in a segregated unit of the jail in the witness protection program. Dixon admitted he received a credit on his account at the jail commissary for $35 a week as a result of being placed in the protection program. Dixon stated, however, the assistant State's Attorney informed him they would not make any "deals" with him on his pending case in exchange for his testimony at defendant's trial.
Detective Louis Caesar testified he interviewed defendant in July 1998, and defendant told the detective he did not remember his whereabouts the night the victim was killed.
Assistant State's Attorney Stanislaus Gonsalves testified that he also interviewed defendant in July 1998, and defendant denied any involvement in the shooting *101 and further said he had witnesses who would testify to his whereabouts that evening but could not provide their names or addresses.
Investigator Thomas Ptak testified as the State's gang expert. Ptak stated that defendant had numerous tattoos that he believed signified defendant was a Gangster Disciple. Ptak also testified that codefendant had a tattoo of two semiautomatic pistols pointing upward with gunpowder coming out from both barrels and the words, "retaliation is a must."
After Ptak's testimony, the court asked defense counsel how many witnesses she expected to testify. Counsel advised the court she expected to call about four or five witnesses. The court informed counsel that she could call the witnesses out of turn if necessary. Prior to adjourning court for the day, the court advised the parties that the case would probably conclude the next day. The court then informed the parties that it would reconvene court at 10:45 a.m. the next day so that the case could go to the jury "reasonably early."
The next day, the State rested it's case and defendant moved for a directed verdict. The trial court denied defendant's motion and defendant proceeded with his case in chief.
Officer Pamela Guice testified that the night the victim was shot, she met with Dixon and Jones at the hospital. Officer Guice acknowledged that Jones told Guice's partner that he saw "Willie P run up to the vehicle along with two unknown offenders firing several shots into the vehicle."
The parties then entered into a stipulation that if Assistant States's Attorney Dan Reedy was called to testify, he would state that the first time he spoke with the victim's uncle, Steven Boston, was not until April 2000, more than a year and a half after the shooting.
Defense counsel then called Pierre Martin to testify. Martin testified that he was formerly a Gangster Disciple but was not a gang member on the night the victim was killed. Martin also stated that when he heard gunshots, Dixon said neither, "oh shit" nor "it's Pierre."
Defendant's cousin, Carrie Lowe, testified as to defendant's hairstyle throughout the summer of 1998. Lowe stated that in May 1998, defendant wore his hair in individual braids, not "corn rows." According to Lowe, defendant cut most of his braids, except for a few in the back, around the middle of May. Defendant then cut all his braids except one.
Defense counsel asked the court for a sidebar, and a discussion was had off the record. The court then advised the jury that they would be brought back out at 3:15 p.m. At 3:15 p.m., court reconvened and defense counsel asked the court for a 10-minute continuance because there were three additional witnesses who had not arrived, but had been in court the previous day. The trial court denied counsel's request and counsel rested her case, informing the court, "I have no choice but to rest."
While the jury deliberated, defense counsel moved for a mistrial on the basis that the trial court's denial of counsel's request for a 10-minute continuance was erroneous. Counsel argued that her witnesses had arrived in court about five minutes after counsel had rested and were late due to a traffic accident on the expressway. The trial court denied counsel's motion, stating that the court had directed the witnesses to arrive at 10:45 a.m. that day.
The jury found both defendant and codefendant guilty of first degree murder. *102 Subsequently, counsel filed a motion for a new trial, alleging numerous errors. At the hearing on the motion, defense counsel made an offer of proof as to what the three witnesses would have stated had they been present to testify. Tracey Poulos, the first alibi witness, would have testified that she lived in Riverdale, Illinois, and that on the afternoon and evening of June 26, 1998, defendant was at her home. That afternoon and evening, defendant and several other individuals were in her basement watching movies. She would further state that none of them left her home that evening and they were all there the next morning. Defense counsel further stated that if Rena Williams, who is Poulos' daughter, had testified, she would have testified consistent with Poulos' testimony.
As to the third witness, Charita James, defense counsel stated that James, who is defendant's sister, would have testified that she saw defendant shortly after the May 4, 1998, incident and defendant had cut his hair. She would also state that in May, June, July, and August of 1998, defendant had short hair that was shaved close to his head, but had one skinny braid down the back of his head. Defense counsel further advised the court that none of the witnesses' statements had been memoralized in writing.
The assistant State's Attorney responded that he and an investigator had spoken with Rena Williams, and Williams was unable to remember the specific date that defendant had stayed at their house. Williams informed them that she was a student and had been on vacation from May 1998 until June 1998. The assistant State's Attorney further informed the court that Williams had told him that Poulos would let defendant stay at their house whenever defendant was in trouble in his neighborhood because defendant could "hide out" there. Williams also stated that defendant returned to their house the day the "boys had been shot up in the neighborhood and said that the police were looking for him." Williams further told them that defendant was arrested about a week later, and it was just before his arrest that defendant cut his hair.
The assistant State's Attorney also stated that Tracey Poulos and Charita James refused to speak with them. The State further pointed out that during the trial, the court had permitted counsel to call any witnesses out of order, which counsel could have done the day these witnesses had allegedly been in court. The trial court denied defendant's motion for a new trial, and defendant now appeals.
On appeal, defendant first contends the trial court abused its discretion in denying defense counsel's motion for a 10-minute continuance to secure the testimony of Tracey Poulos, Rena Williams and Charita James. Defendant contends the witnesses' testimony was crucial because Poulos and Williams would have provided defendant with an alibi, and James would have testified as to defendant's hairstyle the night the victim was killed.
Whether to grant or deny a motion for a continuance to secure the presence of a witness is within the sound discretion of the trial court, and its ruling will not be reversed on appeal in the absence of a clear abuse of discretion. People v. Ward, 154 Ill.2d 272, 307, 181 Ill.Dec. 884, 609 N.E.2d 252 (1992). Upon review of the denial of a motion, the factors to be considered are: (1) whether the defendant was diligent in attempting to secure the witness for trial, (2) whether the defendant has shown the testimony was material and might have affected the jury's verdict, and (3) whether the defendant was prejudiced by the denial of the motion for a continuance. Ward, 154 Ill.2d at 307, 181 Ill.Dec. 884, 609 N.E.2d 252.
*103 Here, although defendant contends the witnesses' testimony is material to the case, we find that their testimony would not have changed the jury's verdict. The proposed testimony of Rena Williams would have been completely contradicted by the statements she gave to the assistant State's Attorney. That would have left Tracey Poulos as the sole alibi witness. Even if Poulos had testified as alleged in the offer of proof, her testimony would have been viewed with great skepticism by the jury, who heard the testimony of Calmes, Jones and Dixon, the three eyewitnesses who identified defendant as one of the three men who shot the victim. Each of the eyewitnesses testified he had known defendant from the neighborhood and their testimony was mainly consistent. Also, Calmes and Jones specifically identified defendant as the individual who approached the driver's side of the victim's car. Although the witnesses' testimony differed slightly as to whether defendant had one long braid or numerous braids, this is insufficient to raise an issue of reasonable doubt. Minor inconsistencies in testimony do not, by themselves, create a reasonable doubt. People v. Brisbon, 106 Ill.2d 342, 360, 88 Ill.Dec. 87, 478 N.E.2d 402 (1985).
Defendant relies on People v. Timms, 59 Ill.App.3d 129, 17 Ill.Dec. 37, 375 N.E.2d 1321 (1978), and People v. Street, 133 Ill.App.2d 536, 273 N.E.2d 172 (1971). In Timms, the defendant was convicted of armed robbery based on the testimony of two eyewitnesses. At trial, he presented an alibi defense and testified that, the day the robbery occurred, he was at his parents' home. The testimony of the defendant's wife as well as his mother corroborated his testimony. Late in the afternoon of the second day of trial, defense counsel learned that the defendant's father, who is a minister and mayor of his home town, as well as the defendant's brother, were unable to testify in court that day. Defense counsel asked for a one-day continuance, which the trial court denied. On appeal, this court found the trial court abused its discretion in denying the motion for a continuance because the testimony of the two additional alibi witnesses, which would have corroborated the defendant's testimony, was material and could have affected the outcome of the trial. The court found that because the defendant's credibility as well as the credibility of his alibi witnesses was crucial to the case, the trial court should have granted the continuance. Timms, 59 Ill.App.3d at 136, 17 Ill.Dec. 37, 375 N.E.2d 1321. The court also noted, the fact that the defendant's father was a minister as well as mayor of a town might have caused the jury to place a "special degree of confidence" in his testimony. Timms, 59 Ill.App.3d at 137, 17 Ill.Dec. 37, 375 N.E.2d 1321. The court concluded that under these circumstances, had the witnesses been permitted to testify, the outcome of the trial might have been different. Timms, 59 Ill.App.3d at 137, 17 Ill.Dec. 37, 375 N.E.2d 1321.
Here, unlike Timms, the testimony of Tracey Poulos would not have affected the outcome of the trial. As stated above, her proposed testimony would have been considered in combination with the strong eyewitness testimony. Also, because the testimony of Rena Williams would have been contradictory and damaging, there would have been no other corroboration of Poulos' alibi testimony and the jury would have disregarded it.
In Street, the defendant was convicted of armed robbery based on the testimony of a single eyewitness who had not given police officers a description of the defendant, but had identified the defendant in a lineup. The defendant presented an alibi defense at trial and testified that at the time of the robbery he was at home with his girlfriend *104 having dinner. The defendant further testified that he left his home later that evening to borrow a car to help his friend move. On the second day of trial, before the court recessed the jury for lunch, the court informed those present, that it was possible they would adjourn early that day because of other matters before the court. The court had adjourned the previous day at 2 p.m. to take care of other matters before the court. When court resumed after lunch, defense counsel presented the testimony of the defendant's girlfriend, who corroborated his testimony. Defense counsel then moved for a continuance to bring in at least one other witness the next day. The trial court denied the motion and refused to allow defense counsel to make an offer of proof. This court found on appeal that the trial court erred in denying the continuance because the time schedule enunciated by the trial court was so vague and because defense counsel was denied the opportunity to submit an offer of proof. Street, 133 Ill.App.2d at 541, 273 N.E.2d 172. This court also found that although it could not speculate as to what the witnesses might have testified, the continuance should have been granted so that the defendant's " possible avenues of defense," including the testimony of the defendant's friend from whom he borrowed the car, could have been developed. Street, 133 Ill.App.2d at 541-42, 273 N.E.2d 172.
We also find Street distinguishable. Unlike in Street, the trial court here was very clear that court would begin at 10:45 a.m. that morning. The trial court was also very clear that court would reconvene at 3:15 p.m. that afternoon. The trial court had also given defense counsel an opportunity to call the witnesses out of order the previous day. Further, it is clear from the offer of proof that Poulos' testimony would not have changed the jury's verdict.
We also find that Charita James' testimony would not have affected the outcome of the trial because it would have been cumulative to Carrie Lowe's testimony. Lowe testified that in May 1998, defendant cut his braids off and only had one long braid. Coincidently, Lowe's description is similar to Jones' description that on the night the victim was killed, defendant's hair was in a ponytail. As stated above, although Calmes stated that defendant's hair was in "corn rows" at the time of the shooting, minor inconsistencies in testimony do not, by themselves, create a reasonable doubt. Brisbon, 106 Ill.2d at 360, 88 Ill.Dec. 87, 478 N.E.2d 402. Further, Calmes testified that when he identified defendant in a lineup, defendant had cut his hair, except for one long braid.
Defendant next contends the trial court erred in denying his request for a severance because he was prejudiced by codefendant's "retaliation is a must" tattoo. Prior to trial, defense counsel made an oral motion to sever defendant's and codefendant's trials on the basis that defendant was prejudiced by codefendant's tattoo. Defendant argued he was prejudiced because the tattoo was a "statement" that defendant was unable to confront and cross-examine codefendant about because codefendant would not testify at trial. Specifically, defendant argued that such a situation violates the rule of law announced in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The trial court denied the motion, finding that the words contained in the tattoo were not a "statement" that would implicate Bruton.
The general rule regarding severance is that jointly indicted defendants will be tried together (People v. Strayhorn, 35 Ill.2d 41, 219 N.E.2d 517 (1965)), unless fairness to one of the defendants requires a separate trial to avoid prejudice. People v. Lee, 87 Ill.2d 182, 57 Ill.Dec. 563, 429 *105 N.E.2d 461 (1981). Illinois courts have recognized two independent sources of prejudice that necessitate separate trials. People v. Rodriguez, 289 Ill.App.3d 223, 235, 223 Ill.Dec. 807, 680 N.E.2d 757 (1997). The first, upon which defendant's contention is based, involves an interference with the constitutionally guaranteed right of confrontation. The other involves a situation in which the codefendants' defenses are so antagonistic to each other that one of the codefendants cannot receive a fair trial jointly with the others.
In the first situation, a severance is necessary when one defendant has made out-of-court admissions that implicate a codefendant. Where these statements are introduced into evidence, even with limiting instructions to the jury not to consider the statements against the codefendant, the codefendant's sixth amendment right of confrontation can be violated. Bruton v. United States, 391 U.S. at 137, 88 S.Ct. at 1628, 20 L.Ed.2d at 485-86. In Bruton, codefendant Evans orally confessed that he and Bruton committed the offense of armed postal robbery. At their joint trial, Evans' confession was introduced into evidence. The trial court instructed the jury that Evans' confession, which implicated Bruton in the crime, could only be considered as evidence against Evans and not Bruton. On appeal, the United States Supreme Court held that "because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining [Bruton's] guilt, admission of Evans' confession in this joint trial violated [Bruton's] right of cross-examination secured by the Confrontation Clause of the Sixth Amendment." 391 U.S. at 126, 88 S.Ct. at 1622, 20 L.Ed.2d at 479.
In Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514, 526 (1986), the United States Supreme Court further noted that "[o]ur cases recognize that this truthfinding function of the Confrontation Clause is uniquely threatened when an accomplice's confession is sought to be introduced against a criminal defendant without the benefit of cross-examination."
The decision to grant or deny a severance rests within the sound discretion of the trial court and will not be reversed absent abuse. People v. Byron, 116 Ill.2d 81, 92, 107 Ill.Dec. 192, 506 N.E.2d 1247 (1987).
Applying the rule of law announced in Bruton, we must consider whether codefendant's tattoo is an out-of-court confession or admission that implicated defendant in the crime charged. Although the tattoo contains a "statement" per se, we do not believe the tattoo could reasonably be construed as either a confession or an admission implicating defendant in the crime charged. The constitutional violation that Bruton safeguards against is a nontestifying codefendant's out-of-court hearsay statement that implicates the defendant in the crime charged. The Bruton Court observed that the credibility of the incriminating extrajudicial statements of a codefendant who stands accused "side-by-side" with the defendant are "inevitably suspect." Bruton, 391 U.S. at 136, 88 S.Ct. at 1628, 20 L.Ed.2d at 485. We simply cannot construe codefendant's tattoo as falling within the confines of this rule of law.
Although the specific question of whether a tattoo that contains a "statement" can trigger a Bruton violation has not been addressed by this court, this court's holding in People v. Davenport, 301 Ill.App.3d 143, 234 Ill.Dec. 169, 702 N.E.2d 335 (1998), is somewhat instructive. In Davenport, the State was permitted to identify the codefendant's numerous tattoos denoting *106 his gang affiliation in the Black P-Stone Nation including the tattoos "B.P.S.," "B.S.," and the phrase "Stone life." Davenport, 301 Ill.App.3d at 149, 234 Ill.Dec. 169, 702 N.E.2d 335. This court determined as a matter of first impression that a tattoo was not testimonial in nature and the defendant's sixth amendment right to confrontation was not violated where a nontestifying codefendant's gang tattoos were displayed to the jury. Davenport, 301 Ill.App.3d at 154, 234 Ill.Dec. 169, 702 N.E.2d 335, habeas corpus granted, United States ex rel. Clemons v. Walls, 202 F.Supp.2d 767 (N.D.Ill.2002), habeas corpus reversed by Clemons v. McAdory, 58 Fed. Appx. 657 (7th Cir.2003). Davenport further noted that courts in California and Hawaii have essentially reached similar conclusions in holding that a person or his body may be used as an exhibit or demonstrative evidence, citing People v. Morgan, 191 Cal.App.3d 29, 236 Cal.Rptr. 186 (1987), and State v. Kaiama, 81 Hawai'i 15, 911 P.2d 735 (1996).
Defendant argues Davenport is factually distinguishable because codefendant's tattoo was not just an illustration; rather, it contained a statement implicating defendant, which constituted "written hearsay." As stated above, we do not believe codefendant's tattoo can be construed as a confession or admission implicating defendant in the crime charged.
Defendant also maintains that the jury should have received a limiting instruction advising them that the tattoo was only admissible as to codefendant and not defendant. We note, however, that defense counsel never requested a limiting instruction. Defendant's contention is waived. Further, the court did instruct the jury before deliberations that evidence admitted as to codefendant could not be considered against defendant. We find no error. Defendant additionally maintains that the prosecutor's statements in closing arguments referencing codefendant's tattoo were also prejudicial. Again, defense counsel failed to object and defendant's contention is waived. We conclude the trial court did not abuse its discretion in denying defendant's motion for severance.
Defendant further contends codefendant's tattoo was improperly admitted into evidence because it was not relevant to prove motive and was highly inflammatory with little or no probative value and prejudiced defendant.
Although the State has no obligation to prove motive, the State may introduce evidence which tends to show that an accused had a motive for killing the deceased. People v. Smith, 141 Ill.2d 40, 56, 152 Ill.Dec. 218, 565 N.E.2d 900 (1990). Any evidence which tends to show that an accused had a motive for killing the deceased is relevant because it renders more probable that the accused did kill the deceased. Smith, 141 Ill.2d at 56, 152 Ill.Dec. 218, 565 N.E.2d 900. For such evidence to be considered competent, it must, "`at least to a slight degree, tend to establish the existence of the motive relied upon or alleged.'" People v. Easley, 148 Ill.2d 281, 326, 170 Ill.Dec. 356, 592 N.E.2d 1036 (1992), quoting Smith, 141 Ill.2d at 56, 152 Ill.Dec. 218, 565 N.E.2d 900.
Here, codefendant's tattoo was admitted to establish that the motive for shooting the victim was retaliation for injuries defendant suffered at the hands of rival gang members. Also, the additional evidence presented at trial established that defendant had threatened to "come after" those who he believed had beat him. Further, the State proceeded on an accountability theory, meaning that defendant and codefendant were responsible for each other's actions regardless of whose bullets *107 actually struck the victim. We find the admission of codefendant's tattoo relevant and proper.
Defendant next contends the trial court erred in admitting gang-related evidence. He maintains that because the shooting could have been explained without the introduction of gang evidence, it was error to admit any evidence of gang activity.
Evidence that the defendant was a member of a gang or participated in gang-related activities may be admissible at trial, despite its prejudicial effect, to establish a common purpose or design or to provide a motive for an otherwise inexplicable act. People v. Patterson, 154 Ill.2d 414, 458, 182 Ill.Dec. 592, 610 N.E.2d 16 (1992). However, the evidence's prejudicial effect must not substantially outweigh its probative value. People v. Fluker, 318 Ill.App.3d 193, 204, 252 Ill.Dec. 261, 742 N.E.2d 799 (2000). The trial court's ruling is not to be overturned on appeal unless a clear abuse of discretion is shown. People v. Hamilton, 328 Ill.App.3d 195, 202, 262 Ill.Dec. 123, 764 N.E.2d 1240 (2002).
Here, the trial court allowed evidence of gang-related activities to be introduced into evidence because it found the victim's death was "inextricably part and parcel of the beating." We agree. The gang evidence was relevant to explain the entire sequence of events beginning with the May 4, 1998, incident in which defendant shot at rival gang members, who then in turn beat him when his car crashed. The events then culminated in the victim's death on June 26, 1998, when defendant and codefendant returned to the same area to seek revenge on the same rival gang members. The gang evidence was necessary to explain what would otherwise be an inexplicable shooting. We are unable to find that the trial court abused its discretion under these circumstances.
Lastly, defendant contends the trial court misstated the law when it issued IPI Criminal 4th No. 3.15 to the jury regarding eyewitness testimony. Defendant acknowledges he failed to object to the instruction at trial, but urges this court to consider his contention under plain error.
Although defendant raised the issue in a posttrial motion, in order to preserve an issue for review, defendant must both object at trial and raise the issue in a posttrial motion. People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). Even if we were to address defendant's contention, we find any error harmless.
IPI Criminal 4th No. 3.15, as tendered to the jury, read:
"When you weigh the identification testimony of a witness, you should consider all the facts and circumstances in evidence, including but not limited to, the following:
The opportunity the witness had to view the offender at the time of the offense.
or
The witness's degree of attention at the time of the offense.
or
The witness's earlier description of the offender.
or
The level of certainty shown by the witness when confronting the defendant.
or
The length of time between the offense and the identification confrontation."
*108 Specifically, defendant argues that by using the connector " or" between each of the factors, the court incorrectly informed the jury that they could consider any one of the five factors, rather than all of them. Defendant relies on People v. Gonzalez, 326 Ill.App.3d 629, 260 Ill.Dec. 354, 761 N.E.2d 198 (2001). In Gonzalez, the trial court gave an instruction identical to the instruction in the case at bar. The defendant argued on appeal that he did not receive a fair trial because the instruction as given misstated the law. This court agreed with the defendant that the instruction was erroneous, but further considered whether the error was harmless. The court concluded that, because the evidence was closely balanced and because the prosecutor emphasized the erroneous instruction in closing arguments, the error was not harmless and a new trial was proper. Gonzalez, 326 Ill.App.3d at 635, 260 Ill.Dec. 354, 761 N.E.2d 198.
We find Gonzalez distinguishable. Here, as stated previously, the evidence was not closely balanced. Further, the prosecutor never mentioned the instruction in closing arguments. We find any error harmless. See also People v. Furdge, 332 Ill.App.3d 1019, 266 Ill.Dec. 309, 774 N.E.2d 415 (2002); People v. Mercado, 333 Ill.App.3d 994, 267 Ill.Dec. 838, 777 N.E.2d 641 (2002); People v. Brookins, 333 Ill.App.3d 1076, 267 Ill.Dec. 873, 777 N.E.2d 676 (2002); People v. Smith, 341 Ill.App.3d 530, 276 Ill.Dec. 472, 794 N.E.2d 367 (2003); and, People v. Carrero, 345 Ill.App.3d 1, 280 Ill.Dec. 139, 801 N.E.2d 1084 (2003) (all finding that the erroneous instruction was harmless because the evidence was not closely balanced and the outcome of the case would not have been different had the jury been instructed properly). See also People v. Tisley, 341 Ill.App.3d 741, 275 Ill.Dec. 701, 793 N.E.2d 181 (2003) (finding that the use of "or" in the instruction was not error).
Accordingly, we affirm the judgment of the trial court.
Affirmed.
HOFFMAN, P.J. and SOUTH, J., concur.
NOTES
[1] Willie Bishop is not a party to this appeal.
| {
"pile_set_name": "FreeLaw"
} |
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGARET ANN HAUGHTON, No. 16-35674
Plaintiff-Appellant, D.C. No. 3:15-cv-00888-HZ
v.
MEMORANDUM*
MEGAN J. BRENNAN, Postmaster
General, US Postal Service,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Margaret Ann Haughton appeals pro se from the district court’s summary
judgment in her Title VII action alleging a retaliation claim. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Vasquez v. County of Los Angeles,
349 F.3d 634, 639 (9th Cir. 2004). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court properly granted summary judgment on Haughton’s
retaliatory hostile work environment claim because Haughton failed to raise a
genuine dispute of material fact as to whether she was subjected to conduct that
was severe or pervasive enough to alter the conditions of her employment. See
Ray v. Henderson, 217 F.3d 1234, 1240, 1245 (9th Cir. 2000) (“To determine
whether an environment is sufficiently hostile, we look to the totality of the
circumstances, including the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s work performance.”
(citation and internal quotation marks omitted)).
AFFIRMED.
2 16-35674
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DISMISSED; Opinion Filed April 13, 2020
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00910-CV
IN RE TRAWAYNE GEORGE, Appellant
On Appeal from the 254th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-19-10285
MEMORANDUM OPINION
Before Justices Whitehill, Osborne, and Carlyle
Opinion by Justice Carlyle
By postcard dated February 14, 2020, we notified appellant the time for filing
a brief had expired. We directed appellant to file a brief and extension motion within
ten days and cautioned appellant that failure to do so would result in the dismissal
of this appeal without further notice. Appellant has not filed a brief, filed an
extension motion, or corresponded with the Court regarding this appeal.
Accordingly, we dismiss the appeal. See TEX. R. APP. P. 38.8(a)(1); 42.3(b), (c).
/Cory L. Carlyle/
190910F.P05 CORY L. CARLYLE
JUSTICE
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN RE TRAWAYNE GEORGE, On Appeal from the 254th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. DF-19-10285.
No. 05-19-00910-CV Opinion delivered by Justice Carlyle.
Justices Whitehill and Osborne
participating.
In accordance with this Court’s opinion of this date, the appeal is
DISMISSED.
Judgment entered this 13th day of April, 2020.
–2–
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271 Pa. Superior Ct. 92 (1979)
412 A.2d 590
COMMONWEALTH of Pennsylvania
v.
George M. PETERSON, Appellant.
Superior Court of Pennsylvania.
Argued August 6, 1979.
Filed October 19, 1979.
*94 Irving W. Backman, Philadelphia, for appellant.
Thomas J. McGarrigle, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Before WATKINS, MANDERINO and CIRILLO, JJ.[*]
CIRILLO, Judge:
The defendant was arrested on May 13, 1976. He was charged with murder, possession of instrument of crime, and criminal conspiracy arising from a shooting which took place on July 30, 1973. On November 15, 1976, the defendant's motion to suppress identification testimony was denied; and the defendant was tried by jury. On November 17, 1976, the defendant was found guilty of murder in the first degree, and of the other charges. Motions for new trial and in arrest of judgment were argued and denied. The defendant, on February 28, 1977, was sentenced to life imprisonment in a state correctional institution. The defendant has appealed.
*95 On July 30, 1973, an adult witness saw the shooting of the decedent from an open, screened front window of her uncle's home. The shooting took place approximately fifteen feet in front of this front window. The adult witness' daughter, nine years old, was playing outside of the house and also witnessed the shooting. They saw the decedent run down the street, chased by the defendant who was on foot, along with another man who was riding a bicycle. The man on the bicycle handed the gun to the defendant and told him to "hit him." The defendant fired the gun. The man on the bicycle then said, "hit him again." The defendant again fired the gun at the decedent. Both witnesses saw the defendant hand the gun back to the man on the bicycle and then flee. The nine year old witness was shot in the hand by one of the bullets. Both witnesses identified the defendant as the man who shot the decedent from photographs shown to them by the police on the day of the shooting.
The defendant has raised four issues on appeal. The first issue is whether it was highly prejudicial to the defendant to restrict defense cross-examination of a witness when the defense attempts to show that the witness' testimony at trial was inconsistent with her testimony at the pre-trial suppression hearing.
The defense counsel asked the nine year old witness if she remembered whether it was she or her mother who first picked out the defendant's photograph at the police station. She answered that she didn't remember. Defense counsel then asked her if she remembered testifying at the pre-trial suppression hearing that her mother picked out the picture first. She answered in the negative. Defense counsel again asked her if she remembered that her mother picked out the picture first. She again answered in the negative. Defense counsel asked again if she remembered that her mother said when she saw the picture "this looks like the boy." The Commonwealth's objection was sustained. The defense counsel asked again if she remembered her mother saying, "this looks like the boy." The Commonwealth objected and this was sustained. The defense counsel requested a sidebar *96 conference, which was held off the record; and, when the defense counsel returned he stated that he had no further questions of the witness.
The defendant failed to make an offer of proof at trial as to the reason why the defense counsel's questions of the nine year old witness should have been admitted. Additionally, when the sidebar conference was concluded, defense counsel abandoned his line of questioning.
"Trial errors are made in the courtroom and it is there that the correction process should at least be initiated. The defense may not successfully complain of trial errors for the first time only after the jury has returned a verdict of guilty, unless the errors were initially challenged at trial, and thereby preserved on appeal."
Commonwealth v. Clair, 458 Pa. 418, 420, 326 A.2d 272, 273 (1974), quoting Commonwealth v. Williams (dissenting opinion), 432 Pa. 557, 569, 570, 248 A.2d 301, 307 (1968). "The trial judge must be given the opportunity to rectify errors at the time they are made." Commonwealth v. Clair, supra, 458 Pa. 423, 326 A.2d 274. "A party may not remain silent and take chances on a verdict and afterwards complain of matters which, if erroneous, the court would have corrected." Commonwealth v. Clair, supra, 458 Pa. 423, 326 A.2d 274; Commonwealth v. Marlin, 452 Pa. 380, 382, 305 A.2d 14, 16 (1973). Therefore, we find that defense counsel should have preserved the issue for appeal, and that the first issue is without merit.
The second issue is whether it was prejudicial to the defendant for the court to charge the jury on flight. We find no merit in this argument. The defendant ran from the scene of the crime. For approximately three years after the shooting of decedent, detectives stopped at the defendant's home at least once or twice a week. When the police went to the home of the woman with whom he was staying, she told the police that the defendant was there and gave them permission to enter. As the police ascended the stairs, they observed the defendant descending the stairs, identified themselves, and told the defendant to "freeze." The defendant *97 did not stop, but went into a room and closed the door. The police ordered the defendant out of the room and he complied. He then gave the police a false name.
Where immediately after homicide, the defendant abandoned his normal pattern of living and could not be located at those places where his regular pursuits would place him, and contacts at his residence . . . were to no avail, and no explanation was offered for this absence, there was permissible inference that defendant was aware that he was being sought by police and attempted to conceal his whereabouts to avoid apprehension.
Commonwealth v. Tinsley, 465 Pa. 329, 333, 350 A.2d 791, 793 (1976). An inference of guilt may be drawn from an act of flight, especially when the defendant could not be found for three years.
The rule of law in this situation is "When a person commits a crime, knows that he is wanted therefor, and flees or conceals himself, such conduct is evidence of consciousness of guilt, and may form the basis in connection with other proof from which guilt may be inferred."
Commonwealth v. Coyle, 415 Pa. 379, 393, 203 A.2d 782, 789 (1964). Commonwealth v. Osbourne, 433 Pa. 297, 302-303, 249 A.2d 330, 333 (1969), Commonwealth v. Tinsley, supra, 465 Pa. 333, 350 A.2d 792, Commonwealth v. Whack, 482 Pa. 137, 142, 393 A.2d 417, 419-420 (1978). Based on the aforementioned circumstances of flight from the scene of the crime, pursuit by police for three years, and flight from the police when the defendant was located at the house where he was living, the lower court was correct in its instruction to the jury concerning the defendant's flight and the inference which may be drawn from it. Commonwealth v. Jones, 250 Pa.Super. 471, 486, 487, 378 A.2d 1245, 1252-1253 (1977).
The third issue the defendant has raised is if, in its charge to the jury, the lower court gave a fair review of the evidence. In reviewing the record, we find no merit to this argument.
"It is true that the charge to the jury must be read as a whole in order to determine if it was fair and not *98 prejudicial." Commonwealth v. Wortham, 471 Pa. 243, 247, 369 A.2d 1287, 1289 (1977). A court's charge to the jury will be upheld if it adequately and accurately reflects the law and was sufficient to guide the jury properly in its deliberations. Commonwealth v. Perkins, 473 Pa. 116, 131, 373 A.2d 1076, 1083 (1977). The court's instructions did not vary from the evidence. The defendant argues that the trial court did not review every detail of the identification testimony. In its instruction, the lower court stated that the witnesses were within fifteen feet of the defendant when he shot the deceased, that they identified the defendant's photograph among seven others at the police station, and that both witnesses positively identified the defendant as the person who fired the gun.
The trial court carefully instructed the jurors many times that they were the sole judges of the facts, and that their recollection, and not the trial court's, controlled. Commonwealth v. Bederka, 459 Pa. 653, 659-660, 331 A.2d 181, 184 (1975). Therefore, the trial court need not review all the testimony in the case when it comments on the evidence.
The trial court will be held to have committed reversible error under circumstances where the variance between the trial court's comment and the evidence is so seriously prejudiced as to deprive the defendant of a fair trial. Commonwealth v. Crawford, 452 Pa. 326, 330-331, 305 A.2d 893, 895 (1973). This is not the situation in this case.
The fourth, and final, issue, which the defendant has raised, is whether the Assistant District Attorney's remarks in his summation to the jury as to the cooperation of the defendant at the time of defendant's arrest were highly improper.
During the Assistant District Attorney's summation to the jury, he stated, in reference to the defendant's arrest: "Come on, ladies and gentlemen. Don't you think that is important? This man hasn't once been cooperative." The *99 defense counsel objected to this statement, and the objection was sustained. The defense counsel then asked the court to give an instruction to the jury concerning this remark. The court instructed the jury to ignore the statement of the Assistant District Attorney.
If the remark in the Assistant District Attorney's summation was prejudicial to the defendant or highly improper, defense counsel should have requested a mistrial pursuant to Pa. Rule Crim. Procedure 1118. Defense counsel never did request a mistrial.
"Our Superior Court has said and we agree: `Every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial.'" Quoting Commonwealth v. Phillips, 183 Pa.Superior Ct. 377, 382, 132 A.2d 733, 736 (1957). Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973).
We do not find that the Assistant District Attorney's remarks were prejudicial to the defendant. At trial, evidence was introduced that the defendant attempted to hide from the police, and upon apprehension, told the police his name was Michael Boone. "The District Attorney [is to] limit his statements to the facts in evidence and legitimate inferences therefrom." Commonwealth v. Revty, 448 Pa. 512, 516, 295 A.2d 300, 302 (1972). In reviewing the record, we find that the Assistant District Attorney, in this case, has followed the Revty standard.
Additionally, in Commonwealth v. Terry, 482 Pa. 564, 571, 394 A.2d 466, 469 (1978), the court found an absence of prejudice in the prosecutor's closing remarks to the jury in light of the curative instructions by the trial court. We also find that the lower court in this case gave curative instructions to the jury, and that the Assistant District Attorney's remarks did not prejudice the defendant.
The court below is hereby affirmed.
NOTES
[*] Justice LOUIS L. MANDERINO of the Supreme Court of Pennsylvania, and Judge VINCENT A. CIRILLO of the Court of Common Pleas of Montgomery County, Pennsylvania, are sitting by designation.
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IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
Fifth Circuit
FOR THE FIFTH CIRCUIT FILED
May 4, 2009
No. 08-60069 Charles R. Fulbruge III
Summary Calendar Clerk
BERHANU YOHANNES AMOSIE; TERUWORK GEBRWOLD ELORO, also
known as Teruwork Gebrwold Cheveny
Petitioners
v.
ERIC H HOLDER, JR, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A75 480 599
A75 480 600
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Berhanu Yohannes Amosie and Teruwork Gebrwold Eloro, a married
couple who are natives and citizens of Ethiopia, petition this Court for a review
of a decision of the Board of Immigration Appeals (BIA). The BIA dismissed the
petitioners’ appeal of an order of an Immigration Judge (IJ) denying their
applications for asylum, withholding of removal, and relief under the Convention
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-60069
Against Torture (CAT). The BIA concluded that the petitioners had not met
their burden of demonstrating eligibility for relief because their claim lacked
sufficient consistency and plausibility to provide a coherent account of the events
allegedly resulting in their fear of return to Ethiopia. In so ruling, the BIA
upheld the IJ’s finding that the petitioners were not credible.
The petitioners now argue that the IJ erred in finding certain of their
factual allegations implausible and in finding that, in light of these
implausibilities, the corroborating evidence supporting their claims was
insufficient. They also argue that (1) they were credible witnesses because they
testified consistently throughout the proceedings; (2) the IJ’s adverse credibility
finding was not supported by specific, cogent reasons; and (3) the BIA abused its
discretion in adopting the adverse credibility finding because it was based purely
on speculation and conjecture.
This Court generally reviews only the BIA’s decision; however, we may
review the IJ’s decision to the extent that it influences the BIA. Mikhael v. INS,
115 F.3d 299, 302 (5th Cir. 1997). Here, the BIA approved of and relied on the
IJ’s credibility findings; thus, we review the findings of the IJ. See Chun v. INS,
40 F.3d 76, 78 (5th Cir. 1994).1 Factual findings are reviewed for substantial
evidence, with great deference given to the IJ’s credibility determinations. Id.
However, this Court “cannot substitute [its] judgment for that of the BIA or IJ
with respect to the credibility of the witnesses or ultimate factual findings based
on credibility determinations.” Id. Therefore, this Court “will not review
decisions turning purely on the immigration judge’s assessment of the alien
petitioner’s credibility.” Id. (internal quotation marks and citation omitted).
This Court will, however, review the record to determine whether an adverse
1
Although the REAL ID Act sets out new credibility standards, these standards do not
apply, with one exception not applicable here, because Petitioner filed his asylum application
before the May 11, 2005, effective date of the new provisions. See REAL ID Act §§ 101(a)(3),
(h)(2), Pub. L. 109-13, 119 Stat. 231, 302-23.
2
No. 08-60069
credibility determination is “supported by specific and cogent reasons derived
from the record.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
Furthermore, a court can review a final order of removal only when “the
alien has exhausted all administrative remedies available to the alien as of
right.” 8 U.S.C. § 1252(d)(1). “Failure to exhaust an issue creates a
jurisdictional bar as to that issue.” Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir.
2004). “An alien fails to exhaust his administrative remedies with respect to an
issue when the issue is not raised in the first instance before the BIA - either on
direct appeal or in a motion to reopen.” Id.
The petitioners did not raise their specific challenges to the facts found to
be implausible by the IJ and the BIA on appeal to the BIA or in a motion to
reopen the proceedings. They likewise did not challenge the finding that the
documentary evidence was suspect and insufficient to establish their claims in
light of the aforementioned implausibilities. Because the BIA has adequate
mechanisms to address and remedy these claims and because they were not
presented to the BIA, this Court lacks jurisdiction to consider the petitioners’
arguments challenging the specific factual findings of the IJ and BIA as well as
the conclusion that the documentary evidence was suspect and insufficient to
establish their claims. See id.; see also Goonsuwan v. Ashcroft, 252 F.3d 383, 390
(5th Cir. 2001).
To the extent that this Court has jurisdiction to consider the petitioners’
arguments challenging the adverse credibility finding generally, the petitioners’
claims are unavailing. The IJ and the BIA gave specific, cogent reasons for the
adverse credibility determination that were based on the petitioners’ testimony
and documentary evidence contained in the record. See Zhang, 432 F.3d at 344.
“[W]here the judge’s credibility determinations are supported by the record, we
will affirm them even if we may have reached a different conclusion, because we
will reverse only if the record compels a different conclusion.” Mwembie v.
Gonzales, 443 F.3d 405, 410 (5th Cir. 2006) (internal quotation marks and
3
No. 08-60069
citation omitted). The record in this case does not compel a different conclusion
regarding the petitioners’ lack of credibility. Rather, the record as a whole
supports the adverse credibility determination.
Because “[w]e cannot substitute our judgment for that of the BIA or IJ
with respect to the credibility of the witnesses or ultimate factual findings based
on credibility determinations . . . we will not review decisions turning purely on
the immigration judge’s assessment of the alien petitioner’s credibility.” Chun,
40 F.3d at 78. The denial of relief in this case was based on the finding that the
petitioners failed to provide a plausible claim, and the adverse credibility
determination was supported by specific, cogent reasons. We therefore decline
to review the decision denying relief in this case. See id.
The petitioners also argue that (1) the BIA abused its discretion when it
did not address their argument regarding the IJ’s exclusion of testimonial
evidence; (2) the IJ abused his discretion by excluding witness testimony; and
(3) the IJ violated the petitioners’ due process rights by excluding witness
testimony. These issues were not argued on appeal to the BIA or raised in a
motion to reopen the proceedings.
Although the petitioners mentioned three times in their brief to the BIA
that the IJ had disallowed new witness testimony at a hearing to recreate a
portion of Amosie’s 2003 testimony that had not been transcribed, the petitioners
did not make any specific argument with respect to this fact. “[W]hen a
petitioner does file a brief, the BIA is entitled to look to the brief for an
explication of the issues that petitioner is presenting to have reviewed.
Petitioner will therefore be deemed to have exhausted only those issues he
raised and argued in his brief before the BIA.” Abebe v. Mukasey, 548 F.3d 787,
791 (9th Cir. 2008) (emphasis added). A fair reading of the brief that the
petitioners submitted to the BIA in 2005 reveals that the issue regarding the
exclusion of witness testimony was not exhausted. See Roy, 389 F.3d at 137; see
also Goonsuwan, 252 F.3d at 390.
4
No. 08-60069
Although the petitioners’ have argued that their due process rights were
violated by the exclusion of witness testimony, and an exception to the
exhaustion requirement exists for claims of due process violations, the exception
does not apply to “ procedural errors that are correctable by the BIA.” Roy, 389
F.3d at 137. The petitioners’ argument concerns procedural error correctable by
the BIA and is therefore subject to the exhaustion requirement. See id. Because
it is unexhausted, we lack jurisdiction to consider it.
The petition for review is DISMISSED IN PART for lack of jurisdiction
and DENIED IN PART.
5
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Order Michigan Supreme Court
Lansing, Michigan
October 7, 2016 Robert P. Young, Jr.,
Chief Justice
153463 & (41)(42) Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellee,
v SC: 153463
COA: 324193
Oakland CC: 2013-248152-FC
ADAM DONALD LUTZ,
Defendant-Appellant.
_________________________________________/
On order of the Court, the motion to permit additional ground for appeal is
GRANTED. The application for leave to appeal the February 25, 2016 judgment of the
Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting
leave to appeal, we REMAND this case to the Oakland Circuit Court to determine
whether the court would have imposed a materially different sentence under the
sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On
remand, the trial court shall follow the procedure described in Part VI of our opinion. If
the trial court determines that it would have imposed the same sentence absent the
unconstitutional constraint on its discretion, it may reaffirm the original sentence. If,
however, the trial court determines that it would not have imposed the same sentence
absent the unconstitutional constraint on its discretion, it shall resentence the defendant.
In all other respects, leave to appeal is DENIED, because we are not persuaded that the
remaining questions presented should be reviewed by this Court. The motion to amend
and clarify the record is DENIED.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
October 7, 2016
p1004
Clerk
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ACCEPTED
06-16-00038-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
6/16/2016 9:26:57 AM
DEBBIE AUTREY
CLERK
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In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-2306, 04-2322 & 04-2343
JOAN SCHMUDE, Administrator
of the estate of Louis Schmude,
Plaintiff,
v.
MICHAEL F. SHEAHAN, Sheriff
of Cook County, WILLIAM SPATZ,
PATRICIA PULTZ, et al.,
Defendants.
APPEALS OF: EDWARD R. THEOBALD,
ANTHONY PINELLI, and ALAN R. BRUNELL,
Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 4580—Charles R. Norgle, Sr., Judge.
____________
ARGUED MAY 2, 2005—DECIDED AUGUST 18, 2005
____________
Before BAUER, EASTERBROOK, and EVANS, Circuit Judges.
BAUER, Circuit Judge. The district court imposed sanc-
tions on appellant attorneys Edward Theobald, Anthony
Pinelli, and Alan Brunell for improperly seeking appoint-
ment as Special State’s Attorneys and fees in state court
after the underlying case had been removed to federal court.
2 Nos. 04-2306, 04-2322 & 04-2343
The attorneys—in conjunction with Cook County, which the
district court ordered to file an appearance— appeal. We
reverse and vacate the sanctions order issued by the district
court. We also deny Cook County’s motion for certification
to the Supreme Court of Illinois.
I. Background
On June 20, 2000, Plaintiff Joan Schmude filed suit in the
Circuit Court of Cook County, Illinois, against Cook County
Sheriff Michael Sheahan, claiming that he was liable under
42 U.S.C. § 1983 and various state law theories for the
death of her husband, Louis Schmude, while he was in the
sheriff’s custody. Two days later, three Sheriff’s depu-
ties—William Spatz, Patricia Pultz, and Lawrence
Koscianski—were indicted and charged with first-degree
murder in connection with Mr. Schmude’s death. Mrs.
Schmude amended her complaint to name the three Sher-
iff’s deputies. On July 28, the Sheriff removed the case to
federal court.
On December 22, 2000, attorneys Theobald and Brunell
filed appearances in federal court. Theobald also filed a
motion with the district court for appointment as Special
State’s Attorney under 55 ILL. COMP. STAT. 5/3-9008 to
represent defendant Spatz in the civil case; Brunell filed a
similar motion with respect to defendant Koscianski.
Several days later, attorney Ficaro filed an appearance and
a motion to be appointed to represent defendant Pultz. The
motions were taken under advisement. On December 29,
the court ordered a stay of all proceedings pending the
outcome of the criminal prosecution. In connection with the
stay, the district court struck the three aforementioned
motions—along with a motion Theobald had made to
remand the case to state court—for case control purposes.
The court allowed for reinstatement of the motions within
28 days of the lifting of the stay order.
Nos. 04-2306, 04-2322 & 04-2343 3
The criminal case concluded on March 12, 2002. Directly
thereafter, attorney Theobald filed another motion with the
district court to remand the civil case to state court. At the
March 22, 2002 hearing on the motion, the district judge
stated that before he lifted the stay and ruled on Theobald’s
motion to remand, he wanted to determine who would
represent the defendants in the case. He explained that he
had concerns about appointing Theobald, Brunell, and
Ficaro as Special State’s Attorneys, since their prior
experience with the State’s Attorneys office could, in his
opinion, create a conflict of interest. The attorneys re-
sponded that they were not presently seeking appointment
as Special State’s Attorneys and urged the court to decide
the remand motion instead. The district judge asked if that
meant they were withdrawing their motions to be appointed
Special State’s Attorneys. The attorneys indicated that if
there were motions for appointment pending, they were
withdrawing them. The district court then vacated the stay.
On April 22, 2002, the district court denied the motion to
remand the case to state court. On April 30, attorneys
Theobald, Brunell, Ficaro, and Pinelli filed petitions in
the Circuit Court of Cook County, seeking appointment
as Special State’s Attorneys in the federal action. The
petition also sought the appointment of Pinelli as additional
counsel for defendant Pultz. The attorneys stated in their
petition that the underlying case had been removed to
federal court, but they did not disclose to the state court
their previous discussion with the district judge about
appointments. On May 3, 2002, the state court granted
their motion. The state court’s order indicated that it
retained “jurisdiction over the appointments for
the purposes of awarding the above Special State’s At-
torneys expenses and attorney’s fees on a regular basis.”
Attorneys Theobald and Brunell periodically sought and
obtained fees in the state court during the year that
followed. They never discussed their appointments with the
4 Nos. 04-2306, 04-2322 & 04-2343
district court, though they did advert to the matter in
passing. For example, at a hearing held on March 26, 2003,
Theobald told the district judge, “I am a Special State’s
Attorney, and so is Mr. Brunell.” Theobald made other
similar statements at hearings held on April 30, 2003, and
May 15, 2003.
It was over a year before the issue of appointments
was fully discussed again in the district court. On May 23,
2003, the court held a hearing on attorney Ficaro’s mo-
tion to withdraw as counsel, during which the judge
asked who would replace him. Attorney Pinelli responded
that he would take over defendant Pultz’s representation
and explained that he had already filed an appearance
as co-counsel. The judge asked Pinelli if he was Pultz’s
private attorney. Pinelli responded, no, he had been ap-
pointed by the state court. The judge was surprised to hear
that and stated that counsel were not permitted to pursue
any proceedings related to appointment as Special State’s
Attorneys in state court:
You are not special attorneys appointed in this case.
Once this case was removed, it was removed, and no
attorney, once removed, could go before any state
judge and file a motion. And any order that would be
entered under those circumstances would be an im-
proper order and unenforceable. Once the case
is removed, just this Court makes the decisions . . . .
If you are here, it is because you are employed by
individuals.
Theobald, speaking on his own behalf and that of the
other attorneys, revealed that the state court had appointed
all of them.1 The judge responded, “[Y]ou can be here as
private attorneys. But you are not Special [State’s] Attor-
1
Attorney Brunell was not present at the hearings that were held
on May 23, 2003, or March 22, 2002. However, he authorized
attorney Theobald to speak on his behalf on both occasions.
Nos. 04-2306, 04-2322 & 04-2343 5
neys as far as this court is concerned.” The judge then asked
Pinelli whether he would be proceeding as Pultz’s private
attorney. Pinelli answered that he needed time to consider
what he had heard, to which the judge responded: “Well,
you are here only as private counsel.” The judge character-
ized his view as an “order.”
Several months passed before the issue of appoint-
ments arose again. In September 2003, the parties reached
a settlement. The district judge shortly thereafter learned
that the attorneys had continued to obtain attorney’s fees
from the state court, despite his warning that such conduct
was improper. On October 2, 2003, the court notified the
attorneys that it planned to proceed on a Rule to Show
Cause as to why it should not impose sanctions. On October
8, the court issued the Rule, stating for its basis counsel’s
disregard of court orders, improper actions in returning to
state court for appointment and fees after removal, and
violation of their duty of candor. The underlying case was
dismissed on October 20, but proceedings concerning the
court’s Rule continued.
The attorneys responded to the Rule by filing motions,
answers, and other pleadings, including a motion to re-
cuse the judge from the case. The district court denied the
attorneys’ motions and found their conduct sanctionable. On
May 4, 2004, the court issued its final judgment imposing
sanctions on the attorneys. Each counsel was ordered to
disgorge all of the fees he had received. Accordingly,
Theobald was ordered to disgorge $301,321.29, Brunell was
ordered to disgorge $51,874, and Pinelli was ordered to
disgorge $28,230. The court also observed that Theobald
had sought in state court to have a Special State’s Attorney
appointed to defend him in the sanctions proceedings, and
enjoined all three counsel from “seeking attorney fees or
receiving remuneration from Cook County for their repre-
sentation of their clients in this case or for defending
against the Rule to Show Cause and resultant proceedings.”
6 Nos. 04-2306, 04-2322 & 04-2343
Finally, each counsel was ordered to pay a $5,000 fine
directly to the court. The attorneys timely appealed the
court’s May 4 order.
II. Discussion
The appellants argue that the district court improperly
invoked its inherent power to impose sanctions. Amicus
curiae appointed to represent the district court maintains
that the court’s sanctions were valid for primarily two
reasons. First, amicus contends that counsel were never
properly appointed Special State’s Attorneys because
removal of the case to federal court had stripped the
state court of jurisdiction. Second, amicus claims that
even if the district court was wrong about the propriety
of the state court’s appointments, its sanctions were
appropriate nonetheless in light of counsel’s conduct.
The Supreme Court has recognized that all courts are
vested with an inherent power “to impose silence, respect,
and decorum, in their presence, and submission to their
lawful mandates.” Chambers v. NASCO, Inc., 501 U.S. 32,
43 (1991); see also Dale v. Bd. of Educ. of Bradley-
Bourbonnais High Sch. Dist. No. 307, 282 F.3d 984, 985-86
(7th Cir. 2002). This inherent power includes the capacity
to sanction counsel for “willful disobedience of a court order”
and “bad faith” conduct. Chambers, 501 U.S. at 45-46
(quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421
U.S. 240, 258-59 (1975)). Because these inherent powers are
potent, they must be exercised with caution and restraint.
Chambers, 501 U.S. at 44. We review the issue of whether
a district court properly invoked its inherent powers de
novo. United States v. Johnson, 327 F.3d 554, 559 (7th Cir.
2003). If the court properly invoked its inherent powers, we
review its imposition of sanctions pursuant to those powers
for abuse of discretion. Chambers, 501 U.S. at 55; Cleveland
Hair Clinic, Inc. v. Puig, 200 F.3d 1063, 1066 (7th Cir.
Nos. 04-2306, 04-2322 & 04-2343 7
2000). We review questions of statutory interpretation and
jurisdiction de novo. Olson v. Risk Mgt. Alternatives, Inc.,
366 F.3d 509, 511 (7th Cir. 2004); Midland Coal Co. v.
Office of Workers’ Compensation, 149 F.3d 558, 561 (7th Cir.
1998).
The district court imposed sanctions because it believed
that counsel had circumvented its jurisdiction by petitioning
the state court for appointment. The court’s view was
premised on the notion that removal jurisdiction gave it
exclusive authority to appoint Special State’s Attorneys
under 55 ILL. COMP. STAT. 5/3-9008, the Illinois law autho-
rizing such appointments. That law reads in relevant part:
Whenever the State’s attorney is sick or absent, or
unable to attend, or is interested in any cause or
proceeding, civil or criminal, which it is or may be his
duty to prosecute or defend, the court in which said
cause or proceeding is pending may appoint some
competent attorney to prosecute or defend such cause or
proceeding . . . .
55 ILL. COMP. STAT. 5/3-9008 (emphasis added). The
position taken by the district court does not comport
with the plain language of the statute. The statute em-
powered the district court to appoint Special State’s Attor-
neys in the matter pending before it, but it did not state
that it was the only court that could make such appoint-
ments.
The district court also incorrectly concluded that the issue
of who had authority to appoint Special State’s Attorneys
was dictated by removal jurisdiction. The removal of a case
can empower federal courts to appoint Special State’s
Attorneys, but it cannot strip a state court of its fundamen-
tal authority to do the same. Just as a state or federal court
has no interest in whom a private party selects as counsel,
provided he is a licensed attorney, a federal court has no
8 Nos. 04-2306, 04-2322 & 04-2343
interest in whom the State of Illinois chooses to represent
its interests and how much it pays them. A federal court is
no better situated than a state court to assess an attorney’s
fitness for the job or the legitimacy of his fee submissions.
Put simply, a federal court can play a role in appointment
matters under 55 ILL. COMP. STAT. 5/3-9008, but not to
the exclusion of state courts. Consequently, the district
court was obligated to honor legitimate appointments made
by the state court, regardless of where the case was pending
when the appointment was made.
Our finding that federal courts presiding over a case
share authority with state courts to appoint Special State’s
Attorneys under 55 ILL. COMP. STAT. 5/3-9008 runs counter
to the position advocated by Cook County in its briefs. Cook
County argues that federal courts never have jurisdiction to
appoint Special State’s Attorneys and asks that we certify
to the Supreme Court of Illinois the question of whether a
federal court can ever make such appointments under 55
ILL. COMP. STAT. 5/3-9008. We consider several factors in
deciding whether to certify a question to the state supreme
court, the most important of which is whether we feel
genuinely uncertain about an issue of state law. State Farm
Mut. Auto. Ins. v. Pate, 275 F.3d 666, 671 (7th Cir. 2001).
We are confident that the statute’s permissive language
anticipates circumstances under which both state and
federal courts can appoint Special State’s Attorneys. The
confusion here arose not from the text of the law, which is
clear, but from concerns about jurisdiction and federalism,
which we can resolve. As a result, we decline the invitation
to certify the question.
Our analysis, however, does not end here. Amicus con-
tends that even if the district court was mistaken about the
state court’s authority, its invocation of inherent powers to
sanction the attorneys was proper because counsel willfully
disobeyed a direct order. District courts can sanction
attorneys for not obeying orders. Chambers, 501 U.S. at 43-
Nos. 04-2306, 04-2322 & 04-2343 9
44. Even if an order was issued in error, the collateral bar
doctrine obligates counsel to follow it. Madej v. Briley, 371
F.3d 898, 899-900 (7th Cir. 2004). However, a court’s oral
directive, without more, is not binding on counsel. Bates v.
Johnson, 901 F.2d 1424, 1427-28 (7th Cir. 1990). To be
enforceable, a command must be in the form of “a separate
document, with a self-contained statement of what the court
directs to be done.” Id. at 1428. In the instant matter, the
district judge expressed his views in open court but did not
issue an official, written order barring the attorneys from
seeking appointment and compensation from the state
court. Further, the scope of the court’s written order
denying counsel’s motion to remand did not encompass
the issue of appointments. Since the court’s oral command
was non-binding, it was improper for it to invoke its
inherent power against the attorneys for ignoring it.
Amicus also claims that the district court’s sanctions were
appropriate because the attorneys were dishonest with the
court. Lawyers owe courts a duty of candor. Beam v. IPCO
Corp., 838 F.2d 242, 249 (7th Cir. 1988). Amicus argues that
the attorneys failed to meet this obligation by not being
completely forthcoming about their appointments and
ongoing dealings with the state court over fees, especially
after the district court voiced concerns about appointing
them and warned counsel that seeking appointment and
compensation from the state court was improper. We
sympathize with the district court on this point. At oral
argument, we asked attorney Theobald why he chose not to
disclose to the state court the concerns that the district
judge had raised about appointing him and his colleagues.
Like the court below, we found his responses unpersuasive
and manner somewhat evasive.
Nonetheless, the attorneys were under no duty to
notify the district court of their appointments because
the matter had no bearing on the merits of the federal
litigation and concerned only them and the State of Illinois.
10 Nos. 04-2306, 04-2322 & 04-2343
Amicus cites case law for the proposition that sanctions are
appropriate when an attorney is not candid with the court,
but these decisions can be distinguished on their facts. In
Cleveland Hair Clinic, Inc. v. Puig, an attorney filed a
lawsuit in state court in an attempt to make an end run
around an unfavorable evidentiary ruling by the district
court. The district court sanctioned the attorney for not
giving notice of his state court filing. Puig, 200 F.3d at
1066. We held that the sanctions were not an abuse of
discretion because counsel had a “continuing duty to inform
the Court of any development which may conceivably affect
the outcome of the litigation.” Id. at 1067-68. By contrast,
the attorneys’ dealings with the state court in this case
could not have impacted the outcome of the pending federal
litigation. Nor was this situation like the one in IDS Life
Ins. Co. v. Royal Alliance Assoc., Inc., 266 F.3d 645 (7th Cir.
2001). In IDS Life Ins., we held that it was appropriate to
sanction an attorney who had secretly filed a frivolous
lawsuit in state court which needlessly complicated pending
federal litigation to the detriment of the other party. Id. at
654. In the instant matter, the attorney’s dealings with the
state court neither protracted matters in the district court
nor increased the cost of litigation for any of the parties.
In sum, the district court’s sanctions were inappropriately
based on a misunderstanding of the state court’s authority
to appoint Special State’s Attorneys and handle their fees
and expenses. Finally, while we encourage attorneys to be
forthcoming in their dealings with the court, the district
court abused its discretion by sanctioning the attorneys for
not being candid about matters they had no duty to disclose.
With this result, we see no need to address the attor-
neys’ additional concerns about the procedural propriety
of the court’s order.
Nos. 04-2306, 04-2322 & 04-2343 11
III. Conclusion
For the foregoing reasons, we VACATE the district
court’s order imposing sanctions and REMAND for fur-
ther proceedings in conformity with this opinion. Any
amounts paid by the attorneys pursuant to the district
court’s sanction orders should, of course, be returned to
the attorneys.
Finally, we DENY Cook County’s motion for certification
to the Supreme Court of Illinois.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-18-05
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117 Cal.App.2d 303 (1953)
ELIZABETH A. ERVIN, Respondent,
v.
THE CITY OF LOS ANGELES, Appellant.
Civ. No. 19100.
California Court of Appeals. Second Dist., Div. One.
Apr. 14, 1953.
Ray L. Chesebro, City Attorney, Bourke Jones, Assistant City Attorney, Joseph N. Owen and Weldon L. Weber, Deputy City Attorneys, for Appellant.
Betts, Ely & Loomis and Forrest A. Betts for Respondent.
WHITE, P. J.
Defendant city of Los Angeles appeals from a judgment entered upon a verdict in favor of plaintiff who was injured by a falling boulevard stop sign located on the southeast corner of Hollywood Boulevard and Sycamore Avenue in said city. The action is predicated upon the Public Liability Act of 1923, formerly Statutes 1923, page 675, section 2, now Government Code, sections 53050 and 53051.
The boulevard stop sign in question was a redwood post about 4" X 4" in girth and approximately 8 feet high. It was embedded in the concrete of the sidewalk on the southeast corner of the aforesaid intersection. A 24-inch octagonal metal sign was attached to the top of the post with the word "stop" printed in black letters on its face.
On November 12, 1948, at about 4 p.m., plaintiff walked west on the south side of Hollywood Boulevard to a point on the southeast corner of the intersection of the aforesaid streets. As she was about to step down onto Sycamore *305 Avenue the traffic stop sign embedded in the sidewalk on that corner fell upon and injured her very seriously.
The cause proceeded to trial before a jury resulting in a verdict for plaintiff in the sum of $37,774.50. Defendant's motions for nonsuit and a directed verdict were denied, as was its motion for a new trial. This appeal from the judgment followed.
Appellant city strenuously insists that the record is barren of any evidence to bring home to it a neglect of its duty of inspection or knowledge of facts which would have put it upon inquiry (Nicholson v. City of Los Angeles, 5 Cal.2d 361, 367, 368 [54 P.2d 725]). That the record fails to disclose any showing that the city possessed either actual or constructive notice of a dangerous condition in respect to the stop sign above referred to. And, that the record is bereft of any evidence showing the lapse of a reasonable time within which the city could have remedied the defect had it possessed such knowledge.
Respondent, on the other hand, contends that the record discloses evidence that the signpost had been damaged for quite some time (nine or ten months) prior to the happening of the accident, and that the damage had left approximately one-half of the pole cracked or fractured prior to the time it fell upon her. That the photographic pictures of the post revealed an indentation several inches above the fracture line, and that from these pictures the jury could conclude that the indentation had been painted over at some time prior to the date of the accident. That the conclusion naturally follows that the employee of the city who last painted the post had actual knowledge of the damage thereto, or at least, that the jury was entitled to conclude that the city employees "whose duty it was, according to the testimony of the defendant in this case, to report defects to the post, had such knowledge of the damage as to create constructive knowledge in the defendant city of the defect and of the danger which necessarily would be incident to a half broken post, carrying at its upper end a very heavy metallic boulevard stop sign."
The post in question was not produced at the trial. To explain its disappearance, defendant city offered the testimony of Maynard Trebil, a senior paint foreman in its employ, who testified that there are thousands of these signs throughout the city; that Walter A Hudson, a paint foreman, brought the sign into the city shop where there was attached to it a white tag giving the location of the stop sign and *306 marked "hold"; that he had the post in his possession in the sign room for nine or ten months after the accident; that he had 20 or 30 people working around the warehouse and from time to time more people came; that some of them were not too well educated and could hardly read. That when in February, 1951, he was asked to produce the post, he made a thorough search for it, but was unable to locate it and did not know what happened to it.
Since the post could not be produced, the parties, jury and trial court were forced to rely entirely upon oral testimony and photographs for proof as to whether it was maintained in a defective condition occasioned by an old fracture of the post.
It is axiomatic that on appeal, all legitimate and reasonable inferences must be indulged toward upholding the findings or verdict of the trier of facts. If there be any reasonable doubt as to the sufficiency of the evidence to sustain the findings or verdict, appellate courts should resolve that doubt in favor of such findings or verdict. And, in searching the record and exploring the inferences which may arise from what is found there, to discover whether such doubt or conflict exists, the court should be realistic and practical (Estate of Bristol, 23 Cal.2d 221, 223 [143 P.2d 689]).
Having in mind the foregoing principles and remembering that it is the contention of appellant city herein that as a matter of law, no prima facie case was presented, viewing the factual situation in a light most favorable to respondent as we are required to do, we cannot hold that as a matter of law, appellant city possessed neither actual nor constructive notice of the existence of a dangerous condition in respect to the stop sign or that there was no lapse of a reasonable time within which appellant city could have remedied the defect had it possessed such knowledge.
There is in the record direct testimony that the signpost had been struck by an automobile nine or ten months prior to the happening of the accident here in question. This would support the conclusion by the jury that the indentation, which is established by the pictures of the post, possibly occurred some nine or ten months prior to November 12, 1948. While the jury might have concluded that the testimony of the witness who testified as aforesaid was weakened under the force of cross-examination and could have rejected it, nevertheless, the verdict would indicate that they accepted the testimony, as was their right in the capacity of triers *307 of fact. An employee of appellant city testified that on February 17th and 18th, 1948, he was at the intersection in question and painted the post involved in the accident.
Another witness testified that she was walking easterly on the south side of Hollywood Boulevard and when "about 4 or 5 doors" beyond the corner she heard a scream, turned and saw respondent lying on the sidewalk. This witness went immediately to the aid of respondent and with reference to the appearance of the signpost, testified that the break therein was "a dull, jagged break instead of perhaps long splinters." That about one-half of the bottom of the post stump appeared to be "sort of weathered--dull in color." Police Officer McDonald, a witness called on behalf of appellant city, was asked on cross-examination:
"Q. (By Mr. Betts, counsel for respondent): Did you make any observation whatever of that post above the black line for the purpose of determining whether or not there were old indentations or other marks of applied force to the post? A. Yes, I did."
"Q. Were there any? A. Yes, there were."
"Q. Can you describe them to us, Mr. McDonald? A. As I recall it, above the fracture on the post there was an indentation and also a discoloration that appeared to be the soot from the exhaust of a car." (Emphasis added.)
Another witness, Fred L. Wilke, testified that because of his business of "handling loans on construction jobs for most of my life," and checking upon such jobs, he was familiar with wood. He saw the post on the evening of the accident and again on the next day. The witness testified that the portion of the post in the ground protruded possibly 6 or 8 inches, and from his examination, "it showed a definite fracture ..." He was then asked:
"Q. (By Mr. Betts): Well, can you describe the color of it? A. It appeared on one side of it to be darker in color than the other, and on one portion of the post in the ground it looked like a fresh break, fresh wood, like fresh wood would appear if you snap a piece of lumber. (Emphasis added.)"
"Q. Fresh wood? A. Yes, like a fresh break."
"Q. And on the other side? A. On the other side it was discolored quite dark."
Stanley McDonald, a witness called on behalf of respondent testified that he was a lumberman of 31 years' experience and that he had become familiar with redwood used for boulevard stop signs. Because the post in question had been lost *308 as heretofore noted, neither end of the fractured portion thereof was available so that the jury might themselves determine whether or not the fracture was a visible one before it was painted over.
Over objection, this witness answered the following question:
"Q. May I ask you then this question--assuming that you had such a post and that it was placed in a cement sidewalk installation, such as the sidewalk here, and assume that it was painted with the regular black and white paint stripes, and that it had a portion at the bottom of it which would appear to me to be about 18 inches or two feet which was black; in other words, the stripes run down to a black solid portion at the bottom. A. Yes."
"Q. Now, assuming that you had such a post, and assume that at some time there was an accident in which the post was struck on the side so as to leave an indentation such as appears on the right-hand side of this post as we look at it, and several inches above the broken-off portion, and assume, however, that that blow did not knock the post down but assume that it did fracture and shatter the post so that it was broken at least halfway through the 4- inch square portion of it--I don't know what you call it, but half of it. Now, assume such circumstances. Now, can you tell us from your experience whether or not that fracture would be readily discernible by ordinary observation of the post, looking, standing close enough to it to see the post itself?"
"The Court: The answer to that, Mr. McDonald, would be yes or no. You can tell whether or not it would be observable under the circumstances stated. A yes or no answer, please. A. Yes."
"Mr. Betts: Assume the same facts now, Mr. McDonald, and assume that the specific purpose of a person was to inspect the post to determine whether or not it had any defects in it, what would your answer be with reference to whether or not such an inspection would reveal the fracture? A. It would be readily observable."
"Q. (By Mr. Betts): And suppose that when you started out the upper part of it at least was painted, what would be the condition with reference to whether or not the fracture line would show through the paint--and assuming the same example that I have given, that you fractured the board--would the fracture line show through the paint? A. Do you *309 mean could you put it back in such a way that you could not see the fracture?"
"Mr. Betts: Yes. A. I don't believe so, sir."
From the foregoing testimony it follows that if, as the jury had a right to find, there was a fracture through one-half of the post at the point of ultimate entire fracture and if the one-half post fracture existed as of February 17th and 18th of 1948, there was no reason for the city painter Reed not to have seen it when he painted the post and for him not to have reported it as was his conceded duty.
The city painter, Mr. Reed, testified that he painted the yellow zone curbs adjacent to the post in question some two or three days prior to the accident, but as to whether or not he made any inspection of the stop sign post his answer was, "I cannot say definitely but I usually do that. I may have checked it." (Emphasis added.)
Concerning the question of appellant city's care in the inspection of the boulevard stop sign here in question, Maynard Trebil, senior paint foreman, testified that the records failed to show any inspection of that post at any time between 1937 and the happening of the accident on November 12, 1948. That there were approximately 70 painters in his department, that only six were charged with the duty of supervision and inspection of boulevard stop signs in the entire city of Los Angeles. That each individual post is inspected, "Yes, maybe each ten years. It is hard to say." That, "unless something appears to be wrong" as the inspector rides by he does not "get out" of his vehicle and examine the post.
Regulo Rodriguez, a painter for appellant city, replaced the broken stop sign post. He testified that when he arrived at the intersection in question he found, "a stub sticking out of the curb about 4 inches ... I found the stub in very good condition." He further testified that it appeared to him "that the stub had a fresh break, and a clean break, with jagged ends sticking on the sides. ..." On cross-examination, however, he testified:
"Q. (By Mr. Betts): Now, what do you mean by you don't recall--that you didn't see it or you don't recall whether it was or was not there. A. I didn't pay much close attention to the post."
"Q. That is what I thought. You don't know whether it showed a weatherbeaten appearance or not, do you, Mr. *310 Rodriguez? That is the truth of the matter isn't it? Just take your time on that. A. What I meant was, 'I didn't pay much attention to the post whether it was weatherbeaten or not.'"
"Mr. Betts: That is right. I am trying to help you out on that proposition, that is exactly what I had in mind. You didn't pay enough attention to tell whether any portion of it was or was not weatherbeaten. That is the truth, isn't it? A. Yes."
With reference to the testimony of other witnesses that the mark about 6 inches above the break was an indentation, Police Officer Wagnon testified that it appeared not to be a fresh break and looked like a condition that was caused by "somebody that was down on their knees whittled on the post." The verity of this testimony was of course a question for the jury.
Walter A. Hudson, a traffic zone painter for appellant city, testified he had been handling redwood for six or seven years and had observed broken redwood posts. That the broken portion of the post here in question was "strong and in good condition"; that the break was "nice and clean," and that he saw no evidence of weathering.
Dean Harold Larson, a newsboy, 15 years of age, testified that he had worked on the corner with which we are here concerned for six months prior to the accident. That he customarily leaned against the post to relieve pressure caused by poliomyelitis, and had leaned against the post on the night before the accident. His weight was 145 pounds. The post always held his weight and did not appear to be broken or cracked until the morning of the day of the accident. On the morning of the day of the accident Larson, on his way to school, went to this corner in regard to his newsbox. He found it all broken up, pieces of it were lying beside the stop sign and some pieces were in the street. He also noticed for the first time that the post was cracked clear through and a piece of "grass string" was tied around it. He also testified that he saw automobile tire marks on the curb and on the street on the morning of the accident. That the tire marks on the street were 2 feet from the stop sign and were about 6 inches to a foot in length. He was an eyewitness to the accident and in his testimony stated that respondent was walking from west to east, while her testimony was that she was proceeding westerly to the point of the accident. It was also brought out in cross-examination of this witness that he *311 had never seen the damage and indentation on the post that is revealed in one of the pictures. The conflict in the evidence given by this witness with that of other witnesses was a question for the jury, as judges of the credibility of witnesses and the intrinsic weight of all the evidence.
The case of Nicholson v. City of Los Angeles, supra, we are persuaded is not controlling here. In the case just cited the court said at pages 367, 368. "Because of the plaintiff's failure to bring home to the defendant city a neglect of its duty of inspection or knowledge of facts which would have put it upon inquiry, the city cannot be held to have had constructive notice of the defect and the judgment must be reversed."
[1] In the case now engaging our attention there is in the record evidence from which the jury could have concluded that the stop sign post had been damaged by an automobile colliding with it some nine or ten months before respondent was injured; that when in February, 1948, appellant city's painter, Mr. Reed, painted the post, the city acquired constructive, if not actual knowledge, of the post fracture. That the fracture had existed for a length of time sufficient to create a darkened and weathered appearance of one-half of the fracture line of the post; that there was a negligent failure on the part of the city to furnish an adequate method of inspection, or a sufficient number of inspectors.
While there was evidence in conflict with the foregoing, the jury, as they were entitled to do, resolved the conflict in favor of respondent. [2] We believe the true rule on appeal to be that when reasonable minds may differ regarding the question as to whether defective conditions have existed for a sufficient length of time under the particular circumstances of a case, to charge a municipality with at least constructive knowledge thereof, the conclusion of the jury in that regard may not be interfered with by an appellate tribunal.
As was said by the trial judge in the case at bar when denying a motion for a directed verdict:
"The only effect, as I see it, of the defendant's case, is to increase the conflict that exists in the evidence. There still remains within the evidence this testimony to the effect that there was a portion of that post not in a rotten condition but in a condition from which the jury can draw an inference that a break was there and that it had existed for *312 some considerable time. There is evidence in the record to the effect that there was discoloration in at least half of the break in that post which indicated weathering. Now, from that the jury can draw an inference that that had existed for a considerable length of time. From the nature of the picture. Exhibit 14, they can draw that inference, and they can take the testimony of Mr. Wilke. Mrs. Wilke's testimony was a little vacillating after counsel for the defendant got through cross-examining her, but there is the testimony of Mr. Wilke to the effect that that was an old break. There was also that indentation on the face of the post, which the photograph clearly shows, and there is testimony to the effect that that indentation was on there at a time before the post was painted. I have forgotten who testified to that but it is in the record, that that indentation was painted over, whatever it may have been. So from that there is an inference that that thing had existed and there is an inference that at least half of the break had existed for a time previous to the time that the indentation was made. While the post was not rotten--and no one has contended that it was rotten, although the pleadings set that up--yet a 4 X 4 post that is not rotten does not break and fall over unless some force is applied to it. As to the time when that force might have been applied to it, there is plenty in the plaintiff's case from which the inference could be drawn that it had been there for some time. I think it is a question of fact, ...."
Appellant's contention that to find the city liable for damages under the facts of this case is to make it an absolute insurer of the safety of persons using the public streets and sidewalks, is answered by the following language used by the court in the case of Fackrell v. City of San Diego, 26 Cal.2d 196, 209 [157 P.2d 625, 158 A.L.R. 625]:
"Obviously, the city is not being held as an insurer of anything but it is being held to the standard of ordinary care in planning, constructing, and maintaining its streets and sidewalks. Liability for its failure in that regard is not due to the whimsy of court or jury; it is imposed by the public liability statute."
We are satisfied that the record herein supports the findings of the jury that appellant city had knowledge or notice, at least constructive, of the defective or dangerous condition of the boulevard stop sign post, and for a reasonable time after acquiring such knowledge, failed to take action reasonably necessary to protect the public against the condition *313 (Fackrell v. City of San Diego, supra, p. 206, 210; Boyce v. San Diego High School Dist., 215 Cal. 293, 294, 295 [10 P.2d 62]; Rafferty v. City of Marysville, 207 Cal. 657, 660 [280 P. 118]; Maddern v. City and County of San Francisco, 74 Cal.App.2d 742, 749, 750, 752, 753 [169 P.2d 425]; Sheward v. Virtue, 20 Cal.2d 410 [126 P.2d 345]; Heath v. Manson, 147 Cal. 694, 701 [82 P. 331]; Kirack v. City of Eureka, 69 Cal.App.2d 134, 136, 137, 138, 140 [158 P.2d 270]; Edwards v. City of San Diego, 126 Cal.App. 1, 3 [14 P.2d 119]; Christy v. City of Alhambra, 9 Cal.App.2d 499, 501 [50 P.2d 454]; Scarpaci v. City of Chicago, 329 Ill.App. 434 [69 N.E.2d 100]).
We have already referred to and distinguished the case of Nicholson v. City of Los Angeles, supra, mainly relied upon by appellant. Since each case must rest upon its particular circumstances in deciding whether a municipality can be charged with liability under sections 53050 and 53051 of the Government Code, suffice it to say that we find nothing in the remaining cases cited by appellant which militates against what we have herein held, under the factual background here presented.
Finally, appellant earnestly urges that it was prejudicial error for the trial court to admit, over the former's objection, the testimony of Stanley McDonald. The testimony given by this witness has been heretofore narrated and need not now be repeated.
It is appellant's contention that the questions propounded to Mr. McDonald were not properly the subject of expert testimony. That the facts from which his conclusion was to be drawn were not peculiarly within the knowledge of an expert but were matters of common knowledge, and that they were not facts which although they might be clear to the jury, the conclusions to be drawn therefrom depended upon knowledge or skill possessed only by an expert (Long v. John Breuner Co., 36 Cal.App. 630 [172 P. 1132]; Fonts v. Southern Pac. Co., 30 Cal.App. 633 [159 P. 215]; Code Civ. Proc., 1870, subd. 9).
It is not easy to draw a clear line of demarkation between the field in which experts may give their opinions, and the field which is reserved exclusively for the jury. [3] However, in the instant case, even though it be conceded that the testimony given by the witness McDonald does not come within the rule under which an expert may give his opinion, nevertheless, no prejudice to appellant resulted therefrom. *314 Witnesses for the latter were permitted to answer questions of the same tenor as those propounded to Mr. McDonald. Appellant city qualified some of its employees as experts in the field of timber and what could be determined from the observation of redwood. Police Officer McDonald was so qualified and thereafter testified concerning the sheen of redwood and the breaking off of a piece of redwood from the very post involved, and comparing it with the fracture he saw. Appellant's senior paint foreman, Maynard Trebil, was qualified as an expert and testified concerning the post in question--to the effect that there was no discoloration of the post, thus placing upon respondent the necessity of establishing the visibility of the fracture should the jury believe that it had existed for any considerable length of time. Walter A. Hudson, a traffic zone painter for appellant city, gave like testimony, such as, "I just looked at both ends (of the post) and I said, 'there is a nice clean break' "; that the post was "just a good clean color of redwood," and that, "it (the post) apparently looks perfectly O.K. to me, sir." That the broken portion of the post, "appeared to be a good strong post." In the light of the foregoing testimony, coupled with the inability of appellant to produce the post at the trial, we are unable to say that the admission of Mr. McDonald's testimony amounted to prejudicial error (Hurwit v. Prudential Ins. Co. of America, 45 Cal.App.2d 74, 81 [113 P.2d 691]; Bowen v. Sierra Lbr. Co., 3 Cal.App. 312, 318 [84 P. 1010]; Humiston v. Hook, 86 Cal.App.2d 101, 105 [194 P.2d 122]). [4] Frequently it happens that under the form of expert evidence answers are given that are so clearly a part of common knowledge that no injury results. When questions are asked that do not call for expert evidence, and the answers, as in this case, are correctly given, clearly, in the nature of things, no harm is worked (People v. Durrant, 116 Cal. 179, 217, 218 [48 P. 75]).
For the foregoing reasons, the judgment is affirmed.
Doran, J., and Drapeau, J., concurred.
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Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 17, 2015
The Court of Appeals hereby passes the following order:
A15A2323. IN RE: MICHAEL B. KING
Appellee’s motion to dismiss appeal is GRANTED.
Court of Appeals of the State of Georgia
11/17/2015
Clerk’s Office, Atlanta,____________________
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.
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974 F.2d 1344
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.Tetemke Mekonen WOLDESMAYATE, Petitioner,v.U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 91-70073.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 4, 1992.Decided Sept. 9, 1992.
Before EUGENE A. WRIGHT, CANBY and WIGGINS, Circuit Judges.
1
MEMORANDUM*
2
Tetemke Mekonen Woldesmayate, a citizen of Ethiopia, challenges the denial of his application for political asylum and waiver of deportation. He also contends that the immigration judge deprived him of his right to counsel by denying his request for a continuance. We deny the petition for review.
DISCUSSION
I. ELIGIBILITY FOR POLITICAL ASYLUM
3
Under 8 U.S.C. § 1158(a), the Attorney General has discretion to grant asylum to "refugees." INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5 (1987). The Immigration and Naturalization Act in turn defines a "refugee" as a person who is unable to return to his country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion...." 8 U.S.C. § 1101(a)(42)(A). We review the BIA's factual determination that an alien has failed to prove a well-founded fear for substantial evidence, and will not reverse if the conclusion is substantially reasonable. De Valle v. INS, 901 F.2d 787, 790 (9th Cir.1990). The same standard applies to our review of credibility assessments. See Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir.1987).
4
Woldesmayate presents two possible bases for reversing the denial of political asylum: (1) the decision was not based on substantial evidence; and (2) he retained his original refugee status even after becoming a permanent resident. We consider these issues in turn.
A. Persecution Claims
5
Woldesmayate contends that: (1) he suffered actual persecution; and (2) his fear of persecution is well-founded within the meaning of the statute. The BIA, however, concluded that the case is not made by the evidence.
6
To establish eligibility for asylum based on a well-founded fear of future persecution, applicants must demonstrate both objective and subjective fear. Estrada-Posadas v. United States INS, 924 F.2d 916, 918 (9th Cir.1991). An applicant's " 'candid, credible, and sincere' testimony" demonstrating a genuine fear satisfies the subjective component. Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir.1987). The objective component requires "credible, direct, and specific evidence in the record, of facts that would support a reasonable fear that the petitioner faces persecution." Rodriguez-Rivera v. United States Dep't of Imm. & Naturalization, 848 F.2d 998, 1002 (9th Cir.1988) (emphasis in original).
7
The record indicates that Woldesmayate claimed to have been jailed and released in 1974, but later stated that the date was 1973. Similarly, he claimed to have left for Sudan in 1974 and 1977. Woldesmayate further stated that he was arrested only once, but at another time claimed that it happened twice. Finally, he did not account for the three years between his alleged release in 1974 and his departure for Sudan in 1977.
8
The BIA allowed for Woldesmayate's communication problems and nevertheless concluded that these inconsistencies and the lack of important details undermined his claims. It particularly stressed his failure to account for the 1974-77 period. Accordingly, substantial evidence supports the BIA's determination that no actual persecution occurred. Similarly, Woldesmayate failed to present "candid, credible and sincere testimony" and thus did not satisfy the subjective component of the well-founded fear standard. See Berroteran-Melendez v. INS, 955 F.2d 1251, 1256-58 (9th Cir.1992) (finding substantial evidence in light of inconsistencies and lack of detail in application).
9
Woldesmayate maintains that the BIA's credibility assessment is unfounded, because that court never observed his demeanor. This argument is without merit. The BIA is entitled to draw derivative inferences from the facts themselves. Cf. Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1078 (9th Cir.1977); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951) (the "substantiality of evidence [in support of the Board's decision] must take into account whatever in the record fairly detracts from its weight"). Moreover, the IJ's credibility findings are of limited benefit to Woldesmayate, because he termed Woldesmayate's description of his offenses "less than candid."
B. Refugee Status
10
Woldesmayate alternatively contends that he still is entitled to the refugee status conferred in 1982 pursuant to 8 U.S.C. § 1159(a),1 despite the fact that he was subsequently granted permanent resident status. Under this reasoning, Woldesmayate would presumptively qualify for asylum even though he lost his permanent resident status when the deportation order became final. Woldesmayate thus concludes that the INS now bears the burden of proving that he is not entitled to asylum, and cannot deport him until it terminates this status in accord with 8 C.F.R. § 207.8.
11
This argument is untenable in light of the legislative history of The Refugee Act of 1980. The Senate bill originally provided that refugees admitted under normal flow procedures would be admitted as lawful permanent residents. H.R.Conf.Rep. No. 781, 96th Cong., 2d Sess. 21 (1980), reprinted in 1980 U.S.C.C.A.N. 160, 162. Those entering in emergency situations could be admitted conditionally or as lawful permanent residents. Id. In contrast, the House Amendment provided that all aliens must enter as "refugees" with retroactive adjustment of status after two years. Id. The Conference later modified this provision by allowing adjustment after one year. Id.
12
Senator Edward Kennedy, the Senate bill's chief sponsor, described this process:
13
[T]he Conferees compromised on the House version and established a new "refugee" admission status--different from either the present "conditional entry" or "parolee" status. This new status will end after only one year--rather than two years--after which the refugee can adjust to permanent resident status. This one year "refugee" status would also be counted towards the five-year period required for naturalization.
14
126 Cong.Rec. S3756, 3757 (daily ed. February 26, 1980) (statement of Sen. Kennedy). These statements indicate that Congress only intended refugee status to last one year, and thus refute Woldesmayate's contention. Woldesmayate's status as a refugee ceased, and was supplanted by his status as a permanent resident.
15
Woldesmayate's other arguments are similarly unavailing. Notwithstanding the prior determination, he still bears the burden of proving his eligibility for asylum. See Rebollo-Jovel v. INS, 794 F.2d 441, 448 (9th Cir.1986). Moreover, he has no basis to argue that the INS must affirmatively act to terminate his status under Matter of Garcia-Alzugaray, 19 I. & N. Dec. 407 (1986). In that case, the BIA held that a refugee with less than one year of residence did not receive proper notice under 8 C.F.R. § 207.8. See id. at 408-09. Garcia-Alzugaray does not hold that permanent residents are entitled to this notice, and Woldesmayate's reliance on this case is thus misplaced.
II. RIGHT TO COUNSEL
16
Woldesmayate further contends that the IJ deprived him of his right to counsel by refusing to grant a continuance to obtain counsel. The INS counters that Woldesmayate: (1) failed to exhaust his administrative remedies; (2) suffered no prejudice; and (3) failed to demonstrate good cause for the continuance. Even assuming that the issue has been properly preserved, Woldesmayate's claim must fail.
A. Prejudice
17
Woldesmayate's right to counsel is grounded in the Fifth Amendment and 8 U.S.C. § 1362. Failure to accord an alien his statutory right may constitute an abuse of discretion and require a remand. See Castro-Nuno v. INS, 577 F.2d 577, 578-79 (9th Cir.1978). If the prejudice to the alien is sufficiently great, a due process violation may result. In that event, a ruling "impinge[s] upon the fundamental fairness of the hearing in violation of the fifth amendment." Ramirez-Durazo v. INS, 794 F.2d 491, 500 (9th Cir.1986). Woldesmayate's claim will fail if he cannot demonstrate prejudice under either standard. See generally United States v. Cerda-Pena, 799 F.2d 1374, 1377 n. 3 (9th Cir.1986) (court need not reach the constitutional issue if the statutory right was not waived and the failure to accord it prejudiced the petitioner).
18
From the beginning, the IJ took pains to protect Woldesmayate's right to counsel. At the deportation hearing on January 17, 1990, the IJ informed Woldesmayate of his right to counsel. He arranged for Woldesmayate to obtain information about free legal services, and offered to reset the case so that Woldesmayate could obtain a lawyer. Woldesmayate insisted that he wished to speak for himself.
19
The judge thereafter granted two continuances so that Woldesmayate could prepare to address other issues, including his eligibility for asylum and a discretionary waiver of deportation. At his third hearing, Woldesmayate was represented by counsel and the IJ received evidence relevant to the asylum claim as well as the waiver. The BIA considered this asylum evidence in assessing the basis of the alleged fear of persecution.
20
Despite this solicitude for Woldesmayate's rights, he would have us infer a violation because discrepancies existed between his statements before and after representation. Although some differences exist, the BIA made allowance for Woldesmayate's language problems and still doubted his credibility. In light of these facts, we cannot say that the absence of counsel prejudiced Woldesmayate. See Vides-Vides v. INS, 783 F.2d 1463, 1470 (9th Cir.1986) (finding no prejudice in part because alien failed to identify new evidence that counsel could have discovered and presented); cf. Baires v. INS, 856 F.2d 89, 93 (9th Cir.1988) (finding prejudice because alien was denied the opportunity to present witnesses whose testimony could have materially affected the outcome of the case).
B. Good Cause
21
The Code of Federal Regulations states that the IJ may grant a continuance for good cause shown. 8 C.F.R. § 242.13. The decision to deny a continuance is within the sound discretion of the IJ, and will not be overturned except upon a showing of abuse of discretion. Baires, 856 F.2d at 91.
22
As noted above, the IJ discussed the right to counsel with Woldesmayate at his initial hearing. Woldesmayate appeared without counsel at the subsequent proceeding and offered no explanation as to where his alleged counsel was or why he had not appeared. No notice of appearance had been filed during the intervening two months. Accordingly, no evidence supported Woldesmayate's claim to representation, and he failed to demonstrate good cause for a continuance. In light of these facts, the IJ did not clearly abuse his discretion by denying the continuance. See Vides-Vides, 783 F.2d at 1470.
III. DISCRETIONARY WAIVER OF DEPORTATION
23
Woldesmayate alternatively contends that he was entitled to a waiver of deportation under 8 U.S.C. § 1182(c). That provision permits a grant of discretionary relief to aliens who have lawfully resided here for seven years. Applicants convicted of serious drug offenses must show outstanding equities in order to qualify. Ayala-Chavez v. INS, 944 F.2d 638, 641 (9th Cir.1991). We review the denial of relief for abuse of discretion, and cannot set aside the decision unless "the board fails to support its conclusions with a reasoned explanation based upon legitimate concerns." Vargas v. United States Dep't of Imm. & Naturalization, 831 F.2d 906, 908 (9th Cir.1987).
24
Woldesmayate maintains that the BIA failed to provide this explanation. But the record indicates that the BIA fully canvassed the equities weighing in Woldesmayate's favor: his eight-year residence, his many friends, his virtually continuous employment, his attempts to learn English, and the hardships anticipated upon his return to Ethiopia. It concluded that these equities were "outstanding," but also noted that the countervailing negative factors were "very serious." The BIA did not find persuasive Woldesmayate's justification for his assault and drug trafficking offense (committed shortly after release from his first imprisonment) "considering the length of the sentences for his assault conviction (apparently his first conviction) and his narcotics conviction." While his prison record for good behavior was "a positive showing," it did not establish reformation or rehabilitation. These statements indicate that the BIA's explanation was reasoned and based upon legitimate concerns. See id. at 909 (upholding denial of relief where the BIA deferred to the IJ's conclusions regarding the seriousness of the offense and the applicant's failure to rehabilitate).
25
Woldesmayate alternatively contends that the BIA's approach effectively bars drug offenders from obtaining relief under section 1182(c). This contention lacks merit. The record indicates that the BIA did not rest its evaluation on the offenses per se, but also considered the length of the sentences imposed and evidence of rehabilitation. The BIA did not abuse its discretion in denying a waiver of deportation.
CONCLUSION
26
The petition for review is DENIED.
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
1
The statute provides:
(a) Criteria and procedures applicable for admission as immigrant; effect of adjustment.
(1) Any alien who has been admitted to the United States under section 1157 of this title--
(A) whose admission has not been terminated by the Attorney General pursuant to such regulations as the Attorney General may prescribe,
(B) who has been physically present in the United States for at least one year, and
(C) who has not acquired permanent resident status,
shall, at the end of such year period, return or be returned to the custody of the Service for inspection and examination for admission to the United States as an immigrant in accordance with the provisions of sections 1225, 1226, and 1227 of this title.
(2) Any alien who is found upon inspection and examination by an immigration officer pursuant to paragraph (1) or after a hearing before a special inquiry officer to be admissible (except as otherwise provided under subsection (c) of this section) as an immigrant under this chapter at the time of the alien's inspection and examination shall, notwithstanding any numerical limitation specified in this chapter, be regarded as lawfully admitted to the United States for permanent residence as of the date of such alien's arrival into the United States.
8 U.S.C. § 1159(a).
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735 F.2d 1421
236 U.S.App.D.C. 390, Fed. Sec. L. Rep. P 91,496
NORTHLAND CAPITAL CORPORATION, Appellant,v.A. David SILVER and A. David Silver & Co., et al.
No. 83-1449.
United States Court of Appeals,District of Columbia Circuit.
Argued Feb. 3, 1984.Decided May 25, 1984.
Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-00549).
Harris S. Ammerman, Washington, D.C., for appellant.
Edward M. Waibel, pro se, for appellee.
Before WALD, BORK and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge STARR.
Dissenting opinion filed by Circuit Judge WALD.
STARR, Circuit Judge:
1
This case presents a recurring issue, albeit in a unique factual setting, under the federal securities laws. The question before us is whether the transaction at issue here constituted a "purchase" or "sale" of securities under section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. Northland Capital Corporation ("Northland") brought this action under the 1934 Securities Exchange Act, 15 U.S.C. Secs. 78a-78kk (1982), ("the '34 Act") and under the common law of fraud against A. David Silver, A. David Silver & Co., and various inside and outside directors of Watkins Corporation ("Watkins") to recover $50,000 remitted by Northland to Watkins via a wire transfer. Northland claimed that it had standing to bring a private cause of action under Rule 10b-5, promulgated under section 10(b) of the '34 Act, 15 U.S.C. Sec. 78j(b).
2
On motion for summary judgment, the District Court concluded that Northland was not a purchaser of securities, inasmuch as Northland and Watkins never came to a meeting of the minds with respect to the purchase of the securities in question. The court therefore concluded that, under the case of Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), requiring a plaintiff to be an actual purchaser to satisfy Rule 10b-5's requirement that the fraud be "in connection with the purchase or sale of any securities," Northland had no standing to bring a private cause of action under the '34 Act. The court dismissed the remaining common-law claim, which was based solely upon the court's pendent jurisdiction. Northland appealed the District Court's judgment. For the reasons stated below, we affirm.
3
* Successful closings of financial deals are fundamentally all alike; every unsuccessful closing is unsuccessful in its own way. The events that led to the unsuccessful closing here and precipitated this lawsuit began in the fall of 1978 when Watkins Corporation undertook a search for additional capital. Watkins, a District of Columbia corporation with its principal corporate offices in Northern Virginia, was engaged in the business of operating franchise outlets for the International House of Pancakes on the eastern seaboard. At its height, Watkins operated thirty such restaurants. The founder, chief executive officer, and major stockholder was Philander Claxton, III. Of relevance to the matter before us, Mr. Claxton's principal duties included responsibility for the financial matters of the enterprise. Defendant Edward Waibel, the president of Watkins, was principally responsible for operations. There was no chief financial officer.
4
In 1978, Mr. Claxton on behalf of Watkins engaged A. David Silver of A. David Silver & Co., a New York venture capital concern, to raise one million dollars of additional capital for Watkins. This target was to be reached through a private placement with a consortium of small business investment companies (SBIC's). Mr. Silver prepared a memorandum describing the proposed investment and detailing Watkins' operations and financial condition. His description of Watkins was based on a 1977 audit report and a 1978 opinion letter purportedly prepared by Price, Waterhouse & Co., both of which are now acknowledged to be forgeries. Mr. Silver sent the memorandum to a variety of SBIC's, including Allied Capital Corporation ("Allied"), based in Washington, D.C., and plaintiff Northland Capital Corporation, based in Duluth, Minnesota. Plaintiff's Opposition to Defendant's Statement of Material Facts p 26 ("Plaintiff's Statement").
5
Allied acted as the syndicator of the Watkins financing, persuading six other SBIC's to participate in the transaction. Allied was also a major participant, reserving $250,000 of the investment for itself. Plaintiff's Statement p 29. Northland, on the other hand, was located far from the center of the action which was about to transpire. Capitalized at $350,000, Northland had at the time of this transaction only two employees, Mr. Barnum, who was its President, and Mrs. Dunphy, who was Mr. Barnum's secretary and who enjoyed the title of Assistant Secretary. Because of its small capitalization, Northland limited its participation in the Watkins financing to $50,000. Transcript of Deposition of George Barnum at 56 ("Barnum Deposition").
6
Like other SBIC's, Northland's sole business is to invest in small business. It is a veteran in the field, having participated in 30 to 40 investments since its incorporation in 1967. Barnum Deposition at 8. Northland, however, generally relies upon other SBIC's to close its portion of the transaction because Northland is usually a minor participant in any given financing and because, in Mr. Barnum's words, Duluth is not "the venture capital center of the world." Id. at 10. This financing was no exception to the rule. Mr. Barnum authorized Allied, which he characterized as "the lead investor," to act on Northland's behalf at the contemplated closing. Id. at 16, 101. He further stated that Northland "rode on [Allied's] coattails as far as setting the terms of the investment." Id. at 16.
7
After consulting with the other participating SBIC's Allied set forth the terms of the proposed investment in a letter dated January 26, 1979. For purposes of this case, the most important requirements imposed by the SBIC's upon Watkins were as follows: (1) that all amounts received from the investors would be used to construct new franchise locations; (2) that the total amount of the financing would be placed in a separate "development account" from which it could not be withdrawn except for use in the construction of franchise locations; and (3) that after the construction of a building, the realty and improvements would, under a sale-leaseback arrangement, be sold to other investors and leased back to Watkins.1 In return for their infusion of funds, the SBIC's were to receive not only interest but also stock warrants to be delivered at the time of the closing. Letter of David Gladstone of Allied Capital, to Mr. Claxton, Watkins Corp. (Jan. 26, 1979), Gladstone Deposition Exhibit 5.
8
With the transaction so structured, the closing was scheduled for March 9, 1979, a fact known to Mr. Barnum. He elected not to attend, however, having deserted Duluth for the sunnier climes of a West Indies island with no telephone service. Barnum Deposition at 37. Mrs. Dunphy, his secretary, testified that she was instructed by Mr. Barnum to dispatch the $50,000 Northland investment in accordance with Allied's instructions. Deposition of Elizabeth Dunphy at 8 ("Dunphy Deposition").
9
The ensuing events are of pivotal importance as to the nature of the Northland-Watkins transaction. By March 8, Mrs. Dunphy had received no instructions from Allied. As she herself was leaving for vacation the following day, she telephoned Allied's offices in Washington. However, according to Mrs. Dunphy's deposition testimony, she was unable to speak with an officer of Allied, and an Allied secretary suggested that she call Mr. Silver. She did so, but, according to Mrs. Dunphy, Mr. Silver unhelpfully replied that he was busy, that he did not know the date of the closing, and that she should call Mr. Claxton. In response to her ensuing call, Mr. Claxton told Mrs. Dunphy to wire the funds to the Union First National Bank of Washington in care of one Mr. Cherouny, a senior vice president of Union First. She wired the money, "assumed" that it would be held in escrow until the closing, and departed on vacation. Dunphy Deposition at 9-12. Fatefully, however, the funds were transferred by the bank to Watkins' general corporate account. This telephone conversation constituted the whole of Northland's communications with Watkins prior to the scheduled closing.
10
The next day, March 9, 1979, Mr. Gladstone, an officer of Allied, and Mr. Claxton met in an attempt to close the transaction. The meeting was unsuccessful because, among other things, Mr. Gladstone was concerned that Watkins' Board of Directors had not approved the transaction and that an opinion letter purportedly prepared by Watkins' counsel bore tell-tale marks of a forgery. A week later, Mr. Gladstone sent a letter which identified twenty-two items necessary "in order to close this loan." Soon thereafter, on March 21, 1979, negotiations foundered. On April 6, 1979, Mr. Silver sent a letter to the representatives of the participating SBIC's, officially informing them that the deal had been called off. The letter stated: "[A]ll of you have been to closings that didn't close. That's what happened with Watkins Corp...." Memorandum of A. David Silver, A. David Silver & Co., to David Gladstone, Gladstone Deposition Exhibit 10. The financing, in fact, was never closed.
11
At the unsuccessful March 9 meeting, Mr. Claxton nonetheless executed a number of documents. Among those documents was an agreement letter from Watkins to Allied, setting forth Watkins' version of the contemplated transaction. The Watkins' version states, contrary to Allied's proposal of January 26, 1979, that Watkins would use 50 percent of the net proceeds from the financing for working capital and 50 percent to acquire additional sites to operate as restaurants. Letter of Mr. Claxton, Watkins Corp., to Allied Investment Corp., Paragraph I(A)(8). Barnum Deposition, Exhibit 6. The agreement letter stated that the closing was to take place on March 9. It further contemplated that notes and warrants "in the total aggregate amount of not less than seven hundred fifty thousand dollars ... will be sold by the Company to the Purchasers at closing...." Id., Paragraph I(A)(1). The Watkins letter stated several "conditions of closing," including the requirement that Watkins furnish the purchasers with a copy of the Board of Directors' resolution and a legal opinion from Watkins' counsel satisfactory to the purchasers. Id., Paragraph V. The agreement letter had spaces at the end reserved for the signatures of the various SBIC investors to signify their acceptance of the terms of the proposed agreement. Importantly, these spaces remained blank.
12
Finally, and still at the March 9 meeting, Mr. Claxton signed at least one stock warrant and one debenture note. This warrant was subject to the terms of the Watkins letter which, as we have just seen, was unsigned by the SBIC's. Stock Warrant No. 6 of Watkins Corp. (March 9, 1979). Deposition of Marianne Sharp, Exhibit 2-C. The agreement, the note, and the stock warrant were then sent to Northland.2
13
On March 16, 1979, a full week after the March 9 meeting, Watkins' Board of Directors met to consider Mr. Claxton's proposal for the 1.25 million dollar financing.3 By earlier memorandum, dated March 7, 1979, Mr. Claxton had notified his Board of the terms of the investment. This memorandum, like Watkins' version of the agreement already discussed, stated that the terms of the financing would allow Watkins to use half the proceeds as working capital and half for real estate development.4 In response to Mr. Claxton's motion, the Board on March 16 authorized Watkins to borrow $1,250,000 from Allied, Northland and five other SBIC's "upon the terms and conditions substantially in accord with those outlined in [Mr. Claxton's] summary of the loan transaction and as discussed at this meeting of the Board of Directors March 16, 1979." Deposition of Edward Waibel, Exhibit 1. Despite the Board's approval, no closing, as we have seen, ever took place.
14
A good deal of water had flowed over the dam by the time of Mr. Barnum's return from the West Indies in early April. Upon his return to Duluth, Mr. Barnum found the documents sent the previous month by Mr. Claxton. When Mr. Barnum also discovered, from Mr. Silver's April 6 letter, that the financing had not closed, he became "suspicious" and thereupon called Mr. Claxton. In their ensuing telephone conversation, Mr. Claxton agreed to send back to Northland the $50,000 remittance and further agreed to treat the $50,000 as a simple loan to be repaid immediately with interest. Barnum Deposition at 39-41. On April 18, 1979, Mr. Claxton sent a Watkins check in the amount of $50,767.12 to Northland, representing both principal and accumulated interest on the loan. Mr. Barnum attempted to cash the check, but it was returned for insufficient funds. On May 10, 1979, Watkins filed a voluntary petition in bankruptcy in the United States District Court for the Eastern District of Virginia.
15
Northland then brought the present fraud action under both the '34 Act and the common law in the United States District Court for the District of Columbia. In its federal claim, Northland alleged that it had been defrauded "in connection with a purchase or sale of a security" and therefore enjoyed standing to sue under section 10(b) and Rule 10b-5 promulgated thereunder. After extensive discovery, defendants moved for summary judgment on the grounds that on the undisputed facts Northland was not a "purchaser" of securities. The District Court granted the motion, concluding that there was "no meeting of minds" between Watkins and Northland and thus Northland never became a purchaser of securities. The court then dismissed the pendent common-law claim. Northland appealed the district court's judgment. Prior to oral argument in this appeal, Northland entered into a voluntary dismissal with all defendants except Edward Waibel, Watkins' former president.
II
16
* Section 10(b) of the '34 Act and Rule 10b-5 promulgated thereunder prohibit manipulative and fraudulent devices "in connection with a purchase or sale of a security."5 Interpreting this language in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), the Supreme Court held that only actual purchasers or sellers of securities may bring a private damages action under Rule 10b-5. While suggesting that such a limitation served the policy objective of avoiding vexatious litigation identified in the seminal case of Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), the Court's holding was based ultimately on its interpretation of the language of the Act and its legislative history.6
17
Thus, we reject at the outset appellant's argument that Blue Chip's holding should not govern cases such as the instant one since this type of case may not present a danger of strike suits. Indeed, in Blue Chip itself, the appellate court had accepted the Birnbaum interpretation of 10b-5 as a general principle, but carved out an exception in the circumstances of that case, because Manor Drug had been offered Blue Chip securities as part of an antitrust consent decree. The appellate court held that Manor's identification as an offeree in a written document served the same function as a contract in delimiting the appropriate plaintiffs under 10b-5. The Supreme Court, however, held to the contrary, concluding that entertaining such a theory "would leave the Birnbaum rule open to endless case-by-case erosion ... depending on whether a particular group of plaintiffs were thought ... to be sufficiently more discrete than the world of potential purchasers at large to justify an exception." 421 U.S. at 755, 95 S.Ct. at 1934.7 In the post-Blue Chip securities world, a person must be a "purchaser" or "seller" within the meaning of the Securities Exchange Act to have standing to bring suit under Rule 10b-5.
B
18
We thus turn to the question whether Northland is a "purchaser" of securities. A "purchase or sale" under the Act is defined as including "any contract" to purchase or sell a security. 15 U.S.C. Sec. 78c(a)(13) & (14). The terms "purchase" and "sale" are to be broadly construed to effectuate the remedial purposes of the '34 Act, see Sacks v. Reynolds Securities, Inc., 593 F.2d 1234, 1240 (D.C.Cir.1978); Goodman v. Epstein, 582 F.2d 388, 410 (7th Cir.1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979), and are not limited to their common-law meaning. See Broad v. Rockwell International Corp., 614 F.2d 418, 435 (5th Cir.1980). Therefore, courts have not allowed common-law technicalities, which may pose traps for the unwary and opportunities for the unscrupulous, to stand in the way of finding a statutorily cognizable "purchase" or "sale."8
19
The '34 Act's vital remedial purposes cannot, however, be permitted to strip the statutory words "purchase or sale" of their core meaning. It is, after all, a statute with express terms that is before us for examination. See Symons v. Chrysler Corp. Loan Guarantee Board, 670 F.2d 238, 241 (D.C.Cir.1981) (holding that the principle that remedial statutes are to be liberally construed to effectuate their purpose "does not give the judiciary license, in interpreting a provision, to disregard entirely the plain meaning of words used by Congress"). See also Sacks v. Reynolds, Inc., 593 F.2d at 1240 (applying the plain meaning rule in the context of a 10b-5 action). A bedrock requirement for the formation of any contract or bargain between unrelated parties, including those constituting a purchase or sale, is that the putative purchaser and seller come to a meeting of the minds or, in the phrase of the Restatement (Second) of Contracts, mutual assent on the essential terms of the transaction.9 This requirement is presupposed by the case law interpreting Rule 10b-5: for instance, in determining when a purchase is made, courts look to the time at which there was a "meeting of the minds." See Radiation Dynamics, Inc. v. Goldmuntz, 464 F.2d 876, 891 (2d Cir.1972).
20
It is clear from the undisputed facts of this case that no mutual assent occurred between Watkins and Northland. In financings such as the one proposed here, transactions are usually consummated by a formal closing or settlement at which the parties formally agree to terms and execute the requisite documents embodying the agreement. In the contemporary age of lawyers, accountants, and financial analysts, a financing is seldom, if ever, the result of a simple handshake between two principals. The structure of the financing here was therefore typical. No oral agreement on terms was reached, and it is abundantly clear that all parties contemplated that a closing was necessary for there to be a deal. Indeed, Mr. Barnum expressly authorized Allied to act on Northland's behalf at the contemplated closing, thus not only signifying the understanding that a closing was necessary but also that Northland intended to enter the transaction as part of a consortium of investors, not as a solitary investor operating independently of its fellow SBIC's. The documents that Mr. Claxton sent out on behalf of Watkins on March 9 also plainly contemplated both a closing and a transaction with a group of investors.
21
It is undisputed that the closing contemplated by the parties never took place. As we have seen, on the day the closing was to have occurred Allied, acting on behalf of the investors, found numerous differences with Watkins with respect to the terms of the transaction. In addition, Allied's representatives became suspicious about some of the supporting documentation provided by Watkins. These differences and suspicions were never resolved.
22
Northland does not dispute this, but nonetheless contends that even in the absence of a closing, Mrs. Dunphy's wiring of $50,000 when taken together with Mr. Claxton's sending of a stock warrant and note to Northland represent a separate transaction between Northland and Watkins, cognizable under the federal securities laws. These actions, however, even when taken together, do not suggest that Northland and Watkins gave mutual assent to a contract or bargain constituting a purchase of securities. To have mutual assent in these circumstances, one party must have accepted by word or deed an offer from the other.10 Here, under the specific circumstances presented, neither the wiring of the $50,000 nor the sending of the stock warrant can reasonably be interpreted as an acceptance.
23
Northland, of course, was entirely at liberty to come to a separate agreement with Watkins, but the testimony of Mrs. Dunphy, Northland's secretary, clearly indicated that it did not do so. As we have seen, Mrs. Dunphy testified that she was instructed to find out from Allied where she should send Northland's funds so as to be available for the closing. After unsuccessful attempts to get instructions from Allied, the lead investor, she called Mr. Claxton of Watkins to find out where she should wire the money. Mrs. Dunphy testified that she intended the $50,000 to be held in "escrow" until a closing occurred on the proposed $1,250,000 financing. Thus, Mrs. Dunphy's ministerial act can by no stretch of the imagination be interpreted as acceptance, on behalf of Northland, of a separate offer from Mr. Claxton. Her action in no wise changed the understanding of all the parties that Allied and Watkins would have to close the deal before a purchase would take place.
24
Nor does Mr. Claxton's sending to Northland the Watkins' version of the letter agreement, together with a note and warrant which were subject to the terms of the letter, render the transaction a purchase notwithstanding the aborted closing. First, even if Mrs. Dunphy's sending the $50,000 could somehow be construed as an invitation to a separate, individual transaction that could have been consummated without a formal closing, it is clear that the documents sent by Mr. Claxton to Northland were not intended to evidence or constitute an acceptance. Indeed, the agreement which Mr. Claxton sent to Northland had a space reserved for Northland's signature to allow Northland to evidence its acceptance of the terms of the agreement. It is undisputed that neither Northland nor Allied acting on its behalf ever signed the agreement.11 Moreover, it is undisputed that the Watkins agreement letter contained a critical term plainly at variance with Allied's proposal on behalf of the SBIC's.12 Thus, the agreement and warrant which Mr. Claxton returned to Northland contained materially different terms on an essential item of the contract from those Northland was offering, and thus could not constitute an acceptance. See Restatement (Second) of Contracts Sec. 59.13
25
Our conclusion that neither Mrs. Dunphy's nor Mr. Claxton's actions sufficed to create a purchase of securities is confirmed by Mr. Barnum's own understanding. When Mr. Barnum returned to Duluth from the Caribbean he became suspicious when he found documents that would normally be sent as part of a closing, but discovered that in fact no closing had taken place. He promptly telephoned Mr. Claxton. They immediately agreed in that conversation that Northland's money would be returned, with interest, and that the transaction would be treated as a simple loan. Mr. Barnum never signed the proposed agreement that Mr. Claxton had sent. In short, Mr. Barnum, on behalf of Northland, never acted as a purchaser of a security but rather as one who was trying to recover money his company had plainly intended to place in escrow after discovering that the transaction had been called off.14C
26
Northland argues that Baurer v. Planning Group, Inc., 669 F.2d 770 (D.C.Cir.1981), compels the conclusion that a purchase or sale took place here. In Baurer, an investor advanced $15,000 in exchange for a promissory note from a company. The note provided that if at the end of a thirty-day period the investor and the company were not able to come to terms on a partnership venture, the $15,000 would become due and payable together with certain accrued interest. If, on the other hand, an agreement were reached, the note would be deemed paid in full and only accrued interest would be due. The court concluded that the promissory note was a security, because the terms of the agreement, described in the note, "established its investment character." Baurer, 669 F.2d at 778.
27
Baurer 's holding, however, is inapposite to the case before us. The issue here is not whether a warrant is a "security," but whether Northland was a "purchaser" of the warrant. In Baurer, no one argued that the investor did not purchase the note, for there was explicit mutual assent between the parties in the exchange of funds for the note. In this case, however, there was no mutual assent. Indeed, as we have seen, the financial transaction in which the warrant was to be purchased was never closed, and no separate bargain between Northland and Watkins was ever struck.
28
Appellant also argues that we should analogize Mr. Claxton's sending of the documents to Northland to a pledge. Because Rubin v. United States, 449 U.S. 424, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981), holds that a pledge is a "sale" of a security under the '33 Act, Northland contends that a pledge is also a sale of securities under the '34 Act. Passing over the substantial question whether the differences between the '33 Act and the '34 Act in the statutory definition of sale would compel a different conclusion about whether a pledge is a sale under the latter's definition,15 we conclude that no pledge occurred, for the simple reason that Northland and Watkins never agreed to a pledge of securities. Indeed, Northland, like the other SBIC's in the deal that Mr. Silver structured, never even bargained for a pledge but contemplated the outright purchase of Watkins' securities.16
29
The dissent argues that the requirement of mutual assent in this case is not consistent with a variety of securities law decisions. Dissent at 1435. We have already shown that it is consistent with controlling law of this circuit. The principal genre of cases from other circuits with which the dissent deems our approach inconsistent are the "forced seller" cases in which a dissenting shareholder is forced to exchange securities for cash or other securities in a liquidation or merger. That situation is exceedingly remote from the facts of this case. As the very name "forced sale" suggests, an exchange in a merger or liquidation that is a result of the operation of governing corporate law, and the contractual structure of corporate governance itself, is not different in kind from a contractual exchange. The scope and legal significance of both types of exchanges are defined by well established principles of law, unlike the aborted transaction here. Our holding today as to the facts presented to us by no means goes to the far different settings embodied in the "forced seller" cases.17
D
30
Finally, we emphasize that our decision does not in any manner undermine the broad remedial policies of Rule 10b-5 and the '34 Act. The '34 Act is designed to protect investors and safeguard the operation of the Nation's capital markets. However, as the Supreme Court has stated, "Congress, in enacting the securities laws, did not intend to provide a broad federal remedy for all fraud." Marine Bank v. Weaver, 455 U.S. 551, 556, 102 S.Ct. 1220, 1223, 71 L.Ed.2d 409 (1982). Specifically, the federal securities laws do not confer upon the federal courts a roving commission to address every injury that a sophisticated, albeit small, investment concern such as Northland may suffer in the course of attempting to negotiate and close a deal. The proximate cause of Northland's misfortune was plainly the failure to place the $50,000 in escrow until the closing. The proper business arrangements were not effected with Union First Bank, and the transfer transformed Watkins in effect into Northland's escrow agent. When no closing occurred, Watkins failed to return the funds Northland thought it had entrusted to Union First. Such facts might well give rise to claims under applicable District of Columbia or state law, but they simply do not constitute the purchase or sale of securities under the '34 Act.18
31
Affirmed.
WALD, Circuit Judge, dissenting:
32
I must dissent from the panel's decision that Rule 10b-5 does not protect a person who is fraudulently induced to exchange $50,000 in return for a worthless security. The majority, I think mistakenly, finds no "purchase or sale" for Security Exchange Act purposes, because the preconditions laid down by Northland to issuing the warrant had not been met, and hence there was no "meeting of the minds" between Watkins and Northland. By imposing its own "meeting of the minds" prerequisite to a "purchase or sale" under the Act the majority shields from the investor protection provisions of the Securities Exchange Act the very kind of fraudulent conduct which was a core concern of the drafters. Furthermore, the panel's restrictive reading of "purchase or sale" in this case on the one hand is directly at odds with the broad reading of "purchase or sale" that other courts have adopted to effectuate the Act's remedial purposes and on the other hand serves none of the policies which the Supreme Court has in different factual contexts invoked to justify a purchaser or seller requirement for standing in private damage actions.
33
The facts of this case have been amply, and in the main accurately, detailed in the majority opinion. Because this is an appeal from the district court's granting of the defendants' motion for summary judgment, we must view the facts and the reasonable inferences that may be drawn from them in the light most favorable to the appellant. See National Souvenir Center, Inc. v. Historic Figures, Inc., 728 F.2d 503, 512 (D.C.Cir.1984). So viewed, I believe the majority has given too short shrift to several crucial facts which militate against dismissal of the defrauded company's claim before any trial has been held. Based on the uncontested facts before the trial court, this is what happened on the critical days in early March.
34
On March 8, after failing to get requested instructions from Allied, the lead SBIC on whom Northland relied to set the final terms of its intended investment, Northland called Claxton directly and asked how it should transmit the money it intended to invest in Watkins in time for the closing scheduled for March 9. Claxton instructed Northland to wire the funds directly to Watkins' bank account. We can therefore presume Claxton was aware on March 9 that Northland's $50,000 had already been deposited in Watkins' account.
35
On March 9, Claxton met with David Gladstone, executive vice-president of Allied, to close the deal, but they were unable to do so. There is no question Claxton knew at this time that Allied's proposal for the joint investment was different from Watkins' proposal of the contemplated transaction. This was one reason no deal came off. Nonetheless, despite the failure to close the deal on March 9, and with full knowledge that Northland desired to participate in a loan along with other SBICs only on Allied's terms, Claxton did not return Northland's $50,000. Rather, acting as a duly authorized officer of Watkins, he sent Northland, alone among the SBIC's, a stock warrant and debenture note for $50,000, the precise amount deposited in Watkins' account, subject to the terms of the agreement ultimately worked out.1 From these facts, it must be inferred in appellant's favor that the warrant and note were sent by Claxton in return for Northland's $50,000.
36
There is little question that Claxton's undisputed conduct--use of forged financial statements to induce investment in his company--is a target of Rule 10b-5. See Baurer v. Planning Group, Inc., 669 F.2d 770, 773 n. 14 (D.C.Cir.1981) ("Rule 10b-5 reaches 'any person' engaged in fraud to induce the purchase of securities") (quoting A. Bromberg & L. Lowenfels, Securities Law Sec. 2.1 (1981)). There is also little question that Northland was injured by such misrepresentation because it lost $50,000, which Watkins appropriated to its own use. The majority nonetheless concludes that because Allied's fortuitous discovery of the forgery prevented the deal from closing, Northland cannot maintain a Rule 10b-5 action.
37
The majority purports to rest this conclusion on the strict tenets of contract law which it says require a "meeting of the minds" between Watkins and Northland before Northland can be a "purchaser" of securities so as to come within the protective orbit of the antifraud provisions of the Securities Exchange Act. Maj.Op., text at n. 9. In so doing, it shortchanges the investor here in three respects.
38
First, it ignores the well accepted principle of contract law that a person who knows the terms of an agreement proposed by another party, and who subsequently accepts performance by that party, cannot avoid his contractual obligations by claiming there was "no meeting of the minds."2 See Amicizia Societa Navegazione v. Chilean Nitrate & Iodine Sales Corp., 184 F.Supp. 116 (S.D.N.Y.1959), aff'd, 274 F.2d 805 (2d Cir.), cert. denied, 363 U.S. 843, 80 S.Ct. 1612, 4 L.Ed.2d 1727 (1960); see, e.g., Associated Hardware Supply Co. v. Big Wheel Distributing Co., 355 F.2d 114 (3d Cir.1965); In re Mailers Unlimited, Inc., 6 B.R. 238, 240 (Bkrtcy.E.D.Pa.1980). "The manifestations of the parties are operative [to contractually bind them] in accordance with the meaning attached to them by one of the parties if that party does not know of any different meaning attached by the other, and the other knows the meaning attached by the first party." Restatement (Second) of Contracts Sec. 20(2) (1979). And "the conduct of a party [such as acceptance of performance] may mainfest assent even though he does not in fact assent." Restatement (Second) of Contracts Sec. 19(3) (1979). Here, Claxton knew of the terms Northland desired when it sent its $50,000, but Northland did not know that Watkins had proposed its own terms. Thus, Northland could reasonably regard Watkins' acceptance of its $50,000 as manifesting assent to those terms, and Watkins, having accepted the money, cannot later claim no contract was formed because there was no meeting of the minds.
39
Second, the majority ignores the definition of "sale" in the Securities Act of 1933, passed only one year before the Securities Exchange Act and authoritatively used as a source for definition of statutory terms common to both Acts. The Securities Exchange Act of 1934 did not explicitly define "purchase or sale," but there is "no reason to believe that Congress intended, one year after the passage of the Securities Act, to dilute the concept of sale in the Securities Exchange Act." Lawrence v. Securities Exchange Comm., 398 F.2d 276, 280 (1st Cir.1968).3 In the 1933 Act Congress explicitly provided that "sale" includes any "disposition of ... an interest in a security for value," 15 U.S.C. Sec. 77b(3), and thereby obviously envisioned coverage of transactions like that between Northland and Watkins here.
40
Third, the majority fails to identify a single policy reason why a court should ignore both contract law principles and federal securities law history, and read Rule 10b-5's "purchase or sale" prerequisite more restrictively than the common law. All of this it does in the name of the test for standing to bring a private damage suit adopted by Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). Maj.Op. at 1426-1427. I disagree, however, that Blue Chip in any way supports the majority's conclusion that no purchase or sale occurred in this case.
41
In Blue Chip, the Supreme Court, following the rule first laid down in Birnbaum v. Newport Steel Co., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), announced that only "purchasers or sellers" of securities have standing to bring private damage actions under Rule 10b-5. In doing so, Blue Chip never talked about "meeting of the minds" as part of its "purchaser or seller" requirement. Rather, it explained that the Birnbaum rule denied standing to three classes of potential plaintiffs: (1) offerees who allege merely that they would have purchased a security but for the fraud, (2) shareholders who allege merely that they would have sold their shares but for the fraud, and (3) shareholders who allege that the fraud decreased the value of their investment, but who do not allege that the fraud influenced their investment decisions. See Blue Chip, 421 U.S. at 738-39, 95 S.Ct. at 1926-27. The stated purpose of Blue Chip's adoption of the Birnbaum standing doctrine was the prevention of "strike suits" and the elimination of private damage actions that would require a treacherous inquiry into the plaintiffs' subjective decisions regarding whether to invest or sell. See 421 U.S. at 740, 746, 95 S.Ct. at 1927, 1930.
42
In this case, by contrast, Northland obviously does not fall within any of the three classes of plaintiffs that Blue Chip sought to eliminate. In fact, the policies reflected in Blue Chip do not apply at all, since Northland paid its money and received securities in return. No court would have to embark on a subjective inquiry in order to decide whether a "purchase or sale" occurred in this case; under the facts alleged, it seems quite clear that an objective exchange of money and securities between Northland and Claxton took place. Quite candidly, the majority's concerns regarding the Blue Chip standing doctrine entirely elude me.
43
In fact, a closer examination of the Blue Chip case reveals that the exchange of money for securities that occurred in this case should be considered a "purchase or sale" for the purposes of Rule 10b-5. As the Court noted in Blue Chip, the bounds of standing to sue cannot be "derive[d] from the language of [section] 10(b)." 421 U.S. at 737, 95 S.Ct. at 1926. Accordingly, the Court turned to "policy considerations ... to flesh out the portions of the law with respect to which neither the congressional enactment nor the administrative regulations offer conclusive guidance." Id. While recognizing the overriding remedial policy behind the implied cause of action under section 10(b)--to allow "deserving plaintiffs [to] recover ... damages which in fact have been caused by violations of Rule 10b-5," 421 U.S. at 738, 95 S.Ct. at 1926--the court nonetheless adopted the Birnbaum rule because that rule has "countervailing advantages ... purely as a matter of policy," namely limiting the potential for widespread vexatious litigation. 421 U.S. at 739-40, 95 S.Ct. at 1927-28. I can imagine no legitimate need for such a "limiting principle" to bar this suit, however, where money and securities changed hands, and the plaintiff apparently lost a sizeable sum.
44
Contrary to the majority's statement, Blue Chip's holding was thus not "based ultimately on its interpret[ing] ... the language of the Act and its legislative history," so much as on its balancing of the injuries that would flow from including or excluding nonsellers and nonpurchasers from the Rule's protection.4 Blue Chip's policy analysis thus can be instructively applied here. The majority's "meeting of the minds" prerequisite, like the Birnbaum rule, has the "disadvantage" of "prevent[ing] some deserving plaintiffs from recovering damages that in fact have been caused by violations of Rule 10b-5." 421 U.S. at 738, 95 S.Ct. at 1926. On the other hand, it not only has none of the "countervailing advantages" of the Birnbaum rule in preventing "strike suits" and litigation turning on subjective proof of what a plaintiff would have done in a hypothetical situation, but in fact, the "meeting of the minds" requirement is in tension with the purposes of the Birnbaum rule because it invites a defendant to rebut objective evidence of a sale with subjective contentions that the parties never actually agreed to the terms of the transaction. See Blue Chip, 421 U.S. at 747, 95 S.Ct. at 1931. The majority's tunnel-visioned focus on Blue Chip 's discussion of the Act's language and history is thus understandable since, unlike the Court in that case, it can point to no policy of the Act which is advanced in this case by restricting standing of an actual investor, who pays money intending to purchase one kind of security, but receives a different and ultimately worthless kind from the seller.
45
As this and other courts have recognized, the remedial policies of the anti-fraud provision of the Security Exchange Act embodied in Rule 10b-5 command a liberal interpretation of "purchase or sale"; accordingly, the courts have read the rule to allow private damage suits in situations much less recognizable as traditional sales or purchases than this one. See Sacks v. Reynolds Securities, Inc., 593 F.2d 1234, 1240 (D.C.Cir.1978); Broad v. Rockwell International Corp., 614 F.2d 418, 435 (5th Cir.1980), aff'd in part and rev'd in part on other grounds, 642 F.2d 929 (5th Cir.) (en banc ), cert. denied, 454 U.S. 965, 102 S.Ct. 506, 70 L.Ed.2d 380 (1981); Goodman v. Epstein, 582 F.2d 388, 410 (7th Cir.1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); Mader v. Armel, 402 F.2d 158, 160 (6th Cir.1968), cert. denied, 394 U.S. 930, 89 S.Ct. 1188, 22 L.Ed.2d 459 (1969); Vine v. Beneficial Finance Co., 374 F.2d 627, 634 (2d Cir.), cert. denied, 389 U.S. 970, 88 S.Ct. 463, 19 L.Ed.2d 460 (1967). Thus, courts have granted standing to plaintiffs: (i) whose securities were converted to claims for cash by merger or liquidation,5 (ii) where stock was pledged as collateral for a loan,6 (iii) and where a shareholder agreement granted a corporation a right of first refusal to purchase stock.7 These decisions demonstrate that, for purposes of standing to sue under Rule 10b-5, all that is required is a non-gratuitous "surrendering of control, change in ownership, or change in the fundamental nature of an investment...." Sacks, 593 F.2d at 1240; see also Baurer, 669 F.2d at 779 (a purchase of a security occurred since "notes were ... disposed of ... and value was given [in return]"); see also 15 U.S.C. Sec. 77b(3) (1933 Act definition of "sale" includes any disposition of a security for value).
46
Although the majority says it takes no issue with the holdings of these cases, Maj.Op. text at n. 17, its self imposed requirement in this case that there be a "meeting of the minds" in fact poses an irreconcilable conflict with them. Under the majority's test, for instance, a merger or liquidation's transformation of a stockholder's shares into claims for cash would involve no "meeting of the minds" since the stockholder never agrees to dispose of the stock for a bargained price. The majority's cite to one isolated Rule 10b-5 case that did invoke the "meeting of the minds" doctrine, see Maj.Op. at 1427 (citing Radiation Dynamics, Inc. v. Goldmuntz, 464 F.2d 876, 891 (2d Cir.1972)), also fails to persuade. Radiation Dynamics was an insider trading case in which the issue was whether the defendant had already agreed to purchase the shares before he acquired the inside information. If the fraud postdated the agreement to purchase, no cognizable injury occurred. The court used a "meeting of the minds" test to determine at what point the agreement was reached. That use of the "meeting of the minds" test in no way predetermines its requirement as an element of a "purchase or sale" under the Securities Exchange Act. Where, as here, the commitment is completed by the very act of paying for the security, injury is attributable to the fraud whether or not an actual agreement was reached. Thus, Radiation Dynamics does not stand for the proposition that no sale or purchase can exist without a "meeting of the minds." In this case, the policies of the Act require recognition that a "sale" occurred when the deal failed to close and Claxton nevertheless sent Northland a stock purchase warrant and a debenture note rather than returning Northland's $50,000.8
47
In sum, I find that the majority's insistence on a meeting of the minds, in the strict contract law sense, as a prerequisite to finding a purchase or sale for purposes of allowing a private damages action under the Securities Exchange Act contravenes the remedial policy of Rule 10b-5, conflicts with prevailing precedent, which broadly construes the purchase or sale requirement for Rule 10b-5 actions, and is totally unjustified by the Supreme Court's Blue Chip opinion.9 For these reasons, I dissent.
1
These terms provide as follows:
1
07 The money borrowed will be used to construct new franchisee locations which must be approved by Allied
1
08 The money will be placed in a separate development account of a bank approved by Allied. No funds can be withdrawn from the account, except to buy land, pay for construction of the building, interest on loan, fees and to finish completion of the locations, as approved in 1.07 above
1
09 Once the location is complete and the store is operational, it is understood that the land and building will be sold to investors and leased back to Watkins. The sale will pay back into the bank account (1.08) the full amount used from the bank account to establish the land and building. The sale will not be made, unless the full amount can be paid into the fund
Letter of David Gladstone, Allied Capital Corporation, to Mr. Claxton, Watkins Corporation (Jan. 26, 1979).
2
The District Court believed Mr. Claxton may also have signed warrants for other SBIC's. Indeed, the Plaintiff's Statement indicates that Mr. Claxton sent out documents to all SBIC's who did not attend the meeting. Plaintiff's Statement p 37. See also Deposition of A. David Silver at 117 (stating that he assumed notes and warrants were sent to all out-of-town investors). However, because it is not clear from the record that other non-attending SBIC's received warrants and because on appeal from a grant of summary judgment we must draw all inferences in favor of the appellant, we assume that Mr. Claxton sent a stock warrant and debenture note only to Northland
3
The original amount suggested by Mr. Silver for the investment was one million dollars, but in the court of syndication it was raised to $1.25 million
4
The memorandum to the Board stated as follows:
Following meetings and conversations with representatives of the SBIC's with whom we have been negotiating, a tentative agreement has been reached, subject to your approval and that of Union First [Bank]. The terms of the proposed loan are as follows: (1) The total amount will be $1,250,000, of which $625,000 will be for real estate development and $625,000 will be for working capital.... (4) The real estate portion of the loan will be subordinated to $2,500,000 of additional financing. The working capital portion will be subordinated to all Senior Debt....
Deposition of Robert Cherouny, Exhibit 9.
5
The dissent declares that we should construe the definition of "sale" in the '34 Act to conform to the different definition contained in the Securities Act of 1933. Dissent at 1433. The Supreme Court's decision in Blue Chip, however, takes precisely the opposite approach: it interprets the differing language of the two Acts as evidence of the Acts' differing ambits. See Blue Chip Stamps, 421 U.S. at 733-734, 95 S.Ct. at 1924-1925 (noting that Congress' use of the term "in offer or sale" in the 1933 Act showed that "when Congress wished to provide a remedy to those who neither purchase nor sell securities, it had little trouble in doing so expressly"). To ignore the linguistic differences between the definitions in the two Acts is to suggest implicitly that Congress did not know what it was doing when it chose the differing language. This we refuse to do
6
See Blue Chip Stamps, 421 U.S. at 733 n. 5, 95 S.Ct. at 1924 n. 5 (holding that "the wording of Sec. 10(b), making fraud in connection with purchase or sale of security a violation of the Act, is surely badly strained when construed to provide a cause of action, not to purchasers or sellers of securities, but to the world at large") (emphasis in original)
7
The dissenting opinion seems to ignore the Supreme Court's refusal to engage in case-by-case policy analysis in Blue Chip. That refusal demonstrates that although the Supreme Court took policy analysis into account in reaching its conclusion that the '34 Act required a plaintiff to be a purchaser to have standing to sue, it established this requirement as a per se rule which could not generally be rebutted by policy considerations in individual cases. The dissent is also incorrect in stating that our requirement of mutual assent, discussed in the text that follows, is at odds with any policy concern of Blue Chip. Dissent at 1434-1435. Blue Chip was concerned that "vexatious" litigation would result from allowing plaintiffs standing to sue on the mere allegation that they intended to buy or sell a security. The Court feared that defendants would have difficulty disposing of such suits because of the subjective nature of the plaintiff's proof of intent. Blue Chip, 421 U.S. at 743, 95 S.Ct. at 1929. Vexatious litigation is obviously no more likely, however, when a plaintiff must show that there was mutual assent between the offeror and himself. Moreover, a plaintiff does not have to adduce proof of the defendant's subjective intent in order to prove mutual assent. The principle that objective manifestation of intent is controlling in contract formation is very well established. See WILLISTON ON CONTRACTS 42 (1957)
8
For instance, some courts have allowed an oral agreement, albeit unenforceable under the statute of frauds, to serve as a predicate for standing to sue under 10b-5. See Desser v. Ashton, 408 F.Supp. 1174 (S.D.N.Y.1975); but see Southeastern Waste Treatment, Inc. v. Chem-Nuclear Systems, Inc., 506 F.Supp. 944 (N.D.Ga.1980)
9
See RESTATEMENT (SECOND) OF CONTRACTS Sec. 3 (1977) (defining "agreement" as "a manifestation of mutual assent on the part of two or more persons" and defining bargain as "an agreement to exchange promises or to exchange a promise for a performance or to exchange performances"); RESTATEMENT (SECOND) OF CONTRACTS Sec. 17 (stating that "the formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and consideration"). Therefore, whether Northland attempts to predicate the existence of a purchase on a bargain, which consists of a fully executed exchange, see RESTATEMENT (SECOND) OF CONTRACTS Sec. 3, comment c, or on a contract, which consists at least in part of a promise of future performance, mutual assent is required. See also WILLISTON SALES Sec. 7-2 (1973); 1A CORBIN ON CONTRACTS Sec. 29, at 82-83 (1963)
10
RESTATEMENT (SECOND) OF CONTRACTS Sec. 22 states:
The manifestation of mutual assent to an exchange ordinarily takes the form of an offer or proposal by one party followed by an acceptance by the other party or parties.
The exceptions to this rule, set out in comments a and b to the RESTATEMENT, are not relevant here.
11
The dissent seems to imagine facts when it asserts that "Claxton knew of the terms Northland desired when it sent its $50,000, but Northland did not know that Watkins had proposed its own terms." Dissent at 4. Under the undisputed facts, Northland was not playing the role of lone wolf, departing from the pack led by Allied to cut its own deal and present its own terms. It is clear beyond cavil that all Mrs. Dunphy was seeking to do in effecting the wire transfer was to have Northland's share of funds, pursuant to its commitment to the consortium, available for the closing that was destined not to be. By no stretch of the imagination, much less the facts, was Mrs. Dunphy setting forth some new or separate terms on behalf of Northland
12
As discussed in the text above, Allied required that all the investment funds be used by Watkins to obtain construction sites; in contrast, the document sent to Allied provided that Watkins could use one-half the investment money for working capital
13
The Watkins Board's acceptance of Mr. Claxton's proposal does not aid the appellant in establishing mutual assent, because Mr. Claxton's proposals were, as we have seen, at variance with the proposals of the investors
14
We hold that, under these circumstances, where no manifestation of mutual assent ever existed between the parties, no "purchase" within the meaning of the '34 Act occurred. This holding, however, does not prevent a court from finding a purchase where there was an apparent manifestation of mutual assent that was negated by a party's misrepresentation. An example of this situation would be when a person agrees to sell valuable securities of Company A contained in a paper envelope to an investor who agrees to the transaction. In our hypothetical, the envelope actually contains the worthless securities of Company B. Under RESTATEMENT (SECOND) OF CONTRACTS Sec. 163 (stating that "[i]f a misrepresentation as to the character or essential terms of a proposed contract induces conduct that appears to be a manifestation of assent by one who neither knows or has reasonable opportunity to know of the character or essential terms of the proposed contract, his conduct is not effective as a manifestation of assent), there is no contract in this hypothetical because the would-be seller's misrepresentation went to an essential term. Thus, the investor's apparent assent is not effective. Even though there is no contract, a court might well find a "purchase" under the meaning of the '34 Act; what allows the apparent seller to escape contractual obligation is a misrepresentation--the very evil at which the Act is aimed
We do not, of course, take issue with any of the salutary principles of contract law relied on by the dissent. Dissent at 1433-1434. On the undisputed facts of the case, however, they are inapplicable. When on March 8, Mrs. Dunphy on Northland's behalf wired the funds to Union First, she was not performing Northland's side of the bargain, but was rather attempting to put the money in escrow until Allied closed the deal on Northland's behalf. At the aborted closing on the very next day Allied, as Northland's agent, became aware that Mr. Claxton was proposing different terms from those of the investing SBIC's. When Mr. Barnum and Mrs. Dunphy returned from vacation, Mr. Barnum found an agreement, that Mr. Claxton had sent, with differing terms. Mr. Barnum never signed that varying agreement. Therefore, at no time could Northland, as the dissenting opinion asserts, have reasonably been under the impression that Watkins had accepted performance on the terms of the investing SBIC's.
15
The '33 Act defines a sale as including "every contract of sale or disposition of a security or interest in a security ...." 15 U.S.C. Sec. 77b(3). The '34 Act defines a sale as including simply "every contract to sell or otherwise dispose of [a security]." 15 U.S.C. Sec. 78c(a)(14). The circuits are split on whether a pledge comes within the ambit of the definition in section 78c(a)(14) and therefore on whether it is a sufficient predicate for jurisdiction under 10b-5. Compare, e.g., Alley v. Miramon, 614 F.2d 1372 (5th Cir.1980) (finding that a pledge is not a sale) with Mallis v. FDIC, 568 F.2d 824 (2d Cir.1977), cert. granted, 431 U.S. 928, 97 S.Ct. 2630, 53 L.Ed.2d 243, cert dismissed as improvidently granted sub nom. Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (finding that a pledge is a sale)
16
Appellant also argues that Sacks v. Reynolds Securities, Inc., 593 F.2d 1234 (D.C.Cir.1978), supports its position that it is a purchaser. In Sacks, a former account representative of Reynolds sued under 10b-5 claiming that Reynolds had failed to transfer her personal accounts and accounts of some of her customers to her new brokerage firm. She claims that because the agreement between Reynolds and her to transfer the securities was a contract to "otherwise dispose of [securities]," see 15 U.S.C. Sec. 78c(a)(14), the transaction constituted a "sale" of securities within the meaning of the Act. The Sacks court held that the transaction was not a "sale," because the purchase or sale requirement of 10b-5 required "some surrendering of control, change in ownership, or change in fundamental nature of an investment." Northland seizes on this language to suggest that its "surrendering" of funds and Mr. Claxton's "surrendering" of a security gives it standing to sue under 10b-5. Once again, however, Sacks is inapposite because it did not address the unique problem presented here, namely the lack of mutual assent. In Sacks there was no dispute that the account representative and Reynolds agreed to the transfer
17
We do not, needless to say, suggest the presence of a requirement of mutual assent regardless of the circumstances presented. Rather, since we do not have before us a transaction reflecting an extraordinary change in the structure of the corporation, as would be the case with a merger or liquidation, we must examine a transaction between two unrelated parties to determine the nature of that transaction and the legal incidents flowing therefrom. The element of mutual assent thus guides us, in these circumstances, in our analysis, but we obviously need not and therefore do not erect it as a requirement in settings completely alien to the facts before us
18
Appellant does not argue that the district court erred in dismissing the common law fraud claim after dismissing the federal claim to which it was pendent. The dismissal was clearly within the court's discretion. See Financial General Bankshares, Inc. v. Metzger, 680 F.2d 768 (D.C.Cir.1982) (reversing the district court's decision to retain pendent jurisdiction over common law claims when federal claims were dismissed before trial). See also United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (stating that "if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well")
1
At argument, counsel for Northland stated that, although the district court record is unclear, in fact no other SBIC received stock warrants. Appellees did not take issue with this assertion. Even if the Appellees had taken issue and the record was therefore less than totally clear, as the majority states, we still must assume on review of this grant of summary judgment that Claxton sent a stock warrant and debenture note only to Northland. See Maj.Op. at n. 2
2
Even where a person accepts performance without knowing the terms on which performance is tendered, the person is obligated to pay for the value received. See Corbin on Contracts, Sec. 102 (1963). This legal obligation is a recognition of the reality that some kind of exchange or "sale" has taken place
3
See Mansbach v. Prescott, Ball & Turben, 598 F.2d 1017, 1029 (6th Cir.1979); National Bank of Commerce v. All American Assurance Co., 583 F.2d 1295, 1298 (5th Cir.1978) ("although there are slight differences in wording between the 1933 Securities Act and the 1934 Securities Exchange Act, the definitions of [purchase and sale] are functionally equivalent"); Daniel v. International Brotherhood of Teamsters, 561 F.2d 1223, 1242 (7th Cir.1977) (in both [the 1933 and 1934] Acts a 'sale' of an interest [in a security] ... depends upon whether there has been a disposition of it"), rev'd on other grounds, 439 U.S. 551, 99 S.Ct. 790, 58 L.Ed.2d 808 (1979); Mallis v. Federal Deposit Insurance Corp., 568 F.2d 824, 828-30 (2d Cir.1977) (relying on 1933 Act definition of sale to hold a pledger of a security is a seller, and therefore has standing to sue under Rule 10b-5), cert. dismissed, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978); L. Loss, Fundamentals of Securities Regulation, 655-56, 922-23 (1983) ("there is authority for looking to the 1933 Act definition [of sale] in construing the 1934 Act on an in pari materia approach"); cf. Rubin v. United States, 449 U.S. 424, 432, 101 S.Ct. 698, 702, 66 L.Ed.2d 633 (1981) (Blackmun, J., concurring) (referring to definition of sale in 1934 Act in interpreting 1933 Act to cover pledges of securities); International Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 556 n. 8, 99 S.Ct. 790, 795 n. 8, 58 L.Ed.2d 808 (1979) (implying that a sale under the 1934 Act includes any disposition for value, but noting the Court "need not decide whether the meaning of 'sale' under the Securities Exchange Act is any different from its meaning under the Securities Act")
4
In fact, the Blue Chip majority's heavy reliance on policy prompted three justices who concurred in the majority opinion to issue a separate opinion "emphasiz[ing] the significance of the text of the Acts of 1933 and 1934 and especially the language of Sec. 10(b) and rule 10b-5." Blue Chip, 421 U.S. at 755, 95 S.Ct. at 1935 (Powell, J., joined by Stewart and Marshall, JJ., concurring)
5
See Alley v. Miramon, 614 F.2d 1372, 1380-81, 1384-85 (5th Cir.1980) (liquidation deemed forced sale); Bolton v. Gramlich, 540 F.Supp. 822, 839-40 (S.D.N.Y.1982) (same); Valente v. Pepsico, 454 F.Supp. 1228, 1236-37 (D.Del.1978) (merger deemed forced sale); see also L. Loss, supra note 3, at 923-24 (1983)
6
See Chemical Bank v. Arthur Andersen & Co., 552 F.Supp. 439, 450-51 (S.D.N.Y.1982), rev'd on other grounds, 726 F.2d 930 (2d Cir.1984); see also L. Loss, supra note 3, at 925
7
See McCloskey v. McCloskey, 450 F.Supp. 991 (E.D.Pa.1978), (noting "if Congress had intended to limit [section 10b] to exclude [an] executory contract ... it could simply have defined the term as any non-executory contract." (emphasis in original))
8
Of course, before Northland can recover from any principal of Watkins, it must show he acted with the requisite scienter. See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). Thus, my position in this case would not automatically impose liability on any defendant if, as the facts were developed at trial, he can show that he was not aware of the fraudulent scheme to induce investment
9
In responding to this dissent, the majority makes several discrete arguments to which I reply in this note:
(a) It argues that Blue Chip pointed out the difference between the phrase "offer and sale" in the 1933 Act and "sale" in the 1934 Act and thereby inferred a broader coverage of transactions under the 1933 Act. See Maj.Op. at n. 5. There is no debate on that point. I argue something quite different--that "sale" means the same thing in both Acts. See supra text at n. 3. The authorities are unanimous on this point, and there is not even a whisper in Blue Chip to the contrary.
(b) Nor is there any dispute, as the majority suggests, see Maj.Op. at n. 7, over Blue Chip's holding that one who did not buy or sell or security has no standing to bring a Rule 10b-5 damages action. Again, that has nothing to do with whether the facts here fall within the definition of "sale."
(c) In its footnote 11, the majority misperceives my view of the facts. I do not contend that by sending $50,000 to Watkins, Northland was making an independent offer. I maintain rather that because Northland tendered performance (i.e., payment) under terms proposed by the other SBIC's as part of the joint venture, and because Claxton knew that Northland made the payment intending to be a joint venturer under these terms and that the joint venture did not close, he was obligated to return Northland's money or else be held legally responsible for having "sold" the warrants he mailed out in return for the money.
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30 Ill.2d 101 (1964)
195 N.E.2d 675
THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error,
v.
EUGENE TYNER, Plaintiff in Error.
No. 36636.
Supreme Court of Illinois.
Opinion filed January 22, 1964.
*102 RICHARD E. POWELL, of Chicago, appointed by the court, for plaintiff in error.
WILLIAM G. CLARK, Attorney General, of Springfield, and DANIEL P. WARD, State's Attorney, of Chicago, (FRED G. LEACH and E. MICHAEL O'BRIEN, Assistant Attorneys General, and ELMER C. KISSANE and RICHARD T. BUCK, Assistant State's Attorneys, of counsel,) for the People.
Reversed and remanded.
Mr. JUSTICE DAILY delivered the opinion of the court:
After a jury trial in the criminal court of Cook County, the defendant, Eugene Tyner, and a co-defendant, Herbert Kelley, were convicted of murdering one James Toney and were each sentenced to the penitentiary for a term of 199 *103 years. In prosecuting this writ of error, Tyner (hereafter referred to as defendant) contends that the lower court made prejudicial remarks during the course of the trial and also erred in admitting into evidence the co-defendant's written statement.
It appears that the deceased lived in the front first floor apartment at 2326 West Monroe Street in Chicago. Willie Holman and his wife occupied the rear first floor apartment, and defendant lived on the second floor at the same address. Shortly after midnight on the morning of January 15, 1961, defendant and Kelley visited the Toney apartment where Toney, Holman, and others were playing cards but left within a few minutes only to return approximately one hour later. When Kelley then became abusive, both he and defendant were ordered to leave, and upon their refusal an altercation followed during which Toney struck both men about the head and face with the metal top of a pressure cooker. Defendant and Kelley then left the apartment house, but about thirty minutes later they returned and rang for admittance to the first floor. Willie Holman came to the door from his apartment, where he had retired shortly after midnight, and upon recognizing the callers refused to open the door until he observed the gun which Kelley was carrying in his hand. Holman then raised his hands, stepped back from the door, and permitted their entrance. Although Holman again returned to his apartment, defendant and Kelley walked to Toney's apartment and a few seconds later three shots were fired by Kelley after which Toney staggered from the building to the street and there collapsed. Although defendant and Kelley admitted the shooting, they claimed it was done in self-defense.
Willie Holman testified for the State and upon cross-examination insisted that he did not know what caused the earlier altercation at the Toney apartment. Nevertheless, the court then proceeded to interrogate Holman concerning the same matter and when he repeated his answer the judge *104 remarked that Holman had "a terrible lapse of memory;" that he was "sick and tired of this kind of testimony;" that Holman was in a position to give the jury a "lot more information, beneficial to the State even if he would;" and that he was "lying like a goat." The court then concluded with this remark: "Very typical of these people when a killing takes place. They slip away and they don't know what happened. It leaves it up to the jury to surmise and you have to decide the case on circumstantial evidence."
Kelley testified upon his own behalf, and following his cross-examination by the State concerning a discrepancy between the witness's testimony and a prior written statement he had given the police relative to defendant's participation in the crime, the court continued to interrogate concerning the discrepancy, particularly referring to the contradictory written statement. The court later questioned defendant as to this same matter, and after defendant had testified that he struck Toney only in self-defense, the trial judge by further interrogation caused him to admit that Toney's alleged attack upon him occurred after the shooting.
Although a trial judge may question witnesses for purposes of clarification or to bring enlightment upon issues otherwise obscure, he should do so in a fair and impartial manner without showing bias or prejudice against either party and without impugning the credibility of any witness. Rarely, if ever, is a judge called upon to comment on the evidence during trial except where necessary in ruling upon its admissibility, and under no circumstances should he express an opinion as to its veracity, for this is the province of the jury, and any intimation of such nature, however slight, may carry great weight with the jury and could prove controlling. People v. Marino, 414 Ill. 445; People v. Lurie, 276 Ill. 630.
In the present case the trial judge openly accused Holman of lying and withholding information, and although *105 he was a State's witness, the court indicated that not only was he concealing facts beneficial to the State but that such action was "typical of these people." Holman, Tyner, and Kelley were negroes and regardless of what the judge may have meant by such remark, it had the capacity to create prejudice in the minds of the jurors. The court's interrogation of Kelley and defendant further served to emphasize weaknesses in their defense and to cast doubt upon their veracity. Such action was clearly improper. Although defendants did not offer immediate objection thereto, which would ordinarily be a prerequisite to review, we have heretofore held that a less rigid application of this rule must prevail where misconduct of the trial judge is involved. People v. Sprinkle, 27 Ill.2d 398; People v. Bernstein, 250 Ill. 63.
Following his arrest, Kelley gave the police a written statement outside defendant's presence wherein he indicated that defendant had voluntarily joined in the earlier altercation at the Toney apartment and had later beaten the deceased upon the back of the head with the pressure cooker top as Toney lay in the street. However, at time of trial both defendant and Kelley repudiated this account. Nevertheless, the statement was admitted into evidence without restriction and in his argument to the jury the State's Attorney, over defendant's objection, repeatedly referred to this statement in contending that defendant had beaten the deceased while he lay in the street and in questioning the veracity of defendant's testimony. We have repeatedly held that the confession or admission of a co-defendant is not admissible against the accused unless made in his presence or assented to by him. (People v. Tunstall, 17 Ill.2d 160; People v. Clark, 17 Ill.2d 486; People v. Childress, 1 Ill.2d 431.) Where, however, the participants are jointly tried and there has been no motion for severance, the confession of a co-defendant may be admitted if its admissibility is clearly limited to the participant who made the statement. *106 As to the other defendants it is pure hearsay. (People v. White, 28 Ill.2d 23; People v. Vickery, 321 Ill. 254.) Here the court made no attempt to limit the statement's applicability solely to Kelley but to the contrary the State was permitted, upon argument, to buttress its case against defendant with this hearsay statement. In our opinion the trial court erred in this respect. Although there was substantial evidence of guilt, the jury in the present case also fixed the penalty, and we cannot say under these circumstances that the above errors did not in some measure prejudice the defendant, particularly in view of the extreme severity of the sentence.
The judgment of the criminal court of Cook County is therefore reversed and the cause remanded to that court for a new trial.
Reversed and remanded.
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210 B.R. 651 (1997)
In re Robert D. ARNOTT and Cynthia M. Arnott, Debtors.
Gary M. SMOLINSKI, Plaintiff,
v.
Cynthia M. ARNOTT, Defendant.
Bankruptcy No. 96-21164-BKC-PGH, Adv. No. 96-0842-BKC-PGH-A.
United States Bankruptcy Court, S.D. Florida.
June 17, 1997.
*652 *653 Chad P. Pugatch, Ft. Lauderdale, FL.
Harry Ross, Boca Raton, FL.
Marika Tolz, Hollywood, FL, trustee.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
PAUL G. HYMAN, Bankruptcy Judge.
THIS MATTER came before the Court upon the Complaint of the Plaintiff, Gary M. Smolinski, objecting to dischargeability of certain debts of the Debtor, Cynthia M. Arnott, pursuant to 11 U.S.C. § 523(a)(2)(A), (5), (6) and (15). The Court, having heard the testimony and observed the demeanor of the witnesses, observed and examined the evidence presented, having heard arguments of counsel, and being otherwise fully advised in the premises, hereby enters the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
This is an action objecting to the dischargeability of debt pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(5), (a)(6) and (a)(15). The Debtor is the former spouse of Gary M. Smolinski, the Plaintiff herein. On or about September 20, 1991, Mr. Smolinski and the Debtor entered into a Marital Settlement Agreement (the "Agreement") for the purpose of resolving and settling their respective property rights, financial matters, support, and alimony obligations resulting from the termination of their marriage.
On March 15, 1996, the Debtor and her new husband filed a voluntary petition under Chapter 7 of the Bankruptcy Code. On July 25, 1996, Mr. Smolinski filed a Complaint objecting to the discharge of certain debts of the Debtor related to insurance benefits and credit cards. The trial was held on March 26, 1997.
THE INSURANCE BENEFITS
The Agreement provided that the debtor "shall maintain health and accident coverage for the husband provided through her American Express Credit Card/Membership; however, the husband will be responsible for charges directly attributable to his coverage." At trial, the unrebutted evidence presented by Mr. Smolinski showed that after executing the Agreement, and without his knowledge or consent, the Debtor canceled Mr. Smolinski's insurance coverage under the American Express Credit Card/Membership in September of 1992. Nevertheless, the Debtor continued to submit requests for payment on the coverage to Mr. Smolinski. Mr. Smolinski duly paid the requests either to the Debtor or to American Express. This coverage included three separate insurance policies. The payments continued until August of 1994, at which time Mr. Smolinski learned that the Debtor had canceled the insurance policies. The premiums paid by Mr. Smolinski subsequent to the Debtor's termination of the insurance policies totaled $2,271.31.
The evidence further showed that in September of 1994, after Mr. Smolinski learned that the insurance policies had been canceled, various attempts were made to reinstate insurance policy # APG1133014 and transfer the insurance policy to Mr. Smolinski's own name. While insurance policy # APG1133014 was reinstated, it did not contain the same disability benefits. Thus, the Debtor's actions in canceling the policies caused the loss of those disability benefits because they were no longer available by the time the insurance policy was reinstated and transferred to Mr. Smolinski's name. The other two insurance policies could not be *654 reinstated because too long a period had passed since their cancellation by the Debtor. As a result, the Mr. Smolinski completely lost the benefit of these two insurance policies.
The evidence showed that the actions of the Debtor deprived Mr. Smolinski of benefits of approximately $1,350 in hospital indemnity benefits for an accident on July 15, 1995. In addition, Mr. Smolinski has been deprived of $2,000 per month of disability income benefits from July 15, 1995, to the present. The evidence showed that Mr. Smolinski would have received at least $39,350 in total benefits to date had the Debtor not canceled his coverage.
At trial, the Debtor argued that the insurance company had instructed her to cancel the subject insurance policies due to her remarriage. However, no competent evidence was presented to substantiate this claim. Furthermore, at least one of the insurance policies clearly provided for continuation of coverage for a covered former spouse even upon remarriage. Page 5 of that insurance policy contains the following paragraph:
Continuation of Insurance: Even though the Cardmember's marriage may have ended, the covered spouse's insurance under this certificate will continue until we receive your request to discontinue it or to add a new spouse for coverage.
THE INDEMNIFICATION OBLIGATION
The Agreement further provides that Mr. Smolinski and the Debtor "each indemnify the other and hold one another harmless from any and all claims of any nature whatsoever arising out of any debt incurred subsequent to December 1, 1990." At trial, the evidence showed that the Debtor warranted to Mr. Smolinski that she held no credit cards or lines of credit upon which Mr. Smolinski was liable. Notwithstanding the Debtor's representations, she kept Mr. Smolinski's name on numerous credit cards and lines of credit unbeknownst to Mr. Smolinski. The evidence further showed that after executing the Agreement and immediately prior to the Chapter 7 filing the Debtor intentionally ran up approximately $10,000.00 in charges on the credit cards and lines of credit upon which Mr. Smolinski is liable. The Debtor now seeks to discharge these debts. As a result, the creditors are now looking to Mr. Smolinski for payment.
CONCLUSIONS OF LAW
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b). This is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2)(I). Mr. Smolinski contends that any debts owed to him as a result of the cancellation of his insurance coverage should be excepted from discharge pursuant to sections 523(a)(5) & (6) of the Bankruptcy Code. In addition, Mr. Smolinski alleges that the Agreement's hold harmless language creates either a non-dischargeable supports obligation under § 523(a)(5) or a non-dischargeable provision of a martial settlement agreement under § 523(a)(15) regarding the credit card and line of credit debt. Mr. Smolinski further alleges that the Debtor's intentional, willful, and malicious actions should make the credit card and line of credit debt non-dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) & (6).
1. Non-dischargeability pursuant to 11 U.S.C. § 523(5).
Section 523(a)(5) of the Bankruptcy Code excepts from discharge debts to a former spouse:
for alimony to, maintenance for, or support of such spouse . . . in connection with a separation agreement, divorce decree or other order of a court of record . . . but not to the extent that (B) such debt includes a liability designated as alimony, maintenance or support, unless such liability is actually in the nature of alimony, maintenance or support.
11 U.S.C. § 523(a)(5). What constitutes alimony, maintenance or support is determined under federal bankruptcy law and not state law. In re Strickland, 90 F.3d 444, 446 (11th Cir.1996). Therefore, an obligation can be deemed support under 11 U.S.C. § 523(a)(5) even if it would not be considered support under state law. Id. The burden of proof with respect to non-dischargeability is on the *655 objecting creditor. In the Matter of Campbell, 74 B.R. 805 (Bankr.M.D.Fla.1987). The standard of proof is by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991).
It is undisputed that the Agreement obligated the Debtor to provide insurance coverage, through her American Express Card/Membership, to the Plaintiff. Thus, this Court must determine whether the obligation of the Debtor to provide health insurance coverage for the Plaintiff is in the nature of support thereby making the obligation non-dischargeable pursuant to 11 U.S.C. § 523(a)(5). Strickland at 446.
Several bankruptcy courts have determined that the obligation to provide health insurance to a child or former spouse is a non-dischargeable support obligation. See e.g., In re Olson, 200 B.R. 40 (Bankr.D.Neb. 1996); In re Northcutt, 158 B.R. 658 (Bankr. N.D.Ohio 1993); In re English, 146 B.R. 874 (Bankr.S.D.Fla.1992); In re Stone, 79 B.R. 633 (Bankr.D.Md.1987). The focus of each court's inquiry was on the function the obligation to provide insurance coverage served upon dissolution of the marriage. In In re Stone, Chief Judge Mannes characterized the issue of whether a debtor's obligation to maintain health insurance is non-dischargeable support as an "easy call." Judge Mannes stated:
It is hard to contemplate any area of one's daily life that is more susceptible to unanticipated financial burdens than that brought on by illness. The requirement that the [Debtor] provide all premiums for full medical and dental health insurance is clearly related to [the former spouse's] support and well being.
Id. at 640. This Court agrees. Accordingly, the Debtor's obligation to maintain health insurance for Mr Smolinski constitutes support and/or maintenance incurred in connection with or resulting from a marital settlement agreement and the obligation is nondischargeable pursuant to § 523(a)(5) of the Bankruptcy Code. Moreover, any debt or loss incurred by the Plaintiff as a result of the Debtor's failure to maintain coverage is also non-dischargeable pursuant to § 523(a)(5).
2. Non-dischargeability pursuant to 11 U.S.C. § 523(a)(15).
The Bankruptcy Reform Act of 1994 amended section 523 of the Bankruptcy Code to add subsection (15) so that discharge obligations which would normally be dischargeable as property settlement debts under § 523(a)(5) would no longer be dischargeable. Section 523(a)(15) the Bankruptcy Code provides that a debtor is not discharged from any debt to a former spouse:
not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, a determination made in accordance with State or territorial law by a governmental unit unless (A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependant of the debtor and, if the debtor is engaged in a business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business; or (B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor.
11 U.S.C. § 523(a)(15). Under section 523(a)(15), the debt is presumed to be nondischargeable unless the debtor proves that the debtor does not have the ability to pay the debt or that the benefit to the debtor of a discharge outweighs the detriment to the non-debtor. The intent is to make the discharge of these debts more difficult for the debtor. In re Cleveland, 198 B.R. 394, 397-98 (Bankr.N.D.Ga.1996); In re Anthony, 190 B.R. 433, 436 (Bankr.N.D.Ala.1995).
The hold harmless clause of the Agreement made each party responsible for his or her individual debts. Thus, the Debtor had a duty to pay the particular debts she alone incurred. In the instant case, the debt in question is the obligation of the Debtor to pay for the purchases that she made. Because the Debtor seeks to discharge these debts as a result of her Chapter 7 bankruptcy proceeding, the creditors are asserting *656 claims against Mr. Smolinski for the cost of the items purchased by the Debtor. However, it is clear from the Agreement that the Debtor and Mr. Smolinski were to bear their own individual debts and hold the other harmless from payment. Therefore, this Court concludes that the Debtor incurred these debts in connection with the divorce within the meaning of § 523(a)(15) and the Debtor bears the burden of proving that the debts should be discharged. In re Schmitt, 197 B.R. 312, 316 (Bankr.W.D.Ark.1996); Matter of Cleveland, 198 B.R. 394, 397-98 (Bankr.N.D.Ga.1996).
This Court finds that for the purposes of § 523(a)(15), the Debtor failed prove that she does not have the ability to meet her hold harmless obligations arising from the Agreement. In addition, the Debtor failed to prove that the benefit to her of discharging these obligations would outweigh the detrimental effect a discharge would have on Mr. Smolinski. Therefore, since the debts were incurred in connection with the Debtor's divorce from Mr. Smolinski and the Debtor cannot meet either exception of § 523(a)(15), the Debtor is not entitled to discharge her indemnity obligations to Mr. Smolinski concerning either the credit card or line of credit obligations. In re Schmitt; Matter of Cleveland.
3. Non-dischargeability pursuant to 11 U.S.C. § 523(a)(2)(A).
Section 523(a)(2)(A) of the Bankruptcy Code excepts from discharge debts:
for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition.
11 U.S.C. § 523(a)(2)(A). To prevail under 523(a)(2)(A) the Plaintiff must prove, by a preponderance of the evidence, the following:
(1) the debtor made a false representation with the purpose and intention of deceiving the creditor;
(2) the creditor relied on such representation;
(3) the reliance was reasonably founded; and
(4) the creditor sustained a loss as a result of the representation.
In re Jones, 176 B.R. 629 (Bankr.M.D.Fla. 1995); In re Baietti, 189 B.R. 549 (Bankr. D.Me.1995).
In the instant case the Debtor represented to Mr. Smolinski in the Agreement that she would hold him harmless for any debt which was her responsibility. As indicated above, the evidence showed that the Debtor warranted that she held no credit cards and had access to no lines of credit upon which Mr. Smolinski was liable. Mr. Smolinski reasonably relied on these representations which were clearly false and made with the intent to deceive him. The evidence further showed that the Debtor knowingly and intentionally ran up the debt on the credit cards and lines of credit and that Mr. Smolinski has sustained a loss. Thus, Mr. Smolinski has proven each and every element under § 523(a)(2)(A) and, accordingly, Mr. Smolinski's objection to dischargeability under § 523(a)(2)(A) of the Debtor's obligations to indemnify Mr. Smolinski for the credit card and line of credit obligations is sustained.
4. Non-dischargeability pursuant to 11 U.S.C. § 523(a)(6).
Section 523(a)(6) of the Bankruptcy Code excepts from discharge debts "for willful and malicious injury by the debtor to another entity or to the property of another entity." 11 U.S.C. § 523(a)(6). To prevail under 523(a)(6), Mr. Smolinski must prove by a preponderance of the evidence that the Debtor's conduct was both willful and malicious. In re Dale, 199 B.R. 1014 (Bankr. S.D.Fla.1995) citing Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257, 1263 (11th Cir.1988) and In re Ikner, 883 F.2d 986, 991 (11th Cir.1989). A wrongful act done intentionally, which necessarily produces harm and is without just cause or excuse constitutes willful and malicious injury. Id.; In re Jones, 176 B.R. 629 (Bankr.M.D.Fla.1995). According to the Eleventh Circuit, "a debtor is responsible for a `wilful' injury when he or she commits an intentional act the purpose of *657 which is to cause injury or which substantially certain to cause injury." In re Walker, 48 F.3d 1161, 1165 (11th Cir.1995); In re Pouliot, 196 B.R. 641, 652 (Bankr.S.D.Fla.1996).
The evidence in this case clearly showed that the Debtor had previously warranted to Mr. Smolinski that she had no credit cards or lines of credit on which his name remained. Despite this fact, the Debtor intentionally and wilfully ran up the debt on the line of credit and credit cards prior to her bankruptcy filing with full knowledge that Mr. Smolinski remained liable. The evidence further showed that the Debtor intentionally canceled Mr. Smolinski's insurance coverage despite her continuing obligation to maintain the coverage. Therefore, this court finds that the Debtor intentionally took actions the purpose of which were to cause Mr. Smolinski injury and which were substantially certain to cause Mr. Smolinski injury. As a result of the Debtor's willful and deliberate actions relating to the credit cards, lines of credit, and insurance coverage, Mr. Smolinski has been injured. Thus, Mr. Smolinski has proven, by a preponderance of the evidence, the elements of § 523(a)(6). Accordingly, Mr. Smolinski's objections pursuant to 11 U.S.C. § 523(a)(6) are sustained.
CONCLUSION
The Debtor's obligation to provide Mr. Smolinski with health insurance coverage is a non-dischargeable support obligation pursuant to 11 U.S.C. § 523(a)(5). The debts relating to the credit cards and lines of credit are non-dischargeable pursuant to 11 U.S.C. § 523(a)(15) as a result of the hold harmless provision of the Agreement and the Debtor's failure to prove that the debts should be discharged. The Debtor's indemnification of Mr. Smolinski for the credit card and line of credit debt are also non-dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) based upon the Debtor's intentional fraud, false pretenses and/or misrepresentations. Finally, all the debts at issue in the instant case are non-dischargeable pursuant to 11 U.S.C. § 523(a)(6) because absent the Debtor's willful and malicious conduct, these debts would not exist. Accordingly, Mr. Smolinski's objections pursuant to 11 U.S.C. § 523(a)(2)(A), (5), (6), and (15) are sustained. This Court will issue separate Final Judgment in accordance with F.R.B.P. 9021 contemporaneously herewith.
FINAL JUDGMENT
THIS MATTER came before the Court on March 26, 1997, upon the Complaint of the Plaintiff, Gary M. Smolinski, objecting to dischargeability of certain debts of the Debtor, Cynthia M. Arnott, pursuant to 11 U.S.C. § 523(a)(2)(A), (5), (6) and (15). In accordance with F.R.B.P. 9021 and this Court's Findings Of Fact And Conclusions Of Law entered contemporaneously herewith, the Court hereby enters the following Final Judgment:
1. The Debtor's obligation to provide the Plaintiff with health insurance is a non-dischargeable support obligation pursuant to 11 U.S.C. § 523(a)(5). Any loss sustained by the Plaintiff as a result of the cancellation of his insurance is also a non-dischargeable support obligation pursuant to 11 U.S.C. § 523(a)(5).
2. The Debtor's obligation to indemnify the Plaintiff for any credit card and line of credit debts pursuant to the hold harmless provision of the Marital Settlement Agreement is non-dischargeable pursuant to 11 U.S.C. § 523(a)(15).
3. The Debtor's obligation to indemnify the Plaintiff for any credit card and line of credit debts pursuant to the hold harmless provision of the Marital Settlement Agreement is non-dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) based upon the Debtor's fraud, false pretenses, and misrepresentations to the Plaintiff.
4. The Debtor's obligation to indemnify the Plaintiff for any credit card and line of credit debt pursuant to the hold harmless provision of the Marital Settlement Agreement is non-dischargeable pursuant to 11 U.S.C. § 523(a)(6) based upon the Debtor's *658 willful and malicious conduct which has caused injury to the Plaintiff and the Plaintiff's property. In addition, any loss sustained by the Plaintiff as a result of the cancellation of the insurance is also non-dischargeable pursuant to 11 U.S.C. § 523(a)(6).
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384 F.3d 932
Velma R. ZEILER, Plaintiff — Appellant,v.Jo Anne B. BARNHART, Commissioner of Social Security Administration, Defendant — Appellee.
No. 04-1073.
United States Court of Appeals, Eighth Circuit.
Submitted: September 16, 2004.
Filed: October 7, 2004.
Appeal from the United States District Court for the Western District of Missouri, William A. Knox, J.
Counsel who presented argument on behalf of the appellant was James H. Green, Kansas City, MO.
Counsel who presented argument on behalf of the appellee was Sean N. Stewart, AUSA, Kansas City, MO.
Before MURPHY, McMILLIAN, and BENTON, Circuit Judges.
MURPHY, Circuit Judge.
1
Velma Zeiler's application for disability insurance benefits under Title II of the Social Security Act was denied by an administrative law judge (ALJ). Her case was made part of a simplified appeals process being tested; under the test procedure the ALJ's decision represents the final decision of the Commissioner and an appeal is taken directly to federal court. Zeiler thus appealed to the district court,1 which affirmed the Commissioner's decision. Zeiler appeals, and we affirm.
2
Zeiler was born in 1941 and has a high school education. She worked full time as a clerk and later as an assembly line worker. After her assembly plant relocated in 1994, she occasionally cleaned houses and offices. She says that she became disabled in April 1994 and that a narrowing of the space between her shoulder joints causes pain and restricts her movement.2 Zeiler reports worse pain in her right shoulder. The record shows that she repeatedly sought medical treatment for shoulder problems and that pain medication was often prescribed.
3
X-rays of both shoulders taken in April 1998 appeared normal, but an MRI of the right shoulder taken about six months later revealed mild acromioclavicular hypertrophic changes with narrowing of the humeral-acromial joint space and mild tendinosis of the supraspinatous tendon. According to G.E. Finke, D.O., a January 1999 x-ray of Zeiler's right shoulder indicated mild degenerative joint disease of the acromioclavicular joint and narrowing of the acromion humeral head distance. Dr. Finke suspected rotator cuff tendon injury or changes. George Adam Flowers, M.D., an orthopedist, examined Zeiler on January 26 and February 2, 1999. He studied a previous MRI and concluded that her rotator cuff was intact. He observed that she had excellent range of motion and notable pain, and he interpreted an x-ray of her right shoulder to be consistent with osteoarthritis, noting some high riding of the glenohumeral joint. On September 17, 1999, Zeiler saw Kirk D. Ridley, M.D., her family doctor. Dr. Ridley assessed probable arthritis and bursitis and a possible rotator cuff tear. When he saw her again on November 15, 1999, he noted grinding and crepitance in her shoulder and difficulty in totally abducting her arm over her head; he also observed that the MRI report indicated no rotator cuff tear.
4
Zeiler's insured status ended on December 31, 1999. The record reflects that she continued to have shoulder complaints. In May 2000 an arthroscopic decompression acromioplasty procedure was performed on her right shoulder, and in August 2000 a decompression acromioplasty arthroscopic procedure with debridement of the shoulder joint was performed on her left shoulder.
5
Zeiler applied for disability insurance benefits in March 2000. She filled out a work history report for the Social Security Administration in which she described her work as a clerk, assembly line worker, and house cleaner. She indicated that she never lifted more than ten pounds in these positions. She also filled out a questionnaire for the Missouri Department of Elementary and Secondary Education Division of Vocational Rehabilitation in May 2000. On that form she claimed no problems sitting, standing, walking, kneeling, or squatting. She reported no problems using her hands unless lifting, pulling, or pushing was involved, and no problems climbing stairs unless she pulled on the hand rail. She claimed problems lifting and carrying, reaching forward and backward, and working or reaching overhead. She stated that she exercises by walking and engages in everyday activities as her pain allows, including buying food, cooking, and caring for her flowers.
6
When Zeiler's application was denied she sought a hearing, and one was held on July 26, 2001. Zeiler and her husband testified, and she was represented by an attorney. The ALJ asked her about her work and medical history and daily activities. She testified that she goes grocery shopping with her husband, drives, visits with family, goes to church about once a month, watches television, reads, and talks on the phone. She said she could walk for ten to fifteen minutes and lies down thirty to forty five minutes daily. No physicians testified at her hearing, and no state agency physician rendered an opinion.
7
The only opinion in the record stating that Zeiler should not work was that of Jim G. Lemons, Ed.D. Dr. Lemons is a licensed psychologist who sent Zeiler's attorney a letter on July 23, 2001, stating that Zeiler's pain "render[s] her incapable of gainful employment on a permanent basis." Dr. Lemons knows Zeiler because he has been treating her husband for chronic pain, but he has not opened an official record for her. He states that he has worked with Zeiler's husband "over the recent years" and notes that Zeiler has faced issues resulting in chronic pain "[i]n more recent months."
8
The ALJ engaged in the five step analysis outlined in 20 C.F.R. § 404.1520. In the first step he found that Zeiler did some cleaning work after the alleged onset date of her disability but that her earnings during this period were too low to qualify the employment as substantial gainful work. Second, the ALJ found that Zeiler suffered from "mild acromioclavicular hypertrophic changes with narrowing of humeral-acromonial joint space and mild tendinosis of the supraspinatus tendon" and that these impairments were severe. Third, he found that the impairments, although severe, do not meet or medically equal one of the impairments listed in the regulations as requiring a finding of disability. The ALJ's analysis stopped at the fourth step because he found that Zeiler's impairments did not prevent her from doing her past relevant work at the expiration of her covered period.
9
In determining that Zeiler had the residual functional capacity (RFC) to perform the requirements of her past relevant work, the ALJ considered Zeiler's description of her symptoms and the medical opinions in the record. He found her subjective complaints not fully credible and her symptoms not as limiting as she alleged. He considered her testimony regarding her daily activities and the medical evidence regarding her condition prior to the expiration of her insured status. He determined that during her insured period she had full range of motion in her shoulders, had some weakness in her biceps and triceps, was being treated symptomatically for arthritis pain, and could sit, stand, and walk unimpaired. Based on this assessment, the ALJ determined she had the RFC to do a full range of light work with no overhead lifting. He then examined the requirements of her past work as she had described it and found that she could have met the demands of her work as a clerk and assembler because they required only light exertion.
10
Zeiler argues on appeal here that the ALJ did not consider the functional demands of her prior work activity when deciding that she could perform her past relevant work and that his assessment of her RFC was not supported by substantial evidence on the record as a whole. We review de novo a district court's decision affirming the denial of social security benefits. See Lowe v. Apfel, 226 F.3d 969, 971 (8th Cir.2000). In conducting this review, we must "determine whether the Commissioner's decision is supported by substantial evidence in the record as a whole." Davis v. Apfel, 239 F.3d 962, 966 (8th Cir.2001). Substantial evidence "is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion." McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.2000). To determine whether the evidence is substantial, "we consider evidence that detracts from the Commissioner's decision as well as evidence that supports it." Id. We are not permitted to reverse "merely because substantial evidence also exists that would support a contrary outcome, or because we would have decided the case differently." Davis, 239 F.3d at 966.
11
Zeiler first argues that the ALJ's decision does not indicate he considered the functional demands of her past work and that it does not therefore meet the requirements set in Groeper v. Sullivan, 932 F.2d 1234 (8th Cir.1991). In Groeper we held that an ALJ must make explicit findings on the demands of the claimant's past work. Id. at 1239. Here the ALJ found that in her work as a clerk and assembler Zeiler never had to lift more than ten pounds and stood much of the day. The ALJ relied on Zeiler's own description of her past duties in making these findings, and he also noted that she had stopped her assembly work in 1994 because the plant relocated. There is substantial evidence in the record to support the ALJ's characterization of her past work as requiring light exertion.
12
Zeiler also argues that the ALJ did not properly assess her RFC. She makes three contentions: the RFC finding is not based on medical evidence, the ALJ did not consider the effects of her nonexertional impairments, and the ALJ did not consider her allegations of pain. She cites Lauer v. Apfel, 245 F.3d 700 (8th Cir.2001), for the proposition that the RFC is a medical question. She contends that the RFC assessment in her case is invalid because it is based on the ALJ's own opinion of her abilities. Zeiler's reliance on Lauer is misplaced because in that case the ALJ had substituted his opinion for that of a treating psychiatrist and examining psychologist, but here there was no expert opinion of disability. The only opinion in the record was from Dr. Lemons, but that letter does not bear much weight in this analysis because he was not treating Zeiler and he did not give an opinion as to her condition during the relevant time period. When determining a claimant's RFC, the ALJ should consider all relevant evidence, including medical records, the observations of doctors and third parties, and the claimant's own descriptions. See Krogmeier v. Barnhart, 294 F.3d 1019, 1024 (8th Cir.2002). The ALJ's opinion indicates he properly considered the available medical evidence and the testimony of Zeiler and her husband when determining her RFC.
13
Zeiler next contends that the ALJ failed to consider the effect of her nonexertional impairments when assessing her RFC. She argues that her testimony indicated she has problems concentrating because of her pain medication, has lost grip strength, and needs to lie down during the day. The rest of the record does not substantially support these allegations, however. She did not complain to her doctors that her pain medication made concentration difficult. During a January 1999 visit to an orthopedist, her intrinsic hand strength was measured at 5/5. The Commissioner further notes that any loss of Zeiler's grip strength is accommodated by the ALJ's decision that she is limited to light work. Finally, there is no medical evidence supporting Zeiler's claim that she needs to lie down during the day.
14
Zeiler's last contention regarding the RFC assessment is that the ALJ failed to consider her allegations of pain. Subjective complaints of pain cannot be disregarded solely because there is no supporting medical evidence, but they can be discounted if the ALJ finds inconsistencies in the record as a whole. Johnson v. Chater, 108 F.3d 942, 947 (8th Cir.1997). Zeiler complains that the ALJ disregarded her testimony and that of her husband when he wrote, "Considering the record as a whole, the Administrative Law Judge finds the claimant's subjective complaints to be not fully credible." The quoted statement is not merely a cursory statement as she suggests, for it leads into the ALJ's discussion of the testimony by Zeiler and her husband about her daily activities and her treatment history. There is substantial evidence in the record to support the ALJ's finding that Zeiler was not as limited as she claimed. In addition to the evidence cited by the ALJ, her responses to the May 2000 questionnaire are inconsistent with her testimony that she could not stand or walk for long periods, and the month long car trip she took in 1995 is inconsistent with a finding of disability. The ALJ properly considered Zeiler's symptoms when determining her RFC.
15
There was substantial evidence in the record as a whole to find that Zeiler was not disabled when her insured status expired. Accordingly, we affirm the judgment of the district court.
Notes:
1
The Honorable William A. Knox, United States Magistrate Judge for the Western District of Missouri
2
The disability report she filed also listed bronchial asthma and mental and emotional problems. The ALJ found that these complaints did not arise from medically determined impairments, and Zeiler does not contest these findings on appeal
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91 F.3d 166
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.AMERICAN CHEMICAL SOCIETY, Appellant,v.CIBA CORNING DIAGNOSTICS CORPORATION, Appellee.
No. 96-1285.
United States Court of Appeals, Federal Circuit.
April 23, 1996.
ON MOTION
ORDER
1
Ciba Corning Diagnostics Corporation files a notice stating that it has filed a Notice of Election to have this case heard in a district court and that the American Chemical Society (ACS) has filed a complaint in the United States District Court for the District of Columbia. See 15 U.S.C. §§ 1071(a), (b). Hence, it appears that this appeal should be dismissed.
2
Upon consideration thereof,
IT IS ORDERED THAT:
3
(1) ACS's appeal is dismissed.
4
(2) Each side shall bear its own costs.
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375 F.3d 140
Joseph R. MURATORE, Sr., Plaintiff, Appellant,v.Stephen DARR, in his Capacity as Trustee in Bankruptcy Action 91-10365, Defendant, Appellee.
No. 03-2179.
United States Court of Appeals, First Circuit.
Heard January 8, 2004.
Decided July 19, 2004.
Robert A. Scott with whom Scott & Scott, P.C., was on brief, for appellant.
William J. Hanlon with whom Seyfarth Shaw LLP, Thomas S. Hemmendinger, Brennan, Recupero, Cascinone, Scungio & McAllister, LLP, were on brief, for appellee.
Before HOWARD, Circuit Judge, COFFIN and CAMPBELL, Senior Circuit Judges.
LEVIN H. CAMPBELL, Senior Circuit Judge.
1
The question on appeal is whether the Barton doctrine bars the bringing of this action in the federal district court against a bankruptcy trustee without the prior permission of the bankruptcy court. The district court dismissed the complaint for lack of subject-matter jurisdiction, and we affirm.
FACTS
2
The following facts, except a few that are undisputed, are all alleged in Muratore's amended complaint. Plaintiff-appellant, Joseph R. Muratore, Sr. owned and controlled Columbus Mortgage Company, Inc. (Referred to herein as the "debtor"). On February 15, 1991, the debtor filed a voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code. On December 23, 1991, the bankruptcy court granted the U.S. Trustee's application to employ defendant-appellee, Stephen Darr, as trustee. On July 18, 1996, the bankruptcy court entered an order confirming the Plan of Reorganization. Approximately four years later, the bankruptcy court entered orders granting Darr's application for final decree and approving his application for final compensation. Muratore filed objections to these applications, which the bankruptcy court considered and denied. Muratore did not appeal. The bankruptcy court closed the case on November 9, 2000.
3
In September of 2002, Muratore brought the instant lawsuit against Darr, in Darr's capacity as trustee, in the United States District Court for the District of Rhode Island.
4
On September 30, 2002, apparently without relation to Muratore's present action, the bankruptcy court reopened the bankruptcy proceedings, and they were still open on October 18, 2002 when Muratore amended his complaint herein.1
5
In Count I of his amended complaint, Muratore alleged that Darr "did not faithfully perform the duties of his office and committed acts of misfeasance [and/or] malfeasance in the performance of his duties in that ...":
6
1. he did not pay taxes and, as a result, lost six properties at tax sale;
7
2. he defectively sold at a foreclosure rental properties, generating three additional law suits;
8
3. he defectively sold at a foreclosure income properties, generating three additional law suits;
9
4. he failed to file corporate returns, resulting in forfeiture of charter and causing real estate to revert to stockholders;
10
5. he failed to file tax returns to the Rhode Island Tax Administrator, resulting in the denial of issuance of letters of good standing, causing defective titles and defeating transfer of titles; and
11
6. purchases of some properties were procured with funds from the Gambino family in violation of 18 U.S.C. § 1956.
12
In Count II, Muratore alleged that Darr committed abuse of process by committing waste so egregious that his advisors and/or employees used Chapter 11 protection procedures to put Muratore out of business rather than to assist in reorganizing Muratore's business. He further alleged that "such use of his [Darr's] powers constitutes use of judicial appointment and proceedings in bankruptcy for an ulterior purpose, to wit, to make it impossible for Muratore to conduct business and to earn a living from his business." In Count III, Muratore alleged that Darr was negligent because he breached his duty to protect the assets of the trust and to serve the trust with diligence. In Count IV, Muratore alleged that the purchase of certain trust property was financed either directly or indirectly by funds obtained from the illegal interests and enterprises of a notorious crime family in violation of 18 U.S.C. § 1956.
13
Muratore neither obtained leave of the bankruptcy court nor sought bankruptcy court authority before commencing this lawsuit in the district court. Citing Muratore's failure to obtain such authority, Darr moved to dismiss the complaint for lack of subject-matter jurisdiction. The district court allowed the motion. Muratore appeals from the dismissal.
Discussion
14
"We review `the grant of a motion to dismiss de novo, taking the allegations in the complaint as true and making all reasonable inferences in favor of plaintiff.'" Doran v. Mass. Tpk. Auth., 348 F.3d 315, 318 (1st Cir.2003) (quoting Rockwell v. Cape Cod Hosp., 26 F.3d 254, 255 (1st Cir.1994)). The central issue here is whether the district court lacked subject-matter jurisdiction because of Muratore's failure to have obtained leave from the bankruptcy court to bring this action in the former court. In determining whether a complaint alleges sufficient facts to establish jurisdiction, we read the complaint holistically. LeBlanc v. Salem (In re Mailman Steam Carpet Cleaning Corp.), 196 F.3d 1, 5 (1st Cir.1999).
15
In Barton v. Barbour, the Supreme Court ruled that the common law barred suits against receivers in courts other than the court charged with the administration of the estate. 104 U.S. 126, 127, 26 L.Ed. 672 (1881). The Supreme Court ruled that before suit is brought against a receiver, leave of the court by which the trustee was appointed must be obtained. The Court stated:
16
So, in cases of bankruptcy, many incidental questions arise in the course of administering the bankrupt estate, which would ordinarily be pure cases at law, and in respect of their facts triable by jury, but, as belonging to the bankruptcy proceedings, they become cases over which the bankruptcy court, which acts as a court of equity, exercises exclusive control.
17
Id. at 134; see also Katchen v. Landy, 382 U.S. 323, 337, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966). "Barton involved a receiver in state court, but the circuit courts have extended the Barton doctrine to lawsuits against a bankruptcy trustee." Carter v. Rodgers, 220 F.3d 1249, 1252 (11th Cir. 2000).
18
A limited exception to the rule announced in Barton was codified in 28 U.S.C. § 959(a). See, e.g., Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240-41 (6th Cir.1993) (describing 959(a) exception as "limited"). Section 959(a) states:
19
[t]rustees, receivers or managers of any property, including debtors in possession, may be sued, without leave of the court appointing them, with respect to any of their acts or transactions in carrying on business connected with such property. Such actions shall be subject to the general equity power of such court so far as the same may be necessary to the ends of justice, but this shall not deprive a litigant of his right to trial by jury.
20
Muratore argues that section 959(a) applies here. In considering this argument, we must ascertain whether Muratore's claims apply to the trustee's "acts or transactions in carrying on business connected with" the bankruptcy estate.
21
There is little First Circuit case law on this issue, but courts elsewhere have interpreted "acts or transactions in carrying on business connected with" the bankruptcy estate to mean acts or transactions in conducting the debtor's business in the ordinary sense of the words or in pursuing that business as an operating enterprise. See, e.g., Melvin v. Klein, 49 Misc.2d 24, 266 N.Y.S.2d 533, 536-37 (N.Y. Spec. Term 1965). In interpreting section 959(a)'s predecessor, 28 U.S.C. § 125,2 Learned Hand, writing for the Second Circuit, concluded that "[m]erely to hold matters in statu quo; to mark time, as it were; to do only what is necessary to hold the assets intact; such activities" did not constitute carrying on business. Vass v. Conron Bros. Co., 59 F.2d 969, 971 (2d Cir.1932). Rather, section 959(a) "is intended to `permit actions redressing torts committed in furtherance of the debtor's business, such as the common situation of a negligence claim in a slip and fall case where a bankruptcy trustee, for example, conducted a retail store.'" Carter, 220 F.3d at 1254 (quoting Lebovits v. Scheffel (In re Lehal Realty Assocs.), 101 F.3d 272, 276 (2d Cir.1996)).
22
For example, section 959(a) applied where a trustee continued the business of a debtor in operating a railroad, and the trustee had been sued in his representative capacity for damages for use of another's tracks, Thompson v. Texas Mexican Ry. Co., 328 U.S. 134, 138, 66 S.Ct. 937, 90 L.Ed. 1132 (1946) (applying predecessor to section 959(a)), and in a case for wrongful death and injury resulting to a member of the public in a grade crossing accident, Valdes v. Feliciano, 267 F.2d 91, 94-95 (1st Cir.1959). Also, the exception has been held to apply to an employee's claims arising from injuries caused by overwork at a railroad company operated by the trustee and the trustee's withholding of an employee's pension. Haberern v. Lehigh and New England Ry., Co., 554 F.2d 581, 585 (3d Cir.1981).
23
On the other hand, courts have concluded that merely holding and collecting the assets intact, Vass, 59 F.2d at 971, collecting and liquidating the assets of the debtor, Austrian v. Williams, 216 F.2d 278, 285 (2d Cir.1954), and taking steps for the care and preservation of the property, U. & I., Inc. v. Fitzgerald, (In the Matter of Campbell), 13 B.R. 974, 976 (Bankr.D.Idaho 1981), In re Kalb & Berger Mfg. Co., 165 F. 895, 896-97 (2d Cir.1908), do not constitute "carrying on business." Likewise, actions taken in the mere continuous administration of property under order of the court do not constitute an "act" or "transaction" in carrying on business connected with the estate. Field v. Kansas City Refining Co., 9 F.2d 213, 216 (8th Cir.1925); see also In re DeLorean Motor Co., 991 F.2d at 1241 (action against trustee and representatives alleging abuse of process and malicious prosecution in relation to prosecution of fraudulent conveyance action is a suit for actions of trustee wholly unrelated to carrying on debtor's business because trustee merely collected, took steps to preserve, and/or held assets, as well as performed other aspects of administering and liquidating estate); Carter, 220 F.3d at 1254.
24
We agree with the district court that section 959(a) does not apply here. In his brief, Muratore represents that he was in the business of "leasing to commercial and residential tenants, and all required acts associated with maintaining such leases." His complaint, however, does not specify the nature of the businesses at issue. Darr contends that Muratore's business was actually "the making of mortgage loans." We need not, however, resolve this question. The allegations in the complaint focus upon Darr's actions in the fulfillment or non-fulfillment of his fiduciary responsibilities as trustee, as opposed to acts or transactions in the furtherance of Muratore's business whatever it was. See 11 U.S.C. § 959(a).
25
The accounting for and sale of property, the filing of tax returns, and the payment of taxes were among Darr's statutory responsibilities and powers as a Chapter 11 trustee. 11 U.S.C. §§ 363 & 1106;3 see also Holywell Corp. v. Smith, 503 U.S. 47, 52-56, 112 S.Ct. 1021, 117 L.Ed.2d 196 (1992) (Chapter 11 trustee is required to file tax returns and pay taxes with respect to the debtor). Indeed, Muratore does not appear to dispute that Darr had these responsibilities; rather, he argues that Darr did not adequately respond to them — specifically, that Darr did not liquidate the properties quickly enough, improperly liquidated the properties, and did not pay taxes or file tax returns.
26
The different counts in Muratore's complaint all allege Darr's misconduct in discharging his trustee's administrative responsibilities. Count I alleges that Darr did not "faithfully perform the duties of his office" when he performed improper liquidations, failed to file tax returns and pay taxes, and allowed the purchase of property with illegal funds. Counts II, III, and IV merely reiterate these allegations within claims for "abuse of process," "negligence," and violations of 18 U.S.C. §§ 1961-1968 respectively.4 These allegations are very similar to ones made in other cases holding the 959(a) exception did not apply. Carter, 220 F.3d at 1254 (holding section 959(a) exception did not apply to claims arising from Chapter 7 trustee's allegedly improper liquidation of estate assets at auction)5; In re DeLorean Motor Co., 991 F.2d at 1240-41 (holding section 959(a) did not apply to action against Chapter 7 trustee and representatives alleging abuse of process and malicious prosecution in relation to prosecution of fraudulent conveyance action); Austrian, 216 F.2d at 285 (holding in Chapter 11 case that section 959(a) did not apply and stating, "[m]erely to attempt to collect and liquidate the assets of a debtor is not to carry on its business in any proper sense of the term.") (citations omitted); Kashani v. Fulton (In re Kashani), 190 B.R. 875, 884-85 (9th Cir.BAP1995) (holding section 959(a) did not apply to breach of fiduciary duty and negligence claims arising from, inter alia, Chapter 11 trustee's failure to sell or attempt to sell estate property in timely manner so as to realize best possible benefit to bankruptcy estate and trustee's engagement in speculative real estate venture in which trustee had no prior experience and without consultation and aid of experienced real estate developer). Since Muratore bases his complaint on the trustee's alleged misconduct in liquidating and administering the estate's property, and not on tortious acts committed in the furtherance of Muratore's leasing or mortgage and real estate business, section 959(a) does not apply.
27
Muratore urges us to recognize as an additional or expanded exception to the Barton doctrine the situation where the trustee commits a tort of any sort. For this proposition, he relies chiefly on a single case, In the Matter of Campbell, 13 B.R. at 976. There, the district judge, in detailing the history of the case, included a portion of the state district court's holding with respect to the plaintiff's state court action against the trustee, which stated, inter alia:
28
"Apparently there are two situations in which a trustee ... may be sued in State Court without leave of the federal bankruptcy court, one being where the trustee has committed a tort, and the other where the claim of wrongful doing arises out of the trustee's operating of the debtor's business."
29
Id. (citing Lawrence P. King, 2 Collier on Bankruptcy, § 23.20 at 642-45 (14th ed.))6. This language appears to be the only example of a court having articulated so broad a tort exception to the Barton doctrine.7 On the other side of the ledger, there are numerous cases in which the Barton doctrine was held to bar tort actions brought without permission of the bankruptcy court. See, e.g., Carter, 220 F.3d at 1253 (applying Barton doctrine and stating, "There also is no merit to Carter's assertion that his tort claims — breach of fiduciary duty and reasonable care — are `unrelated to' and `outside the scope' of the bankruptcy proceeding because they do not arise directly from substantive provisions of the Bankruptcy Code."); In re Lehal Realty Assocs., 101 F.3d at 275-77 (breach of fiduciary duty); In re Linton, 136 F.3d 544, 544-46 (7th Cir.1998) (malicious prosecution); Richman v. Batt, 265 B.R. 416, 417-19 (E.D.Pa.2001) ("Plaintiff's allegations faintly sound in breach of fiduciary duty and fraud."); Taraska v. Carmel, 223 B.R. 200, 202-3 (D.Ariz.1998) (defamation); Bay Area Material Handling, Inc. v. Broach (In re Bay Area Material Handling, Inc.), 1995 WL 747954, *1, No. C 95-01903CW, 1995 U.S. Dist. LEXIS 21958, at *9-*14 (N.D.Cal. Dec. 6, 1995) ("damages for economic and emotional harm relating to Defendants' alleged failure to pursue discovery properly," "mismanagement of Bay Area's real estate," and "the trustee's noncollection of certain debts owed to the debtor by an outside third party"). In the present context, we can find no basis for recognizing some generalized tort exception to the Barton doctrine.
30
In addition, Muratore argues that the Barton doctrine does not apply here because the bankruptcy case is closed and the estate assets are no longer "in the receiver's hands" as they were in Barton. Muratore is wrong. To be sure, one purpose of the Barton doctrine is to prevent a party from obtaining "some advantage over the other claimants upon the assets" in the trustee's hands, and that purpose would not necessarily be served here. But the doctrine serves additional purposes even after the bankruptcy case has been closed and the assets are no longer in the trustee's hands. See Barton, 104 U.S. at 128. In In re Linton, the Seventh Circuit held that the Barton doctrine applied to a state court lawsuit filed eleven months after the bankruptcy case was closed. 136 F.3d at 544-45. Writing for the court, Judge Posner stated:
31
[w]ithout the requirement [of obtaining leave], trusteeship will become a more irksome duty, and so it will be harder for courts to find competent people to appoint as trustees. Trustees will have to pay higher malpractice premiums, and this will make the administration of the bankruptcy laws more expensive (and the expense of bankruptcy is already a source of considerable concern). Furthermore, requiring that leave to sue be sought enables bankruptcy judges to monitor the work of the trustees more effectively. It does this by compelling suits growing out of that work to be as it were prefiled before the bankruptcy judge that made the appointment; this helps the judge decide whether to approve this trustee in a subsequent case.
32
Id.; see also In re Krikava, 217 B.R. 275, 278-79 (Bankr.D.Neb.1998) (applying Barton doctrine to closed bankruptcy case).8
33
In the alternative, Muratore requests that if this Court concludes that it lacks subject-matter jurisdiction, it should nevertheless refer this case to the bankruptcy court rather than dismiss it. This court, however, does not have this option. Rule 12(h)(3) of the Federal Rules of Civil Procedure states that a court "shall dismiss" an action over which it lacks subject-matter jurisdiction. See also Mills v. State of Maine, 118 F.3d 37, 51 (1st Cir. 1997). If there is any basis for circumventing Rule 12(h)(3), Muratore does not point it out.
34
We AFFIRM the district court's dismissal of the case.
Notes:
1
The reopening of the bankruptcy case was to allow Darr to execute a release of mortgage after the underlying debt was paid. The bankruptcy case was closed again on November 25, 2002
2
The predecessor to the section 959(a) exception, 28 U.S.C. § 125, was nearly identical:
Every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed....
Accordingly, we do not distinguish between cases that concern section 959(a) and those that concern 28 U.S.C. § 125.
3
11 U.S.C. § 363 states:
(b) (1) The trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate....
(c) (1) If the business of the debtor is authorized to be operated under section 721, 1108, 1203, 1204, or 1304 of this title and unless the court orders otherwise, the trustee may enter into transactions, including the sale or lease of property of the estate, in the ordinary course of business, without notice or a hearing, and may use property of the estate in the ordinary course of business without notice or a hearing....
11 U.S.C. § 1106 states:
(a) A trustee shall —
...
(6) for any year for which the debtor has not filed a tax return required by law, furnish, without personal liability, such information as may be required by the governmental unit with which such tax return was to be filed, in light of the condition of the debtor's books and records and the availability of such information; and
(7) after confirmation of a plan, file such reports as are necessary or as the court orders....
4
Muratore does not appear to argue that the exception to the Barton doctrine applies to Count IV
5
For present purposes, we do not distinguish between cases involving Chapter 11 trustees and those involving Chapter 7 trusteesSee Corzin v. Fordu (In re Fordu), 201 F.3d 693, 706 n. 18 (6th Cir.1999) (stating, "[t]he duties and responsibilities of either a Chapter 11 trustee or debtor-in-possession as a fiduciary for the bankruptcy estate are virtually the same as those imposed on a Chapter 7 trustee.").
6
We find no mention of a tort exception to the Barton doctrine in the most recent, fifteenth edition of Collier on BankruptcyCf. Lawrence P. King, 6 Collier on Bankruptcy ¶ 721.05 ("As a general rule, however, leave of the appointing court must be obtained to institute an action in a non-appointing forum for acts done in the trustee's official capacity and within the trustee's authority as an officer of the court. Section 959(a) of title 28 creates a limited exception to this general rule by granting state courts jurisdiction over trustees in their official capacities where the acts or transactions complained of relate to `carrying on business' connected to the property in trust.") (footnotes omitted).
7
There is a case pre-datingCampbell that contains dicta somewhat suggestive of a similar exception. In In the Matter of Mercy-Douglass Hospital, Inc., 364 F.Supp. 1066, 1068 (E.D.Pa.1973), the district court of the Eastern District of Pennsylvania opined that litigants can bring "suits against the Trustee personally for wrongs committed while performing the duties of his office" (emphasis supplied) without the permission of the bankruptcy court.
8
Muratore's reliance uponIn re Mailman Steam Carpet Cleaning Corp., 196 F.3d at 4, for the proposition that applying the Barton doctrine to closed bankruptcy cases is an improper expansion of its purpose is misplaced. There, we merely held that, even though it allows a certain category of suits to proceed without prior leave from the appointing court, section 959(a) does not negatively imply that leave is required in all other cases. Id. We did not hold that the scope of the Barton doctrine should be restricted as Muratore suggests.
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43 A.3d 516 (2012)
COM.
v.
HOLT.
No. 1329 WDA 2011.
Superior Court of Pennsylvania.
January 9, 2012.
Affirmed.
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108 Ill.2d 301 (1985)
483 N.E.2d 1236
THE PEOPLE ex rel. RICHARD M. DALEY, State's Attorney, Movant,
v.
JOHN CRILLY, Judge, et al., Respondents.
No. 61146.
Supreme Court of Illinois.
Opinion filed October 3, 1985.
*302 *303 *304 Richard M. Daley, State's Attorney, of Chicago (Michael E. Shabat, Joan S. Cherry and Peter D. Fischer, Assistant State's Attorneys, of counsel), for the People.
James J. Doherty, Public Defender, of Chicago (Ronald P. Alwin, Deborah A. White, Thomas J. Reynolds and Robert E. Lee, Assistant Public Defenders, of counsel), for respondents.
Supervisory order denied.
JUSTICE SIMON delivered the opinion of the court:
The defendant, Vincent Sabella, was charged with murder and conspiracy to commit murder. A jury in the circuit court of Cook County found the defendant guilty of the conspiracy count but was unable to reach a decision on the murder charge. The trial judge thereupon discharged the jury; in doing so he did not use the word "mistrial." After discharging the jury, the trial judge entered judgment on the conspiracy charge.
Ten days later the defendant filed a motion for a new *305 trial. He also renewed a motion for a directed verdict on the murder charge which the trial judge had denied before the case went to the jury. At the same time the State moved for a retrial of the murder charge and requested that sentencing on the conspiracy conviction be deferred until after the defendant had been retried for murder.
Subsequently, the trial judge granted the defendant's motion for a directed verdict of not guilty at the end of all the evidence on the murder charge and announced "judgment of acquittal" on that charge. Immediately thereafter he sentenced the defendant to a prison term on the conspiracy conviction. The State then petitioned this court, pursuant to our Rule 383 (94 Ill.2d R. 383), to exercise our supervisory authority over Illinois courts (Ill. Const. 1970, art. VI, sec. 16) and to vacate the circuit court order acquitting the defendant of murder.
The State maintains that the discharge of the jury after it failed to reach a verdict on the murder charge constituted a mistrial as to those counts even though the trial judge did not formally declare a mistrial; this, the State contends, "vitiated" or "nullified" the entire murder trial so that there was no longer any evidence before the court on which it could determine that an acquittal was required.
Two separate concepts which both apply in this case provide the answer to the State's position. The first is the inherent power of a court in a criminal case to correct its own rulings, even in the absence of a statute or rule granting it authority to acquit a defendant after a jury has found him guilty. (People v. Van Cleve (1982), 89 Ill.2d 298.) In Van Cleve this court sanctioned the entry of a judgment of acquittal by a trial judge following a guilty verdict returned by a jury even though the trial judge, as in this case, had previously denied a motion for a directed verdict at the close of the evidence.
*306 The second concept is the constitutional protection against double jeopardy (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 10). It safeguards a defendant against being forced to undergo a second trial where the evidence introduced at the first trial is insufficient for conviction. In Burks v. United States (1978), 437 U.S. 1, 57 L.Ed.2d 1, 98 S.Ct. 2141, the court held that when a defendant contends, even after a jury has found him guilty, that the evidence was not sufficient for conviction it is the responsibility of an appellate court to review the trial court's order denying acquittal. The court in Burks observed:
"The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." (437 U.S. 1, 11, 57 L.Ed.2d 1, 9, 98 S.Ct. 2141, 2147.)
(See also People v. Taylor (1979), 76 Ill.2d 289, 309 (appellate court, in reversing criminal conviction and remanding for a new trial without deciding whether evidence in the first trial was insufficient, risks subjecting the defendant to double jeopardy).) In People v. Holloway (1982), 92 Ill.2d 381, 386-87, this court elaborated on the rule set forth in Burks:
"Clearly, the double jeopardy clause prevents retrial on the same charge where a reversal of the defendant's conviction is based upon the insufficiency of the evidence. [Citations.]
The prosecutor is not afforded a second opportunity to supply evidence that he or she failed to produce at the first trial on the same charge. For as Justice O'Connor, writing for the majority in Tibbs v. Florida, has said: `This prohibition, lying at the core of the Clauses's protections, prevents the State from honing its trial strategies and perfecting its evidence through successive attempts at conviction. Repeated prosecutorial sallies would unfairly burden the defendant and create a risk of conviction *307 through sheer governmental perseverance.' Tibbs v. Florida (1982), 457 U.S. 31, 41-42, 72 L.Ed.2d 652, 661, 102 S.Ct. 2211, 2218."
The State does not quarrel with Van Cleve, but argues it is not applicable here because this case involved a hung jury which resulted in a mistrial rather than a jury which returned a guilty verdict. Even if it is conceded that the trial concluded in a mistrial on the murder charge, the distinction the State draws is without merit.
First, the trial judge retained jurisdiction of the defendant and indictment he had not yet sentenced the defendant on the conspiracy conviction at the time he acquitted the defendant of murder. So long as the case was pending before him, the trial judge had authority under Van Cleve to correct his interlocutory rulings. In fact he even had authority under People v. Heil (1978), 71 Ill.2d 458, to reconsider any order which had previously been executed (there the circuit judge vacated his prior order discharging the defendant because of failure to grant the defendant a speedy trial).
Second, contrary to the State's view, evidence introduced at a criminal trial does not vanish after a jury is discharged, even if the discharge constituted a mistrial. The evidence is still available for numerous purposes, including impeachment and as testimony in the case of a witness who dies before the retrial. (See, e.g., People v. Tennant (1976), 65 Ill.2d 401; Mattox v. United States (1895), 156 U.S. 237, 39 L.Ed. 409, 15 S.Ct. 337; McCormick, Evidence secs. 251, 261 (2d ed. 1972), and cases cited therein.) In addition, proceedings which end in a mistrial may be examined to determine whether another trial may be barred by prosecutorial misconduct. (See United States v. Jorn (1971), 400 U.S. 470, 27 L.Ed.2d 543, 91 S.Ct. 547; People v. Handley (1972), 51 Ill.2d 229.) We find no reason that the evidence cannot also be reviewed for the purpose of determining whether *308 it was insufficient for conviction.
Third, when a mistrial is declared because the jury is deadlocked, retrial is barred by the double jeopardy prohibition if the evidence introduced at the trial was insufficient to convict the defendant. While a retrial is permissible when the first trial produced sufficient evidence to convict the defendant (see United States v. Sanford (1976), 429 U.S. 14, 50 L.Ed.2d 17, 97 S.Ct. 20; United States v. Perez (1824), 22 U.S. 579, 6 L.Ed. 165; United States v. Goldstein (2d Cir.1973), 479 F.2d 1061; United States v. Castellanos (2d Cir.1973), 478 F.2d 749; People v. Bean (1976), 64 Ill.2d 123), this is not the rule when the evidence presented at the first trial was insufficient for conviction. Burks, Holloway and Taylor teach us that retrying a defendant where the evidence presented by the prosecutor at the first trial was insufficient to convict subjects him to double jeopardy.
In determining whether the defendant's double jeopardy protection is being violated, the law is indifferent as to whether the first trial ends in a guilty verdict or in a deadlocked jury. If the evidence is insufficient as a matter of law to convict in the first trial, it would still be insufficient after the second trial, for Burks and Holloway preclude the State from offering new and additional evidence in the second round. The second trial would be a useless exercise which would serve only to harass the defendant by subjecting him to needless embarrassment, expense and anxiety. Thus, the proper application of the constitutional prohibition against double jeopardy requires that, when the issue is raised by the defendant, the trial judge must decide whether the evidence was sufficient for conviction, both where the jury returned a guilty verdict and where it was unable to agree on a verdict. If the judge incorrectly decides in either instance that the evidence was sufficient, he is subject to reversal.
*309 United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 51 L.Ed.2d 642, 97 S.Ct. 1349, and United States v. Suarez (2d Cir.1974), 505 F.2d 166, support and require this application of the double jeopardy prohibition. Both cases ended with juries discharged because they were deadlocked. Following the discharge of the jury, in each case the trial judge concluded that the evidence had not been sufficient to convict the defendant, and entered an order, such as the one in this case, acquitting him. The authority for the order in each case was Rule 29(c) of the Federal Rules of Criminal Procedure, which permits a trial judge, on motion, when a jury is discharged without having returned a verdict, to enter a judgment of acquittal. In both cases the reviewing court determined that allowing a retrial after the judgment of acquittal would subject the defendant to double jeopardy in violation of the constitutional safeguard and that, therefore, an appeal from the order of acquittal was not permissible.
In Martin Linen Supply, as in this case, the prosecution argued that "`[o]nce the district court declared a mistrial and dismissed the jury, any double jeopardy bar to a second trial dissolved.'" (430 U.S. 564, 572, 51 L.Ed.2d 642, 652, 97 S.Ct. 1349, 1355.) The government's attempt to distinguish the situation where the trial judge directs the jury to return a verdict of not guilty as one where the formal verdict of acquittal, though on direction, was rendered by the jury which was then discharged, rather than by the judge, was rebuffed by the court with the following response:
"This in effect turns the constitutional significance of a * * * judgment of acquittal on a matter of timing. Thus, if the judge orders entry of judgment of acquittal on his own or on defendant's motion prior to submission of the case to the jury, * * * or after submission but prior to the jury's return of a verdict, * * * and the jury thereafter is *310 discharged the Government's argument necessarily concedes that the Double Jeopardy Clause would preclude both appeal and retrial. If, however, the judge chooses to await the outcome of the jury's deliberations and, upon its failure to reach a verdict, acts on a timely motion for acquittal * * * the Government submits that the Double Jeopardy Clause should not bar an appeal.
We are not persuaded. Rule 29 contemplated no such artificial distinctions. * * * Insofar as the Government desires an appeal to correct error, irrational behavior, or prejudice on the part of the trial judge, its interest is not dependent on the point of trial when the judge enters his * * * judgment, and suffers no special prejudice by a judge's acquittal after the jury disagrees and is discharged. And to the extent that the judge's authority under Rule 29 is designed to provide additional protection to a defendant by filtering out deficient prosecutions, the defendant's interest in such protection is essentially identical both before the jury is allowed to come to a verdict and after the jury is unable to reach a verdict * * *." 430 U.S. 564, 574-75, 51 L.Ed.2d 642, 652-53, 97 S.Ct. 1349, 1356.
The reliance by the Supreme Court in Martin Linen Supply on Rule 29(c) indicates that a rule permitting a trial judge to order an acquittal based on the insufficiency of the evidence after a deadlocked jury has been discharged states a valid legal concept. It also disproves the State's argument that the discharge of a hung jury in a criminal case results in some metaphysical change in the evidence which renders it nonexistent thereafter for the purpose of deciding whether it is sufficient to convict. Were the State's theory sound, Rule 29(c) could not be applied as it was in Martin Linen Supply, for the court would no longer have any evidence before it to evaluate.
While Illinois has no rule or statute comparable to Federal Rule 29, trial courts have the inherent power to correct their previous rulings. (People v. Van Cleve *311 (1982), 89 Ill.2d 298.) It would be absurd to suppose that trial judges who conclude they have made mistakes should not be free to correct them within an appropriate time frame. Thus, this inherent power accomplishes the same purpose and may be given the same effect as a formal rule such as Rule 29; we perceive no reason for not applying that power in the same manner in which the court applied Rule 29 in Martin Linen Supply. The court's response to the prosecutor in that opinion applies with equal force and logic to the State's Attorney's identical argument in this case. Therefore, the double jeopardy prohibition places upon a trial judge the responsibility of spotting deficient prosecutions those in which the evidence is insufficient to convict and his authority to do so is not curtailed by the contingency that the jury is unable to agree on a verdict.
The State does not dispute that the trial judge in this case, after discharging the jury, reached the correct result. The trial judge stated that he was not relying on the defendant's contention based on section 8-5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 8-5) that his conviction of conspiracy (the inchoate offense) precluded his conviction for murder (the principal offense). Instead the trial judge explained that he had reviewed the defendant's motion for a directed verdict of not guilty on the murder counts at the end of all the evidence with "all the aftersight of a Monday morning quarterback." Although a judgment of acquittal does not trigger double jeopardy protection unless it "actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged" (United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 571, 51 L.Ed.2d 642, 651, 97 S.Ct. 1349, 1355), it is clear that the judgment of acquittal in this case represented such a resolution. The trial judge, after reevaluating the evidence, decided in hindsight that there was insufficient *312 evidence to establish as a matter of law some or all of the essential elements of murder.
Even if the trial judge appraised the evidence incorrectly in deciding that it was insufficient for conviction, that order is not reviewable. In People ex rel. Daley v. Limperis (1981), 86 Ill.2d 459, 468, this court not only cited Martin Linen Supply but also explained the finality of an acquittal under the double jeopardy clause after a trial in which the defendant had been placed in jeopardy:
"Citing Fong Foo v. United States (1962), 369 U.S. 141, 143, 7 L.Ed.2d 629, 631, 82 S.Ct. 671, 672, the court was careful to point out in DiFrancesco that the double jeopardy clause prohibits further prosecution even where an acquittal is `based upon an egregiously erroneous foundation.' [Citation.] An acquittal of the sort referred to in DiFrancesco is `a resolution, correct or not, of some or all of the factual elements of the offense charged.'"
In Sanabria v. United States (1978), 437 U.S. 54, 64, 57 L.Ed.2d 43, 54, 98 S.Ct. 2170, 2179, the court said:
"[W]hen a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous."
It is therefore plain that allowing the supervisory order which the State seeks would subject the defendant to a second trial after he was acquitted because insufficient evidence was introduced to convict him. This would deprive the defendant of his constitutional protection against double jeopardy in the same way as would reversing an acquittal in an appeal by the State. Dispositive of the State's application for a supervisory order is the following observation in Martin Linen Supply:
"Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that `[a] verdict of acquittal ... could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.' United States v. Ball, *313 163 U.S. 662, 671 (1896)." (430 U.S. 564, 571, 51 L.Ed.2d 642, 651, 97 S.Ct. 1349, 1354.)
For these reasons we decline to exercise our supervisory authority. It is unnecessary in view of this conclusion for us to consider the defendant's additional contention that section 8-5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 8-5) prohibits conviction of the principal offense of murder after the defendant was sentenced for the inchoate offense of conspiracy to commit murder.
Supervisory order denied.
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144 P.3d 914 (2006)
341 Or. 393
WAL-MART STORES, INC., Petitioner on Review,
v.
CITY OF CENTRAL POINT, Central Point First, Inc., Becca Croft, Joseph R. Thomas, David M. Painter, and Carol Putnam, Respondents on Review.
(LUBA 2004-075; CA A129094; SC S52736).
Supreme Court of Oregon, En Banc.
Argued and Submitted May 4, 2006.
Decided September 28, 2006.
Thomas W. Sondag, Lane Powell PC, Portland, argued the cause for petitioner on review. With him on the briefs were Gregory S. Hathaway and E. Michael Connors, Davis Wright Tremaine, LLP, Portland.
William K. Kabeiseman, Garvey Schubert Barer, Portland, argued the cause for respondents on review. With him on the joint brief for respondents on review were Edward J. Sullivan and Carrie A. Richter, Garvey Schubert Barer, Portland, and Christine M. Cook, Portland.
DE MUNIZ, C.J.
Any party who is dissatisfied with an order of the Land Use Board of Appeals *915 (LUBA) may seek judicial review of that order in the Court of Appeals pursuant to ORS 197.850. That statute sets forth the filing and service requirements that a petitioner must satisfy to invoke the jurisdiction of the Court of Appeals. In this case, the Court of Appeals dismissed a petition for judicial review by Wal-Mart Stores, Inc. (petitioner), because it concluded that it did not have jurisdiction under ORS 197.850. We allowed petitioner's petition for review and now, for the reasons stated below, affirm the order of the Court of Appeals.
The Court of Appeals order sets forth the pertinent facts:
"LUBA issued its Final Opinion and Order in this case on June 9, 2005, by mailing it to the parties. Petitioner Wal-Mart Stores, Inc., filed, by certified mail, a petition for judicial review seeking review of that order on June 30, 2005, which was the 21st day after the LUBA decision was mailed. Petitioner served the petition on the respondents by first class, regular mail, rather than certified or registered mail, on June 30, 2005, as well."
Respondents Central Point First, Inc., Becca Croft, Joseph R. Thomas, David M. Painter, and Carol Putnam (respondents) did not receive the petition until July 1, 200522 days after the LUBA order. Respondents moved to dismiss judicial review in the Court of Appeals because they neither received the petition for judicial review nor had actual notice of it within 21 days of LUBA's order.[1] As noted, the Court of Appeals agreed with respondents and dismissed the petition for judicial review.
ORS 197.850(1) to (4) provide:
"(1) Any party to a proceeding before the Land Use Board of Appeals under ORS 197.830 to 197.845 may seek judicial review of a final order issued in those proceedings.
"(2) Notwithstanding the provisions of ORS 183.480 to 183.540, judicial review of orders issued under ORS 197.830 to 197.845 shall be solely as provided in this section.
"(3)(a) Jurisdiction for judicial review of proceedings under ORS 197.830 to 197.845 is conferred upon the Court of Appeals. Proceedings for judicial review shall be instituted by filing a petition in the Court of Appeals. The petition shall be filed within 21 days following the date the board delivered or mailed the order upon which the petition is based.
"(b) Filing of the petition, as set forth in paragraph (a) of this subsection, and service of a petition on all persons identified in the petition as adverse parties of record in the board proceeding is jurisdictional and may not be waived or extended.
"(4) The petition shall state the nature of the order the petitioner desires reviewed. Copies of the petition shall be served by registered or certified mail upon the board, and all other parties of record in the board proceeding."
Petitioner requests that this court reinstate its petition for judicial review and offers two arguments to support that request. First, petitioner contends that the requirement contained in ORS 197.850(4), that a petitioner serve other parties by registered or certified mail, is not a jurisdictional requirement. Petitioner asserts that, in ORS 197.850(3)(b), the legislature set forth only two requirements for the Court of Appeals to obtain jurisdiction: (1) filing of the petition as set forth in ORS 197.850(3)(a); and (2) service of the petition on adverse parties. Petitioner notes that the legislature did not incorporate or cross-reference the requirements of subsection (4) in setting forth the jurisdictional requirements. Second, petitioner asserts that neither subsection (3) nor subsection (4) contain any statutory deadline for service; instead, petitioner asserts, ORS 197.850(3)(a) imposes a 21-day deadline only for filing the petition for judicial review. Therefore, petitioner contends, respondents' failure to receive the service copy of the petition for judicial review until the twenty-second *916 day following the LUBA order does not defeat jurisdiction.
To determine whether petitioner's arguments are well-founded, we employ the familiar methodology set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993), to determine the legislature's intent.[2] Under that methodology, we first consider the text and context of the statute. Id. at 610-11, 859 P.2d 1143. We give words of common usage their "plain, natural, and ordinary meaning." Id. at 611, 859 P.2d 1143. Where words used in a statute have a well-defined legal meaning, however, they will be given that meaning. Gaston v. Parsons, 318 Or. 247, 253, 864 P.2d 1319 (1994). Our analysis of the context includes other provisions of the same statute or related statutes, PGE, 317 Or. at 611, 859 P.2d 1143, as well as prior opinions of this court interpreting the same statutory wording, Robinson v. Nabisco, Inc., 331 Or. 178, 184, 11 P.3d 1286 (2000).
We begin with ORS 197.850(2), which provides, "Notwithstanding the provisions of ORS 183.480 to 183.540, judicial review of orders issued under ORS 197.830 to 197.845 shall be solely as provided in this section."[3] (Emphasis added.) In that subsection, the legislature made clear its intent that the procedures set forth in ORS 197.850, and only those procedures, govern judicial review of LUBA orders.
ORS 197.850(3)(b) states that certain procedures for obtaining judicial review are "jurisdictional and may not be waived or extended." As petitioner notes, ORS 197.850(3)(b) sets forth two requirements for invoking the jurisdiction of the Court of Appeals: (1) filing a petition for judicial review with the Court of Appeals within 21 days of the LUBA order; and (2) service of the petition for judicial review on all adverse parties. The latter provision, however, is silent as to how petitioner must accomplish service.
The word "service" is a term of art with a specific, legal meaning. See Ester v. City of Monmouth, 322 Or. 1, 9-10, 903 P.2d 344 (1995) (analyzing "local improvements" and "special benefits" as terms of art with meanings derived from established law). Service is "[t]he formal delivery of a writ, summons, or other legal process" or "[t]he formal delivery of some other legal notice, such as a pleading." Black's Law Dictionary 1399 (8th ed 2004). In other words, service is the delivery of some sort of legal notice in some formal manner. ORS 197.850(4) directs that the petition for judicial review be "served" by certified or registered mail. To serve is "[t]o make legal delivery of (a notice or process)" or "[t]o present (a person) with a notice or process as required by law." Id. Implicit in that definition is the assumption of legal requirements as to how the delivery is to take place.
In McCall v. Kulongoski, 339 Or. 186, 192-96, 118 P.3d 256 (2005), this court construed the jurisdictional requirements for service of the notice of appeal under ORS chapter 19, which governs civil appeals. Like ORS 197.850(3)(b), ORS 19.270(2)(a) provides that service of the notice of appeal on all adverse parties is jurisdictional and may not be *917 waived or extended.[4] ORS 19.270(2)(a) incorporates by reference certain other requirements set forth in ORS chapter 19, but does not refer to the section that describes how service is accomplished. Nevertheless, in McCall, this court held that the section describing the procedure for accomplishing service, ORS 19.500, also set forth a jurisdictional requirement.[5]McCall, 339 Or. at 195, 118 P.3d 256. The court explained that "the statutory text that controls how such service must be accomplished is framed, for the most part, in mandatory terms." Id. The court therefore concluded that, under ORS 19.500, to invoke the jurisdiction of the Court of Appeals, an appellant "shall" serve a notice of appeal in the manner provided by ORCP 9. Id.[6]
We follow the same approach here. Subsection (4) of ORS 197.850 provides, in mandatory terms, "Copies of the petition shall be served by registered or certified mail upon the board, and all other parties of record in the board proceeding." ORS 197.850(4) (emphasis added). That requirement existed before the legislature's addition of the text in paragraph (3)(b). "[A] presumption exists that amendatory acts do not change the meaning of preexisting language further than is expressly declared or necessarily implied." Fifth Avenue Corp. v. Washington Co., 282 Or. 591, 597-98, 581 P.2d 50 (1978).[7] Nothing in paragraph (3)(b) indicates that the legislature intended service of the petition to mean anything other than the manner of service prescribed by subsection (4).[8] When read together, paragraph (3)(b) and subsection (4) of ORS 197.850 mandate that a party wanting to obtain judicial review of a LUBA order serve a petition for review, by certified or registered mail, on all adverse parties identified in the petition.
Petitioner concedes that it served respondents by first-class mail, not certified or registered mail. Because petitioners failed to comply with what we now have concluded is a jurisdictional requirement, we affirm the Court of Appeals order of dismissal. Because our conclusion respecting petitioner's first argument disposes of this case, we do not reach petitioner's second argument regarding whether ORS 197.850 imposes a jurisdictional deadline for service.
The order of the Court of Appeals is affirmed.
NOTES
[1] Respondent City of Central Point did not move to dismiss in the Court of Appeals. The City of Central Point is, however, a party to this appeal. Therefore, our use of "respondents" includes the City of Central Point.
[2] This court has not construed previously the jurisdictional requirements of the current version of ORS 197.850. In Ludwick v. Yamhill County, 298 Or. 302, 304, 691 P.2d 906 (1984), this court construed the former version of ORS 197.850, which required petitioners to file a notice of intent to appeal in addition to a petition for judicial review. In that case, the court held that, where a petitioner filed a timely petition for judicial review but did not include in the caption of that petition the words "notice of intent to appeal," dismissal was inappropriate. Id. at 305, 691 P.2d 906. Because the two requirements appeared to be redundant, the court noted that ORS 197.850 "may deserve legislative examination." Id. at 305-06 n. 1, 691 P.2d 906. The legislature took up that examination in 1989 and eliminated the notice of intent to appeal requirement. Or Laws 1989, ch 515, § 1. Notably, the version of ORS 197.850 extant when Ludwick was decided contained a subsection (4) that is virtually identical to the current version. Although the main focus of the 1989 amendment was to add, in paragraph (3)(b), jurisdictional consequences to certain requirements in the statute, the legislature was aware of the existence of subsection (4), as it changed the word "notice" a reference to the notice of intent to appealto "petition," instead.
[3] ORS 183.480 to 183.540 are within the Administrative Procedures Act. Those sections generally govern judicial review of agency orders.
[4] ORS 19.270(2) provides, in part:
"The following requirements of ORS 19.240, 19.250 and 19.255 are jurisdictional and may not be waived or extended:
"(a) Service of the notice of appeal on all parties identified in the notice of appeal as adverse parties or, if the notice of appeal does not identify adverse parties, on all parties who have appeared in the action, suit or proceeding, as provided in ORS 19.240(2)(a), within the time limits prescribed by ORS 19.255."
[5] ORS 19.500 provides:
"Except as otherwise provided in this chapter, when any provision of this chapter requires that a paper be served and filed, the paper shall be served in the manner provided in ORCP 9 B on all other parties who have appeared in the action, suit or proceeding and who are not represented by the same counsel as the party serving the paper, and shall be filed, with proof of service indorsed thereon, with the trial court administrator."
[6] Similarly, in Sizemore v. Myers, 327 Or. 71, 74-75, 957 P.2d 577 (1998), this court construed the requirements for obtaining review of a ballot title. The court concluded that, although the applicable statutes did not set forth "jurisdictional" requirements in the usual sense, a petitioner nevertheless must comply with the statute's requirements to obtain review of a ballot title, or face dismissal of the ballot title review proceeding, because the requirements effectively imposed limits on the court's authoritycreated by the statutory scheme itselfto review ballot titles. Id.
[7] Although that generally is a legally correct statement, as noted in Jones v. General Motors Corp., 325 Or. 404, 414 n. 6, 939 P.2d 608 (1997), use of the word "presumption" is misleading to the extent that it suggests application of a presumption favoring or disfavoring a change in meaning as opposed to ascertaining the substance of the legislative enactment.
[8] Indeed, given the well-established legal meaning of "service," which encompasses delivery of a legal document in a specific manner, if the legislature intended to refer to the "fact" of service alone (assuming that the "fact" of service could be divorced from the "manner" of service), it would need to do so explicitly, as such a meaning is not necessarily implied by an unaccompanied reference to "service."
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178 Ill. App.3d 857 (1989)
533 N.E.2d 1154
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
RICKEY R. SAULSBURRY, Defendant-Appellant.
No. 2-87-1137.
Illinois Appellate Court Second District.
Opinion filed January 25, 1989.
*858 Fred M. Morelli, Jr., of Law Offices of Fred M. Morelli, Jr., of Aurora, and Vincent C. Argento, of Argento & Malcolm, of Elgin, for appellant.
Robert F. Casey and Gary V. Johnson, State's Attorneys, of Geneva, and *859 Georgette Nabhani, of Chicago (William L. Browers, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Judgment affirmed.
JUSTICE REINHARD delivered the opinion of the court:
Defendant, Rickey R. Saulsburry, was found guilty following a jury trial in the circuit court of Kane County of the offenses of reckless driving (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-503) and felony driving while under the influence of alcohol (DUI), causing great bodily harm to another (Ill. Rev. Stat. 1985, ch. 95 1/2, pars. 11-501(a)(2), (f)). Judgment was entered on the DUI verdict only, and defendant was sentenced to a three-year term of imprisonment.
On appeal, defendant contends that the circuit court erred in admitting the testimony of the emergency room physician who treated defendant which should have been barred under the physician-patient privilege. Defendant further contends that the results of a blood-alcohol test were inadmissible because the test was not performed in accordance with the standards formulated by the Illinois Department of Public Health and listed in section 510.110 of the Illinois Administrative Code (77 Ill. Adm. Code 510.110 (1985)).
In a pretrial motion, not contained in the record, defendant sought to exclude the testimony of Dr. Tye Stein, the emergency room physician who treated defendant after the accident, and of an attending nurse and laboratory technician who took and analyzed defendant's blood. Defendant argued that the physician-patient privilege barred this testimony. The court denied defendant's motion based on a New Jersey decision, State of New Jersey v. Dyal (1984), 97 N.J. 229, 478 A.2d 390. In that case, the New Jersey Supreme Court held that the physician-patient privilege could be broached in the interest of public policy when the prosecution seeks to introduce evidence of a defendant's blood-alcohol level if the arresting officer had a reasonable basis to believe that the defendant was intoxicated. Dyal, 97 N.J. at 241, 478 A.2d at 396.
Prior to trial, defendant also filed a motion to exclude evidence of the blood-alcohol test. Although the motion also is not in the record, the parties stipulated that the blood-alcohol test was not performed in accordance with statutory requirements. The trial court granted the motion pertaining to the DUI offense only as it related to the presumption of intoxication but denied it as to the reckless driving offense.
Evidence adduced at trial showed that at approximately 11 p.m. on July 19, 1986, the pickup truck defendant was driving hit a jeep as the jeep attempted to make a left turn after stopping at a four-way *860 stop sign intersection. A passenger in the jeep, Shelly McGuigan, suffered permanent, serious injuries.
Lucinda Saltzman testified that she and defendant had been drinking beer at a wedding reception prior to the accident. They left the reception in defendant's pickup truck. Saltzman further testified that defendant was intoxicated, but she thought he was okay to drive. Saltzman claimed that she did not remember the accident because she had too much to drink.
Kimberly Hook, one of the paramedics who was called to the scene of the accident, testified that she attempted to get defendant out of the truck. Defendant was not stuck in the truck, rather, he clung to the steering wheel and fought with the paramedics to stay in the truck. Hook further testified that defendant swung at several of the paramedics and struck her in the arm. When the paramedics did get defendant into the ambulance, Hook smelled alcohol on defendant's breath and noticed his slurred speech. In Hook's opinion, defendant was intoxicated and impaired at the time of the accident. She based her opinion on defendant's aberrant behavior of resisting assistance, his belligerence, his slurred speech, and the odor of alcohol on his breath.
Another paramedic, Randy Miller, testified that defendant fought with the paramedics. Miller also rendered an opinion that defendant was intoxicated at the time of the accident based on defendant's actions and slurred speech.
Gale Kendrick testified that she was the night nursing supervisor at the hospital when the paramedics brought defendant in. Kendrick testified that defendant would not cooperate with the hospital personnel and that he used foul language. In Kendrick's opinion, defendant was intoxicated.
Dr. Stein testified that he was the emergency room doctor on duty that night. When he examined defendant, Dr. Stein noted defendant's disruptive behavior and the odor of alcohol on his breath. According to Dr. Stein, defendant's injuries of concern were limited to his abdominal area. As Dr. Stein had to account for defendant's belligerent behavior, and as he did not think defendant sustained a head injury, he ordered a nurse to perform a blood-alcohol test on defendant. Dr. Stein testified that the result of the blood test was a blood-alcohol level of .29 grams per deciliter. Dr. Stein stated that this result confirmed his initial diagnosis that defendant was intoxicated. Dr. Stein further testified that the blood test was relevant to his diagnosis because a person with a blood-alcohol level under .10 would not be impaired.
*861 Judith Stearns testified that she drew the blood from defendant for the blood-alcohol test. Stearns stated that she cleaned the site where the blood was to be drawn with a nonalcohol based solution. Then Stearns used a vacuum tube to collect the blood. Stearns labeled the vial, gave it to an orderly to take to the laboratory to be tested, and initialed the lab slip. Stearns could not remember whether she thought defendant was intoxicated. However, after reviewing the statement she gave to the State's Attorney, Stearns testified that defendant was unruly and used foul language. According to Stearns, defendant did, however, cooperate with her when she drew his blood.
Ann Marie Hermann, the medical technologist who operated the instrument which tested defendant's blood, testified to the method the hospital used to test for alcohol content in blood. Hermann explained how the machine was tested every 24 hours to ensure the accuracy of test results. Hermann testified that she followed hospital procedures when she prepared defendant's blood sample for testing and described the testing procedure. Hermann further testified that the blood sample gave a reading of .29 grams of alcohol per deciliter of blood.
Defendant did not testify, nor did he put on any evidence.
1 Defendant first contends, relying on People v. Walljasper (1981), 97 Ill. App.3d 81, 422 N.E.2d 251, that the physician-patient privilege bars the emergency room physician, Dr. Stein, who treated defendant, from testifying as to his observations of defendant, his opinion that defendant was intoxicated, and the results of the blood-alcohol test. The statutory physician-patient privilege in existence at the time of trial contained in section 8-802 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 8-802) provided, in pertinent part, as follows:
"8-802. Physician and patient. No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve such patient, except * * *." Ill. Rev. Stat. 1987, ch. 110, par. 8-802.
The State has not responded to this argument, and, instead, asserts that section 8-802 has now been amended, effective January 5, 1988, to include as an exception to the privilege, "prosecutions where written results of blood alcohol tests are admissible pursuant to Section 11-501.4 of The Illinois Vehicle Code" (Pub. Act 85-992, § 2, eff. Jan. 5, 1988 (amending Ill. Rev. Stat. 1987, ch. 110, par. 8-802)), and, therefore, defendant should not be granted a new trial because the evidence would be admitted upon a retrial. A corresponding amendment to section 11-501.4 of the Illinois Vehicle Code (Pub. Act *862 85-992, § 1, eff. Jan. 5, 1988 (amending Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.4)) provides:
"Sec. 11-501.4. Admissibility of written blood alcohol test results conducted in the regular course of providing emergency medical treatment.
(a) Notwithstanding any other provision of law, the written results of blood alcohol tests conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence as a business record exception to the hearsay rule only in prosecutions for any violation of Section 11-501 of this Code or a similar provision of a local ordinance, or in prosecutions for reckless homicide brought under the Criminal Code of 1961, when each of the following criteria are met:
(1) the blood alcohol tests were ordered by a physician on duty at the hospital emergency room and were performed in the regular course of providing emergency medical treatment in order to assist the physician in diagnosis or treatment;
(2) the blood alcohol tests were performed by the hospital's own laboratory; and
(3) the written results of the blood alcohol tests were received and considered by the physician on duty at the hospital emergency room to assist that physician in diagnosis or treatment.
(b) The confidentiality provisions of law pertaining to medical records and medical treatment shall not be applicable with regard to blood alcohol tests performed under the provisions of this Section in prosecutions as specified in subsection (a) of this Section. No person shall be liable for civil damages as a result of the evidentiary use of blood alcohol test results under this Section, or as a result of that person's testimony made available under this Section."
Notwithstanding that the pertinent statutes have now been amended and, as they affect procedure, which includes rules of evidence, would apply to litigation pending when the law takes effect (Niven v. Siqueira (1985), 109 Ill.2d 357, 364, 487 N.E.2d 937), the statute can only be applied upon retrial when the amendment is in existence and not in the original trial when the amendment was not yet in existence. Thus, the statutory physician-patient privilege in existence at the time of trial bars Dr. Stein's testimony relating to his observations of defendant, his opinion of defendant's intoxication and the evidence of the blood-alcohol test. See Walljasper, 97 Ill. App.3d at 84, 422 N.E.2d at 253.
*863 2 The State argues, alternatively, that any error in the admission of Dr. Stein's testimony was harmless because of the substantial testimony of other witnesses that defendant was intoxicated. Evidentiary errors can be labeled harmless only if properly admitted evidence is so overwhelming that no fair-minded jury could reasonably have voted to acquit the defendant. (People v. Carlson (1982), 92 Ill.2d 440, 449, 442 N.E.2d 504.) To measure harmless error the reviewing court will (1) focus on the error to determine whether it might have contributed to the conviction, (2) examine the other evidence in the case to see if overwhelming evidence supports the conviction, and (3) determine whether the evidence is cumulative or merely duplicates properly admitted evidence. People v. Wilkerson (1981), 87 Ill.2d 151, 157, 429 N.E.2d 526; see also People v. Gonzalez (1984), 104 Ill.2d 332, 338-39, 472 N.E.2d 417.
3 We agree with the State's argument that the error in admitting Dr. Stein's testimony was harmless. Two paramedics, a nurse at the hospital, and the woman riding with defendant at the time of the accident all testified that defendant was intoxicated. No evidence was offered by defendant to rebut this testimony. Dr. Stein's testimony was merely cumulative of the other witnesses' opinions, which provided overwhelming evidence to support a conviction. As no prejudice resulted to defendant from the admission of Dr. Stein's testimony, we hold that the error was harmless.
Defendant's second contention is that the trial court erred in allowing into evidence testimony of the results of the blood-alcohol test because of the stipulation that the Illinois Department of Public Health standards were not followed. Presumably, although not made clear in his brief, defendant is referring to the testimony of Judith Stearns, that she drew blood from defendant for a blood-alcohol test, and the testimony of Ann Marie Hermann, that she operated the machine that tested defendant's blood sample and that a reading of .29 grams of alcohol per deciliter of blood was obtained.
4 We agree with defendant that, as to the DUI offense, the failure of the hospital personnel to comply with Department of Public Health standards as required by section 11-501.2(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.2(a)) renders the analysis of the defendant's blood inadmissible. (People v. Emrich (1986), 113 Ill.2d 343, 349-50, 498 N.E.2d 1140; People v. Murphy (1985), 108 Ill.2d 228, 233-35, 483 N.E.2d 1288.) Nevertheless, for the same reasons set forth above, we find that the admission into evidence of the testimony of these two witnesses was harmless error. There was overwhelming, unrebutted evidence of defendant's intoxication, *864 and this evidence that the blood was tested and of the blood-alcohol concentration did not prejudice defendant under the circumstances.
5 While it appears from a close reading of defendant's brief that he also argues that this testimony was inadmissible as to the reckless driving offense, the record shows that judgment on the jury verdict and sentence was not entered on that offense and, accordingly, any arguable error is moot. In any event, compliance with the standards is a prerequisite to admissibility on a DUI charge only (Emrich, 113 Ill.2d at 350, 498 N.E.2d at 1143; Murphy, 108 Ill.2d at 236, 483 N.E.2d at 1291), and the test to be applied on other charges is whether the blood analysis meets the ordinary test of admissibility. (Emrich, 113 Ill.2d at 351, 498 N.E.2d at 1144; Murphy, 108 Ill.2d at 236, 483 N.E.2d at 1291.) While defendant never objected on the ground of the validity of the testing procedure, despite some indication by the trial judge that he would consider the objection if made, we believe the record supports the reliability of the procedure even though the issue may have been waived by defendant.
6 Finally, defendant "notes" in a cursory, one-page argument in his brief that the prosecutor made improper comments in his closing arguments. Contrary to Supreme Court Rule 341(e) (113 Ill.2d R. 341(e)), the issue was not listed in the statement of issues presented portion of the brief or mentioned in the caption of the issues in the argument portion of the brief, and is therefore waived. Further, the issue is also waived for failure to raise the issue in the written post-trial motion. People v. Enoch (1988), 122 Ill.2d 176, 186, 522 N.E.2d 1124.
The judgment of the circuit court of Kane County is affirmed.
Affirmed.
NASH and DUNN, JJ., concur.
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634 F.2d 620
Amalgamated Clothing and Textile Workers Union, AFL-CIOv.N. L. R. B.
79-1664
UNITED STATES COURT OF APPEALS Fourth Circuit
10/23/80
ENFORCEMENT ORDERED
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Electronically Filed
Intermediate Court of Appeals
CAAP-12-0000656
31-JUL-2014
08:45 AM
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOBBY LEE MONTGOMERY, No. 15-15711
Plaintiff-Appellant, D.C. No. 2:11-cv-02079-RFB-PAL
v.
MEMORANDUM*
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Bobby Lee Montgomery appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging federal and state law claims. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo both summary
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
judgment and a dismissal for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009). We
may affirm on any basis supported by the record. Henry v. Gill Indus., Inc., 983
F.2d 943, 950 (9th Cir. 1993). We affirm.
The district court properly granted summary judgment on Montgomery’s
unlawful arrest claim because Montgomery failed to raise a genuine dispute of
material fact as to whether defendants arrested him without probable cause. See
United States v. Gonzales, 749 F.2d 1329, 1337 (9th Cir. 1984) (probable cause for
a warrantless arrest exists if “under the 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”).
Dismissal of Montgomery’s excessive force claim was proper because it
would not have been clear to every reasonable officer that the conduct violated a
clearly established right. See Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir.
2010) (police officer entitled to qualified immunity unless the conduct at issue
violated a clearly established constitutional right).
The district court properly dismissed Montgomery’s malicious prosecution
claim because Montgomery failed to allege facts sufficient to show that defendants
2 15-15711
acted with malice and without probable cause. See Lacey v. Maricopa County, 693
F.3d 896, 919 (9th Cir. 2012) (setting forth elements of malicious prosecution
claim under § 1983).
The district court properly dismissed Montgomery’s intentional infliction of
emotional distress claim because Montgomery failed to allege facts sufficient to
state a plausible claim. See Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1386
(Nev. 1998) (setting forth elements of claim for intentional infliction of emotional
distress).
The district court properly dismissed Montgomery’s claim under Monell v.
Dep’t of Soc. Servs., 436 U.S. 658 (1978), because Montgomery failed to allege
facts sufficient to show that a constitutional deprivation resulted from an official
policy, practice, or custom. See Cameron v. Craig, 713 F.3d 1012, 1023 (9th Cir.
2013) (setting forth elements of a Monell claim).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Montgomery’s request to amend the caption is denied.
AFFIRMED.
3 15-15711
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-89,608-01
EX PARTE MILTON SAVAGE JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. F-2004-1606-E-WHC 1 IN THE 367TH DISTRICT COURT
FROM DENTON COUNTY
Per curiam.
OPINION
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 aggravated
assault as a habitual felon and sentenced to twenty-five years’ imprisonment and a $5000 fine.
Applicant contends, inter alia, that the $5000 fine is not authorized as punishment under the
habitual-felon statute. See TEX . PENAL CODE 12.42(d). He is correct. The trial court, with the State’s
agreement, “recommends that Applicant receive relief by having the jury’s verdict reformed by
removing the unauthorized fine from Applicant’s sentence.” The recommendation is supported by
the habeas record and applicable law. See TEX . CODE CRIM . PROC. art. 37.10(b).
2
We hold that the $5000 fine imposed in cause no. F-2004-1606-E, The State of Texas v.
Milton Savage, Jr., from the 367th District Court of Denton County is vacated. The 25-year sentence
remains unchanged. A review of Applicant’s remaining claims shows that they lack merit. These
claims are denied.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional
Institutions Division and Pardons and Paroles Division.
Delivered: September 11, 2019
Do not publish
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-3669
DEUTSCHE SHELL TANKER
GESELLSCHAFT mbH,
Plaintiff-Appellant/
Cross-Appellee,
versus
PLACID REFINING COMPANY,
Defendant-Appellee/
Cross-Appellant.
Appeals from the United States District Court
for the Eastern District of Louisiana
( June 8, 1993 )
Before POLITZ, Chief Judge, JOHNSON and JOLLY, Circuit Judges.
POLITZ, Chief Judge:
This case involves a general average claim arising from the
grounding of the tanker DIALA in the Mississippi River. Deutsche
Shell Tanker-Gesellschaft mbH, the vessel owner, appeals the
judgment in favor of the cargo owner, Placid Refining Company.
Finding no reversible error, we affirm.
Background
In 1983 Deutsche Shell contracted to deliver a shipment of
crude to Placid's refinery in Port Allen, Louisiana. The crude was
transpsorted by the tanker DIALA which departed Sullom Voe,
Scotland on May 21, 1983. The Atlantic crossing was uneventful.
Upon reaching the Mississippi River the DIALA took on a compulsory
Mississippi River pilot to guide the vessel upstream.
On June 5, in the Mississippi, the ship passed through
shallow water and experienced a vibration after which its 10-
centimeter radar picture failed. Captain Schätzel radioed Deutsche
Shell's New Orleans agent, Lykes Bros., requesting service for the
10-cm radar and for the 3-cm radar which had a weak picture.
Further upriver, the tanker encountered a squall during which its
3-cm radar unit also failed leaving the tanker without any
operational radar.
Captain Schätzel was able to interswitch the two radar systems
and establish a picture on the 3-cm display. The pilot, however,
fearful that another radar failure would leave the tanker in the
shipping lanes at night with no radar, and believing that Coast
Guard regulations required the ship to have two operational radar
units, refused to proceed and directed the ship to anchor.1 The
Mississippi River was at flood stage with a swift current. Before
the second anchor took hold, the current caught the ship and swept
her two miles downstream where she ran aground. After a week of
1
There were no qualified radar technicians on board the
vessel.
2
extensive salvage efforts, the DIALA was refloated and delivered
the oil to Placid's refinery.
Deutsche Shell brought suit against Placid asserting a claim
under the general average clause of the shipping contract2 to
recover a portion of the costs of the salvage effort.3 Placid
denied the claim asserting that it did not own the cargo at the
time of the grounding and that the proximate cause of the grounding
was Deutsche Shell's failure to maintain the radar in proper
working order.
The issue of liability was tried to the court which entered a
2
The shipping contract contained the following general
average clause:
General average shall be payable according to the
York/Antwerp Rules 1974 and shall be adjusted in London, but
should the adjustment be made in accordance with the law and
practice of the United States, the following clause shall
apply:
NEW JASON CLAUSE SQ In the event of accident, danger,
damage or disaster before or after the commencement of the
voyage, resulting from any cause whatsoever, whether due to
negligence or not, for which, or for the consequences of
which, the Carrier is not responsible, by statute, contract
or otherwise, the cargo, shippers, consignees or owners of
the cargo shall contribute with the Carrier in General
Average to the payment of any sacrifices, losses or expenses
of a General Average nature that may be made or incurred and
shall pay salvage and special charges incurred in respect of
the cargo.
3
"General average is an ancient maritime doctrine making
all participants in a maritime venture ratably responsible for
losses incurred for their common good." Atlantic Richfield Co.
v. United States, 640 F.2d 759, 761 (5th Cir. Unit A 1981).
3
take nothing judgment in favor of Placid.4 The district court
found that Deutsche Shell failed to prove that a general average
act occurred and, even if such had occurred, Deutsche Shell's
failure to exercise due diligence in maintaining the 3-cm radar was
the proximate cause. The district court also found that Placid
owned the cargo at the time of the grounding. Deutsche Shell
timely appealed; Placid cross-appealed on the issue of cargo
ownership.
Analysis
A standard "New Jason clause"5 requires general average
contribution even if the carrier is negligent, unless the carrier
is responsible for the damage under the Carriage of Goods by Sea
Act.6 Under COGSA a carrier is held at fault for damage to the
cargo caused by unseaworthiness resulting from "want of due
diligence on the part of the carrier to make the ship seaworthy."7
A general average claim such as the claim at bar requires a
three step analysis. The vessel owner has the initial burden to
4
The district court's opinion is reported at: Deutsche
Shell Tanker-Gesellschaft mbH v. Placid Refining Co., 767 F.
Supp. 762 (E.D.La.1991).
5
See The Jason, 225 U.S. 32, 32 S.Ct. 560, 56 L.Ed. 969
(1912).
6
Atlantic Richfield, 640 F.2d at 761; see COGSA, 46 U.S.C.
§ 1301 et seq.
7
46 U.S.C. § 1304(1).
4
establish a general average act and that there was a separate cargo
owner at the time of the act. If the vessel owner meets this
burden, the cargo owner may avoid liability by establishing that
the vessel was unseaworthy at the start of the voyage and the
unseaworthiness was the proximate cause of the general average act.
Finally, if the cargo owner establishes unseaworthiness, the vessel
owner may still succeed if it proves that it exercised due
diligence to make the vessel seaworthy at the start of the voyage.8
Deutsche Shell raises several issues on appeal. First, that
the district court erred as a matter of law in determining that
there was no general average act because the pre-trial order did
not list this as a contested issue of either fact or law. Deutsche
Shell further contends that, based on the uncontested evidence
presented at trial, the district court's determination that there
was no peril and hence no general average act was clearly
erroneous. Deutsche Shell also contends that the district court's
determinations that it failed to exercise due diligence and that
such failure was the proximate cause of the grounding were clearly
erroneous. In the cross-appeal, Placid contends that the district
court erred in finding that Placid owned the crude oil on board the
DIALA at the time of the grounding, and furthermore that Deutsche
Shell should be held liable under the Pennsylvania Rule.9
8
See Atlantic Richfield, 640 F.2d at 761-62; see generally
2 BENEDICT ON ADMIRALTY §§ 181-188 (7th Ed. 1992); G. Gilmore & C.
Black, The Law of Admiralty, ch. V, at 244-71 (2d Ed. 1975).
9
See The Pennsylvania, 86 U.S. (19 Wall.) 125 (1874).
Under the Pennsylvania Rule, "if a party violates a statute which
5
The determinations regarding peril, due diligence, and
proximate cause are findings of fact which are upheld on appeal
unless clearly erroneous.10 "A finding is clearly erroneous only
if the appellate court is left with the definite and firm
conviction that a mistake has been made."11
I. The General Average Act
"There is a general average act when, and only when, any
extraordinary sacrifice or expenditure is intentionally and
reasonably made or incurred for the common safety for the purpose
of preserving from peril the property involved in a common maritime
adventure."12 The district court found that Deutsche Shell failed
to prove that a general average act occurred because the tanker was
not in peril.13 Deutsche Shell argues that the district court erred
is designed to preclude an accident from occurring, that party
bears the burden of proof in showing that its fault did not
contribute to the accident." Sheridan Transportation Co. v.
United States, 897 F.2d 795, 797 (5th Cir. 1990). Coast Guard
regulations required the DIALA to have two independently
operating radar systems. 33 CFR §§ 164.35(a) and 164.37(a).
Placid argues that violation of this statute requires application
of the Pennsylvania Rule.
10
Elevating Boats, Inc. v. Gulf Coast Marine, 766 F.2d 195
(5th Cir. 1985); Fed.R.Civ.P. 52(a).
11
Elevating Boats, 766 F.2d at 199.
12
York/Antwerp Rule A (1974), reprinted in 2 BENEDICT ON
ADMIRALTY § 181, at 13-1.
13
The district court found as follows:
With little more than a citation to York/Antwerp Rule A and
the London adjustor's statement, Shell would have the Court
6
in raising the issue of peril sua sponte because the issue was
never in dispute. The lists of contested issues of law and fact in
the pretrial order contain no mention of a general average act.
Placid argues, on the other hand, that a general average act
is a necessary element of Deutsche Shell's cause of action, and the
burden is on Deutsche Shell to prove that it occurred.14 The
parties never explicitly stipulated that a general average act
occurred. Because we uphold the district court's finding that
Deutsche Shell failed to exercise due diligence to maintain the
3-cm radar, we need not decide whether the vessel was in peril nor
whether the issue was raised properly.15
gloss over the initial issue whether Shell's degrounding
efforts constituted a general average act. Shell perhaps
believes that the Court should find the existence of a
general average act here merely because the DIALA was
carrying millions of gallons of crude oil. The Court
rejects this position and does not otherwise find
circumstances sufficient for the Court to conclude that a
general average act occurred here.
767 F.Supp. at 783.
14
See York/Antwerp Rule E (1974):
The onus of proof is upon the party claiming in General
Average to show that the loss or expense claimed is properly
allowable as General Average.
Reprinted in 2 BENEDICT ON ADMIRALTY § 181, at 13-2.
15
We note, however, that peril is a flexible concept:
While the courts in some cases have used expressions
indicating that both in general average and in salvage cases
it is essential that the property at risk be subject to an
immediate impending danger, we think the 'imminency' of the
peril is not the critical test. If the danger be real and
substantial, a sacrifice or expenditure made in good faith
7
II. Lack of Due Diligence
The district court held that even if a general average act
occurred, such act was caused by Deutsche Shell's failure to
exercise due diligence to maintain the vessel's radar in seaworthy
condition. The district court found that Deutsche Shell's
inadequate maintenance practices contributed to the failure of the
3-cm radar.16 The court concluded that the 3-cm radar failed for
two reasons: (1) "water incursion into the antenna/waveguide
components of the unit from Shell's improper maintenance;" and
(2) "the T/R cell's having reached its actual useful life capacity,
which far exceeded either T/R cell type's average minimum life
expectancy."17 Although we find the district court's conclusion
regarding the T/R cell in error, we find no clear error in the
court's findings that water incursion contributed to the vessel's
grounding and that the water incursion was a result of Deutsche
Shell's failure to exercise due diligence in maintaining the 3-cm
radar.
for the common interest is justified, even though the advent
of any catastrophe may be distant or indeed unlikely.
Navigazione Generale Italiana v. Spencer Kellogg & Sons, Inc., 92
F.2d 41, 43 (2d Cir.), cert. denied, 302 U.S. 751 (1937). A
tanker, fully laden with crude oil, unintentionally grounded in
the Mississippi River at flood stages is quite likely to be in a
perilous position.
16
The district court found that the failure of the 10-cm
radar was not caused by a lack of due diligence by Deutsche
Shell.
17
767 F.Supp. at 788.
8
The Equipment
The DIALA was equipped with two independent radar units SQ a
10-cm unit and a 3-cm unit, both installed in 1973. Each unit has
a 16-inch display screen on the bridge of the vessel which leads to
an MTR (modulator/transmitter/receiver) unit in the next room. The
3-cm unit's MTR is connected to a hollow metal waveguide that leads
to a 12-foot antenna array unit on the mast atop the bridge. The
antenna array units are covered with fiberglass, and contain rotary
ball bearings above and below the array so the antenna may make 360
degree sweeps.
The district court provided the following helpful "layman's
explanation" of certain radar components:
A modulator sends power to a magnetron, which converts
the power to dense RF (radio frequency) energy for
transmitting out the radar unit. This RF energy passes
through a T/R (transmitter/receiver) cell and then, for
the 3-cm unit, through a waveguide . . . to the antenna
array, where the RF energy is transmitted into the
atmosphere. A small fraction of this transmitted energy
returns, or echoes, back to the antenna and back down the
waveguide . . . again. The same T/R cell then directs
this much weaker returning energy into receiver mixer
crystals; the T/R cell is designed and is able, when
functioning properly, to prevent the stronger, outgoing
RF energy from passing through and thereby damaging these
delicate mixer crystals. A klystron sends another, "base
line" RF signal into the mixer crystals. "Mixing" these
two incoming signals, the mixer crystals produce useful
electronic information, which is finally sent to the
display unit. The modulator, magnetron, T/R cell, mixer
crystals, and klystron are all components of the MTR
unit.18
The DIALA also was equipped with an interswitch device which
18
767 F. Supp. at 769-70.
9
permits the antenna and MTR unit of one radar system to be operated
with the display unit of the other. Prior to the radar failures on
June 5, 1983 no member of the DIALA crew had ever operated the
interswitch device.
Symptoms of Radar Failure
When a radar malfunctions, a white spot may appear on the
display screen and render the unit unfit for use. Among the
sources for such malfunction are: "a defective magnetron, a
defective modulator, blown or defective mixer crystals, possibly a
defective klystron, or water ingress into the waveguide."19 When
a T/R cell fails, it allows the high power transmitting RF energy
to go directly through the mixer crystals causing them to blow out.
Such failure of the T/R cell and crystals also causes a small white
spot in the center of the display screen and the loss of the rest
of the display picture.
Water incursion generally does not directly effect the T/R
cell. However, the presence of water in the waveguide may act as
a close-range reflector of transmitting RF energy which may cause
damage to the mixer crystals. In addition, a weak display picture
may be caused either by a magnetron malfunction or water in the
waveguide.20
Based upon the expert testimony at trial, the district court
identified three ways in which water may get inside the waveguide:
19
767 F.Supp. at 770.
20
Id.
10
through flanges or seams on the waveguide, through the front
or edges of the fiberglass scanner array unit (to which the
waveguide connects), and through the rotary ball bearing
components just above or below the scanner. Because the
antenna cover is continuously exposed to the harsh elements of
the maritime environment, it may become soft and porous over
time or otherwise in need of fiberglass recoating to prevent
water leakage in the waveguide.21
The heat produced by transmitting RF energy may produce a
"microwave" effect and dissipate or boil off small quantities of
water that enter the waveguide, thus leaving little or no evidence
of the water incursion.22
Maintenance Practices
Although the radar manufacturer recommended that a radar log
be kept of all service to the radar units, Deutsche Shell did not
do so. Instead, Deutsche Shell maintained a Gerätetagebuch, or
equipment book, containing invoices from radar repair technicians.
It also appears that no one regularly checked or followed up on the
recommendations made by service technicians in the Gerätetagebuch.
For example, a service report made on March 11, 1980 indicated that
the upper antenna array's ball bearing needed to be replaced; there
was no evidence in subsequent reports that this recommendation was
ever followed. As further evidence of Deutsche Shell's poor record
keeping, the Chief Officer's December 1982 quarterly report noted
the condition of the radar as "keine Störungen seit der Werft" or
"no problems since drydock," when the Gerätetagebuch showed three
service calls regarding the radar during that period.
21
Id. at 771 (footnote and record citations omitted).
22
767 F.Supp. at 771.
11
The manufacturer's instructions advised that the antenna array
should be removed and thoroughly overhauled every second year. The
Gerätetagebuch's radar repair records bear no evidence that this
was ever done during the entire ten years that the 3-cm radar had
been installed on the DIALA.
Radar Repairs Made After the Grounding
At 2:00 a.m. the morning after the grounding, Ben Kempf, a
radar technician came aboard the DIALA to work on the radar
systems. He did not testify at trial, but his work order indicates
the following regarding the 3-cm radar:
[T]he transmitter is inoperative; all power supply
voltages are normal; replaced blown receiver mixer
crystals, but still no targets; replaced klystron with
ship's spare; crystal current appears normal at this time
but still unable to tune. [N]o other replacement parts
are available. [S]uspect both klystrons 2K25 are
defective, because it was necessary to decrease crystal
attenuation to achieve any reading of receiver mixer
crystal current. No t/r cell replacement aboard ship;
suspect water in waveguide or in array. [D]isassembled
waveguide at transmitter but no water there. [R]emoved
waveguide from pedestal; but no evidence of water
intrusion. [W]ill return tomorrow to finish repairs.
Later that same day, Michael St. Romain, another radar technician
came to complete the radar repairs. His report indicated the
following:
Picture on radar showed signs of water in waveguide very
weak picture and large spot in center. No evidence of
water could be found below. Removed scanner and
inspected upper assembly. Some slight evidence of water
was shown from scanner. The front of scanner in dire
nee[d of] recoating. It is very porous and could get
water inside during a severe storm. Recommend recoating.
Also noted that top ball bearing is badly worn and should
be replaced. . . . After reassembling the waveguide parts
a very slight improvement in picture was noted, but not
enough. Changed defective TR cell and blown crystals.
This improved picture further. Tuning of klystron cavity
12
showed no change in picture. Changed klystron from
ship's spares. This improved picture further, now out to
6 miles. Made several other checks in TR unit with no
help in picture. Changed out klystron with one from our
kit. Tuned up radar now to have targets 24 miles.
St. Romain also returned the next day and recoated both the 3-cm
and 10-cm scanners.
A. Water Incursion
The district court found that the circumstances surrounding
the failure of the 3-cm radar were most consistent with water
incursion in the waveguide and scanner areas. This finding is
amply supported by the evidence. First, a white dot appeared upon
the screen just before the unit failed. This symptom suggests that
there was water in the waveguide. In addition, the weak picture
noticed by Captain Schätzel is also symptomatic of water
incursion.23 St. Romain, the radar service technician, also found
evidence of water in the scanner.24 While St. Romain found no water
remaining in the waveguide, he did find some improvement of the
23
The district court noted that the only causes for a weak
display picture are water in the waveguide or a defective
magnetron, and there was no evidence of a defective magnetron in
this case. T/R cell failure, alone, would not cause a weak
picture. 767 F.Supp. at 788.
24
Another service technician worked on the radars the
night of the grounding, but his testimony was not presented at
trial. His report indicates that he suspected water in the
waveguide, but found no evidence of water. The district court
discounted his failure to find traces of water based upon the
facts that his inspection took place during evening hours and
that he spent only 2 1/2 hours on the vessel to work on both
radars, and spent most of his time repairing the 10-cm radar.
The district court's determination regarding the reliability of
the report is not clearly erroneous.
13
radar picture after disassembling and then reassembling the
waveguide. From this the district court made the reasonable
inference that in the process, St. Romain cleaned out any water
that was in the waveguide. Finally, the failure of the 3-cm radar
coincided with the ship hitting a squall, thus providing the
opportunity for water incursion.
St. Romain discovered that the scanner array was extremely
porous and in "dire nee[d of] recoating." He also found evidence
of water in the scanner. Deutsche Shell's own expert, Mr.
Stakelum, recognized that the extremely porous condition of the
scanner array could not have suddenly manifested itself, but must
have existed when the vessel left Sullom Voe.25
In addition, Deutsche Shell argues that any damage to the ball
bearing could not have caused the water incursion because water was
found only in the scanner and not in the waveguide where it would
be if it entered through the ball bearing. We do not agree. The
evidence demonstrated that water could enter the waveguide through
a defective ball bearing. The district court found, consistent
with the expert testimony, that "the effects of evaporation may
explain the absence of more water."26 Thus, the fact that no water
was found in the waveguide after it failed, does not mean that
25
When asked if the porous condition existed when the
DIALA left Sullom Voe, Stakelum testified: "Well the condition
as Mr. St. Romain saw it in June of 1983 I think in effect
existed the same way two weeks prior to that."
26
767 F.Supp. at 788.
14
water was not present at the time the radar failed.
The district court concluded that the water incursion was a
result of Deutsche Shell's failure to exercise due diligence in
maintaining the 3-cm radar unit.
Where the standard of due diligence is applicable, it
comprehends inspection and investigation, where prudent, to
determine the existence of deficiencies before they become
critical, and the failure to discover defects which
examination would necessarily have disclosed is the very
absence of due diligence.27
Deutsche Shell argues that regardless of whether water incursion
occurred, they proved that the DIALA was seaworthy when it left
Sullom Voe. We agree with the district court that Deutsche Shell
focuses on too narrow a time frame.
The district court specifically rejected Deutsche Shell's
effort to focus on the period between the drydocking in August 1982
and the grounding in June 1983. The antenna was not overhauled
while the vessel was in drydock. While the vessel was in drydock
in 1982, Jens Pedersen, then a young, inexperienced technician,
spent only five hours on the vessel examining both radar units and
the directional finding device. The radar also passed a German
classification inspection. There was no indication, however, that
the classification inspector conducted more than a cursory review.
As the district court noted, "[i]f a shipowner is to enjoy the safe
harbor of an inspector's okay, the shipowner must show that it
27
Ionian Steamship Co. v. United Distillers, 236 F.2d 78,
84 (5th Cir. 1956).
15
revealed sufficient facts to the inspector; Shell did not."28
Accordingly, the district court gave little weight to the lack of
problems detected by Pedersen or the German classification
inspector.
The district court found, consistent with the evidence, that
if Deutsche Shell had followed the manufacturer's recommendation to
keep an accurate radar log and to overhaul the radar array every
two years, Deutsche Shell would have avoided the surprises that led
to the grounding in June 1983. Deutsche Shell's actions did not
even approach the standard suggested by the radar manufacturer.29
There was no evidence that either the 3-cm or the 10-cm radar
underwent the recommended overhaul during the entire ten year
period they were installed on the DIALA. During such an overhaul,
the severe porosity problems, the defective ball bearing, and other
opportunities for water incursion would have been remedied, thereby
28
767 F.Supp. at 789.
29
We find no merit in Deutsche Shell's argument that the
district court improperly excluded evidence of actual practices
within the industry. The district court refused to allow the
corporate representative, Martin Buck, to testify as to
statements made by other vessel owner's representatives regarding
their maintenance practices. The district court correctly noted
that the corporate representative had no personal expert
knowledge on these matters, and that the statements of these
undisclosed other vessel owners were inadmissible hearsay.
Deutsche Shell contends that these statements were not offered
for the truth of the matters asserted, but to demonstrate
Deutsche Shell's understanding of the industry practices. We
agree with the district court. Deutsche Shell's understanding of
industry practices is irrelevant to the question of whether it
exercised due diligence. Due diligence is an objective standard;
therefore, to the extent that these statements attempted to
demonstrate what that standard is, they are rank hearsay.
16
averting the failure of the 3-cm radar.
B. The T/R Cell
The district court indicated that "[t]he record contains no
evidence that the 3-cm unit's T/R cell from 1973 had ever been
replaced at any time." We agree with Deutsche Shell that this
finding is not supported by the record. The radar repair invoices
submitted by the defendants indicate that a VDX 1047s type T/R cell
was replaced in June 1982,30 one year before the radar failure which
led to the grounding. This type of T/R cell is used in the 3-cm
radar unit but not in the 10-cm unit.31 These T/R cells have an
average useful life expectancy of 2000-5000 hours; Deutsche Shell's
radar expert, Mr. Stakelum, estimated that the average use of the
3-cm radar on a vessel such as the DIALA was 1500 to 2500 hours per
year. The T/R cell in the 3-cm radar, having been replaced only
one year before, was not so dangerously close to the end of its
usefulness that it would have been a failure of due diligence not
to replace it prior to the voyage. We find, however, that the
water incursion contributed to the failure of the 3-cm radar and
30
See Exhibit P24A.
31
See Exhibit P26-B pp. 5-11. The source of the district
court's error appears to have been the abstract of repair
invoices admitted as Placid's exhibit D-3 which indicated that
the VDX 1047s T/R cell was replaced in the 10-cm radar. Placid
attempts to argue that Deutsche Shell stipulated to the contents
of the abstract and therefore cannot now argue that the T/R cell
in the 3-cm radar had been replaced. We find no such
stipulation. Deutsche Shell agreed to the admissibility of the
abstract, it did not stipulate to the accuracy of its contents
particularly when the abstract contradicts the document from
which it purports to abstract.
17
is sufficient to support the district court's judgment in favor of
Placid.
III. Proximate Cause
Deutsche Shell also argues that even if the district court
properly found that it failed to exercise due diligence in
maintaining the 3-cm radar, the district court's conclusion that
the grounding was proximately caused by that unseaworthy condition
was clearly erroneous.
The district court found that the flood stages of the river,
the pilot's decision not to continue the voyage without two
reliable radar units, and the subsequent decision to anchor were
all foreseeable events. These findings are not clearly erroneous.
Certainly, grounding is one of the risks a vessel faces when its
radar fails. The fact that the vessel was grounded while
attempting to anchor does not make the result unforeseeable.
Finding no reversible error, we AFFIRM.
18
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January 22, 2015
JUDGMENT
The Fourteenth Court of Appeals
MARY RIGGINS, Appellant
NO. 14-13-00604-CV V.
RONALD E. HILL, LINDA C. HILL, WEST COLUMBIA PLAZA, LTD., AND
LUCKY LINDY DEVELOPMENT, Appellees
________________________________
We order that the court’s former judgment of December 23, 2014, be
vacated, set aside, and annulled. We further order this court’s Memorandum
Opinion of December 23, 2014, withdrawn. This cause, an appeal from a final
order signed on April 9, 2013, was heard on the transcript of the record. We have
inspected the record and find no error in the order. We order the order of the court
below AFFIRMED. We further conclude that this appeal is frivolous and that,
under Texas Rule of Appellate Procedure 45, appellees should be awarded just
damages against VERONICA L. DAVIS, counsel for appellant MARY RIGGINS.
We therefore order that VERONICA L. DAVIS pay to appellees RONALD E.
HILL, LINDA C. HILL, WEST COLUMBIA PLAZA, LTD., AND LUCKY
LINDY DEVELOPMENT $12,336.78 as just damages under Rule 45. We further
order appellant MARY RIGGINS to pay all costs incurred in this appeal. We
further order this decision certified below for observance.
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NO. 07-11-0108-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
OCTOBER 13, 2011
______________________________
DOS PANSONCITOS, INC., JIM BULLARD
AND JOHN HEDRICK, APPELLANTS
V.
WILLIAM T. SISCO, M.D., APPELLEE
_________________________________
FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;
NO.2009-548,044; HONORABLE WILLIAM SOWDER, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellee, William T. Sisco, M.D., filed suit against Appellants, Dos Pansoncitos,
Inc., Jim Bullard and John Hendrick alleging numerous causes of action related to a
written contractual agreement for the purchase of a note. Following a bench trial, the
trial court ordered that Dr. Sisco recover $50,000 in damages plus attorney's fees.
Appellants perfected this appeal.
Pending before this Court is Appellants' Unopposed Motion to Dismiss in which
they represent that there is no longer an issue in controversy as the parties have settled
and compromised their differences. Appellants request that this appeal be dismissed
with prejudice and that costs be incurred against the party incurring them.
Without passing on the merits of the case, Appellants' motion is granted and the
appeal is dismissed with prejudice. Tex. R. App. P. 42.1(a)(1). Per the motion, costs
are to be assessed against the party incurring them. Tex. R. App. P. 42.1(d). Having
dismissed the appeal at Appellants' request, no motion for rehearing will be entertained
and our mandate will issue forthwith.
Patrick A. Pirtle
Justice
2
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401 F.2d 537
GULF STEVEDORE CORPORATION, Appellant,v.FLOTA MERCANTE GRANCOLOMBLANA, S.At., et al., Appellees.
No. 25977.
United States Court of Appeals Fifth Circuit.
Sept. 30, 1968.
B. Jeff Crane, Jr., Vinson, Elkins, Weems & Searls, Larry B. Briggs, Houston, Tex., for appellant.
William C. Bullard, John N. Barnhart, Houston, Tex., for appellee; Baker, Botts, Shepherd & Coates, Houston, Tex., of counsel.
Before GEWIN, PHILLIPS1 and GOLDBERG, Circuit Judges.
PER CURIAM:
1
Longshoreman Lattin brought a personal injury suit under the admiralty and and maritime jurisdiction of the United States District Court for the Southern District of Texas against the vessel upon which he was working at the time the injuries were received. The vessel owners impleaded Lattin's employer, Gulf Stevedore Corporation, the appellant, seeking indemnification together with attorney's fees and the expenses and costs of defense. Ryan Stevedoring Co., Inc. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 125, 76 S.Ct. 232, 100 L.Ed. 133 (1956). In the course of the joint trial of the personal injury action against the vessel and the vessel owners' indemnity action against the stevedore, settlement was reached between the claimant and the vessel and payment was made to the claimant. There is no complaint with respect to the judgment of the trial court insofar as it found liability on the third party action by the vessel owners against the stevedore. The appellant stevedore claims that the court erred in allowing recovery for attorneys' fees, costs and expenses in defending the suit and the sums received by the claimant under the Longshoremen's and Harbor Workers' Compensation Act. Under the terms of the settlement the claimant was to receive a certain sum 'clear' over and above such compensation payments and the vessel agreed to indemnify him with respect to such payments.
2
Our examination of the record convinces us that the judgment of the trial court in awarding indemnity to the vessel owners was reasonable and proper under the facts and in the circumstances presented. No substantial issue of law is raised and the factual determinations made by the District Court appear to be just and correct.
3
Judgment affirmed.
1
Judge Harry Phillips of the Sixth Circuit, sitting by designation
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
2-8-2005
Brinson v. Vaughn
Precedential or Non-Precedential: Precedential
Docket No. 02-4466
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
Nos. 02-4466 and 02-4479
____________
CURTIS BRINSON,
Appellant
v.
DONALD VAUGHN; THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADELPHIA; THE ATTORNEY
GENERAL OF THE STATE OF PENNSYLVANIA
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
District Court Judge: Honorable John P. Fullam
(D.C. No. 00-cv-6115)
____________________
Argued: September 14, 2004
Before: SCIRICA, Chief Judge, ALITO, and AM BRO, Circuit
Judges
(Opinion Filed: February 8, 2005)
NORRIS E. GELMAN (Argued)
The Public Ledger Building
620 Chestnut Street, Suite 940
Philadelphia, PA 19106
Counsel for Appellant
ROBERT M . FALIN (Argued)
Assistant District Attorney
1421 Arch Street
Philadelphia, PA 19102-1582
Counsel for Appellees
____________________
OPINION OF THE COURT
____________________
ALITO, Circuit Judge:
This is an appeal from a District Court order denying Curtis
Brinson’s petition for a writ of habeas corpus. Brinson was
convicted in state court in Pennsylvania on one count of murder in
the first degree and a lesser offense and was sentenced to
imprisonment for life. The District Court held – and we agree –
that his federal habeas petition was timely because it was proper to
apply the doctrine of equitable tolling to the period of time
following the District Court’s erroneous dismissal of Brinson’s
prior habeas petition. Contrary to the District Court, however, we
hold that Brinson made out a prima facie case of a violation of
Batson v. Kentucky, 476 U.S. 79 (1986), and we therefore reverse
the order of the District Court and remand for an evidentiary
hearing.
I.
In April 1985, Arthur Johnson was shot and killed in the
bathroom of a Philadelphia nightclub. Brinson, an African
American, was arrested for the crime, and the selection of the jury
for his trial began on April 28, 1986, two days before the Supreme
Court of the United States announced its decision in Batson.
In Batson, the Supreme Court set out a three-step procedure
for determining whether a prosecution violated the Equal
Protection Clause by peremptorily striking potential jurors based on
2
race.1 First, the party asserting the claim must make out a prima
facie case. See 476 U.S. at 96. In order to do this, the party must
point to facts that “raise an inference” that a challenged strike was
based on an impermissible ground. Id. Second, if a prima facie
case is established, the party who exercised the challenge must
“come forward with a neutral explanation.” Id. Third, if a neutral
explanation is offered, the trial judge must make a finding as to
whether the contested peremptory was based on an impermissible
ground. Id. at 98.
On May 2, 1986 – after Brinson’s jury had been selected but
before the trial began – his attorney objected that the prosecutor
had violated Batson by striking prospective African American
jurors based on race.2 Brinson’s attorney stated that the prosecutor,
Jack McMahon, had “exercised fourteen peremptory challenges,
thirteen for blacks.” He also asserted that McMahon “seldom, if
ever, questioned blacks prior to exercising his peremptory
challenges.” In response, McMahon did not deny using 13
peremptories against blacks, but he stated that he did not remember
the race of each juror whom he had peremptorily challenged, that
he recalled striking both African Americans and whites, that he had
not used all of his allotted strikes, and that three African Americans
had been selected for the jury. At this point, neither the trial judge
1
Although Batson concerned prosecution strikes based on
race, the decision was later extended to strikes by criminal
defendants, Georgia v. McCollum, 505 U.S. 42 (1992), and parties
in civil cases, Edmonson v. Leesville Concrete Co., Inc., 500 U.S.
614 (1991), and to strikes based on clasifications other than race.
See, e.g., J.E.B. v. Alabama ex rel T.B., 511 U.S. 127 (1994)
(gender).
2
The voir dire took place before Batson was handed down,
and Brinson’s attorney did not object when the prosecutor made the
peremptory challenges. As a result, the transcript does not reveal
the race of the individuals whom the prosecution struck. The state
courts did not hold, and the Commonwealth does not contend in
this appeal, that Brinson procedurally defaulted his Batson claim
by failing to raise an objection at the time when the challenges
were exercised.
3
nor the attorneys had actually read Batson, and the trial judge
announced that he would not rule on the defense objection prior to
trial but that the issue could be raised in a post-trial motion. The
case was then tried, and Brinson was found guilty of murder in the
first degree and possession of an instrument of crime. He was
sentenced to life imprisonment.
Brinson again raised the Batson issue in a post-trial motion.
At the hearing on the motion, Brinson’s attorney repeated his
previous assertions about McM ahon’s use of peremptory
challenges, and McMahon again disclaimed any memory of how
many strikes he had used against African Americans, stating that
“[defense counsel] says I used thirteen strikes on Blacks and one
on [a] White. I see nothing in the record to indicate that. I do not
have any recollection of that whatsoever. I am sure the Court
does.” To this, the trial judge responded: “Yes, I do.” McMahon
then stated: “Be that as it may, I know I accepted the Black that the
Defense struck.”
The trial judge orally rejected Brinson’s Batson argument on
the ground that Batson had “not yet been accepted by this
Commonwealth.” The trial judge appears to have believed that he
was still bound by pre-Batson Pennsylvania court decisions
rejecting arguments similar to the one that the Supreme Court of
the United States accepted in Batson.
The trial judge died before he could write an opinion
addressing Brinson’s post-trial motions, and the matter was
reassigned to another judge. In his opinion on these motions, the
new judge wrote the following with respect to Brinson’s Batson
argument:
In the instant case the record indicates there were at
least three black persons on the jury and the selection
of the jury was completed with the prosecutor still
having six [peremptory] strikes . . . . Thus, the
record does not show any deliberate, purposeful
exclusion of black persons from the jury in this case.
Unfortunately, the trial judge died before writing his
Opinion, and, therefore, we are without the benefit
4
of his personal observations as he conducted the voir
dire. However, we have, as was stated [in Batson3 ],
confidence, based upon the experience, character and
reputation of [the trial judge], that he would not
allow such a purposeful rejection of black persons
solely by [peremptory] challenges as to deny this
Defendant a fair jury trial.
On direct appeal, Brinson again raised the Batson issue, but
the Superior Court affirmed Brinson’s conviction. Invoking
Commonwealth v. McKendrick, 514 A.2d 144 (1986), the Superior
Court rejected the Batson claim on the ground that “where the
victim, the perpetrator and witnesses are black, a prima facie case
of racial discrimination is not present under Batson . . . .” The
Superior Court continued:
In addition, the record establishes that three of the
jurors in this case were black, the defense struck
blacks, and the Commonwealth had six peremptory
challenges left following the close of jury selection
. . . . Accordingly, appellant has failed to establish
that the prosecutor exercised peremptory challenges
to remove black venire members, as required by
[Batson]. An evidentiary hearing on this issue is not
required.
Brinson raised his Batson claim in a petition for allocatur to the
Pennsylvania Supreme Court, but the petition was denied.
In September 1993, Brinson filed a petition in state court
under the Pennsylvania Post-Conviction Relief Act (PCRA). That
petition claimed that trial counsel had been ineffective because,
among other things, he had allegedly failed to object to the
prosecution’s systematic exclusion of African Americans from the
jury. 4 Brinson’s petition was denied without a hearing in January
3
See 476 U.S. at 97.
4
The ineffective assistance of counsel claim identified six
failures by defense counsel: (1) failing to object to the systematic
5
1995. A timely appeal was taken, but the Superior Court affirmed
the dismissal for two reasons: first, that the Batson claim had been
litigated on direct appeal and therefore could not be raised under
the PCRA, see 42 Pa. Con. Stat. Ann. § 95544(a)(3), and, second,
that all of Brinson’s claims were waived because Brinson allegedly
failed to include a trial transcript as part of the official record. The
Pennsylvania Supreme Court again denied allocatur.
Following the dismissal of his first PCRA petition, Brinson
turned to the federal courts and filed a timely pro se petition for a
writ of habeas corpus in which he presented eight grounds for
relief, including his Batson claim.5 While this petition was
pending, a videotape entitled “Jury Selection with Jack McMahon”
was released to the public. This tape depicted a training session in
which McMahon advocated the use of peremptory challenges
against African Americans. After the tape was released, Brinson
filed a motion requesting that the District Court take judicial notice
of the new evidence.
exclusion of African-Americans from the jury; (2) failing to
preserve for appeal the denial of petitioner’s motion for severance;
(3) failing to challenge and preserve for appeal the issue of whether
the prosecutor violated the rules of discovery; (4) failing to
challenge and preserve for appeal the propriety of the prosecutor’s
questions regarding petitioner’s post-arrest silence; (5) failing to
challenge the admission of hearsay testimony; and (6) failing to
challenge the prosecutor’s reference to petitioner’s post-arrest
silence during summation.
5
The additional grounds for relief in this petition were: (1)
the state courts incorrectly concluded that some of his claims were
waived; (2) trial counsel was ineffective in failing to move for
severance of his trial from that of his co-defendant; (3) the
Commonwealth failed to provide complete discovery; (4) the
prosecutor violated due process by questioning him about post-
arrest silence; (5) trial counsel was ineffective in failing to object
to hearsay testimony; (6) co-defendant’s girlfriend was improperly
permitted to testify; and (7) the prosecutor made improper
statements during his closing arguments.
6
The Magistrate Judge to whom the federal habeas petition
was assigned for a report recommended that the petition be
dismissed without prejudice on the ground that the Batson claim,
as bolstered by the McMahon tape, was unexhausted and that the
petition therefore contained both exhausted and unexhausted
claims. The Magistrate Judge noted that the Batson issue had been
litigated in state court on direct appeal and that the PCRA generally
precludes re-litigation of claims, but the Magistrate Judge observed
that the PCRA’s one-year filing deadline contains an exception for
claims predicated on facts that were previously unknown to the
petitioner and that could not have been discovered through the
exercise of due diligence. See 42 Pa. Cons. Stat. Ann. §
9545(b)(1)(ii). The District Court adopted this recommendation
and dismissed the petition without prejudice on September 22,
1997.
Unfortunately, the District Court did not note that, by the
time of its decision, the PCRA time limit for filing a claim based
on newly discovered evidence – 60 days from the discovery of the
evidence (see 42 Pa. Cons. Stat. Ann. § 9545(b)(2)) – had already
passed. Moreover, in order to proceed with a new PCRA petition
raising his Batson claim, Brinson felt that he was required to
comply with the so-called “Spence rule,” see Commonwealth v.
Spence, 627 A.2d 1176 (Pa. 1993), and thus to identify the race of
“the veniremen who had been removed by the prosecution, the race
of all the jurors who served, [and] the race of jurors acceptable to
the Commonwealth who had been stricken by the defense.” Id. at
1182-83.6 With the assistance of a law professor, Brinson spent 10
months attempting to compile these statistics. Brinson eventually
filed his second PCRA action on July 30, 1998, but the PCRA
court dismissed the petition as untimely, and the Superior Court
affirmed.
On December 4, 2000, Brinson returned to federal court and
filed a second habeas petition in which he raised the same claims
6
We have held that the Spence rule is inconsistent with
Batson. See Holloway v. Horn, 355 F.3d 707, 728-29 (3d Cir.
2004).
7
presented in his first petition. The Magistrate Judge recommended
that the petition be dismissed as untimely, but the District Court did
not adopt this recommendation, ruling that the running of the
statute of limitations should be equitably tolled for the time period
following the dismissal of the timely, first petition in September of
1997. The District Court reached this conclusion for two reasons.
First, the Court stated that it had erred in dismissing Brinson’s first,
timely petition. The Court explained:
The Batson issue had actually been presented to the
state courts on direct appeal and in the first PCRA
application. My conclusion that considerations of
comity would best be served by permitting the state
courts an opportunity to reconsider the issue in light
of the recent disclosure of the McMahon tapes
turned out to be unduly generous to the
Commonwealth; petitioner’s right to seek federal
habeas relief should not be lost entirely, merely
because of this Court’s excessive deference to the
state tribunals.
Second, the District Court stated that, even if Brinson had not
exhausted his Batson claim on direct appeal, “it would have been
preferable to stay, rather than dismiss, the first federal petition.”
The District Court returned the case to the Magistrate Judge
for a recommendation on the merits of the Batson claim, and the
Magistrate Judge concluded, in an opinion adopted by the District
Court, that Brinson had failed to establish a prima facie case under
Batson. The Magistrate Judge opined that the record did not
support a finding that McMahon had in fact used 13 of his 14
peremptory strikes against African Americans and that the
McMahon tape, though “troubling,” did not establish that
McMahon had used impermissible tactics during Brinson’s trial.
Brinson then took this appeal, claiming that the District
Court erred in denying his Batson claim and in dismissing his
additional claims sub silentio. The respondents (hereinafter “the
Commonwealth”) counter that the District Court should not have
equitably tolled the statute of limitations but that, in any event,
8
Brinson’s Batson claim was properly rejected on the merits.
II.
We first consider the question whether, as the District Court
held, it was proper to toll the statute of limitations for the period
from the dismissal of Brinson’s first federal habeas petition until
the filing of his current petition. It is settled that the one-year
statute of limitations for filing a federal habeas claim under 28
U.S.C. § 2254 is subject to equitable tolling, see Miller v. New
Jersey State Dept. Of Corr., 145 F.3d 616, 618-19 (3d Cir. 1998),
but that the doctrine should be invoked “sparingly.” Irwin v. Dep’t
of Veterans Affairs, 498 U.S. 89, 95 (1990). We have said that
equitable tolling is proper when the party in question “has in some
extraordinary way been prevented from asserting his or her rights.”
Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003). One such
potentially extraordinary situation is where a court has misled a
party regarding the steps that the party needs to take to preserve a
claim. See, e.g., Baldwin County Welcome Center v. Brown, 466
U.S. 147, 151 (1984) (referring to situation in which “the court has
led the plaintiff to believe that she has done everything required of
her”); Hallgren v. U.S. Dept. of Energy, 331 F.3d 588, 590 (8th
Cir. 2003); Lambert v. United States, 44 F.3d 296, 299 (10th Cir.
1995); Rys v. U.S. Postal Serv., 886 F.2d 443, 447 (1st Cir. 1989).
In this case, the District Court held that equitable tolling was
justified on this ground.
We have never decided what standard of appellate review
should govern when a District Court applies the doctrine of
equitable tolling in a habeas case, and the circuits are divided on
the issue, with some applying de novo review, some using an
abuse-of-discretion standard, and some employing different
standards in different circumstances. See Neverson v. Farquarson,
366 F.3d 32, 42 n.11 (1st Cir. 2004); Rouse v. Lee, 339 F.3d 238,
248 n.7 (4th Cir. 2003) (collecting cases). On balance, we are
inclined to believe that where, as here, the relevant facts are not
disputed, a District Court’s decision on the question whether a case
is sufficiently “extraordinary” to justify equitable tolling should be
reviewed de novo.
9
Three factors point in this direction. First, a District Court
does not have any comparative advantage in deciding whether
particular circumstances are extraordinary enough to warrant the
application of the doctrine. Second, reversal of a District Court’s
ruling on this issue will not lead to a retrial or any other
comparably burdensome proceedings. Third, de novo review leads
to greater uniformity in the application of the doctrine and better
serves the goal of ensuring that the doctrine is indeed used
“sparingly” and is not employed to upset the strong concern for
finality embodied in 28 U.S.C. § 2254.
In the present case, however, it is not necessary for us to
resolve this question, because we would sustain the District Court’s
decision on the issue of equitable tolling under any of the standards
used by other courts of appeals. We conclude that the District
Court’s mistaken dismissal of Brinson’s first petition prevented
Brinson in a sufficiently extraordinary way from asserting his
rights under the federal habeas statute. As the District Court
ultimately recognized, Brinson had fully exhausted his Batson
claim on direct appeal. It was therefore error for the District Court
to dismiss his first federal habeas petition on the ground that this
claim was not exhausted. In dismissing that petition, the District
Court reasoned that Brinson’s request for judicial notice of the
McMahon tape transformed his Batson claim into one that differed
from the claim raised on direct appeal, but this reasoning was
flawed.
First, it is questionable whether Brinson’s reliance on the
McMahon tape fundamentally altered the previously exhausted
claim because the tape merely confirmed the factual predicate of
Brinson’s Batson claim without changing its legal basis. See
Vasquez v. Hillery, 474 U.S. 254, 258 (1986); Stevens v. Del. Corr.
Ctr., 295 F.3d 361, 369 (3d Cir. 2002); Landano v. Rafferty, 897
F.2d 661, 673 (3d Cir. 1990). Second, as we explain in part III of
this opinion, without the tape, Brinson had a meritorious claim that
his trial attorney established a prima facie case under Batson and
that the state courts violated Batson by failing to move on to the
second and third steps of the Batson inquiry. Under these
circumstances, the District Court, at a minimum, should have given
Brinson the option of going forward with the precise claim that was
10
advanced on direct appeal. 7 See Rose v. Lundy, 455 U.S. 509, 510
(1982) (when petition is “mixed,” petitioner must be given “choice
of returning to state court to exhaust his claims or of amending or
resubmitting the habeas petition to present only exhausted claims
to the district court”). Instead, the District Court relegated Brinson
to another round of state court litigation that was bound to fail
because the 60-day period for raising a claim founded on newly
discovered evidence had already passed.
The Commonwealth contends that Brinson did not act with
the requisite “reasonable diligence” because he was allegedly
dilatory in filing his second PCRA petition. The Commonwealth
first faults Brinson because, when the McMahon tape was released,
he did not file his second PCRA petition within 60 days thereafter
but instead elected to proceed with his first federal habeas petition.
The Commonwealth also argues that Brinson did not exhibit
“reasonable diligence” because he did not file his second PCRA
petition within 30 or 60 days after the District Court’s dismissal of
the first federal petition. The Commonwealth takes the figure of
30 days from our decision in Crews v. Horn, 360 F.3d 146 (3d Cir.
2004), in which we held that, where a District Court stays a mixed
petition so that the petitioner can exhaust unexhausted claims, the
petitioner must file in the state court within 30 days after the entry
of the stay. The Commonwealth takes the figure of 60 days from
Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000), in which the
Pennsylvania Supreme Court held that, when a ground for filing a
second PCRA petition (such as the discovery of new evidence)
arises while a previous PCRA action is still pending, the second
petition is timely if it is filed within 60 days after the final
resolution of the previous PCRA action.
Whatever other flaws these arguments may have, they all
fail for the simple reason that Brinson, having already fully
exhausted his Batson claim, had no obligation to file in state court
7
It is unresolved whether additional claims presented in the
first petition were unexhausted, but if they were, Brinson should
have been given the choice of proceeding with the exhausted
Batson claim and any other exhausted claims.
11
at all. Consequently, he cannot be faulted for failing to file such
a petition within any of the time periods suggested by the
Commonwealth. We thus hold that the District Court did not err in
equitably tolling the statute of limitations.
III.
A.
We now consider the merits of Brinson’s Batson claim.
Because this claim was “adjudicated on the merits” in state court,
the standards of review set out in 28 U.S.C. § 2254(d) apply. We
must thus decide whether the state courts’ “adjudication of the
claim . . . resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1).
A state court adjudication is “contrary to” Supreme Court
precedent if it results from the application of “a rule that
contradicts the governing law set forth” by the Supreme Court or
is inconsistent with a Supreme Court decision in a case involving
“materially indistinguishable” facts. Williams v. Taylor, 529 U.S.
362, 405-06 (2000). “A state court decision fails the ‘unreasonable
application’ prong . . . ‘if the court identifies the correct governing
rule from the Supreme Court's cases but unreasonably applies it to
the facts of the particular case or if the state court either
unreasonably extends a legal principle from the Supreme Court's
precedent to a new context where it should not apply or
unreasonably refuses to extend the principle to a new context
where it should apply.’” Rico v. Leftridge-Byrd, 340 F.3d 178, 181
(3d Cir. 2003) (quoting Gattis v. Snyder, 278 F.3d 222, 234 (3d
Cir. 2002)).
B.
In the present case, the explanations given by the state trial
and appellate courts were all “contrary to” Batson, or at least
represented unreasonable application of that precedent. First, the
trial judge’s statement that Batson had “not yet been accepted by
12
[the] Commonwealth” requires no comment.
Second, contrary to the post-trial opinion and the opinion of
the Superior Court, a prosecutor may violate Batson even if the
prosecutor passes up the opportunity to strike some African
American jurors.8 Batson was “designed to ensure that a State does
not use peremptory challenges to remove any black juror because
of his race.” 476 U.S. at 99 n.22 (emphasis added). Thus, a
prosecutor’s decision to refrain from discriminating against some
African American jurors does not cure discrimination against
others.
Third, the opinion on the post-trial motion was plainly
incorrect in suggesting that the trial judge must have found that the
prosecutor had not discriminated in the use of peremptories and in
deferring to that supposed finding. The trial judge never made any
findings about the prosecutor’s reasons for his strikes, and the trial
judge did not follow the three-step process outlined in Batson. The
trial judge did not decide whether Brinson’s attorney had pointed
to facts that established a prima facie case; the trial judge did not
call upon the prosecutor to state his reasons for the contested
strikes; and, as noted, the trial judge made no findings as to
whether the prosecutor had followed a strategy of discrimination.
Fourth, the Superior Court was clearly wrong in holding that
“where the victim, the perpetrator and witnesses are black, a prima
facie case of racial discrimination is not present under Batson.”
Batson held that a prima facie case is established when “all
relevant circumstances” give rise to “the necessary inference of
purposeful discrimination.” 476 U.S. at 96. Batson is very clear
8
As noted, the post-trial opinion rejected Brinson’s Batson
claim because, among other things, “there were three black persons
on the jury and the selection of the jury was completed with the
prosecutor still having six [peremptory] strikes.” Similarly, the
Superior Court rejected the Batson claim in part because “there
were at least three black persons on the jury and the selection of the
jury was completed with the prosecutor still having six
[peremptory] strikes.”
13
that such an inference may be created by a variety of different
circumstances. See id. at 96-97. The Court wrote:
For example, a “pattern” of strikes against black
jurors included in the particular venire might give
rise to an inference of discrimination. Similarly, the
prosecutor’s questions and statements during voir
dire examination and in exercising his challenges
may support or refute an inference of discriminatory
purpose. These examples are merely illustrative.
Id. at 97 (emphasis added). To be sure, the race of a victim, the
witnesses, and the defendant may be relevant because these facts
may have a bearing on a prosecutor’s motivation to use racially
based strikes in a particular case, see United States v. Clemons, 843
F.2d 741, 747 (3d Cir.), cert. denied, 488 U.S. 835 (1988), but the
rigid formula invoked by the Superior Court cannot be reconciled
with Batson.
Finally, the Superior Court’s reliance on the fact the “the
defense struck blacks” was misplaced. Suppose that the defense
dismisses a particular African American juror for a permissible
non-racial ground and that the prosecution then strikes other
African American jurors based on their race. The legitimate
defense strike would not open the door for illegitimate prosecution
strikes. Indeed, even if the defense itself violated equal protection
by striking a potential juror based on race, this would not justify
further constitutional violations by the prosecution. On the
contrary, both the defense and prosecution strikes would be
illegitimate. In sum, the various reasons given by the state courts
for rejecting Brinson’s Batson claim will not bear analysis.
C.
The District Court, as noted, held that Brinson’s attorney did
not point to facts that made out a prima facie case. We must
disagree. We hold that any decision to this effect by the state
courts would represent an unreasonable application of Batson.
1. The District Court concluded that the state court record
14
does not support Brinson’s allegation that the prosecutor used 13
of his 14 peremptories against African Americans. In our view,
however, the state court record compels such a finding.
As noted, Brinson’s attorney first made this allegation
shortly after jury selection was completed, and McMahon’s
response was telling. McMahon did not deny that he had used 13
of 14 strikes against African Americans. Nor did he deny that he
had used all but one of his strikes against African Americans. Nor
did he deny that he had used most of his strikes against African
Americans. Nor did he say that, while unable to recall the exact
figures, he remembered that his pattern of strikes was not anything
like that alleged by the defense. Instead, he merely stated: “I don’t
know how many blacks or whites I struck. I know I struck both,
that is a fact.” This was a statement that McMahon could truthfully
make so long as he did not recall the precise statistics – 13 of 14
strikes used against African Americans – that the defense alleged.
If McMahon thought that the pattern might have been slightly
different – say, 14 of 15 or 12 of 14 – M cMahon could assert
without fear of sanction from the trial judge that he did not know
“how many blacks or whites [he] struck.”
McMahon’s comments – and those of the trial judge – at the
post-trial proceeding were also revealing. When the trial judge
announced that he was not going to rule on the Batson objection
before trial but would return to the issue, if necessary, after the
trial, McMahon was put on notice regarding the significance of the
defense allegation. By the time of the post-trial hearing, McMahon
had had time to digest Batson and to attempt to reconstruct the jury
selection process, but McMahon again declined to contest the
defense allegation. At the post-trial hearing, defense counsel
repeated his charge that McMahon had used 13 of 14 strikes
against African Americans and added: “I know Your Honor has
notes with respect to this.” McMahon then stated: “I do not have
any recollection of that whatsoever. I am sure the Court does.”
The trial judge responded: “Yes, I do.” McMahon then stated: “Be
that as it may . . . .”
In context, McMahon’s responses were tantamount to an
admission that his pattern of strikes was at least similar to that
15
alleged by the defense. There is simply no other plausible
explanation for his vague responses on two separate occasions.
The trial judge’s comments are also suggestive. If the judge’s
notes or recollection differed markedly from the facts claimed by
the defense, it seems most unlikely that he would have failed to
note that point on the record. For all these reasons, we conclude
that the state court record compels the conclusion that the
prosecution’s peremptory challenges were exercised in accordance
with the pattern alleged by the defense or a very similar pattern.
2. The pattern of strikes alleged by the defense is alone
sufficient to establish a prima facie case under the circumstances
present here. In Batson, as noted, the Supreme Court stated that “a
‘pattern’ of strikes against black jurors included in the particular
venire might give rise to an inference of discrimination.” 476 U.S
at 97. The stark pattern here qualifies. Such a pattern, of course,
does not necessarily establish racial discrimination, but particularly
in the absence of any circumstance (such as a venire composed
almost entirely of African Americans) that might provide an
innocent explanation, such a pattern is more than sufficient to
require a trial court to proceed to step two of the Batson procedure.
See Holloway v. Horn, 355 F.3d 707, 722 (3d Cir. 2004) (finding
prima facie case established when prosecutor used 11 of 12 strikes
against African Americans).
This conclusion is not undermined by the fact that other
factors suggestive of possible racial discrimination on the part of
the prosecution are not present in the record of this case. In
Clemons, 843 F.2d at 748, we noted that, in addition to a
suspicious pattern of strikes, other factors that may be important in
determining whether a prima facie case has been made out include
an attorney’s questions and statements during the selection process,
the nature of the crime, and the race of the defendant and the
victim. Here, we are not aware of any suspicious questions or
statements made by the prosecution during the jury selection
process, and it does not appear that the crime was racially charged.
But the question whether a prima facie case has been established
must be judged based on all relevant circumstances; no rigid test
need be satisfied; and in some cases, a prima facie case may be
made out based on a single factor. This is such a case.
16
IV.
We hold that the state courts’ rejection of Brinson’s Batson
claim without proceeding to the second step of the Batson analysis
cannot be sustained under 28 U.S.C. § 2254(d)(1). We therefore
reverse the order of the District Court and remand. On remand, the
Commonwealth should be given the opportunity to provide
legitimate reasons for any strikes against African Americans. If it
is unable to provide such explanations, Brinson will be entitled to
habeas relief. If the Commonwealth is able to provide
nondiscriminatory reasons for the strikes, then the District Court
will be required to make findings as to whether the strikes were
based on race.9
9
Unless the District Court determines that Brinson is entitled
to relief on his Batson claim, the District Court on remand must
also address the other claims set out in Brinson’s habeas petition.
17
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202 U.S. 168 (1906)
UNITED STATES
v.
MILLIKEN IMPRINTING COMPANY.
No. 227.
Supreme Court of United States.
Argued April 16, 17, 1906.
Decided April 30, 1906.
APPEAL FORM THE COURT OF CLAIMS.
*169 Mr. Louis A. Pradt, Special Assistant to the Attorney General, with whom The Solicitor General was on the brief, for the United States.
Mr. Malcolm Lloyd, Jr., and Mr. David Milliken for appellee.
*171 MR. JUSTICE HOLMES delivered the opinion of the court.
This is a petition praying for the reformation of a contract and for damages for breach of the same as reformed. The Court of Claims granted the prayer and made a decree for damages, 40 C. Cl. 81, whereupon the United States appealed to this court.
The contract is an elaborate and formal instrument, dated June 19, 1899, under the seal of the petitioner and executed on behalf of the United States by the Commissioner of Internal Revenue. It is unnecessary to state its terms. Members of a partnership subsequently incorporated as the petitioner had a contract of like sort expiring July 1, 1899. On or about April 25, 1899, they received from the Commissioner of Internal Revenue the following communication bearing that date:
"To contractors for imprinting stamps:
"In awarding contracts for imprinting stamps on checks, drafts, and other instruments for the year commencing July first, 1899, it has been determined to add the following provisions to contracts in addition to these now contained in the existing contracts for imprinting stamps.
"Each contractor will be required to pay salaries aggregating *172 thirty-four hundred dollars ($3,400) per annum for one Government stamp agent and two counters, payable monthly.
"As compensation in full for imprinting stamps, the contractor shall charge all persons requiring the same the sum of eighty cents per thousand stamps imprinted, when imprinted upon sheets containing five or more stamps, and one dollar per thousand stamps when imprinted upon sheets containing less than five stamps to the sheet. In order to secure absolute uniformity in prices these charges shall be rigidly adhered to, and any evasion or attempted evasion of the express terms hereof shall be deemed a violation of the terms of the contract.
"No application for contract to imprint stamps for period named will be considered from any person, firm, or corporation not now engaged in imprinting stamps under contract with the Government.
"Each application for contract must be accompanied by the guarantee of at least two responsible persons, that in case contract is entered into and accepted, bond will be furnished in the sum of twenty-five thousand dollars ($25,000) for the faithful performance thereof.
"The Commissioner reserves the right to reject any or all applications and to cancel any contract wherever and whenever it shall appear to the interests of the public and the Government to do so.
"Applications will be received at the office of the Commissioner of Internal Revenue, Washington, D.C., until 12 m., May 25, 1899, such applications to be carefully sealed and marked `Applications for contract for imprinting internal revenue stamps' and addressed to the Commissioner of Internal Revenue.
"G.W. WILSON,
Commissioner."
On May 25, 1899, the firm wrote to the Commissioner stating that they then had the privilege to imprint stamps, etc., *173 and "would most respectfully make application to you for a contract to continue the same for the period of one year, commencing July 1, 1899, and in accordance with your official communication, dated April 25, 1899, we to pay salaries aggregating thirty-four hundred dollars for one Government stamp agent and two counters, and to receive as compensation for imprinting stamps the sum of eighty cents per thousand when imprinted upon sheets containing five or more stamps and one dollar per thousand when imprinted upon sheets containing less than five stamps per sheet." They added that they attached a guarantee to furnish the required bond and referred to letters accompanying the original application. This letter now is denominated an acceptance of what is called the offer of April 25, above set forth. The alleged mistake is the omission, from the formal contract, of the paragraph in that communication, to the effect that no application will be considered from any person not now engaged in printing stamps under contract with the Government, and the following one limiting the time for applying to May 25. After May 25 an application was accepted from the American Imprinting Company, a corporation not engaged in imprinting stamps under contract with the Government on April 25. The damages awarded were the profits which would have been made by the petitioner had it not lost the customers who went to the corporation last named.
The Government objects at the outset that the Court of Claims has no jurisdiction in equity, and that, although the petitioner's demand is for money under a contract as it should have been drawn, yet in this suit that demand is incident to the reformation asked, which certainly is true. Reformation is not an incident to an action at law, but can be granted only in equity. When relief is granted also on the contract as reformed it means only that the court of equity sees fit to go on and finish the whole case. But we are of opinion that the court was warranted in taking jurisdiction under a fairly liberal interpretation of the act of March 3, 1887, c. 359, § 1, *174 24 Stat. 505. That section gives the Court of Claims jurisdiction of "all claims founded . . . upon any contract, expressed or implied, with the Government of the United States, or for damages liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable." A claim for money upon a contract, which would be like a right of action at common law but for the need of help from equity to establish the contract, seems to us to fall within these words, in their obvious, literal sense. District of Columbia v. Barnes, 197 U.S. 146, 150, 152; South Boston Iron Works v. United States, 34 C. Cl. 174, 200.
We come then to the merits. It is unnecessary to consider whether the Court of Claims ought to have made the findings of fact required in an ordinary case. We leave that question where we find it. District of Columbia v. Barnes, 197 U.S. 146, 150; Harvey v. United States, 105 U.S. 671, 691. For we are of opinion that the United States was entitled to a ruling as matter of law that there was no evidence which would warrant a decree for the petitioner; and therefore it would be a useless form to send the case back for findings to be made.
The petitioner's case depends on the assumption that the communication of April 25 was an offer and that the letter of May 25 was an acceptance. But obviously this is a mistake. The former is a notice, not an offer. Its very first words, "In awarding contracts," contemplate the necessity of further action on the Commissioner's part. The clause which it is said should have been inserted speaks of an "application for contract," the right to reject applications is reserved in terms and directions are given for sending them and as to the time within which they will be received. In like manner the letter of May 25 purports to "make application to you for a contract," and refers to recommendations, thus showing that it was understood that the Commissioner might refuse what was asked. No preliminary agreement was made *175 and there was no new contract until the instrument sought to be reformed was signed. It is true that Milliken, the president of the petitioner in the court below, says that he was informed by the Commissioner that his application was accepted and his contract would be renewed. But he goes on to say that he then called on the chief of the stamp division, was informed by him that it had been decided that the application of any person who had a contract would be granted, and received blank copies of the contract to be executed, so that the acceptance was contemporaneous with the delivery of the instrument informing the petitioner of the terms. There is no room for the application of Harvey v. United States, 105 U.S. 671, and similar cases, upon which the petitioner relies. The only effect of the testimony is to confirm by the conduct and language of the parties the interpretation of the previous communications, which does not need that confirmation to be plain. It should not pass unmentioned that the communications were between the Commissioner and the firm, and therefore not even with the same person that brings the present suit.
In strictness it is not necessary to go further. For the parol testimony which we shall mention amounts to nothing, except upon the footing that there was a preliminary written agreement. But it is proper to add that it is doubtful, at least, whether the two letters bear the interpretation which the petitioner now puts upon them. It is plain that not all the paragraphs of the notice to contractors after the first were provisions to be added to future contracts. That which follows the one in question was on the face of it simply information as to what the applicants must do. The last paragraph, fixing the time within which applications would be received, also obviously was a self-protecting notice only, and although the petitioner does set it up as properly a term of the agreement, the averment is only by way of make-weight to what mainly is relied upon, and we hardly think that it needs discussion. The communication was a general form to instruct *176 and direct applicants for contracts. The most natural meaning of the clause principally in question was simply to give notice that applications from persons not already engaged in imprinting stamps would not be considered and thereby to limit the applications sent in. It is not natural to read it as intended to contract the Government out of its right to employ new persons in case a need to do so should arise.
The petitioner's letter also in its most natural interpretation would confine the changes in the contract to the requirements concerning salaries and the rate of compensation. It is true that it contains the general words, "and in accordance with your official communication dated April 25, 1899," but it goes on to show what it regards as the elements of that communication material to the contract by the following words. It mentions salaries and the rate of compensation, nothing else. The words quoted are not an independent clause but they qualify the next phrase "we to pay salaries," etc. On these two letters, even if they had made a contract, which they did not, the Government hardly could have been held to the disputed terms. It may be mentioned further that Milliken testified that when he wrote that letter he did not consider the clause in question to relate directly to the subject matter of the contract, and although at a later date he stated that he desired to modify his testimony, the only intelligible modification, if it be called one, is that his testimony related to the time when he wrote the letter, not to the time when he received the contract to be signed.
After what we have said but a few words need be added with regard to the parol evidence offered. Milliken says that when he received the blanks he said to the chief of the stamp division that he presumed the only changes from the former contract were those contained in the letter of April 25, was answered, "That is all," and thereupon afterwards executed the contract without reading it. If this were undisputed and had come from anyone authorized to bind the Government, still, whatever effect, if any, it might have upon an undisclosed *177 insertion, it would afford no ground for complaint at an omission, especially an omission of the paragraph we have discussed. The answer was true in letter and spirit, and in no degree warranted the inference that the blanks contained the disputed clause. The petitioner executed those blanks without any ground whatever for assuming that they contained anything which they did not, even if Milliken had been right in what he says he supposed to be the import of the notice of April 25.
Finally, there is not a particle of evidence that the contract was not drawn just as the United States, through its representative, the Commissioner of Internal Revenue, intended that it should be, and for this reason again reformation must be denied. It is true that Milliken testifies that the Secretary of the Treasury admitted to him that the contract with the American Imprinting Company was in violation of the contract with the petitioner. But it is left doubtful, at least, whether the Secretary knew anything about what contract was intended to be made. The act of March 3, 1899, c. 424, 30 Stat. 1090, 1091, authorized the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, to procure certain stamps by contract, to be awarded under such terms, restrictions, and regulations as might be prescribed by the former with the approval of the latter. But that it not sufficient to warrant an assumption that the Secretary gave directions or had knowledge as to the intended form of the contract. Moreover, so far as appears, the Secretary did not suggest or admit that there was any mistake in the form of the instrument. It would seem that Milliken exhibited to him the notice of April 25 as containing the Government's agreement, and that the Secretary fell in with Milliken's interpretation of the paper, but refused to do anything until the Commissioner of Internal Revenue returned. For all the reasons which we have stated, we are of opinion that the United States is entitled to a decree as matter of law.
Decree reversed.
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REVISED November 21, 2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 16-30009 November 17, 2016
Lyle W. Cayce
ROBERT DEPERRODIL, Clerk
Plaintiff - Appellee
v.
BOZOVIC MARINE, INCORPORATED,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
Before JOLLY, BARKSDALE, and SOUTHWICK, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
In this maritime-tort action for injuries arising out of plaintiff’s being
taken to a work site on a vessel operated by defendant, a third-party tortfeasor,
primarily at issue is whether the collateral-source rule allows plaintiff to
recover the unpaid, written-off portion of his billed medical expenses, when the
remaining, paid portion of the billed expenses was through workers’-
compensation insurance provided by his non-tortfeasor employer, pursuant to
the Longshore and Harbor Workers’ Compensation Act (LHWCA). Also at
issue are: whether liability can be imposed on the vessel’s owner for injuries
No. 16-30009
suffered in rough seas when the passenger knew the weather conditions and
risks; and whether a district court may use an above-average work-life
expectancy to calculate future lost wages. AFFIRMED in part; VACATED in
part; REMANDED.
I.
Robert dePerrodil was injured while aboard the M/V THUNDERSTAR,
a 65-foot crewboat owned and operated by Bozovic Marine, Inc. DePerrodil, a
70-year-old oilfield consultant with more than four decades of oilfield
experience, worked for Petroleum Engineers, Inc. (PEI). PEI chartered the
vessel, operated by Captain Bozovic, to take dePerrodil from Venice, Louisiana,
to his work site on an offshore platform.
When dePerrodil and Captain Bozovic realized dePerrodil would not be
able to board the platform because the liftboat was not present, dePerrodil
asked Captain Bozovic to return to port. Facing rough seas while returning,
Captain Bozovic steered the vessel over an eight-to-ten-foot wave at full
throttle; but, he did not decelerate upon reaching the crest. The vessel fell into
the wave’s trough, causing dePerrodil (who was standing in the wheelhouse)
to fall to the floor. He suffered, inter alia, injuries to his back.
Pursuant to the LHWCA, PEI carried workers’-compensation insurance
for dePerrodil. See 33 U.S.C. § 932(a)(1). That insurer for PEI paid $57,385.50
for dePerrodil’s medical expenses.
Following a bench trial for this action based on admiralty jurisdiction,
the court concluded Bozovic Marine was negligent for: failure to “request that
dePerrodil go to the passenger area of the vessel”; failure to stay apprised of
the weather conditions; and “erratic operation” of the vessel. DePerrodil v.
Bozovic Marine, Inc., No. 6:13-cv-849, 2015 WL 8542829, at *3 (W.D. La. 10
Dec. 2015). As a result of the court’s concluding dePerrodil was comparatively
negligent for staying in the wheelhouse, instead of moving independently to
2
No. 16-30009
the passenger compartment, dePerrodil received 10% liability; Bozovic Marine,
90%. Id. at *4.
In awarding dePerrodil $984,395.52, id. at *7, the court held, inter alia,
the collateral-source rule barred any discount of the medical expenses PEI and
its insurer were billed, but not required to pay. Id. at *4–5. Accordingly, the
court awarded the full amount of those expenses billed for dePerrodil’s
treatment, $186,080.30, even though only approximately one-third of them
were paid. Id. at *7. And, in calculating future lost wages, the court used an
above-average work-life expectancy of 75 years, as recommended by an expert
vocational-rehabilitation counselor. Id. at *6–7.
II.
Maritime law governs this action. See Exec. Jet Aviation, Inc. v. City of
Cleveland, Ohio, 409 U.S. 249, 253 (1972). Courts exercising maritime
jurisdiction apply general principles of negligence law to tort actions. See, e.g.,
Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir. 2000); Daigle v.
Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980).
A.
Regarding Bozovic Marine’s maintaining the court erred in finding it
liable for 90% of dePerrodil’s injuries, the determination of a legal duty is
reviewed de novo. Theriot v. United States, 245 F.3d 388, 394–95 (5th Cir.
1998). On the other hand, findings of negligence, including causation, are
reviewed for clear error. See Trico Marine Assets, Inc. v. Diamond B Marine
Servs., Inc., 332 F.3d 779, 786 (5th Cir. 2003). Accordingly, the conclusion
that Bozovic Marine owed a duty of reasonable care is reviewed de novo; the
findings of fact, pursuant to the proper legal standard, for clear error.
In a bench trial, the court must make separate findings of fact and
conclusions of law. Fed. R. Civ. P. 52(a)(1). “Findings of fact, whether based
on oral or other evidence, must not be set aside unless clearly erroneous, and
3
No. 16-30009
the reviewing court must give due regard to the trial court’s opportunity to
judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6). “A finding is clearly
erroneous when the appellate court, viewing the evidence in its entirety, is left
with the definite and firm conviction that a mistake has been made.” Bertucci
Contracting Corp. v. M/V ANTWERPEN, 465 F.3d 254, 258–59 (5th Cir. 2006)
(internal quotation marks omitted).
1.
For the following reasons, the proper legal duty was applied. See
DePerrodil, 2015 WL 8542829, at *2–3. As the court stated, vessel owners owe
their passengers a duty of reasonable care under the circumstances. See
Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630 (1959).
Our court has held “shipowners, relatively speaking, are held to a high degree
of care for the safety of their passengers”. Smith v. Southern Gulf Marine Co.
No. 2, 791 F.2d 416, 420 (5th Cir. 1986). Among the relevant factors are the
type of carrier, the crew’s experience, the risk involved, defendant’s degree of
control over passengers, and defendant’s ability to take precaution against the
risk. See id. at 421. Because the court properly identified Bozovic Marine’s
legal duty before evaluating liability, its negligence finding is reviewed for
clear error.
As discussed, the court found Captain Bozovic breached his duty by: (1)
failing to tell dePerrodil to move to the passenger area (failure to warn); (2)
failing to stay apprised of the relevant weather conditions; and (3) operating
the vessel erratically. DePerrodil, 2015 WL 8542829, at *3. Bozovic Marine
contends it did not breach its duty of reasonable care because the risks were
open and obvious to dePerrodil: he was a longshoreman with four decades of
experience in the Gulf; knew the seas were rough; and had a clear view of the
weather conditions from the wheelhouse. Therefore, Bozovic Marine
4
No. 16-30009
maintains, the captain did not have a duty to protect dePerrodil from the open-
and-obvious risk of losing his balance in rough seas.
A vessel owner does not need to warn passengers or make special
arrangements for open-and-obvious risks. See Massey v. Williams-
McWilliams, Inc., 414 F.2d 675, 678–79 (5th Cir. 1969); Superior Oil Co. v.
Trahan, 322 F.2d 234, 237 (5th Cir. 1963); see also Counts v. Lafayette
Crewboats, Inc., 622 F. Supp. 299, 301 (W.D. La. 1983). For example, in
Superior Oil, our court found a seaman comparatively negligent when he
attempted to board a vessel by jumping from another deck. 322 F.2d at 235.
Critical to the seaman’s negligence was “that [he] was an experienced seaman
and should have been fully cognizant of the danger involved”. Id. at 237. Thus,
failure to avoid an obvious risk led to the finding of comparative negligence.
See id.
The case at hand is distinguishable because the court found Captain
Bozovic liable based, in part, on his specific operation of the vessel, rather than
his failure to warn dePerrodil of the risk. Captain Bozovic testified he watched
the prior evening’s weather report on television, but did not continue to
monitor weather conditions on the date he ferried dePerrodil. DePerrodil
testified: Captain Bozovic made him aware of the 25 mile-per-hour winds;
dePerrodil could see it “was choppy”; he had been on a vessel before when the
Gulf was rough; and he was unconcerned about the weather conditions.
Once underway, dePerrodil was standing in the wheelhouse, helping
Captain Bozovic look for the liftboat. When they realized dePerrodil would not
be able to accomplish his job, he asked the captain to return to port. Captain
Bozovic turned the vessel around, heading back into the wind and rougher
seas, telling dePerrodil to “hold on”. Confronted with four-to-six-foot waves,
Captain Bozovic began accelerating up the swells and decelerating down.
5
No. 16-30009
DePerrodil’s expert testified this was the proper method for operating the
vessel in high seas.
Soon thereafter, however, an eight-to-ten-foot wave approached the
vessel. Captain Bozovic accelerated to full throttle up the swell, but did not
decelerate after cresting the wave. The vessel dropped into the resulting
trough, and dePerrodil and a deckhand “went weightless”. DePerrodil fell to
the floor, injuring, inter alia, his back. Captain Bozovic then decreased speed
and idled back to port without further incident.
The court did not clearly err in concluding, inter alia, that Captain
Bozovic breached his duty to dePerrodil by cresting the eight-foot wave at full
throttle. The failure to decelerate was the proximate cause of dePerrodil’s
injuries. This operational error is underscored by Captain Bozovic’s ability to
idle the vessel back to port after the accident. That is to say, but for Captain
Bozovic’s operation of the vessel, dePerrodil would not have suffered his
injuries.
The accident would have occurred regardless of whether dePerrodil knew
the risks of rough seas. Notwithstanding dePerrodil’s being aware of the
weather, Captain Bozovic’s operation of the vessel cannot be considered an
“open and obvious” risk to dePerrodil. As the court stated, “inclement weather
does not absolve a captain from operating his vessel in a reasonably prudent
manner”. DePerrodil, 2015 WL 8542829, at *3. Therefore, as noted, it was not
clear error to find Bozovic Marine breached its duty of reasonable care under
these circumstances. Because the operational negligence is sufficient to
sustain Bozovic Marine’s liability, it is unnecessary to consider the court’s
other bases for liability: failure to warn; and failure to monitor the weather.
2.
The court’s apportionment of liability is also reviewed for clear error.
Barto v. Shore Constr., L.L.C., 801 F.3d 465, 471 (5th Cir. 2015). It found
6
No. 16-30009
dePerrodil negligent for remaining in the wheelhouse, instead of moving
independently to the passenger area, and assigned him 10% liability.
DePerrodil, 2015 WL 8542829, at *4. DePerrodil does not dispute this finding.
Bozovic Marine, on the other hand, maintains the parties should, at least, be
equally liable.
The evidence showed dePerrodil was in the wheelhouse to look for his
work site and did not intend to go below once they were in rough seas (nor was
he told to leave the wheelhouse). At trial, the parties did not present evidence
about whether the injury would have occurred had dePerrodil been in the
passenger area. Based on the trial record, including Captain Bozovic’s control
over the vessel, it was not clear error to assign 90% of the liability to Bozovic
Marine.
B.
Bozovic Marine maintains the court erred in applying the collateral-
source rule and awarding dePerrodil medical expenses as billed, rather than
paid. The application of the rule is reviewed de novo. Johnson v. Cenac
Towing, Inc., 544 F.3d 296, 304 (5th Cir. 2000).
The collateral-source rule bars a tortfeasor from reducing his liability by
the amount plaintiff recovers from independent sources. Davis v. Odeco, Inc.,
18 F.3d 1237, 1243 (5th Cir. 1994). It is a substantive rule of law, as well as
an evidentiary rule (disallowing evidence of insurance or other collateral
payments that may influence a fact finder). Id.
In its simplest form, the rule asks whether the tortfeasor contributed to,
or was otherwise responsible for, a particular income source. See Bourque v.
Diamond M. Drilling Co., 623 F.2d 351, 354 (5th Cir. 1980). If not, the income
is considered “independent of (or collateral to) the tortfeasor”, and the
tortfeasor may not reduce its damages by that amount. Davis, 18 F.3d at 1243.
In practice, the rule allows plaintiffs to recover expenses they did not
7
No. 16-30009
personally have to pay. See id. Without the rule, however, a third-party
income source would create a windfall for the tortfeasor. Id. at 1244. Thus,
the rule reflects a policy determination: better a potential windfall for the
injured plaintiff than the liable tortfeasor. See Restatement (Second) of Torts
§ 920A cmt. b. (Am. Law Inst. 1979) (“[I]t is the position of the law that a
benefit that is directed to the injured party should not be shifted so as to
become a windfall for the tortfeasor”.).
The analysis is complicated when a tortfeasor contributes to a portion of
the collateral source. See, e.g., Davis, 18 F.3d at 1244. For instance, an
employer-tortfeasor may pay part of an employee’s health-insurance plan. See
Johnson, 544 F.3d at 305. In that situation, courts ask whether the collateral
source is a bargained-for fringe benefit. See id. If so, the fringe benefit is
compensation to which the employee is already entitled; as a result, an
employer cannot reduce its liability by paying employment compensation.
Davis, 18 F.3d at 1244. Thus, bargained-for fringe benefits are considered
collateral to an employer’s liability. Id. On the other hand, when an employer
obtains a liability-insurance plan, it is providing pre-accident insurance to
protect itself from post-accident expenses. See Phillips v. Western Co., 953 F.2d
923, 932 (5th Cir. 1992) (citing Allen v. Exxon Shipping Co., 639 F. Supp. 1545,
1547–48 (D. Me. 1986)). There, the collateral-source rule does not apply. See
id.
Courts, therefore, must determine whether a payment stems from a
fringe benefit or a prophylactic protection against liability. As our court stated,
the “[c]urrent application of the collateral source rule thus turns on the
character of the benefits received, as well as the source of those benefits”.
Davis, 18 F.3d at 1244 (emphasis in original).
Here, the parties rely on a five-factor test from Phillips to determine
whether the collateral-source rule applies to workers’-compensation insurance.
8
No. 16-30009
Phillips, 953 F.2d at 932. Phillips and its progeny, however, arise in the
employer-tortfeasor context. See, e.g., Johnson, 544 F.3d at 305–07; Davis, 18
F.3d at 1244–45; Phillips, 953 F.2d at 927, 932. The Phillips factors are
applicable only when the tortfeasor contributes to the benefit. See Johnson,
544 F.3d at 304–05. PEI was neither negligent, nor responsible for,
dePerrodil’s injuries; rather, Bozovic Marine is a third-party tortfeasor.
Accordingly, the Phillips analysis is inapposite, and the standard collateral-
source rule asks whether the payment source was independent of the liable
party. See Davis, 18 F.3d at 1243.
PEI’s LHWCA insurer paid dePerrodil’s medical expenses. Bozovic
Marine played no role in securing that insurance coverage. Thus, the
collateral-source rule applies, and Bozovic Marine is liable for the medical
expenses the insurer paid on dePerrodil’s behalf. (33 U.S.C. § 933 entitles
insurers to subrogation for LHWCA payments.)
The question remains, however, whether the maritime collateral-source
rule allows plaintiffs to recover the amount billed, or only the amount paid. As
noted, dePerrodil was billed $186,080.30, but the insurer was only required to
pay $57,385.50; the balance was written-off. Neither dePerrodil, PEI, nor its
insurer were ever liable for the $128,694.80 write-off. (Along that line, citing
Louisiana and California law, the court stated: “A plaintiff cannot recover
economic damages for medical fees that the provider is precluded, either by
agreement or by law, from collecting from the employer”. DePerrodil, 2015 WL
8542829, at *5. But, notwithstanding its just-stated rule, and without further
analysis, it awarded dePerrodil the amount initially billed, $186,080.30. Id. at
*7.)
There is no direct authority regarding the treatment of written-off
LHWCA medical expenses in the maritime-tort context. Consequently, we
must look to persuasive authority, namely state and analogous maritime
9
No. 16-30009
authority. See Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373,
381 (5th Cir. 2012) (reviewing prior state-law and maritime decisions). State
laws differ as to their approach to written-off expenses in tort cases; within our
circuit alone, three different rules prevail. In Mississippi, the collateral-source
rule allows plaintiffs to recover write-offs. See Wal-Mart Stores, Inc. v.
Frierson, 818 So. 2d 1135, 1139–40 (Miss. 2002) (allowing plaintiff to submit
evidence of written-off Medicaid expenses). Texas, on the other hand, does not
“allow recovery as damages of medical expenses a health care provider is not
entitled to charge”. Haygood v. De Escabedo, 356 S.W. 3d 390, 396 (Tex. 2012)
(considering amounts charged in excess of Medicaid limits). In contrast to the
rules in each of these two States, Louisiana allows write-off recovery if plaintiff
provided consideration for the benefit or suffered a diminution in patrimony.
See Bozeman v. State, 879 So. 2d 692, 705–06 (La. 2004).
In the maritime context, our court considered a similar issue in
Manderson, 666 F.3d at 382. There, the question was, inter alia, whether the
collateral-source rule allows recovery of written-off medical expenses when an
employer paid the expenses as part of its maritime cure obligation. The
Manderson court stated:
[O]ur court has repeatedly held an injured seaman
may recover maintenance and cure only for those
expenses “actually incurred”. E.g., Davis, 18 F.3d at
1246; Boudreaux v. United States, 280 F.3d 461, 468
(5th Cir. 2002). Accordingly, the relevant amount is
that needed to satisfy the seaman’s medical charges.
This applies whether the charges are incurred by a
seaman’s insurer on his behalf and then paid at a
written-down rate, or incurred and then paid by the
seaman himself, including at a non-discounted rate.
666 F.3d at 382. Based on this discussion, our court held it was error to award
the amount charged, rather than paid. Id.
10
No. 16-30009
Although Manderson is not binding — it involved maritime cure, not a
maritime tort or LHWCA insurance — it is the most applicable of the various
approaches to write-offs. Moreover, its rationale is very persuasive because
maritime cure and LHWCA insurance create similar obligations for employers.
Cure is a vessel-owner’s long-established duty to pay medical expenses
for seamen injured at sea. Id. at 380. It compels an employer to pay work-
related medical expenses, regardless of “fault or negligence of the shipowner”.
Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1013 (5th Cir. 1994).
The LHWCA was enacted in part based on shortcomings of maritime
cure. See generally P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 75, 78 (1979)
(discussing Congressional intent behind the LHWCA). Longshoremen and
harbor workers do not necessarily qualify for maritime maintenance and cure
because a significant portion of their work is done on shore. Id. To cover these
workers, Congress enacted the LHWCA, which incorporates and replaces
several aspects of maritime common law. See 33 U.S.C. § 905 (“Exclusiveness
of liability”); P.C. Pheiffer, 444 U.S. at 75 (“Congress intended that a worker’s
eligibility for federal benefits would not depend on whether he was injured
while walking down a gangway or while taking his first step onto the land.”).
The LHWCA requires employers to carry workers’-compensation
insurance to pay for work-related injuries. 33 U.S.C. § 932. Like maritime
cure, LHWCA creates a no-fault basis for paying a longshoreman’s medical
expenses. 33 U.S.C. § 904(b) (“Compensation shall be payable irrespective of
fault as a cause for the injury.”). When a third-party tortfeasor is responsible
for the employee’s injury, cure and LHWCA insurance function in the same
manner: the employer (or its insurer) has an immediate duty to pay medical
expenses even though it is not at fault. These similarities counsel that
Manderson — prohibiting write-off recovery — provides the correct rule for
both maritime cure and LHWCA maritime-tort cases.
11
No. 16-30009
In sum, LHWCA medical-expense payments are collateral to a third-
party tortfeasor only to the extent paid; in other words, under those
circumstances, plaintiff may not recover for expenses billed, but not paid.
Therefore, the district court erred in awarding the full amount billed. Instead,
the proper measure of those damages is the far lesser amount the insurer paid
to cover dePerrodil’s medical expenses: $57,385.50.
C.
Finally, Bozovic Marine asserts the court miscalculated dePerrodil’s
future lost earnings because it did not use the Bureau of Labor Statistics (BLS)
work-life expectancy average. Damages calculations are findings of fact,
reviewed for clear error. Comar Marine, Corp. v. Raider Marine Logistics,
L.L.C., 792 F.3d 564, 574 (5th Cir. 2015).
Courts use work-life expectancy data to calculate future earnings, unless
there is evidence supporting a variation from the average. E.g., Madore v.
Ingram Tank Ships, Inc., 732 F.2d 475, 478 (5th Cir. 1984). “Such an average
is not conclusive. It may be shown by evidence that a particular person, by
virtue of his health or occupation or other factors, is likely to live and work a
longer, or shorter, period than the average.” Id. (emphasis omitted).
According to BLS data, dePerrodil had a work-life expectancy of 72 years.
At trial, however, dePerrodil presented a vocational-rehabilitation counselor
as an expert witness. She interviewed dePerrodil on two occasions and
reviewed his medical history. She concluded it was “very reasonable”
dePerrodil would work until age 75; this conclusion was based on: dePerrodil’s
testimony that he and his wife had an agreement he would work until age 75;
his work history; his earnings records; and his healthcare providers’
recommendations for future treatment. DePerrodil’s expert economist then
provided the court with two calculations, one using BLS’ age-72 work-life
expectancy; the other, the vocational counselor’s age-75 expectancy. With both
12
No. 16-30009
calculations before it, the court awarded future lost wages based on an age-75
retirement. See DePerrodil, 2015 WL 8542829, at *5–6.
Bozovic Marine points to two cases in which a court erred by using the
plaintiff’s stated retirement goal, rather than the BLS average. In Madore,
the parties each presented expert testimony supporting a 25.8-year work-life
expectancy for the injured seaman. 732 F.2d at 478. The calculations were
based on the BLS average, and the parties presented no other evidence on the
matter. Id. Nonetheless, the district court awarded lost-wage damages based
on a work-life expectancy of 30 years (until the plaintiff turned 65). Id. Our
court held this was error because the parties presented no evidence to justify
a departure from the BLS average. Id.
Another district court chose an above-average calculation “in the middle”
of the BLS projection and the Social Security retirement age of 67. See Barto,
801 F.3d at 475. There, the only relevant evidence was plaintiff’s testimony he
planned to work until he could retire, “[w]hatever the retirement age is”. Id.
Our court stated: “even if the district court believed [plaintiff] wanted to work
until age 67, wanting to work until age 67 is not the only or even the most
significant factor in determining whether someone actually will work until age
67”. Id. (emphasis in original). Citing Madore, our court held this vague
testimony was insufficient to support an above-average work-life expectancy.
Id. at 475–76.
Here, the court’s use of age 75 to calculate damages was not clearly
erroneous. DePerrodil fully developed the evidentiary basis for such a
departure from the BLS average. Unlike in Madore, dePerrodil presented an
expert (vocational-rehabilitation counselor) and the medical history upon
which the expert based her opinion. As was the case in Barto, dePerrodil’s
stated retirement goal was a critical piece of information. Unlike Barto,
however, dePerrodil’s goal was specific and corroborated by an agreement with
13
No. 16-30009
his wife to work until age 75. Furthermore, the vocational counselor agreed it
was a “very reasonable” goal, considering his medical history, work history,
and future medical prognosis. Neither of the plaintiffs in Madore or Barto
presented a vocational expert to justify a departure from the BLS statistics.
For these reasons, it was not clear error for the court to credit the vocational
counselor’s expert testimony and award lost-wage damages until age 75.
III.
For the foregoing reasons, the judgment is AFFIRMED, except for the
award of medical expenses; that award is VACATED. This matter is
REMANDED for entry of an amended judgment consistent with this opinion.
14
| {
"pile_set_name": "FreeLaw"
} |
406 F.Supp. 217 (1975)
Omar M. WAGEED
v.
SCHENUIT INDUSTRIES, INC.
Civ. No. 73-565-K.
United States District Court, D. Maryland.
December 11, 1975.
*218 Patrick A. U. Opara, Baltimore, Md., for plaintiff.
Lawrence S. Wescott, Baltimore, Md., for defendant.
FRANK A. KAUFMAN, District Judge.
Plaintiff, Omar M. Wageed, instituted the within action pursuant to 42 U.S.C. § 1981 seeking compensatory and punitive damages, and declaratory and injunctive relief, against defendant, Schenuit Industries, Inc., asserting that defendant discriminated against him because of his race or color in connection with matters relating to his employment and the termination thereof. Prior to instituting the within suit, plaintiff on June 23, 1971 filed charges with the Commission on Human Relations of the State of Maryland (Commission). The Commission notified plaintiff by a letter dated September 14, 1971 that it found probable cause to believe that defendant had engaged in discriminatory practices. On June 4, 1973, while the complaint was still pending before the Commission, plaintiff instituted this case in this Court. In January 1974, this Court, without objection of any of counsel, agreed to hold this case sub curia pending decision by the Commission. A three-person hearing tribunal held hearings on January 29, 1974 and February 13, 1974. On January 17, 1975, that tribunal filed its decision finding that defendant had not engaged in discriminatory conduct. The Commission, in an Order issued January 31, 1975, adopted as its own the decision of that tribunal and notified plaintiff of the right to appeal, under Maryland's Administrative Procedure Act, within 30 days.[1] No appeal was taken.
On April 10, 1975, defendant filed a motion for summary judgment asserting that there are no material issues of fact since all the issues were fully litigated before the Commission and also contending that that decision is res judicata. Plaintiff, in response, argues that the Commission's decision is not res judicata and that there are controverted facts.
RES JUDICATA
Decisions of state administrative bodies have generally been held not to support the defense of res judicata in subsequent Title VII actions.[1A] In Cooper v. Philip Morris, Inc., 464 F.2d 9 (6th Cir. 1972), plaintiffs filed charges of discrimination before the Kentucky Commission on Human Rights. That Commission, after holding a six-day hearing, restored plaintiffs to their jobs but denied them back pay. Defendant's motion for summary judgment in a subsequent Title VII action commenced by plaintiffs in federal district court was granted on the grounds that plaintiffs had elected to pursue their claims before the Kentucky Commission on Human Rights and that the Commission's determination was binding on them. The Sixth Circuit reversed, holding that the defenses of res judicata and collateral estoppel were not applicable. In so doing, the Sixth Circuit (at 11) quoted the following statement in Voutsis v. *219 Union Carbide Corp., 452 F.2d 889, 894 (2d Cir. 1971):
* * * The system of remedies is a complementary one, with the federal remedy designed to be available after the state remedy has been tried without producing speedy results.
We also agree with the conclusion of the Fifth, Sixth and Eighth Circuits that the doctrines of res judicata and collateral estoppel do not bar appellant as a matter of law. * * * [Citations omitted.]
In Cooper, after quoting from and discussing not only Voutsis but also Judge Sobeloff's opinion in Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.), cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971), Judge Edwards wrote (at 11-12):
We are, however, persuaded to the course we now adopt partly by the logic of the cases we have cited and quoted above, but perhaps even more definitely by a 1972 amendment to Title VII of the Equal Opportunity Act. Here very recently the Congress considered our same problem and established a statutory standard as to the effect of a prior state Fair Employment Practices Commission decision:
In determining whether reasonable cause exists, the Commission shall accord substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law pursuant to the [deferral] provisions of subsections (c) and (d). 42 U.S.C. § 2000e-5(b), as amended by Pub.L. 92-261; 86 Stat. 103 (1972).
We recognize, of course, that the District Judge could not have had the benefit of this statutory change, that it is not applicable retroactively, and that it is squarely addressed to the EEOC rather than the courts. Nonetheless, the just quoted standard of weight and respect to be given to a prior state agency adjudication is one which comports with the remedial purposes of the Equal Employment Opportunity Act and with the prior case law in this circuit (see Newman v. Avco Corp., etc., supra),[2] and we now adopt it.
While these considerations are determinative of our result in this case, we note appellants' additional arguments that the class of plaintiffs in this suit differed somewhat from that involved in the action before the Kentucky Commission, that by Kentucky law no relief was available concerning attorneys' fees where federal law provides for such under appropriate circumstances, and that Kentucky evidence rules pertaining to back wages differ substantially from the rules applicable in the federal courts. These differences provide an alternative ground for the result we have reached.
In Batiste v. Furnco Construction Corporation, 503 F.2d 447 (7th Cir. 1973), plaintiffs after being denied employment filed complaints with Illinois' Fair Employment Practices Commission (FEPC) as well as with the federal Equal Employment Opportunity Commission (EEOC). Following extensive hearings before the FEPC, a hearing examiner recommended that the complaints be dismissed. After being advised of their right to sue by the EEOC, plaintiffs filed a Title VII action in federal district court. The FEPC subsequently reversed the hearing examiner's determination, issued a cease and desist order and awarded lost wages to plaintiffs. Defendant appealed the award to the appropriate Illinois court. The federal district court granted plaintiffs' motion for summary judgment, relying on the determination of the FEPC but limited relief to award of attorneys' fees, the only relief sought in the federal proceeding which had not previously been granted *220 by the FEPC. The Seventh Circuit, at a time when defendant's appeal was still pending in the Illinois Court, reversed the judgment of the federal district court, holding that the FEPC determination was not res judicata in the subsequent Title VII action, and specifically (at 450) noting its agreement with Cooper. In so doing, the Seventh Circuit also stated (at 450):
* * * There is a strong Congressional policy that plaintiffs not be deprived of their right to resort to the federal courts for adjudication of their federal claims under Title VII. Recently, Congress amended Title VII to explicitly provide that:
In determining whether reasonable cause exists, the Commission shall accord substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law pursuant to the [deferral] provisions of subsections (c) and (d). 42 U.S.C. § 2000e-5(b), as amended by Pub.L. 92-261; 86 Stat. 103 (1972).
While this provision is addressed to the E.E.O.C. rather than the courts, it is strongly indicative of the Congressional policy that final responsibility for the administration of Title VII rests within the federal system.1 See
1 It would be meaningless for Congress to set up standards for E.E.O.C. examination of cases after determinations were made in state proceedings if Congress intended that those cases be barred from consideration in federal court. The E.E.O.C. which lacks enforcement power, would be attempting to mediate with defendants who were already protected from any further legal action.
Cooper, supra, 464 F.2d at 12. It is also apparent that if federal actions are barred by the application of election of remedies and res judicata, then the statutory scheme of deferral to state proceedings will be frustrated by requiring that the plaintiff, who desired to bring an action in federal court, first commence state proceedings but abandon them quickly before an adjudication is made.
Defendant also argues that full faith and credit should be afforded to the state determination, thus barring the subsequent Title VII action in federal court. Defendant asserts that the courts have never considered this question before. However, full faith and credit implemented by federal statute (28 U.S.C. § 1738) is the means by which state adjudications are made res judicata. Lynne Carol Fashions, Inc. v. Cranston Print Works Co., 453 F.2d 1177, 1184 (3rd Cir. 1972). And "other well-defined federal policies, statutory or constitutional, may compete with those policies underlying section 1738." American Mannex Corporation v. Rozands, 462 F.2d 688, 690 (5th Cir. 1972), cert. den., 409 U.S. 1040, 93 S.Ct. 524, 34 L.Ed.2d 489. It has been determined that the Congressional policies embodied in Title VII require that res judicata not be applied to state adjudications. Cooper, supra; Voutsis v. Union Carbide Corporation, 452 F.2d 889 (2nd Cir. 1971) and Young v. South Side Packing Company, 369 F.Supp. 59 (E.D.Wis. 1973).
Before a plaintiff can bring a Title VII action into federal court for unlawful employment practices, he must first file a charge with any state or local authority which is authorized to grant or itself to seek, on behalf of such plaintiff, relief from such practices. 42 U.S. C. § 2000e-5(c) provides in part:
(c) In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under *221 the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. * * *
Since a plaintiff must submit his claim to such a state or local authority prior to bringing a Title VII action, a decision that the determination by the state or local authority is res judicata would foreclose plaintiffs from ever having federal courts adjudicate Title VII actions unless plaintiffs were permitted, by an end-run type of tactic, see Batiste v. Furnco Construction Corporation, 503 F.2d, supra at 449-50, to submit their claims to the state and then abort their claims before that body prior to its decision. As indicated in certain of the cases cited supra, that result would run counter to the congressional purpose underlying 42 U.S.C. § 2000e-5(c).
This case is brought not under Title VII, but rather under 42 U.S.C. § 1981.[3] The new case law seemingly is silent as to the effect of state administrative proceedings on subsequent section 1981 actions. However, many of the same considerations which have led the courts to refuse to apply res judicata effect to prior determinations in state administrative proceedings in subsequent Title VII actions are present with respect to section 1981 actions. A plaintiff need not assert his claim and exhaust his state administrative remedies before proceeding in federal court under 42 U. S.C. § 1983. See McCray v. Burrell, 516 F.2d 357 (4th Cir. 1975), cert. granted, 423 U.S. 923, 96 S.Ct. 264, 46 L.Ed.2d 249 (1975). In Monroe v. Pape, 365 U. S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961), Mr. Justice Douglas wrote, in language subsequently quoted by the Court in its opinion in McNeese v. Board of Education, 373 U.S. 668, 671-72, 83 S.Ct. 1433, 1435, 10 L.Ed.2d 622 (1963): "* * * The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked. * * *" Both Monroe and McNeese were cases brought under 1983, not 1981. However, exhaustion of state remedies and EEOC administrative processes are also apparently not required when 1981 is concerned. See Johnson v. Railway Express Agency, 421 U.S. 454, 459-60, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975).[4] Further, it should be kept well *222 in mind that the independence of federal and state remedies and the reference to the federal remedy as "supplementary" to the state remedy should not be read as indicating that plaintiffs, who first voluntarily pursue state administrative remedies, should be discouraged from and even penalized for so doing. As far as this Court can ascertain, there is nothing in the language in any of the opinions of the Supreme Court or the Fourth Circuit which suggests that a plaintiff is barred pursuant to the doctrine of res judicata in a subsequent federal action under 42 U.S.C. §§ 1981-85 if he chooses to exhaust state remedies and loses at the state administrative level. Indeed, the indications in the case law are to the contrary.
In Johnson v. Railway Express Agency, supra at 460-61, 95 S.Ct. 1716, resort to Title VII's administrative machinery was held not to be a prerequisite to the institution of a section 1981 action. In Johnson, the Court also held that limitations in a section 1981 action are not tolled by the filing of an EEOC complaint. Therein, Mr. Justice Blackmun discussed, in the face of the dissenting opinion, as to the tolling issue, filed by Mr. Justice Marshall and concurred in by Mr. Justice Douglas and Mr. Justice Brennan, the negative effect the majority's holding as to tolling might have upon the use of the conciliation mechanism of the EEOC. Nevertheless, the Court felt constrained so to hold regardless of any such possible effect. But in so concluding, Mr. Justice Blackmun referred (at 465, 95 S.Ct. 1716) to the possibility that a plaintiff could file his section 1981 action and request that the federal district court stay proceedings until administrative efforts at conciliation and voluntary compliance had been completed. Although Mr. Justice Blackmun was speaking specifically about EEOC and not state administrative proceedings, his suggestion would seem equally applicable to such state proceedings. It is also to be noted that in Johnson, the Supreme Court did not give any indication that any EEOC determination might be res judicata in a later federal district court action.
In the within action, the plaintiff filed his federal court action after he had received the Commission's letter that it had found probable cause, but before the Commission had held hearings on the complaint. As recited supra, the within action was held sub curia after discussion with all, and without objection by any, of counsel pending the decision of the Commission. Thus the procedure followed herein was similar to that which the Supreme Court indicated was permissible in the context of simultaneous EEOC and 1981 court proceedings.
Further guidance is available from Alexander v. Gardner-Denver Company, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). In Alexander, plaintiff, after his discharge from employment, filed an arbitrable grievance under a collective bargaining agreement which included a nondiscrimination clause, and then filed a complaint with the Colorado Civil Rights Commission. The latter agency referred the complaint to the EEOC. The arbitrator, acting pursuant to the collective bargaining agreement, had found that plaintiff had been dismissed for cause. The EEOC found that there was not a reasonable basis for concluding that plaintiff had been discriminated against on the basis of race. Plaintiff filed a Title VII action in federal district court. That court granted defendant's motion for summary judgment on the ground that plaintiff was *223 barred by the arbitrator's decision and thereby precluded from suing under Title VII. The Tenth Circuit affirmed, 519 F.2d 503. Reversing, Mr. Justice Powell, on behalf of a unanimous Court, held that plaintiff had a right to proceed in federal court upon his Title VII claim, and wrote (at 47-50, 94 S.Ct. at 1019-1020):
In addition, legislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination.7
7 See, e. g., 42 U.S.C. § 1981 (Civil Rights Act of 1866); 42 U.S.C. § 1983 (Civil Rights Act of 1871).
In the Civil Rights Act of 1964, 42 U. S.C. § 2000a et seq., Congress indicated that it considered the policy against discrimination to be of the "highest priority." Newman v. Piggie Park Enterprises, supra [390 U.S. 400], at 402 [88 S.Ct. 964, at 966, 19 L.Ed.2d 1263]. Consistent with this view, Title VII provides for consideration of employment-discrimination claims in several forums. See 42 U.S.C. § 2000e-5(b) (1970 ed., Supp. II) (EEOC); 42 U.S.C. § 2000e-5(c) (1970 ed., Supp. II) (state and local agencies); 42 U.S.C. § 2000e-5(f) (1970 ed., Supp. II) (federal courts). And, in general, submission of a claim to one forum does not preclude a later submission to another. Moreover, the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes. The clear inference is that Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination. In sum, Title VII's purpose and procedures strongly suggest that an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement.
In reaching the opposite conclusion, the District Court relied in part on the doctrine of election of remedies.10
10 The District Court adopted the reasoning of the Sixth Circuit in Dewey v. Reynolds Metals Co., 429 F.2d [324], at 332, affirmed by an equally divided Court, 402 U.S. 689 [91 S.Ct. 2186, 29 L.Ed.2d 267] (1971), which was apparently based in part on the doctrine of election of remedies. See n. 5, supra. The Sixth Circuit, however, later described Dewey as resting instead on the doctrine of equitable estoppel and on "themes of res judicata and collateral estoppel." Newman v. Avco Corp., 5 Cir., 451 F.2d 743, 747 n. 1 (CA6 1971). Whatever doctrinal label is used, the essence of these holdings remains the same. The policy reasons for rejecting the doctrines of election of remedies and waiver in the context of Title VII are equally applicable to the doctrines of res judicata and collateral estoppel.
That doctrine, which refers to situations where an individual pursues remedies that are legally or factually inconsistent,11 has no application in the
11 See generally 5A A. Corbin, Contracts §§ 1214-1227 (1964 ed. and Supp.1971). Most courts have recognized that the doctrine of election of remedies does not apply to suits under Title VII. See, e. g., Bowe v. Colgate-Palmolive Co., 416 F.2d, at 714-715; Hutchings v. United States Industries, 428 F.2d, at 314; Macklin v. Spector Freight Systems, 156 U.S.App.D. C. 69, 80-81, 478 F.2d 979, 990-991 (1973); Voutsis v. Union Carbide Corp., 452 F.2d 889, 893-894 (CA2 1971), cert. denied, 406 U.S. 918 [92 S.Ct. 1768, 32 L. Ed.2d 117] (1972); Newman v. Avco Corp., supra, at 746 n. 1; Oubichon v. North American Rockwell Corp., 482 F.2d, at 572-573.
present context. In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results *224 from permitting both rights to be enforced in their respectively appropriate forums. * * * [Emphases supplied; certain footnotes omitted.]
Mr. Justice Powell's specific reference to 42 U.S.C. § 1981 in footnote 7 in his opinion in Alexander is to be noted.
In sum, this Court concludes that denial of res judicata effect in a subsequent 1981 federal district court action to a prior state administrative agency determination is more consistent with the intent of the federal Congress and with encouragement to plaintiffs first to pursue available state and federal administrative channels in their quest for relief from discriminatory employment practices than is the opposite conclusion. Accordingly, defendant's motion for summary judgment, to the extent the same rests upon res judicata or similar principles, is hereby denied.
EXISTENCE, VEL NON, OF CONTROVERTED FACTS
The administrative record before the state tribunal has been submitted to this Court. That record may constitute evidence in this case. It may also, under appropriate circumstances, entitle the defendant to the grant of summary judgment. See Batiste v. Furnco Construction Corporation, supra at 451. See also Predmore v. Allen, 407 F.Supp. 1067 (D.Md.1975) and the cases cited therein.[5] In this case, to date, plaintiff has responded to defendant's claim to entitlement to summary judgment on the grounds that there are no controverted facts, by a general type of denial in a memorandum authored by counsel. Plaintiff is hereby afforded the opportunity to file affidavits and other appropriate documents in accordance with Federal Civil Rule 56 setting forth specifics and details as to controverted facts, provided plaintiff so does on or before January 9, 1976. If plaintiff so does, defendant may file a rebuttal thereto on or before January 23, 1976. Following that date, unless one or both parties ask for a hearing, this Court will proceed to rule upon the defendant's summary judgment motion based on defendant's assertion of lack of controverted facts.
NOTES
[1] Md.Ann.Code art. 41, §§ 244 et seq. (1971 Repl. Vol.).
[1A] 42 U.S.C. § 2000e et seq.
[2] 451 F.2d 743 (6th Cir. 1971).
[3] That statute provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
[4] Therein, Mr. Justice Blackmun wrote:
* * * Although this Court has not specifically so held, it is well settled among the Federal Courts of Appeals6 and we now join them that § 1981 affords a federal remedy against discrimination in private employment on the basis of race. * * *
Petitioner, and the United States as amicus curiae, concede, as they must, the independence of the avenues of relief respectively available under Title VII and the older § 1981. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 416-417, n. 20 [88 S.Ct. 2186, 2191, 20 L.Ed.2d 1189] (1968). Further, it has been noted that the filing of a Title VII charge and resort to Title VII's administrative machinery are not prerequisites for the institution of a § 1981 action. Long v. Ford Motor Co., 496 F.2d 500, 503-504 (CA6 1974); Caldwell v. National Brewing Co., 443 F.2d 1044, 1046 (CA5 1971), cert. denied, 405 U.S. 916 [92 S.Ct. 931, 30 L.Ed.2d 785] (1972); Young v. International Tel. & Tel. Co., 438 F.2d 757, 761-763 (CA3 1971). Cf. Waters v. Wisconsin Steel Works, 427 F.2d 476, 487 (CA7), cert. denied sub nom. International Harvester Co. v. Waters, 400 U.S. 911 [91 S.Ct. 137, 27 L.Ed.2d 151] (1970). [Emphasis supplied.]
6 Young v. International Tel. & Tel. Co., 438 F.2d 757 (CA3 1971); Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (CA4), cert. denied, 409 U.S. 982, [93 S.Ct. 319, 34 L.Ed.2d 246] (1972); Caldwell v. National Brewing Co., 443 F.2d 1044 (CA5 1971), cert. denied, 405 U.S. 916 [92 S.Ct. 931, 30 L.Ed.2d 785] (1972); Long v. Ford Motor Co., 496 F.2d 500 (CA6 1974); Waters v. Wisconsin Steel Works, 427 F.2d 476 (CA7), cert. denied sub nom. International Harvester Co. v. Waters, 400 U.S. 911 [91 S.Ct. 137, 27 L. Ed.2d 151] (1970); Brady v. Bristol-Meyers, Inc., 459 F.2d 621 (CA8 1972); Macklin v. Spector Freight Systems, Inc., supra.
[5] The fact that the administrative record before the EEOC is available for use in a subsequent court proceeding but does not, under any of the differing views which have been expressed in the cases cited in Predmore, conclusively require the court to adopt the administrative determination, is itself a clear indication that an EEOC determination is not to be accorded res judicata or collateral estoppel effect. There would seem no reason to differentiate between an EEOC and a state FEPC determination in that regard.
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29 P.3d 255 (2001)
David and Mary GLAMANN, individually and as next friend of Jesse Glamann, Appellants,
v.
Gloria KIRK (f/k/a Gloria Caler), Appellee.
No. S-9362.
Supreme Court of Alaska.
August 17, 2001.
*257 Brett Von Gemmingen, Anchorage, for Appellants.
Paul W. Waggoner, Law Offices of Paul W. Waggoner, Anchorage, for Appellee.
Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
OPINION
CARPENETI, Justice.
I. INTRODUCTION
David Glamann was injured when Gloria (Caler) Kirk's automobile rear-ended his automobile. Kirk admitted negligence but disputed the extent of her liability. Glamann did not respond to Kirk's $50,000 offer of judgment, and the case went to trial. A jury awarded Glamann $10,000.
Glamann appeals the trial court's decisions to: (1) admit evidence of malingering, (2) give an aggravating-cause jury instruction, (3) deny the motion for a new trial, (4) disallow Mary Glamann's wage loss claim, and (5) award Kirk attorney's fees. Because we conclude that the trial court did not err with respect to the first four issues and that any error with respect to the award of attorney's fees was harmless, we affirm the verdict and judgment.
II. FACTS AND PROCEEDINGS
On October 10, 1996, Glamann and Kirk were involved in an automobile collision in Kodiak. Kirk rear-ended Glamann's stopped truck. Glamann's truck then collided with another vehicle. Glamann was injured when his head struck the rear window of his truck's cab, but he did not lose consciousness. He was stabilized by medics and taken to Kodiak Island Hospital for x-rays. Dr. Kevin Creelman examined Glamann in the emergency room and diagnosed a scalp contusion and probable neck strain.
Glamann had a follow-up appointment with Dr. Creelman on October 15. Dr. Creelman prescribed physical therapy for Glamann. Glamann attended several sessions in October 1996. The therapist's notes from the final October session indicate that treatment would be discontinued, unless the symptoms returned, based on Glamann's report of having been headache-free since his last treatment.
Between the time of the collision and the end of December, Glamann was able to work a full schedule in his job as parts manager for PenAir. His next appointment with Dr. Creelman took place on December 20, based on a reoccurrence of headache pain following a long session splitting wood. Glamann then returned to physical therapy at the end of December. Glamann complained of headaches following certain activities, including those he enjoyed, such as shooting and woodsplitting. At that time, some three to four months after the collision, Dr. Creelman began prescribing various medications, including narcotic drugs.
In March 1997 Dr. Creelman referred Glamann to Dr. Leon Chandler, an anesthesiologist and pain management specialist, for an evaluation and report. Dr. Chandler determined that Glamann had incurred a flexion extension injury, or whiplash, in the collision, with cervical spine injuries that resulted in occipital[1] headaches and occipital neuralgia.[2]*258 Dr. Chandler presented several options to Glamann for dealing with cervical pain. These included cryotherapy (freezing of the nerves at the base of the skull), occipital nerve blocks (injection of steroids and local anesthetics in the pain causing nerves), radio frequency lesions of the cervical nerves (cutting the nerve with a radio frequency lesion), and cervical epidural stimulator as a last resort. Over time, Glamann tried all but the epidural stimulator.
In October 1997 Glamann was referred by Dr. Creelman to the Virginia Mason Clinic in Seattle, Washington. Glamann was examined by a neurologist, Dr. Lynn Taylor. Glamann was also examined, at the suggestion of Dr. Taylor, in January 1998 by Dr. Leon Fordyce, a neuropsychologist at Virginia Mason.
The Glamanns filed suit against Kirk in December 1997, claiming that Kirk's negligent failure to stop her car caused the accident that injured Glamann and, consequently, his family. Kirk admitted fault for the collision, but she disputed the extent of her liability for Glamann's injuries. Her defense was based in part on Glamann's prior injuries and conditions: Glamann had suffered a fractured jaw in a car accident when he was sixteen, almost thirty years before the collision; x-rays showed the existence of a fractured vertebra of uncertain origin; and Glamann's doctors testified that Glamann exhibited signs of a conversion disorder[3] and that his symptoms could not all be attributed to a physical cause. During discovery, Kirk hired a psychologist, Dr. Ronald Ohlson, to evaluate Glamann.
Glamann filed two motions in limine: the first to exclude evidence of malingering or secondary gain,[4] the second to exclude evidence of other accidents and injuries. Superior Court Judge Donald D. Hopwood denied both motions.
Kirk made Glamann an offer of judgment for $50,000, plus costs, interest and attorney's fees, on June 12, 1998. Glamann did not respond to the offer of judgment.
In addition to her loss of consortium claims, Glamann's wife submitted a wage loss claim for approximately $1,800 for the time she missed work due to the need for her to drive Glamann to his medical appointments. The court did not allow Mary Glamann's lost wages claim to go to the jury.
During trial, Kirk proposed that a jury instruction be given on aggravating cause. Over Glamann's objection, the trial court gave the instruction.
The parties dispute the economic loss incurred by Glamann. Glamann claims that at the time of trial his past medical expenses totaled over $33,000, his past economic loss exceeded $31,000, and his out-of-pocket expenses totaled more than $12,000. Kirk, on the other hand, calculates the total medical cost for the three months following the collision to be $2,013.30. Kirk also points out that Glamann worked a full schedule during that time.
The jury initially awarded Glamann, in a special verdict, $8,000 for past economic damages only. Because the court found the lack of award for past non-economic damages inconsistent with the award for past economic damages, the jury was instructed to reconsider its award. The jury ultimately awarded Glamann $8,000 in past economic damages, $2,000 in past non-economic damages, and nothing for future damages.
The trial court denied Glamann's motion for a new trial and awarded Kirk, as prevailing *259 party, fifty percent of her actual attorney's fees under Alaska Civil Rule 82(b)(3).[5]
Glamann appeals: (1) the denial of his motion to exclude evidence of malingering; (2) the use of the aggravating-cause jury instruction; (3) the denial of his motion for a new trial; (4) the trial court's disallowance of Mary Glamann's lost wages claim; and (5) the award of attorney's fees to Kirk.
III. STANDARDS OF REVIEW
We review a trial court's decision as to admissibility of evidence for an abuse of discretion.[6]
We review jury instructions to which a timely objection was made de novo.[7] A special verdict form is a type of jury instruction subject to the same standard of review for jury instructions.[8]
Trial courts are accorded discretion in the decision to grant or deny a new trial.[9] We will "affirm a trial court's decision to deny a new trial if there is an evidentiary basis for the jury's decision," viewing the evidence in the light most favorable to the non-moving party.[10]
Whether the trial court erred in disallowing a lost wages claim is a question of law subject to de novo review.[11]
Generally, the determination as to which party is the prevailing party is subject to review for an abuse of discretion,[12] as is a trial court's award of enhanced attorney's fees.[13] But whether the trial court, in determining the award of attorney's fees, applied the law correctly is a question of law that we review de novo, applying "the rule of law that is most persuasive in light of precedent, reason, and policy."[14]
IV. DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion by Admitting Evidence of Malingering.
Glamann argues that the trial court abused its discretion when it denied his motion to exclude reference to whether he malingered or sought secondary gain. In the court below, Glamann relied on Evidence Rules 402 and 403 to support his motion to exclude reference to malingering and secondary gain, arguing that references to or insinuations of malingering or secondary gain would be confusing or misleading to a jury and thus prejudicial. On appeal, Glamann implies that he was prejudiced contending that the use of the term "malingering" has "a powerful impact on the jury." Glamann claims that at the time he filed his motion, there was no witness who would testify, to a medical certainty, that he was a malingerer.
Kirk opposed the motion based on the existence of expert testimony that Glamann's pain was psychological and not based upon a physical source, as well as on non-medical testimony supporting her claim that Glamann was engaged in secondary gain. Kirk argues that juries routinely deal with questions of whether a plaintiff is trying to take advantage of the system and that she was entitled to present such evidence and to argue reasonable inferences based on the evidence presented.
*260 Relevant evidence may be excluded if the trial court "finds its probative value is outweighed by the risk that it will have a prejudicial effect on the jury, confuse the issues, or mislead the jury."[15] Credibility determinations are the quintessential province of the jury.[16] Only if the evidence was unfairly prejudicial should it be excluded.
The contention that Glamann is a malingerer, or is engaged in secondary gain, or that he exaggerated the extent of his injuries, is relevantnot only to Glamann's credibility, but also to the more fundamental question of how much harm Kirk's negligence actually caused.
Glamann's contention that the admission of evidence of malingering and secondary gain was either confusing, misleading, or unfairly prejudicial is baseless. He had the opportunity to show the validity of his injuries with the testimony of numerous experts. The substance of the testimony was that he was not malingering; the experts concurred on this. But quantity of testimony does not entitle Glamann to a judicial determination that his evidence should be believed.[17] There was also evidence that many of Glamann's symptoms were not entirely legitimate. For example, he was physically able to do his job following the collision, including lifting ninety-three pound batteries and forty-pound tires. Dr. Ohlson, Dr. Taylor, and Dr. Fordyce all agreed that Glamann's symptoms were more psychological than physical, and that his use of narcotics was inappropriate.
Further, Dr. Taylor reported that Glamann's neurological exam was normal but that he had inadvertently become "trapped in the chronic pain syndrome."[18] She opined that an increase in pain after engaging in activities that the sufferer enjoys, such as Glamann's headaches suffered following shooting, was consistent with a conversion disorder. She also testified that she could not determine in which accident Glamann fractured his vertebra.
Dr. Fordyce conducted an exam designed in part to determine whether a person is malingering or has a conversion disorder. He testified that Glamann had tendencies toward a conversion disorder. Dr. Fordyce also thought that experiencing pain after enjoyable activities could be consistent with a conversion disorder, but was unsure. Dr. Fordyce acknowledged that he and Dr. Taylor were concerned that Glamann's pain had gone on too long given his physical injuries.[19]
When asked about whether psychological stress can be converted to pain, Kirk's expert, Dr. Ohlson, answered in the affirmative. Dr. Ohlson went on to conclude that Glamann suffered under a number of stressors, but he was not of the opinion that Glamann was a malingerer. And there was also evidence of other stressors in Glamann's life. Dr. Ohlson testified that Glamann had "long standing anxiety problems." Glamann's supervisor at PenAir testified that Glamann had conflicts with his co-workers. Glamann quit his job in September 1997 based in part on problems with co-workers; he wrote a letter to a co-worker claiming that the co-worker's "criticism has a destructive result upon my well-being."
The evidence of malingering, secondary gain, or exaggeration was not unfairly prejudicial. The evidence was directly relevant to the jury's determinations as to credibility and causation, and was neither confusing nor misleading. There was no abuse of discretion in allowing the jury to consider evidence of malingering or secondary gain.
*261 B. The Trial Court Did Not Err When It Instructed the Jury on Aggravating Cause.
Glamann contends that the court's instruction on aggravating cause[20] was erroneous because it violates "the princip[le] that a tortfeasor takes its victims as it finds them" and because "a tortfeasor is liable for all proximately caused injuries." He argues that because the medical testimony was "unanimous" that the collision "triggered" his injuries, the trial court should not have given the jury the aggravating-cause instruction. Glamann also contends that the aggravating-cause instruction improperly shifted the burden of proof to Glamann.
1. The aggravating-cause jury instruction properly states the law.
Contrary to Glamann's contention, the aggravating-cause instruction correctly states and clarifies the law for the jurors: The defendant must take the victim as the defendant finds the victim and is liable for those injuries caused or aggravated by defendant's negligence.[21] Where the plaintiff claims that the defendant is responsible for the full extent of the claimed injuries, the plaintiff does not deny the existence of a prior injury or condition, there is evidence of a causal connection between the prior injury or condition and the current injury or condition, and the trial court admits such evidence at trial, the aggravating-cause instruction is an appropriate clarification of the jurors' duty in determining the extent of liability.[22] We have approved the use of an aggravating-cause instruction almost identical to the one at issue here in a case involving liability for injuries incurred in a car accident.[23]
2. Unanimity of medical testimony did not make the giving of the aggravating-cause instruction error.
Glamann's contention that giving the jury instruction was an abuse of discretion because the medical testimony was "unanimous" as to the accident being the cause of his injuries is without merit because there was some evidence linking a prior injury with injuries incurred in the October 1996 accident. A jury's determination of cause is not based on a tally of witnesses' testimony. In this case, there was sufficient evidence to establish the existence of a disputed issue of material fact for the jury's consideration. As Jury Instruction 8 states, the jury is to decide an issue by "the convincing force of the evidence," not by the relative number of witnesses.
Based on all the evidence, reasonable minds could differ as to the cause of all of Glamann's claimed injuries. At oral argument, Glamann conceded to this court the existence of a pre-existing mental condition. In addition, there was evidence as to a vertebra fracture, numerous stressors in Glamann's life, and the likelihood that he suffered from a conversion disorder as well as from a degenerative disc disease. Furthermore, when Dr. Taylor was asked "... if [Glamann's] facet joint had very much significance you really couldn't tell which accident it was fractured in, could you?", she answered *262 "no." Under all of these circumstances, the questions of causation and aggravating cause were properly submitted to the jury.
3. The aggravating-cause instruction did not improperly allocate the burden of proof.
The issue of Glamann's prior accidents, injuries, and conditions is not an affirmative defense for which Kirk bears the burden of proof, as Glamann contends; it is simply a defense to allegations of liability. "An affirmative defense can generally be defined as new matter not set forth in the complaint which constitutes a defense; or new matter which, assuming the complaint to be true, is a defense to it."[24] Glamann asserted that Kirk's negligence caused his injuries. Kirk disputed the extent of her liability for Glamann's injuriesa matter asserted in the complaint. Kirk's dispute did not constitute an affirmative defense. It thus remained Glamann's burden to prove that Kirk caused his claimed injuries. The aggravating-cause instruction did not improperly shift the burden.
We conclude that the trial court did not err in instructing the jury as to aggravating cause.
C. The Trial Court Properly Denied Glamann's Motion for a New Trial.
1. The evidence is sufficient to support the jury's verdict.
A decision to deny a new trial will be reversed only "if the evidence supporting the verdict was so completely lacking or slight and unconvincing as to make the verdict plainly unreasonable and unjust."[25]
Glamann first argues that a new trial should have been allowed because the jury award of $8,000 for past economic damages, $2,000 for past non-economic damages, and nothing for future damages, was internally inconsistent.
While Kirk concedes that the initial jury verdict was inconsistent, she argues that the inconsistency was corrected by resubmitting the question of past economic and non-economic loss to the jury. We agree.
We discussed internal inconsistency of a jury award in McCubbins v. State, Department of Natural Resources, Division of Parks and Recreation,[26] a case in which a swimmer sued a landowner for neck injuries incurred when he dove into water and struck his head on a submerged rock. The jury awarded future medical expenses, but failed to award anything for loss of future earning capacity.[27] We held that the award was inconsistent and that reversal of the verdict and a new trial on the issue of damages were therefore required.[28] This case is distinguishable.
It is not disputed that the first jury verdict was internally inconsistent because the jury awarded past economic damages but no past non-economic damages. But any inconsistency was cured when Judge Hopwood instructed the jury to reconsider its verdict and award past non-economic damages if its conclusion was that Glamann suffered past economic loss. The final jury verdict awarded both past economic and non-economic damages and made no award for either future economic or non-economic loss. The jury apparently concluded that Kirk was not responsible for the full extent of Glamann's injuries. This decision could have been based on its determination as to duration, or extent, of his injuries. Regardless of its basis, the award is internally consistent and is therefore not a basis for a new trial.
Glamann next argues that the verdict is facially inadequate because he asked for economic damages ranging from $88,000 to $396,386 plus non-economic damages, but was only awarded $10,000. He contends that *263 Pugliese v. Perdue[29] supports his contention that an inadequate verdict is enough to support reversal of the trial court's denial of his motion for a new trial in this case. He argues that the references to malingering and other factors affecting his injuries "apparently had an effect" on the jury because the award "did not even begin to compensate David for his past wage loss" and "compensated [him] only through March of 1997."
Inadequacy of a jury verdict is grounds for a new trial in cases where negligence is conceded or proved, but no damages are awarded. For example, in Grant v. Stoyer, the defendant admitted negligence in a personal injury case stemming from an automobile accident, but the parties disputed the scope and extent of plaintiff's injury.[30] We reversed a jury verdict of no causation and no award of damages because the evidence was uncontroverted that the accident injured the plaintiff.[31] We held that "where negligence and causation of compensable physical injury are conceded or proved, and where evidence of at least some pain and suffering is substantial and uncontroverted, some damages ordinarily must be awarded."[32] And in Pugliese, we observed that "[t]he undisputed facts establish[ed] that Perdue negligently drove his pickup truck into Pugliese, a collision involving direct bodily impact" and injury to Pugliese.[33] Because the jury failed to award Pugliese any recovery, we concluded that the verdict was "unreasonable and unjust," and remanded for a new trial.[34]
But where the jury makes some award in cases where negligence is conceded or proved, we have not reversed that award as inadequate. For example, in another automobile accident case, Hayes v. Xerox Corporation, a jury returned a lump sum general verdict.[35] We allowed that verdict to stand, even though there was no specific award for pain and suffering, observing that the lump sum indicated that the jury had not ruled out non-economic damages.[36] We noted that "[t]he jury could believe that [the plaintiff] exaggerated the extent of his injuries and pain and suffering."[37] And in Hutchins v. Schwartz, another automobile accident case, we affirmed the superior court's denial of a motion for a new trial in part because reasonable minds could have differed as to the causal connection between Hutchins's back injury incurred in the accident and subsequent diagnosis of a hiatal hernia.[38] We stated that "jurors make credibility choices and determine the weight to be given the evidence" and that they could have concluded that Hutchins had not suffered any substantial losses, given the significant evidence of malingering, exaggeration, and fraud presented at trial.[39]
Glamann's reliance on Pugliese for his contention that the verdict is inadequate and not supported by the evidence is misplaced. In this case, the jury did not fail to return a verdict in his favor. The jury made a considered choice as to what it believed Kirk owed for losses to Glamann: $8,000 for past economic damages and $2,000 for past non-economic damages. We cannot say that this is an unreasonable award. And, as in Hutchins, there is an evidentiary basis for the jury's determination: Glamann had been injured in a prior accident; he worked a full schedule in the eleven weeks immediately following the accident; his recurring headaches began after he engaged in other activities; he had numerous stressors in his life, both before and after the accident; and medical experts testified to his possible conversion disorder and inappropriate use of narcotics.
*264 Glamann argues that the award only compensates him through March 1997. But this is not a basis to find the jury award inadequate; the jury could have decided that he suffered no injuries from the accident after that date.
Because there is evidentiary support for the verdict we conclude that the superior court did not err in denying the motion for new trial.
2. The superior court did not abuse its discretion when it refused to further itemize the special verdict form.
"It is within the sound discretion of the trial court to select those questions the jury is required to answer in a special verdict form. Moreover, it is not error to refuse to submit a question or instruction where the issue is adequately covered by other questions or instructions."[40]
Glamann argues that the trial court erred when it refused to further itemize the special verdict form after the initial jury verdict was determined to be inconsistent. Glamann relies on this court's "approval" of specific itemization in a special verdict form in McCubbins as allowing the trial court to more easily discern inconsistencies. But McCubbins does not govern our decision on this issue. McCubbins was a case about internal consistency of a jury verdict, not the required degree of a special verdict form.[41]
Kirk, in turn, contends that the verdict form used was proper and consistent with AS 09.17.040(a),[42] and that no further itemization was required. We agree.
A special verdict form is subject to the same standard of review as jury instructions and thus errors in a special verdict form "will not be grounds for reversal unless they caused prejudice."[43] There is no evidence that the special verdict form in this case caused prejudice. The verdict form met the requirements of AS 09.17.040(a): It included separate responses for past economic damages, past non-economic damages, future economic damages and future non-economic damages. Because the damages question was adequately itemized, the trial court did not abuse its discretion when it refused to require further itemization.
D. The Superior Court Did Not Err in Disallowing Mary Glamann's Damages Claim for Lost Wages.
Glamann argues that the wage loss claim of his wife should have been allowed because it would not have been a double recovery. He claims that he could have claimed the costs for transportation to his appointments and recovered that cost, and that it should make no difference that it was framed in terms of his wife's wage loss. He argues that Hibpshman v. Prudhoe Bay Supply, Inc.[44] should apply to allow joinder of the spouse's claim.
Kirk contends that the superior court properly disallowed Mary Glamann's wage loss claim as a matter of law under Heritage v. Pioneer Brokerage and Sales, Inc.[45] We agree that Heritage controls.
In Heritage, we considered whether a husband could recover on a wage loss claim when the lost wages were based on his decision to provide nursing services to his injured wife.[46] We held that if the husband's wage loss was "attributable to his decision to provide nursing services to his wife, he may not be permitted to introduce evidence of the *265 losses at trial."[47] We also concluded that a determination of when support is necessary in a close family relationship is "too speculative to be made part of the general recovery of tort victims."[48]
The Hibpshman case is inapposite. The decision there dealt with the requirement of joinder of a child's loss of consortium claim resulting from injuries tortiously inflicted on the child's parents by a third party,[49] not for wage loss due to services rendered by a spouse.
In this case, Mary Glamann's lost wages claim stemmed from her decision to transport her husband to his medical appointments because he was medicated and could not take himself. In light of Heritage, we decline to find such circumstances to warrant the allowance of a wage loss claim. There is no legal basis to support Mary Glamman's claim for lost wages.
E. The Superior Court's Award of Attorney's Fees to Kirk under Civil Rule 82 Was Harmless Error.
The trial court concluded that Kirk was the prevailing party and awarded her fifty percent of her actual attorney's fees. Glamann argues that he was the prevailing party in this case because he received an affirmative recovery, even if less than asked for, and thus the award to Kirk was erroneous. But Kirk contends that because she made an offer of judgment for $50,000, which Glamann did not accept, and because the verdict was only $10,000, she is entitled to attorney's fees as the prevailing party.
"The trial court has wide discretion in awarding attorney's fees to a prevailing party."[50] When a party receives a substantial recovery, he or she is considered to be, with few exceptions, the prevailing party for purposes of attorney's fees under Rule 82.[51] But in cases where an offer of judgment has been made, there is no need for the court to determine the prevailing party because that status is determined by the provisions of Rule 68, as is the award of attorney's fees.[52]
In this case, the trial court did not rely on Civil Rule 68 for its award of attorney's fees, but instead considered Kirk to be the prevailing party for purposes of an award of enhanced attorney's fees under Rule 82(b)(3). Because of Glamann's failure to better the offer of judgment, the court's reliance on Rule 82 was plain error. But because Kirk was entitled to attorney's fees under Rule 68(b), and because the offer-of-judgment rule requires that she be considered the prevailing party,[53] we conclude that this error was harmless.
"We will interfere with the trial court's determination as to attorney's fees only if the award is manifestly unreasonable."[54] Kirk incurred attorney's fees in excess of $44,000 and was awarded half of those fees. It is possible that Kirk made her offer of judgment early enough in these proceedings to be eligible for more than fifty percent of her attorney's fees.[55] But because Kirk has not cross-appealed the award of attorney's fees, the failure to consider the potentially higher award is harmless. And we conclude that the trial court's award of half of her actual attorney's fees is not manifestly *266 unreasonable. Accordingly, we affirm the award of attorney's fees.
V. CONCLUSION
Because the superior court did not err in admitting evidence of malingering, giving an aggravating-cause instruction, denying the motion for a new trial, and disallowing Mary Glamann's wage loss claim, and because any error with respect to the award of attorney's fees was harmless, we AFFIRM the judgment in all respects.
NOTES
[1] Dr. Chandler testified that "occipital" refers to the base of the skull.
[2] Dr. Chandler testified that "occipital neuralgia" is an irritation of the nerves coming from the joint in the neck, which can cause headaches.
[3] Dr. Fordyce testified that a "conversion disorder" occurs where a person converts psychological forces, such as anxiety or depression, into physical symptoms.
[4] To malinger is "to pretend to be ill or otherwise physically or mentally incapacitated so as to avoid duty or work" or "to deliberately induce, protract, or exaggerate actual illness or other incapacity so as to avoid duty or work." Webster's Third New International Dictionary of the English Language Unabridged 1367 (1993). Secondary gain is defined as "pleasure derived from a neurosis primarily necessary to the individual for other reasons." Id. at 2051. Dr. Ohlson compared the two and testified that "malingering is when [one] consciously tell[s] a lie in order to get something," and that "[s]econdary gain is really a reward for being sick in this context."
[5] The order cites Civil Rule 82(a)(3), but we conclude that this was a typographic error and that the judge meant Rule 82(b)(3).
[6] See Wal-Mart, Inc. v. Stewart, 990 P.2d 626, 632 (Alaska 1999).
[7] See Griffith v. Taylor, 12 P.3d 1163, 1166 (Alaska 2000).
[8] See Stinson v. Holder, 996 P.2d 1238, 1244 (Alaska 2000).
[9] See Grant v. Stoyer, 10 P.3d 594, 596 (Alaska 2000).
[10] Pugliese v. Perdue, 988 P.2d 577, 581 (Alaska 1999).
[11] See Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988).
[12] See Andrus v. Lena, 975 P.2d 54, 58 (Alaska 1999) (citing Barber v. Barber, 915 P.2d 1204, 1209 n. 10 (Alaska 1996)).
[13] See Cole v. Bartels, 4 P.3d 956, 958 (Alaska 2000).
[14] Philbin v. Matanuska-Susitna Borough, 991 P.2d 1263, 1266 (Alaska 1999).
[15] Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1150 n. 20 (Alaska 1999).
[16] See, e.g., Hayes v. Xerox Corp. 718 P.2d 929, 934 (Alaska 1986).
[17] Jury Instructions 4 and 5 explain that the jurors are the sole judges of credibility and weight to be given to the evidence, as well as informing them that they are to decide which witnesses to believe, including experts.
[18] Dr. Fordyce testified that "chronic pain syndrome" is the experience of debilitating pain over time that is not explained by underlying medical facts.
[19] Both doctors recommended that Glamann attend the Virginia Mason pain management clinic, a program that costs approximately $25,000 to $30,000.
[20] Jury Instruction 18 provided:
A person who has a condition or disability at the time of an injury cannot recover damages for that condition or disability. However, he or she is entitled to recover damages for an aggravation of such preexisting condition or disability if the aggravation is the legal result of the injury.
This is true even if the person's condition or disability made him or her more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy person probably would not have suffered any substantial injury. In other words, the law provides that a defendant takes the plaintiff as he or she finds him.
Where a preexisting condition or disability is so aggravated, the damages as to such condition or disability are limited to the additional damages caused by the aggravation.
[21] Compare LaMoureaux v. Totem Ocean Trailer Express, Inc., 632 P.2d 539, 543-44 (Alaska 1981), with Jury Instruction 18, supra n. 20.
[22] See, e.g., Snyder v. State, 930 P.2d 1274, 1280 (Alaska 1996) (concluding that whether "a requested jury instruction should be given lies in the discretion of the trial court. However, the general rule is that the defendant is entitled to a jury instruction on a defense theory if there is `some evidence' to support it." (internal citation omitted)).
[23] See LaMoureaux, 632 P.2d at 543-44; see also Alaska Pattern Civil Jury Instruction 20.11.
[24] Bowman v. Blair, 889 P.2d 1069, 1071 n. 2 (Alaska 1995) (quoting Rollins v. Leibold, 512 P.2d 937, 940 (Alaska 1973)).
[25] Grant, 10 P.3d at 596.
[26] 984 P.2d 501, 502-3 (Alaska 1999).
[27] See id. at 503.
[28] See id. at 509.
[29] 988 P.2d 577 (Alaska 1999).
[30] 10 P.3d at 595.
[31] See id. at 596, 600.
[32] Id. at 598.
[33] 988 P.2d at 581.
[34] Id. at 583.
[35] 718 P.2d 929, 931 (Alaska 1986).
[36] See Grant, 10 P.3d at 598 (explaining and distinguishing Hayes).
[37] Hayes, 718 P.2d at 934.
[38] 724 P.2d 1194, 1203 (Alaska 1986).
[39] Id.
[40] Alaska Bussell Elec. Co. v. Vern Hickel Const. Co., 688 P.2d 576, 581 (Alaska 1984) (internal quotation marks and citations omitted).
[41] McCubbins, 984 P.2d at 506-07.
[42] AS 09.17.040(a) provides:
In every case where damages for personal injury are awarded by the court or jury, the verdict shall be itemized between economic loss and noneconomic loss, if any, as follows:
(1) past economic loss;
(2) past noneconomic loss;
(3) future economic loss;
(4) future noneconomic loss; and
(5) punitive damages.
[43] Stinson v. Holder, 996 P.2d 1238, 1244 (Alaska 2000).
[44] 734 P.2d 991, 997 (Alaska 1987).
[45] 604 P.2d 1059 (Alaska 1979).
[46] Id. at 1064-65.
[47] Id. at 1065.
[48] Id.
[49] Hibpshman, 734 P.2d at 997.
[50] Hutchins, 724 P.2d at 1204.
[51] See, e.g., Blumenshine v. Baptiste, 869 P.2d 470, 474 (Alaska 1994).
[52] See Alaska R. Civ. P. 68.
[53] The parties dispute which version of Rule 68 is applicable to this case because Glamann's cause of action accrued prior to August 7, 1997, but he did not file his complaint until after that date. However, we need not resolve that question because under either the former or current version of Rule 68, Glamann's failure to better Kirk's offer of judgment required the trial court to consider Kirk the prevailing party. Compare former Rule 68(b)(1) [applicable to cases filed before August 7, 1997, Alaska Supreme Court Order No. 1281 (August 7, 1997) ] with current Rule 68(c).
[54] Hutchins, 724 P.2d at 1204 (internal quotation marks omitted).
[55] See Alaska R. Civ. P. 68(b)(1) and former Alaska R. Civ. P. 68(b)(1).
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941 F.2d 133
UNITED STATES of America, Appellee,v.Geraldo HERNANDEZ, also known as Gerardo Hernandez, alsoknown as Juan Hernandez, Defendant-Appellant.
No. 1543, Docket 91-1028.
United States Court of Appeals,Second Circuit.
Argued June 3, 1991.Decided Aug. 8, 1991.
Christopher P. Reynolds, Asst. U.S. Atty., S.D.N.Y. (Helen Gredd, Asst. U.S. Atty., S.D.N.Y. and Otto G. Obermaier, U.S. Atty., S.D.N.Y., of counsel), for appellee.
Barry C. Scheck, New York City (Lawrence A. Vogelman and Ellen Yaroshefsky, of counsel), for defendant-appellant.
Before OAKES, Chief Judge, PRATT and ALTIMARI, Circuit Judges.
GEORGE C. PRATT, Circuit Judge:
1
Defendant Geraldo Hernandez appeals from a judgment convicting him of violating 18 U.S.C. § 922(g), which makes it a crime for a felon to possess a firearm. Hernandez conditioned his guilty plea on the right to appeal the district court's denial of his motion to suppress the handgun that served as the basis for his § 922(g) conviction. Hernandez secondarily argues that if his conviction is not entirely vacated, he should at least be resentenced, because the district court "ignored and violated fundamental Guideline procedure" in sentencing him to 90 months' imprisonment.
2
We reject Hernandez's challenge to the district court's suppression ruling. We also reject his arguments regarding the district court's upward departure in sentencing; however, because the district court based its determination of Hernandez's criminal history category on the circumstances surrounding his present conviction, we remand the case for resentencing.
BACKGROUND
3
In late 1989 a warrant was issued for Hernandez's arrest on a parole violation. On December 11, 1989, based on an informant's tip, two deputy marshals staked out an apartment in Manhattan, on West 36th Street between Ninth and Tenth Avenues. After a few hours, they saw Hernandez, along with two other men they did not recognize, pull up and get out of a grey Cadillac. Hernandez was carrying a black attache case, and as one of the marshals testified, Hernandez "kept pulling up his belt, like something was falling". To the deputy marshals, this suggested that Hernandez was carrying a gun, and this observation, together with their knowledge of Hernandez's previous conviction for illegally trafficking in weapons, led them to conclude that Hernandez was armed and dangerous.
4
After Hernandez and the two men entered the apartment building, the deputy marshals called for a backup; approximately ten deputy marshals responded. They divided into three groups: one group was to surround the building, to prevent Hernandez from escaping; a second group was to arrest Hernandez; the third group was to engage in a protective sweep of the apartment, to ensure the safety of the arresting deputy marshals.
5
The deputy marshals twice knocked on the door of the apartment and identified themselves as the "police". Receiving no response, the deputy marshals broke down the door. As they entered the apartment, they found Hernandez in the living room and immediately arrested him.
6
One deputy marshal, who was part of the protective-sweep team, entered a bedroom that was immediately to the right of the front door. There he discovered a woman, later identified as Betty Barrow, on the bed. The deputy marshal ordered her to stand up and raise her hands. He then handcuffed her, and temporarily placed her on the floor between the bed and a dresser. As he did this, he ran his hand across the top of the bed, underneath the bed, and between the mattress and the box spring. He also searched the drawers of a dresser next to the bed. He did all this because he planned to place Barrow on the bed, where she would be more comfortable, and where it would be easier to watch her. As the deputy marshal ran his hand between the mattress and the box spring, however, he discovered a loaded .357 magnum revolver.
7
In plain view, other deputy marshals also discovered a beeper, a cellular phone, a bag of currency, and a triple beam scale.
8
After Hernandez was indicted for possessing a weapon in violation of 18 U.S.C. § 922(g), he moved to have the gun and the other items found in the apartment suppressed, arguing that their discovery was the result of an illegal search in violation of the fourth amendment. Following an evidentiary hearing, the district judge denied the motion in an order dated June 11, 1990.
9
Three days later, Hernandez pled guilty, reserving his right to appeal the denial of his suppression motion, see Fed.R.Crim.P. 11(a)(2), and was subsequently sentenced to 90 months' imprisonment, followed by a three-year term of supervised release, and a $50 special assessment.
10
Hernandez appeals.
DISCUSSION
11
On appeal, Hernandez raises two issues--denial of his suppression motion, and improper sentencing under the guidelines. For the reasons that follow, we affirm the district court's denial of Hernandez's suppression motion, but remand for resentencing because the district court incorrectly determined Hernandez's criminal history category.
12
A. The Suppression Motion.
13
Hernandez contends that the actions of the deputy marshals exceeded the bounds of a proper "protective sweep" under the doctrine set out by the Supreme Court in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). "A 'protective sweep' is a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others." Id., 110 S.Ct. at 1094. The district court concluded that the search of the bedroom area around Barrow, which led to discovery of the gun, was part of a proper protective sweep and, therefore, was not in violation of the fourth amendment.
14
Hernandez claims that the district court improperly extended the scope of a protective sweep by approving of a search that extended beyond a visual search for dangerous individuals. According to Hernandez, a protective sweep should be limited to "a search for people in places where they may be hiding, not a search in drawers and within furniture where weapons might be hidden." We do not think a protective search is so narrowly limited.
15
As the district court correctly pointed out, Buie is only the most recent in a succession of cases that seek to balance concerns for the safety of arresting officers with the fourth amendment rights of citizens. Buie cannot be read in isolation, for its holding draws heavily from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Significantly for our purposes, in all three cases the Court applied the same balancing test to different factual situations. See Buie, 110 S.Ct. at 1097-99. ("The ingredients to apply the balance struck in Terry and Long are present in this case.") Id. at 1097.
16
In Terry, the Court allowed an on-the-street frisk for weapons by an officer when the officer believed, based on "specific and articulable facts", that a person was armed and dangerous. Terry, 392 U.S. at 21, 88 S.Ct. at 1880. In determining that the search was proper, the Court applied a reasonableness test:
17
[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.
18
Id. at 27, 88 S.Ct. at 1883 (citations omitted).
19
In Long, the Court extended the rationale of Terry to a search of the passenger compartment of a car, following a stop of that car. Applying the same balancing test that it had applied in Terry, the Court concluded that " 'a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger' ". Long, 463 U.S. at 1050, 103 S.Ct. at 3481 (quoting Terry ). For this reason, the Court held that the search of the car was proper. Long, 463 U.S. at 1050-51, 103 S.Ct. at 3481. The Court further noted that as long as the area search "is limited to a search for weapons in circumstances where the officers have a reasonable belief that the suspect is potentially dangerous to them", the search is proper. Id. at 1052 n. 16, 103 S.Ct. at 3482 n. 16.
20
In both Terry and Long, the Court was "concerned with the immediate interest of the police officers in taking steps to assure themselves that the persons with whom they were dealing were not armed with or able to gain immediate control of a weapon that could unexpectedly and fatally be used against them." Buie, 110 S.Ct. at 1097.
21
In Buie, the Court applied Terry's balancing test to an arrest of a suspect in the suspect's house. There, police officers had obtained an arrest warrant for Buie and his accomplice, whom they suspected of committing an armed robbery. Id. at 1095. After verifying that Buie was home, six or seven officers went to his house. They entered the house, and fanned out through the first and second floors. A single officer went to the basement stairs, and in a loud voice ordered anyone in the basement to come out. Id. Eventually Buie emerged from the basement, and he was searched and handcuffed. Thereafter, another officer went down into the basement to see if anyone else was there. While searching the basement, the officer discovered physical evidence that linked Buie with the crime. Id.
22
The trial court refused to suppress the evidence, as did the Court of Special Appeals of Maryland. Id. However, the Court of Appeals of Maryland reversed, concluding that the search had violated the fourth amendment. Id. at 1095-96. The Supreme Court, in turn, vacated the judgment of the Court of Appeals of Maryland, holding that the officer's actions were part of a proper protective sweep. Id. at 1095.
23
In applying the balancing test of Terry and Long to a protective sweep of a suspect's home, the Court stated that
24
[t]he Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.
25
Buie, 110 S.Ct. at 1099-100. Thus, the questions that we are instructed to focus on are (1) whether the search was "properly limited", and (2) whether it was reasonable for the deputy marshal to conclude that Barrow posed a danger to those on the arrest scene.
26
Taking the second question first, there is no doubt, given the situation, that it was reasonable for the deputy marshal to believe Barrow to be dangerous and that specific and articulable facts supported that belief; indeed at oral argument, Hernandez conceded that the deputy marshal had the right to seize Barrow and handcuff her.
27
Hernandez, therefore, rests his challenge to the suppression ruling on his claim that the protective search was not "properly limited". According to Hernandez, once the deputy marshal had handcuffed Barrow and determined that no one else was in the room, his protective search should have ended. The handcuffed Barrow was no longer a threat, he argues, and since no other "armed and dangerous" individual could be hiding in the area, the deputy marshal had no basis for any further search of this area, particularly between the box spring and mattress, where no person could possibly hide.
28
The district court rejected Hernandez's argument, and upheld the deputy marshal's search of the "grab area" around Barrow, including his quick check under the mattress. As the district court stated, "If Barrow were left unattended even for a short period of time and knew where the gun was, it would not be an impossible task even for one handcuffed from behind to work her hands between the mattress and the box spring and grab the weapon." United States v. Hernandez, 738 F.Supp. 779, 782-83 (S.D.N.Y.1990). This finding was not clearly erroneous.
29
Thus, even though Barrow had been handcuffed, it was proper for the deputy marshal to search the area around her for weapons. To begin with, the search lasted "no longer than [was] necessary to dispel the reasonable suspicion of danger". Buie, 110 S.Ct. at 1099. Moreover, the whole point of a protective sweep is to ensure "that the house in which a suspect is being or has just been arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack." Id. at 1098. Having found and subdued just such a person--Barrow--the deputy marshal still could check the immediate area in order to "neutralize the threat of physical harm", Terry, 392 U.S. at 24, 88 S.Ct. at 1881, by determining whether there were weapons within Barrow's reach. Cf. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969) ("There is ample justification * * * for a search of the arrestee's person and the area 'within his immediate control'--construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence."). While it is true that government agents engaged in a protective sweep may not engage in a full search of the premises, but only in a search that extends "to a cursory inspection of those spaces where a person may be found", Buie, 110 S.Ct. at 1099, this does not mean, as Hernandez suggests, that a protective search can involve a search only for individuals and not for weapons within the grab area of an individual whom the government agents have reasonably concluded is dangerous.
30
In Long, the Court refused to adopt an argument similar to the one advanced by Hernandez. In that case, the Michigan Supreme Court had concluded that the search of the car had violated the fourth amendment because at the time of the search, the defendant was effectively under the control of the officers, and that therefore a search of the car was unnecessary and improper. Long, 463 U.S. at 1051, 103 S.Ct. at 3481. The Court explicitly rejected this analysis, and instead concluded that in a close encounter between government agents and a person whom they believe is dangerous, government agents are not required to "adopt alternative means to ensure their safety in order to avoid the intrusion involved in a Terry encounter." Long, 463 U.S. at 1052, 103 S.Ct. at 3482.
31
For these reasons, we agree with the district court that the circumstances of this case "fit comfortably within the principles" of Buie, Long, and Terry. Hernandez, 738 F.Supp. at 782. "[A] reasonably prudent" officer would have believed that Barrow posed "a danger to those on the arrest scene"; the quick search of the area around Barrow, even after she was handcuffed, was a reasonable and proper attempt to "neutralize the threat of physical harm." Terry, 392 U.S. at 24-27, 88 S.Ct. at 1881-83.
32
B. Sentencing.
33
Hernandez received a sentence of 90 months' imprisonment, a three-year term of supervised release, and a $50 special assessment. He claims that the district judge erred both in determining his criminal history category and in imposing a significant upward departure after determining his base offense level. We find no error in the district court's upward departure from his offense level, but because we conclude that the district court erred in determining Hernandez's criminal history category, we remand for resentencing.
34
In a thoughtful and detailed opinion and order, the district judge explained his reasons for arriving at a sentence of 90 months. As the district court pointed out, after factoring in Hernandez's acceptance of responsibility, the adjusted offense level for his conviction for violating § 922(g) was 10 and his criminal history category was IV. Applying the guidelines grid, these factors together would indicate a term of imprisonment of between 15 and 21 months. However, the district court concluded that a "substantial upward departure" was warranted "both with respect to the offense level and with respect to the criminal history category, with the result that defendant has been sentenced to 90 months imprisonment."
35
Hernandez attacks these upward departures. He argues that in reaching the final sentence, the district court incorrectly determined his criminal history category and the offense level departure. As to the criminal history category, Hernandez contends that the district court (1) "violated fundamental Guideline procedure by departing upwards as if he were a career offender," even though the district court had expressly determined that he could not be sentenced as a career offender; (2) erred in basing his criminal history category on current conduct as well as past conduct; and (3) failed to consider category V in jumping from category IV to category VI.
36
As to his offense level departure, Hernandez argues that the district court (1) incorrectly based its upward departure on uncharged acts of misconduct; (2) based this departure on insufficient evidence; and (3) was guilty of "double counting" when it upwardly departed based on conduct that had already been accounted for in the base offense level.
37
1. Determination of Criminal History Category.
38
The district court initially determined that Hernandez's criminal history category was IV. However, the district judge stated:
39
When a defendant with * * * [Hernandez's] history commits an offense whose surrounding circumstances, particularly when considered in relation to those past convictions, make it plain that he would be fairly sentenced as a career offender if those surrounding circumstances could be considered, it is entirely consistent with the structure of the Guidelines, including the career offender provisions, to depart upward, at least with respect to criminal history category, to that category specified by the Sentencing Commission for career offenders, category VI, without considering intervening category V.
40
This is not a matter of Hernandez having done almost enough to qualify as a career offender and therefore being treated as one based on a "near miss." Rather, it is plain that when one considers what the Sentencing Commission itself determined in general to be "relevant conduct," i.e., "acts * * * committed * * * by the defendant or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction," U.S.S.G. § 1B1.3(a)(1), Hernandez, by employing a weapon in aid of drug trafficking, has done everything necessary to qualify as a career offender. It is reasonable to depart upward at least to apply the criminal history category of such an offender.
41
United States v. Hernandez, 753 F.Supp. 1191, 1199 (S.D.N.Y.1990) (citations omitted).
42
Under the guidelines, an individual sentenced as a career offender is automatically assigned a criminal history category of VI. U.S.S.G. § 4B1.1. In assigning Hernandez this category, the district judge made it clear that he was not attempting to sentence Hernandez as a career offender, but was instead relying on relevant conduct. However, while it is proper for a district court to consider some relevant conduct in determining a defendant's criminal history category, it may do so only with respect to the circumstances surrounding the defendant's prior convictions, and not with respect to the current offense.
43
Relevant conduct is discussed in § 1B1.3 of the guidelines, where a distinction is drawn between the relevant conduct that is applicable to offense conduct level (covered in Chapter Two) and adjustments to offense levels (covered in Chapter Three) on the one hand, and the relevant conduct that applies to criminal history and criminal livelihood (covered in Chapter Four), and the determination of the sentence (covered in Chapter Five) on the other hand. For offense conduct and adjustments, § 1B1.3(a)(1), in sweeping language directs that "all acts and omissions committed or aided and abetted by the defendant" may be considered, whereas for criminal history, criminal livelihood, and the determination of the sentence, the relevant conduct that may be considered is limited to "the conduct and information specified in the respective [chapters of the] guidelines." § 1B1.3(b). From this it follows that the type of relevant conduct applicable in determining the criminal history category is sharply limited to those specific types of conduct that are specified in the particular guidelines sections. Section 1B1.3(a)(1) applies only to offense conduct and adjustments, and it was incorrect for the district court to rely on that section as authorization for its increase in Hernandez's criminal history category.
44
It is § 4A1.3 that articulates the conduct relevant for determining criminal history, and that section makes it clear that only prior conduct may be considered. See § 4A1.3(a)-(e). While the section allows the sentencing judge to consider a defendant's "likelihood of recidivism," see § 4A1.3, comment. (backg'd.), this determination, too, should be decided on the basis of the defendant's prior conduct only. In short, current criminal conduct should not be used in determining a defendant's criminal history category; the "history" to be considered is prior conduct. See United States v. Cervantes, 878 F.2d 50, 53 (2d Cir.1989) (In calculating a defendant's criminal history category, the district court must "determine which category best encompasses the defendant's prior history, and * * * use the corresponding sentencing range for that category to 'guide its departure.' ") (emphasis added); United States v. Sappe, 898 F.2d 878, 882 (2d Cir.1990) ("[A]n upward departure may be warranted when the criminal history category significantly under-represents the seriousness of the defendant's criminal history.")
45
It may well be that under a correct analysis of Hernandez's prior criminal history, his criminal history category should be VI; however, the district court cannot properly reach that conclusion by considering, as it did, current, uncharged conduct; instead, it should weigh only Hernandez's prior criminal history. An upward departure in a defendant's criminal history category should only occur
46
[w]here * * * "prior acts" are "similar" to the offense of conviction and the criminal history category does not "adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes," the sentencing judge may make a part 4A departure by selecting a sentencing range applicable to a defendant with a higher criminal history category.
47
United States v. Kim, 896 F.2d 678, 683 (2d Cir.1990) (citations omitted).
48
Because the district court erred in determining Hernandez's criminal history category based on current, uncharged conduct, there is no need to discuss whether the district court adequately stated the reasons for moving from category IV to category VI of criminal history. Because we are remanding for resentencing, however, we do address the issues that Hernandez raises regarding his offense level, in order to avoid reconsideration of those issues on any subsequent appeal, should there be one.
49
2. Determination of Offense Level.
50
Hernandez argues that the district court incorrectly determined an upward departure in his offense level. We reject this argument.
51
The district court granted Hernandez a two-point reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, but then upwardly departed because of his conclusion that Hernandez had used a weapon in dealing drugs. In considering Hernandez's offense level, the district court concluded that "based on both the amount of money and on the presence of the triple beam scale * * * [I find that] Hernandez was dealing in what the government has called a 'white powder' drug of the sort usually weighed out on such a sensitive scale--i.e., cocaine or heroin." Hernandez, 753 F.Supp. at 1199.
52
In determining the extent of the upward departure called for by this "relevant conduct" based on the offense of conviction, the district court attempted "to approach as closely as possible the standards set by those who have fixed the sanctions for what Hernandez actually did." Id. In making this determination, the district judge looked outside the guidelines, to 18 U.S.C. § 924(c)(1), which prescribes a five-year mandatory minimum for a defendant who uses a weapon in the course of committing a drug offense. This five-year sentence shall be "in addition to the punishment provided for such crime of violence or drug-trafficking crime * * *." § 924(c)(1). As a result, after determining Hernandez's base offense level, the district court then added to it a departure measured by this five-year mandatory sentence.
53
Hernandez contends that in doing this, the district court ignored the procedures for upward departures set out in Kim. See Kim, 896 F.2d at 681-86. He also claims that there are "no persuasive reasons or authority for imposing a sentence from 'outside the Guidelines.' "
54
In determining the extent of its upward departure, the district judge explicitly referred to Kim, and we believe that his careful explanation satisfies that case's requirements for upward departures. The resulting sentence, based on the mandatory minimum set by congress in § 924(c) for the offense that would apply to Hernandez's relevant conduct, did not exceed what Hernandez would have received had he been convicted under § 924(c), which was one of our concerns in Kim. See Kim, 896 F.2d at 684.
55
Another question is whether the ultimate sentence is reasonable. If the district court finds, as it did here, "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines * * * ", the court may impose a sentence outside the range of the guidelines. 18 U.S.C. § 3553(b); see also, U.S.S.G. § 5K2.0. In reviewing such a sentence, we must determine that it is not "unreasonable". See 18 U.S.C. § 3742(f)(2); United States v. Correa-Vargas, 860 F.2d 35, 36-37 (2d Cir.1988). We also "have recognized a 'wide discretion' in the district judge to consider and determine what circumstances might justify * * * [an upward] departure." United States v. Colon, 905 F.2d 580, 584 (2d Cir.1990) (citations omitted).
56
Under these principles, we have no trouble in concluding that this upward departure in offense level was reasonable. The district judge carefully considered all the factors surrounding Hernandez's conviction, determined that the guideline range was insufficient and that some upward departure was warranted, and then, in attempting to determine how much of a departure was fair, looked to a federal statute that directly addressed the conduct that served as the basis for the upward departure. The district court found: "[T]he aggregate prison sentence imposed on Hernandez is 90 months. I believe this sentence is reasonable when one considers that the maximum term of imprisonment for the offense to which Hernandez pleaded guilty is 10 years * * *." Hernandez, 753 F.Supp. at 1200. The district court's use of the statute as a guide was proper, and the resulting offense level was reasonable.
57
Hernandez also contends that using § 924(c), even as a reference point in sentencing, when he was not convicted of that crime, violates due process. However, since it is clear that the district court had the authority to make some upward departure, and since it used § 924(c) only as an aid in determining a fair and reasonable sentence, there was no due process violation. The district judge satisfied the requirements both of § 3553(b) and of the guidelines developed in Kim.
58
4. Sufficiency of the Evidence.
59
Hernandez next contends that there was insufficient evidence to support the district court's findings that he was involved in "white powder" drug trafficking, and that the gun was used in connection with this activity. According to Hernandez, "there simply was not enough evidence of a predicate drug offense to support a § 924(c) conviction", since "mere possession of a weapon in an apartment known to contain narcotics paraphernalia does not automatically lead to a finding of 'use' as required under § 924(c)."
60
The district court's finding regarding the use of the weapon is subject to the "clearly erroneous" standard. See 18 U.S.C. § 3742(e)(4); United States v. Lanese, 890 F.2d 1284, 1291 (2d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2207, 109 L.Ed.2d 533 (1990). We have previously held "that a weapon is used in connection with drug trafficking if it is kept on hand to protect [an] 'apartment as a storage and processing point for large quantities of narcotics.' " United States v. Torres, 901 F.2d 205, 241 (2d Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990) (citation omitted); see also, United States v. Alvarado, 882 F.2d 645 (2d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1114, 107 L.Ed.2d 1021 (1990); United States v. Meggett, 875 F.2d 24 (2d Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 166, 107 L.Ed.2d 123 (1989).
61
Hernandez admitted that he had the gun for "protection", and this admission, together with the discovery in the apartment of more than $35,000 in cash, the portable telephone, the beeper, and the scale, amply support a finding that the gun was used in drug trafficking. The district court's finding was thus not clearly erroneous.
62
5. The Base Offense Level and "Double Counting".
63
Hernandez's final argument is that the district court erred in twice counting his possession of the weapon in determining his sentence. We reject this argument. The district judge first determined Hernandez's base offense level. To do this, he was required to apply the actual conviction--possession of a weapon by a felon--to the guidelines. But as discussed above, the district judge also concluded that an upward departure was warranted because he found that the weapon had been used in drug trafficking. This improper "use" is separate and distinct from the conduct forming the basis of conviction--mere possession of the weapon--and there is therefore no reason to conclude that the same activity was applied twice by the district court in determining Hernandez's sentence.
CONCLUSION
64
We reject Hernandez's arguments regarding his suppression motion, and affirm his conviction. We also reject Hernandez's challenges to the sentence insofar as they are directed at the upward departure in his offense level. However, because the district court incorrectly used current conduct to determine Hernandez's criminal history category, we remand the case for resentencing. If the court on resentencing should determine, based on Hernandez's past conduct alone, that a lower criminal history category is called for, then a different, lower guideline range would result. If that lower range should also produce a lower base sentence, to which the 60-month upward departure in offense level may be applied, then the total sentence would be reduced. If the district court, after fixing a correctly-based criminal history category, should determine that the same base guideline sentence is indicated, then, of course, the resulting final sentence would be the same.
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125 F.3d 1115
UNITED STATES of America, Plaintiff-Appellee,v.Nicol BOMSKI, Brian Ferguson, and Latasha T. Conley,Defendants-Appellants.
Nos. 96-3389, 96-3858 & 97-1795.
United States Court of Appeals,Seventh Circuit.
Argued Sept. 12, 1997.Decided Sept. 26, 1997.
Christian R. Larsen (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee in 96-3389, 96-3858 and 97-1795.
Thomas P. Schneider, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee in 97-1795.
Edward John Hunt (argued), Milwaukee, WI, for Nicol L. Bomski.
William J. Chandek (argued), Chandek & Associates, Brookfield, WI, for Brian Ferguson.
Martin E. Kohler, John C. Thomure, Jr. (argued), Kohler & Hart, Milwaukee, WI, for Latasha T. Conley.
Before CUMMINGS, EASTERBROOK, and KANNE, Circuit Judges.
EASTERBROOK, Circuit Judge.
1
Three convicted bank robbers appeal from their sentences. Brian Ferguson and Latasha Conley, two members of the trio, also contend that the evidence was insufficient to support the convictions; Nicol Bomski, the third defendant, pleaded guilty. We begin with the latter contention, which asks us to turn an unduly favorable jury instruction into outright victory.
2
Bomski testified before the grand jury that Conley and Ferguson recruited her to rob a bank and that the three planned to share the proceeds. They were unable to enjoy the fruits, however, because Bomski struck while FBI agents were watching local banks on a tip; she was arrested soon after she emerged with the loot. Bomski told the prosecutor that at trial she would invoke her privilege against compulsory self-incrimination and refuse to testify. The district judge granted an application for use immunity under 18 U.S.C. § 6002 and instructed Bomski to answer the questions. Her ensuing testimony exculpated both Conley and Ferguson of any illegal acts. The prosecutor then introduced Bomski's grand jury testimony under Fed. R. Evid. 801(d)(1), which says that a statement is not hearsay if "[t]he declarant testifies at the trial ... and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding". Bomski's testimony before the grand jury fits this exception to the hearsay rule and was admissible as substantive evidence. Yet at the end of the trial the judge told the jury:
3
Evidence that on some former occasion a witness made a statement inconsistent with his or her testimony in this case may be considered by you only in determining the credibility of a witness, and not to establish the truth of the matters contained in the prior statement.
4
This pattern instruction does not fit a situation such as the use of former testimony under Rule 801(d)(1)(A). It should not have been given in this case, but the judge did not notice the problem and neither side objected--the defense for obvious reasons, and the prosecutor because familiar instructions get overlooked. Now Conley and Ferguson tell us that this instruction entitles them to victory on the ground that the evidence is insufficient--for the standard is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt", Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original), and a jury willing to follow this instruction could not have found that they committed the crimes, defendants insist.
5
One potential response is that the instruction was so general that it would not have dissuaded a conscientious juror from concluding that Bomski's grand jury testimony--which had been introduced for its truth, and was argued by all parties as substantive evidence--could be considered properly. A second and more fundamental ground supports the verdicts, so we need not pursue the first. It is this: the evidence was sufficient, and it would be absurd to allow bank robbers to go free because an instruction erroneously favorable to them was given at trial. Defendants emphasize the word "rational" in the formulation we quoted from Jackson, but a jury can disregard an instruction without being irrational. "Disobedient" is not a synonym for "irrational." It is preferable to emphasize the word "any" in Jackson's formulation, as the Court itself did. We inquire not whether this jury should have found the evidence sufficient, but whether any jury could have done so. "Just as the standard ... does not permit a court to make its own subjective determination of guilt or innocence, it does not require scrutiny of the reasoning process actually used by the factfinder--if known." 443 U.S. at 320 n. 13, 99 S.Ct. at 2789 n. 13. The hypothetical and objective nature of the inquiry is reinforced by the remainder of the quotation in the preceding paragraph, which directs attention to the "elements of the offense" rather than to the issues framed by the instructions.
6
To see this, suppose the instructions had been unduly favorable to the prosecution. Bank robbery is taking a bank's property "by force and violence, or by intimidation". 18 U.S.C. § 2113(a). Suppose the instructions in this case had omitted the force, violence, or intimidation element, and suppose further that the evidence would not have supported a conclusion that the defendants used force, violence, or intimidation. (Suppose, in other words, that the defendants committed only theft from a bank, which may be accomplished by stealth. See 18 U.S.C. § 2113(b).) The defendants would be entitled to a reversal of this conviction notwithstanding the error in the instructions; the absence of an objection to the jury instructions does not bolster the quantity of evidence available, and the absence of evidence on an element of the offense would require reversal under the plain error doctrine. See Johnson v. United States, --- U.S. ----, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). To determine whether the evidence supports a conviction, an appellate court compares the proofs against the elements of the offense, not against the jury instructions. We ask whether a properly instructed jury rationally could have convicted, not whether an improperly instructed jury should have done so given its imperfect knowledge. So if the judge had told the jury in this case that only people over the age of 100 may be convicted of bank robbery, and the jury nonetheless returned guilty verdicts, we might doubt the jury's willingness to follow instructions, but we would not doubt the sufficiency of the evidence on the actual elements of the offense. Conley and Ferguson concede that a properly instructed jury could have found the evidence sufficient; that is that.
7
All three defendants believe that the judge should not have added two offense levels under U.S.S.G. § 2B3.1(b)(2)(F) for an "express threat of death". Bomski placed a bag on the counter and told the teller: "this is a bomb", followed by "give me all of your money". The judge thought that the reference to a bomb was an express threat of death--and although it may be difficult to see as an original matter how a statement such as "I have a bomb" or "I have a gun" is an express threat of death, we held in United States v. Hunn, 24 F.3d 994 (7th Cir.1994), that the statement "I have a gun" can satisfy the Guidelines' requirement. Application Note 6 tells us that an enhancement is appropriate when the offender "engaged in conduct that would instill in a reasonable person, who is a victim of the offense, significantly greater fear than that necessary to constitute an element of the offense of robbery." A reference to a gun could do this, we concluded in Hunn, and if that is right then a reference to a bomb likewise exposes the robber to an enhancement. A bandit may be more likely to shoot a gun than to detonate a bomb, because the explosion is apt to injure or kill everyone in the vicinity; but willingness to expose oneself to injury may persuade the teller that the robber is a madman, willing to go to any extreme if compliance is not forthcoming.
8
Whether a reasonable teller would draw this inference is uncertain; defendants insist that the only way to be sure is to enforce rigorously the Guidelines' distinction between express and implied threats. They ask us to overrule Hunn. But they do not make any arguments that Hunn overlooked; instead they repeat the views of the dissenting opinion, which the majority found unpersuasive. New developments at the Supreme Court or the Sentencing Commission could lead us to reconsider, but there are none. And reinterpretation of § 2B3.1(b)(2)(F) by this court could not yield a uniform treatment throughout the nation. A conflict among the circuits predated Hunn. Compare United States v. Smith, 973 F.2d 1374 (8th Cir.1992), and United States v. Bell, 12 F.3d 139 (8th Cir.1993), with United States v. Canzater, 994 F.2d 773 (11th Cir.1993), and United States v. Moore, 6 F.3d 715 (11th Cir.1993). The majority in Hunn found the eighth circuit's approach more persuasive, the dissent the eleventh's. Two courts of appeals have lined up behind the majority in Hunn and one behind the dissent. Compare United States v. Figueroa, 105 F.3d 874, 877 (3d Cir.1997), and United States v. Robinson, 86 F.3d 1197, 1200 (D.C.Cir.1996), with United States v. Alexander, 88 F.3d 427, 430-31 (6th Cir.1996). See also United States v. Hogan, 116 F.3d 442, 445 n. 2 (10th Cir.1997) (reserving the question). None of these opinions discloses a line of argument that we previously overlooked. Like Hunn, some of the decisions in other circuits have been rendered by divided panels. Nothing this court could do would yield harmony. Only the Supreme Court or the Sentencing Commission can do that. Therefore we adhere to our precedent, which means that the district court did not err in calculating the offense levels.
9
Bomski advances a separate objection to her offense level. She submits that her plea of guilty entitles her to a two-level reduction for acceptance of responsibility. Yet no one is entitled to the reduction under U.S.S.G. § 3E1.1. See United States v. Gomez, 24 F.3d 924, 926 (7th Cir.1994). The district court must decide whether the defendant has indeed accepted responsibility and evinced a character trait that implies a lower risk of recidivism. Appellate review is accordingly deferential. Far from showing that she had learned her lesson and would rejoin law-abiding society, Bomski committed a new crime in the judge's presence. She contradicted her grand jury testimony. The jury obviously thought that her testimony in court was perjury, which is incompatible with acceptance of responsibility. United States v. Strang, 80 F.3d 1214, 1218 (7th Cir.1996). But even if her testimony at trial had been true, it still would have been a new crime--for 18 U.S.C. § 1623(c) makes it a felony to give inconsistent declarations under oath, and a grant of use immunity does not block a prosecution for telling lies under oath. United States v. Apfelbaum, 445 U.S. 115, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980). Bomski told one story to the grand jury and another to the petit jury; she swore to the petit jury that she had lied to the grand jury; one or the other is untrue, and § 1623(c) says that it doesn't matter which. She should give thanks that the prosecutor did not file charges under § 1623; a lower sentence is hardly the appropriate desert for this conduct.
10
One final contention requires only brief comment. When calculating Ferguson's criminal history, the district court included a conviction for armed bank robbery, and another for bank larceny, for which Ferguson had been sentenced on the same day. The crimes were committed on different occasions, were not part of a single scheme, and led to distinct judgments and sentences, but Ferguson insists that sentencing close in time made the convictions "related" for purposes of U.S.S.G. § 4A1.2(a)(2). Although cases may be deemed consolidated without a formal order of consolidation, see United States v. Joseph, 50 F.3d 401 (7th Cir.1995); United States v. Stalbaum, 63 F.3d 537 (7th Cir.1995), the defendant must establish that some relation among the earlier crimes justifies a lower sentence for the current offense. We can't imagine why reducing the number of times the Marshals Service had to transport Ferguson between prison cells--which was all that sentencing on the same day accomplished--justifies a lower criminal history score. It would increase sentencing disparities, the opposite of the Guidelines' objective, to act as if Ferguson had been convicted of only one of those two crimes.
11
AFFIRMED.
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILOMENE LONG, surviving spouse
and heir-at-law of JOHN THOMAS No. 04-55463
IDLET, deceased, D.C. No.
Plaintiff-Appellant,
CV 03-00531 DSF
v. (PLAx).
COUNTY OF LOS ANGELES, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
December 5, 2005—Pasadena, California
Filed March 28, 2006
Before: Stephen Reinhardt and Johnnie B. Rawlinson,
Circuit Judges, and Claudia Wilken*, District Judge.
Opinion by Judge Wilken
*The Honorable Claudia Wilken, United States, District Judge for the
Northern District of California, sitting by designation.
3341
LONG v. COUNTY OF LOS ANGELES 3345
COUNSEL
Robert Berke, Law Offices of Robert Berke, Santa Monica,
California, for the plaintiff-appellant.
Mildred O’Linn and Janine McMillion, Manning & Marder
Kass, Ellrod, Ramirez, LLP, Los Angeles, California for the
defendant-appellee.
Martin Stein, Alison Turner and Eric R. Cioffi, Greines, Mar-
tin, Stein & Richland, LLP, for the defendant-appellee.
OPINION
WILKEN, Disrict Judge:
John Thomas Idlet, the decedent, reported to the Los Ange-
les County Jail on March 11, 2002, to begin a 120-day jail
sentence. Mr. Idlet was seventy-one years old and suffered
from congestive heart failure and other ailments. Over the
next eighteen days Mr. Idlet’s medical condition deteriorated.
Although nurses saw him several times during that period,
3346 LONG v. COUNTY OF LOS ANGELES
there is no record of a doctor’s examination until the early
morning of March 29, 2002, hours before he died of cardiac
arrest.
Mr. Idlet’s wife, the Plaintiff and Appellant in this action,
filed a complaint, based on 42 U.S.C. § 1983. The district
court dismissed all of the claims against all of the defendants
except the County, against whom Appellant asserted munici-
pal liability for failing adequately to train jail medical staff
and failing to implement necessary medical policies, leading
to the denial of adequate medical care which resulted in Mr.
Idlet’s death. The County moved for summary judgment.
The district court granted the County’s motion and found
that, while a triable issue of fact existed as to whether jail
medical staff had deprived Mr. Idlet of constitutionally ade-
quate medical care, summary judgment as to the County was
appropriate because, under Monell v. Department of Social
Services, 436 U.S. 658 (1978), Appellant had failed to raise
a triable issue as to whether the County had a policy of delib-
erate indifference to prisoners’ medical needs. Appellant
appeals the district court’s grant of summary judgment, argu-
ing that triable issues of fact exist on the matter of municipal
liability.
We hold that Appellant has presented sufficient evidence to
create a triable issue regarding the County’s liability for Mr.
Idlet’s death. Accordingly, we reverse the district court’s
order granting summary judgment and remand for further pro-
ceedings.
FACTUAL BACKGROUND
Except as noted, the following facts are undisputed.1 On
1
The statement of facts is drawn from the County’s Separate Statement
of Undisputed Facts filed in support of the motion for summary judgment,
which the district court found to be uncontroverted, and from the facts
stated in Appellant’s responses to the County’s undisputed facts, which
the district court accepted as true for purposes of the motion.
LONG v. COUNTY OF LOS ANGELES 3347
March 11, 2002, when the seventy-one year old Mr. Idlet
reported to the County Jail to begin serving his 120-day jail
sentence, he weighed more than 350 pounds and, as noted
above, suffered from congestive heart failure and other ail-
ments. From 1998 until March 11, 2002, Mr. Idlet had been
under the care of Dr. Kenneth Rosenfeld of the Veterans
Administration Greater Los Angeles Healthcare System (VA).
During that period Dr. Rosenfeld closely monitored Mr.
Idlet’s condition and adjusted his medications in conjunction
with an overall care plan that included supervised exercise
and diet. While under Dr. Rosenfeld’s care Mr. Idlet had no
major hospitalizations or complications of his illness.
On March 7, 2002, four days before Mr. Idlet reported to
the County Jail, his attorney wrote a letter to the Director of
the County Jail Medical Services Division, explaining Mr.
Idlet’s medical condition and his need for monitoring, listing
his medications and noting Dr. Rosenfeld’s assessment “that
without close supervision of both medication and exercise,
Mr. Idlet’s death will be imminent.” On March 11, 2002, the
date Mr. Idlet was admitted to the County Jail, the committing
superior court judge issued an order directing the County Jail
to provide Mr. Idlet with a medical examination and to advise
the court of the results. The court attached to the order two
letters from Dr. Rosenfeld which outlined Mr. Idlet’s medical
needs.
On March 12, 2002, Mr. Idlet was transferred to the hospi-
tal ward at the County Jail. On that same day a jail physician
ordered that he be transferred to the County Jail’s Medical
Services Bureau (MSB), a correctional treatment facility des-
ignated to provide health care to prisoners who do not require
acute care services but are in need of professionally super-
vised health care. The MSB is not a licensed acute care facil-
ity. It is not staffed with physicians around the clock—they
are present from 6:00 a.m. until 8:00 p.m. on weekdays, and
during the remaining hours and on weekends a physician is on
3348 LONG v. COUNTY OF LOS ANGELES
call—and in 2002 it did not have cardiac monitors or a radiol-
ogist available.
Mr. Idlet was admitted to the MSB on March 13, 2002. The
nurses were instructed to monitor him for any changes in
mental, sensory and motor functions, to assess him for signs
and symptoms of acute cardiac distress such as chest pains
and shortness of breath, and to notify a doctor as needed.
The parties differ in their characterization of the care
received by Mr. Idlet while he was in the MSB. The County
asserts that the conditions in the MSB were “not essentially
different from being in a hospital bed in a hospital facility,”
and that the MSB medical staff consistently took care of Mr.
Idlet’s medical needs. Appellant presents affidavits, deposi-
tion testimony and other evidence to support the assertion that
Mr. Idlet’s care was inadequate, and highlights the following
facts.
Upon admission to the MSB on March 13, Mr. Idlet was
not assigned promptly to a bed and was forced to wait for
thirty-eight hours in a wheelchair, during which time he did
not receive his required medications. On March 15, the nurse
called the on-call physician with a report that Mr. Idlet’s feet
were red and swollen with 3+ edema2; however, a physician
did not see him. On March 18, the nurse recorded that Mr.
Idlet was short of breath with labored respiration and a pulse
of 100 beats per minute, but the nurse did not call the doctor.
On March 19, the nurse recorded that Mr. Idlet claimed he got
short of breath when walking a short distance and that both
of his feet were swollen and slightly red, but the nurse did not
refer him to a doctor.
On March 21, Mr. Idlet asked to be seen by the doctor
2
Swelling of the extremities which results from congestive heart failure
is called peripheral edema. According to the declaration of Appellant’s
expert, Dr. Alberta Warner, the most severe level of swelling is 4+.
LONG v. COUNTY OF LOS ANGELES 3349
because “[m]y leg is getting worse, “and the nurse recorded
that he had “an enlarged abdomen, hard to touch. Noted both
lower legs swollen with redness to the feet. (Pitting edema).”
Later in the day the nurse recorded increased swelling and
placed Mr. Idlet on the doctor’s line for evaluation, but a doc-
tor did not see him that day. On March 22, Dr. Wallace
entered a progress note that Mr. Idlet’s dose of Lasix (a
diuretic) was increased. The progress note does not indicate
that Mr. Idlet was actually seen by a physician.
On March 25, Mr. Idlet’s medications were withheld with-
out reason. On March 26, the nurse recorded that Mr. Idlet’s
left foot was red and swollen and that he was coughing. A
physician was called but did not see Mr. Idlet, who was
instead referred for evaluation to the medical line, where his
heart rate was recorded as 115. Shortly thereafter Mr. Idlet
was seen by Dr. Wallace who recorded right leg swelling but
did not mention the increased heart rate.
On March 28, Mr. Idlet fell while trying to get to the bath-
room. There is no documented examination by a doctor and
only a skin examination was conducted by the nurse, even
though Mr. Idlet was on Coumadin, a blood thinner, and so
would be at risk for internal bleeding after a fall. Approxi-
mately five hours later the nurse recorded that Mr. Idlet was
“very swollen,” that he had a bedsore on his tailbone, and that
he was short of breath. The nurse’s notes state that Mr. Idlet
was seen by a doctor but there are no doctor’s notes. Mr. Idlet
was placed on high flow oxygen. At 8:03 p.m. on March 28,
Mr. Idlet refused further oxygen therapy although it was
offered to him by a nurse. The nurse’s notes state that Mr.
Idlet refused oxygen and then was presented with a release
from responsibility, which he signed.
At 9:34 p.m. on March 28, the nurse recorded that Mr. Idlet
had “low brown urine output” and bilateral crackles on the
lung fields, but no doctor was called. According to Appel-
lant’s expert doctors, Dr. Alberta Warner, the chair of the car-
3350 LONG v. COUNTY OF LOS ANGELES
diology department at the VA, and Dr. Rosenfeld, Mr. Idlet’s
treating physician at the VA, these signs indicate decompen-
sated congestive heart failure. Less than one hour later, Mr.
Idlet was found on the floor, having defecated on himself;
three staff members were unable to get him back on the bed.
The nurse’s notes state that Mr. Idlet had severe ascites, or
fluid, in the belly, which hindered moving him; still, no doc-
tor came to examine him. Because the medical staff was
unable to move him from the floor to his bed, Dr. Johnson,
without seeing Mr. Idlet, ordered him to be moved from the
floor onto an eggcrate mattress.
On March 29, the nurse recorded findings of congestive
heart failure (diminished breath sounds, moist coughing,
shortness of breath), a severe decrease in oxygen saturation
and low blood pressure. Dr. Johnson was called and ordered
Mr. Idlet’s transfer to the hospital by ambulance, which
occurred at 12:44 a.m. Mr. Idlet suffered cardiac arrest and
died at the hospital on March 29 at 2:56 p.m. The autopsy
report states that Mr. Idlet died from decompensated conges-
tive heart failure and pulmonary edema.
When Mr. Idlet was in the MSB, written County Jail poli-
cies required physicians to write, sign and date all orders; to
complete an admitting order outlining the level of care, diet,
diagnosis, and level of activity for the inmate; to re-evaluate
the inmate at least every thirty days or upon change of attend-
ing physician and upon transfer; to complete medical record
progress notes at least every three days; and to complete a
written history and physical examination of the inmate. Writ-
ten policy also required registered nurses to write admission
notes; to identify the inmate’s care needs based upon an initial
written and continuing assessment, with input as necessary
from health professionals involved in the inmate’s care; to
develop an individual written patient care plan; to review,
evaluate and update the patient care plan, as necessary; to
document implementation of the care plan, the inmate’s
response to care, and changes in the inmate’s symptoms of
LONG v. COUNTY OF LOS ANGELES 3351
behavior; and to document on every shift the inmate’s physi-
cal condition, mental status, lab data or any other pertinent
medical findings. With respect to both doctors and nurses,
written County Jail policy provided, “All persons within each
discipline shall adhere to State licensing regulations govern-
ing the policy and procedures of Medical Services.”
According to the depositions of MSB medical staff and
written jail policies, whether an inmate should be transferred
to another facility depends on the judgment of the physician
reviewing the inmate’s health status and any transfer must be
ordered by a physician. If an inmate suffers from an unstable
acute medical problem, transfer to the Los Angeles County
Medical Center is required. When such conditions as chest
pain and acute onset or exacerbations of shortness of breath
are present, immediate emergency transport by a 911 parame-
dic is required.
PROCEDURAL BACKGROUND AND JURISDICTION
Appellant filed her complaint originally in Los Angeles
County Superior Court. The complaint alleged a violation of
42 U.S.C. § 1983 and State law claims for negligence and
negligent hiring. The County, Does 1-20 and four individuals
were named as defendants. The County removed the action to
the district court, and the district court dismissed the case
against all defendants except the County. Subsequently, the
district court permitted Appellant to amend the complaint to
assert State law claims of negligence against two County Jail
doctors.
After the district court granted the County’s motion for
summary judgment on the § 1983 claim and dismissed the
action as to the County, the remaining complaint contained
only State law claims which, pursuant to stipulation of the
parties under 28 U.S.C. § 1367(c)(3), the district court dis-
missed without prejudice. Appellant filed a timely notice of
appeal. This court has jurisdiction over the appeal under 28
3352 LONG v. COUNTY OF LOS ANGELES
U.S.C. § 1291 because the order appealed from is a final deci-
sion of the district court.3
STANDARD OF REVIEW
We review de novo the district court’s order granting sum-
mary judgment. See Buono v. Norton, 371 F.3d 543, 545 (9th
Cir. 2004). This court’s review is governed by the same stan-
dard used by the district court under Federal Rule of Civil
Procedure 56(c). Suzuki Motor Corp. v. Consumers Union,
Inc., 330 F.3d 1110, 1131 (9th Cir.), cert. denied, 540 U.S.
3
A separate judgment on the order granting summary judgment was not
issued, as required by Federal Rule of Civil Procedure 58(a)(1), and
entered on the docket, as required by Federal Rule of Civil Procedure
79(a). However, “neither the Supreme Court nor this court views satisfac-
tion of Rule 58 as a prerequisite to appeal.” Casey v. Albertson’s, Inc., 362
F.3d 1254, 1258 (9th Cir.), cert. denied, 543 U.S. 870 (2004) (quoting
Kirkland v. Legion Ins. Co., 343 F.3d 1135, 1140 (9th Cir. 2003)). Rather,
where the district court’s order is a full adjudication of the issues and
clearly evidences the judge’s intention that it be the court’s final act in the
matter, the filing of an appeal, in conjunction with the parties proceeding
before the appellate court as if a separate judgment had been entered, indi-
cates an acknowledgment by the parties that a final judgment has been
entered. Id. at 1259. A mechanical application of Rule 58 is not required
when the parties and the judge all have indicated that they treat a district
court entry as a final, separate judgment. Id.
Here, the district court’s March 5, 2004, order granting summary judg-
ment fully adjudicated all claims against the County. Three days later, on
March 8, 2004, the district court dismissed the remaining supplemental
claims against the individual defendants, thus terminating the action. On
March 9, 2004, Appellant filed her notice of appeal. The parties have pro-
ceeded as if a separate judgment had been entered. Accordingly, Rule 58
does not require dismissal of the appeal. Moreover, the appeal is timely
because the entry of judgment became effective 150 days after entry of the
district court’s order granting summary judgment. See Ford v. MCI
Commc’ns Corp. Health & Welfare Plan, 399 F.3d 1076, 1081 (9th Cir.
2005). The fact that Appellant filed her notice of appeal before the entry
of judgment under the terms of Rule 58 is not problematic; Federal Rule
of Appellate Procedure 4(a)(2) provides that the filing of a premature
notice of appeal “ ‘is treated as filed on the date of and after the entry.’ ”
Id. (quoting Fed. R. App. P. 4(a)(2)).
LONG v. COUNTY OF LOS ANGELES 3353
983 (2003). We must determine, viewing the evidence in the
light most favorable to the non-moving party, whether there
are any genuine issues of material fact and whether the district
court correctly applied the relevant substantive law. Olsen v.
Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).
Material facts are those which may affect the outcome of the
case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute as to a material fact is genuine if there is
sufficient evidence for a reasonable jury to return a verdict for
the non-moving party. Id.
The moving party has the burden of showing the absence
of any genuine issue of fact. Adickes v. S.H. Kress & Co., 398
U.S. 144, 153 (1970). To defeat summary judgment the non-
moving party must go beyond the pleadings and, by its own
affidavits or discovery, “set forth specific facts showing that
there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). If the
non-moving party fails to make this showing, “the moving
party is entitled to judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
DISCUSSION
[1] “[T]he treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny
under the Eighth Amendment.” Helling v. McKinney, 509
U.S. 25, 31 (1993). Deliberate indifference to a prisoner’s
serious medical needs violates the Eighth Amendment’s pro-
scription against cruel and unusual punishment. Estelle v.
Gamble, 429 U.S. 97, 104 (1976).
Title 42 U.S.C. § 1983 provides a cause of action for the
“deprivation of any rights, privileges, or immunities secured
by the Constitution and laws” of the United States. To state
a claim under § 1983, a plaintiff must allege two essential ele-
ments: (1) that a right secured by the Constitution or laws of
the United States was violated, and (2) that the alleged viola-
3354 LONG v. COUNTY OF LOS ANGELES
tion was committed by a person acting under the color of
State law. West v. Atkins, 487 U.S. 42, 48 (1988).
[2] Municipalities are “persons” under 42 U.S.C. § 1983
and thus may be liable for causing a constitutional depriva-
tion. Monell, 436 U.S. at 690. A municipality may not be sued
under § 1983 solely because an injury was inflicted by its
employees or agents, however. Id. at 694. Instead, it is only
when execution of a government’s policy or custom inflicts
the injury that the municipality as an entity is responsible. Id.
A policy is “ ‘a deliberate choice to follow a course of action
. . . made from among various alternatives by the official or
officials responsible for establishing final policy with respect
to the subject matter in question.’ ” Fairley v. Luman, 281
F.3d 913, 918 (9th Cir. 2002) (per curiam) (citing Oviatt v.
Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992) (quoting Pem-
baur v. City of Cincinnati, 475 U.S. 469, 483 (1986)).
[3] A policy can be one of action or inaction. See City of
Canton v. Harris, 489 U.S. 378, 388 (1989). Under Canton,
a plaintiff can allege that through its omissions the municipal-
ity is responsible for a constitutional violation committed by
one of its employees, even though the municipality’s policies
were facially constitutional, the municipality did not direct the
employee to take the unconstitutional action, and the munici-
pality did not have the state of mind required to prove the
underlying violation. Id. at 387-89. To impose liability against
a county for its failure to act, a plaintiff must show: (1) that
a county employee violated the plaintiff’s constitutional
rights; (2) that the county has customs or policies that amount
to deliberate indifference; and (3) that these customs or poli-
cies were the moving force behind the employee’s violation
of constitutional rights. Gibson v. County of Washoe, 290
F.3d 1175, 1193-94 (9th Cir. 2002), cert. denied, 537 U.S.
1106 (2003).
A. Deprivation of a Constitutional Right
[4] In the present case, the district court concluded that
Appellant had raised a genuine issue of triable fact regarding
LONG v. COUNTY OF LOS ANGELES 3355
whether MSB medical staff acted with deliberate indifference
to Mr. Idlet’s serious medical needs, in violation of the Eighth
Amendment. This finding is not disputed by either party.
Thus, Appellant has alleged facts from which a jury could
find that Mr. Idlet suffered a constitutional deprivation.
B. Deliberate Indifference
Appellant alleges that the County is liable for deliberate
indifference to Mr. Idlet’s serious medical needs because of
its policies of inaction in the following areas: (1) its failure
adequately to train MSB medical staff, and (2) an absence of
adequate general policies to guide the medical staff’s exercise
of its professionally-informed discretion.
1. Failure to train
[5] A municipality’s failure to train an employee who has
caused a constitutional violation can be the basis for § 1983
liability where the failure to train amounts to deliberate indif-
ference to the rights of persons with whom the employee
comes into contact. See Canton, 489 U.S. at 388. The issue is
whether the training program is adequate and, if it is not,
whether such inadequate training can justifiably be said to
represent municipal policy. Id. at 390.
In Board of County Commissioners v. Brown, 520 U.S. 397
(1997), the Supreme Court discussed the circumstances under
which inadequate training can be the basis for municipal lia-
bility. The first is a deficient training program, “intended to
apply over time to multiple employees.” Id. at 407 (citation
omitted). The continued adherence by policymakers “to an
approach that they know or should know has failed to prevent
tortious conduct by employees may establish the conscious
disregard for the consequences of their action—the ‘deliberate
indifference’—necessary to trigger municipal liability.” Id.
(citation omitted). Further, “the existence of a pattern of tor-
tious conduct by inadequately trained employees may tend to
3356 LONG v. COUNTY OF LOS ANGELES
show that the lack of proper training, rather than a one-time
negligent administration of the program or factors peculiar to
the officer involved in a particular incident, is the ‘moving
force’ behind the plaintiff’s injury.” Id. at 407-08 (citation
omitted).
A plaintiff also might succeed in proving a failure-to-train
claim without showing a pattern of constitutional violations
where “a violation of federal rights may be a highly predict-
able consequence of a failure to equip law enforcement offi-
cers with specific tools to handle recurring situations.” Id. at
409. The Brown Court explained:
The likelihood that the situation will recur and the
predictability that an officer lacking specific tools to
handle that situation will violate citizens’ rights
could justify a finding that policymakers’ decision
not to train the officer reflected “deliberate indiffer-
ence” to the obvious consequence of the policy-
makers’ choice—namely, a violation of a specific
constitutional or statutory right.
Id.
In the present case, the district court found that Appellant
had not shown that County policy was the cause of Mr. Idlet’s
injuries because she had not presented evidence that the
County knew or should have known that its failure to train its
employees would likely result in a constitutional violation.
Rather, the court found, the evidence showed at most that an
individual health care provider may have acted negligently in
the care of a single patient. The district court further con-
cluded that, even if liability could be found based on an iso-
lated incident, the County’s policy of leaving medical
decision-making up to trained medical personnel did not con-
stitute a policy of deliberate indifference.
LONG v. COUNTY OF LOS ANGELES 3357
a. Reliance on trained medical professionals
The County argues that, as a matter of law, a policy of reli-
ance upon the trained professional doctors and nurses who
worked in the MSB cannot amount to deliberate indifference
because the alleged deficiencies identified by Appellant fall
within the province of medical and nursing schools, and noth-
ing in the record suggests that the County had reason to
believe the professional medical training received by the MSB
doctors and nurses was deficient. This argument is contrary to
this court’s case law, which holds that, even where trained
professionals are involved, a plaintiff is not foreclosed from
raising a genuine issue of triable fact regarding municipal lia-
bility when evidence is presented which shows that the
municipality’s failure to train its employees amounts to delib-
erate indifference. Indeed, the County’s argument would
allow municipalities to insulate themselves from liability for
failing to adopt needed policies by delegating to trained per-
sonnel the authority to decide all such matters on a case by
case basis, and would absolve the governmental agencies of
any responsibility for providing their licensed or certified
teachers, nurses, police officers and other professionals with
the necessary additional training required to perform their par-
ticular assignments or to implement the agency’s specific pol-
icies.
[6] In Miranda v. Clark County, 319 F.3d 465 (9th Cir.
2003) (en banc), this court clarified that a municipality may
be charged with the failure to train even where trained profes-
sionals are involved. The plaintiff, a former defendant whose
capital murder conviction was overturned on collateral review
on grounds of ineffective assistance of counsel, sued the
county’s public defender’s office under § 1983 for imple-
menting policies which led to his wrongful conviction. The
complaint alleged that the county had a policy of assigning
the least experienced attorneys to capital cases without pro-
viding any training, thus demonstrating callous indifference to
the defendant’s constitutional rights. Id. at 471. The county
3358 LONG v. COUNTY OF LOS ANGELES
argued that, as a matter of law, there was no callous disregard
of constitutional rights because attorneys who have graduated
from law school and passed the bar should be considered ade-
quately trained to handle capital murder cases. Id. The district
court dismissed the action for failure to state a claim upon
which relief could be granted. On appeal, this court reversed
and remanded, holding that the plaintiff stated a claim for
municipal liability based on deliberate indifference to his con-
stitutional rights because he alleged “not merely an isolated
assignment of an inexperienced lawyer, but a deliberate pat-
tern and policy of refusing to train lawyers for capital cases
known to the county administrators to exert unusual demands
on attorneys.” Id.
In Johnson v. Hawe, 388 F.3d 676 (9th Cir. 2004), cert.
denied, 125 S. Ct. 2294 (2005), this court rejected again the
notion that a county can rely on the fact that its employees are
trained professionals in order to avoid municipal liability.
There, an arrestee filed suit under § 1983 alleging that he had
been arrested, prosecuted and incarcerated in violation of the
Fourth Amendment. In support of his claim of municipal lia-
bility he submitted the declaration of a law enforcement
expert who opined that the police department’s “self-training”
program, which assigned responsibility to the individual offi-
cer for keeping abreast of recent court decisions involving law
enforcement, amounted to a failure to train police officers
about enforcement of the State statute under which the plain-
tiff had been arrested. Id. at 686. Without addressing the
plaintiff’s failure-to-train argument or the expert’s supporting
evidence, the district court rejected the municipal liability
claim because the plaintiff had set forth no evidence to sup-
port the existence of a policy or custom which had been fol-
lowed in his arrest. This court reversed and remanded.
Finding that there were a number of cases which addressed
enforcement of the State statute by public officials, the court
held that the expert’s declaration created “at least a genuine
issue as to whether ‘self-training’ in this context amounted to
deliberate indifference.” Id.
LONG v. COUNTY OF LOS ANGELES 3359
[7] Thus, contrary to the district court’s conclusion, the
County’s policy of hiring trained medical professionals does
not insulate it from municipal liability as a matter of law.
b. Adequacy of training
Appellant claims that the County failed adequately to train
jail medical staff to document patients’ conditions and to
monitor and assess the need for patients to be transferred to
a facility with a higher level of medical care. A county’s fail-
ure adequately to train its employees to implement a facially
valid policy can amount to deliberate indifference. See Berry
v. Baca, 379 F.3d 764, 768 (9th Cir. 2004) (even where coun-
ty’s policy for releasing inmates was theoretically reasonable,
as a matter of law the county could not be immune from alle-
gations that, in practice, its implementation of the policy
amounted to deliberate indifference); Munger v. City of Glas-
gow Police Dep’t, 227 F.3d 1082, 1088 (9th Cir. 2000) (pol-
icy of helping intoxicated individuals would not insulate
county from liability for individual’s death if plaintiff could
show that the deprivation was caused by the police depart-
ment’s deliberate indifference in failing adequately to train
officers).
[8] It is undisputed that the County knew of Mr. Idlet’s
medical condition and that the MSB unit was not equipped to
care for acutely ill patients. Appellant argues that given the
known limitations of the MSB unit it was obvious that MSB
medical staff would need special training in order to care ade-
quately for medically unstable patients and to assess whether
such patients should be transferred to the hospital. Appellant
has presented declarations of experts who, based on their
review of Mr. Idlet’s medical records for the eighteen days he
was in the MSB and the depositions of MSB medical staff,
opine that the MSB nurses had not been trained adequately in
monitoring, documenting and assessing patients’ acute medi-
cal conditions within the confines of a limited-care facility
such as the MSB, and that this failure to train led to a fatal
3360 LONG v. COUNTY OF LOS ANGELES
delay in Mr. Idlet’s care, resulting in his death. Appellant’s
experts further opine that, despite the County Jail’s general
policy requiring that medically unstable inmates be seen by a
doctor and transferred to a hospital for acute care, the County
had failed to train the MSB doctors adequately as to the
urgency with which medically unstable patients must be seen
and assessed in light of the MSB’s limited medical facilities.
In rebuttal, the County provides testimony of its expert doc-
tors and the MSB nurses, as well as relevant portions of the
medical record, to show that Mr. Idlet was seen by nurses
fifty times while he was in the MSB and that the staff cared
for him diligently. The County asserts that the alleged
instances of the MSB medical staff’s neglect were isolated
occurrences that do not reflect deliberate indifference and
cannot be the basis for municipal liability.
[9] The evidence creates a triable issue of fact regarding
whether the County’s policy of relying on medical profession-
als without training them how to implement proper proce-
dures for documenting, monitoring and assessing patients for
medical instability within the confines of the MSB amounted
to deliberate indifference.
2. Failure to Implement Policies
In addition to a theory of municipal liability based on the
County’s failure adequately to train its medical staff, Appel-
lant asserts that the County is liable for its failure to develop
and implement necessary policies including a fall policy, a
transfer policy, and a policy requiring prompt medical assess-
ment in the event that an inmate refuses an essential medical
treatment such as oxygen. The County argues that the policies
it had in place were constitutionally sound. Below, the district
court rejected Appellant’s argument, holding that “Plaintiff’s
insistence that the County should have had specific guidelines
on how an MSB doctor was to treat each of [Mr. Idlet’s]
symptoms, from crackles on bilateral lung fields to dark urine
LONG v. COUNTY OF LOS ANGELES 3361
to swelling to incontinence, would require the County to
create a policy to address every medical exigency an MSB
doctor might encounter.” Long v. County of Los Angeles, No.
03-00531 DSF, Order Granting Defendant’s Motion for Sum-
mary Judgment at 9 (Feb. 10, 2004). Appellant maintains that
the district court’s reasoning does not accurately address her
argument, which is that the policy deficiency was not a failure
to instruct on each specific medical symptom, but a failure to
have adequate general policies.
[10] This court consistently has found that a county’s lack
of affirmative policies or procedures to guide employees can
amount to deliberate indifference, even when the county has
other general policies in place. For example, in Gibson, a
mentally ill detainee died while in the custody of the county
jail. The decedent’s wife sued the county, alleging that it had
acted with deliberate indifference to her husband’s mental ill-
ness. The district court granted summary judgment in favor of
the county. On appeal, this court reversed and remanded, find-
ing that the county’s policy—which precluded a medical eval-
uation for an incoming detainee who was uncooperative,
combative, or intoxicated—failed adequately to instruct the
nurse on duty how to act upon medical information, including
information from prescription medications, which she
obtained from the detainee. The court held that a jury could
find that the omission was sufficiently likely to result in the
violation of the detainee’s right to medical care that the
county was deliberately indifferent to those needs. 290 F.3d
at 1195. “When policymakers know that their medical staff
members will encounter those with urgent mental health
needs yet fail to provide for the identification of those needs,
it is obvious that a constitutional violation could well result.”
Id. at 1196.
In Fairley, an arrestee who had been held in jail for twelve
days as the result of a mistaken identification sued the City of
Long Beach for the violation of his constitutional rights. At
trial the jury found the city liable. On appeal this court
3362 LONG v. COUNTY OF LOS ANGELES
affirmed, finding that even though the city’s policies and pro-
cedures had been complied with fully, the plaintiff had pre-
sented sufficient evidence to establish that the city’s failure to
instigate procedures to alleviate the problem of detaining indi-
viduals on the wrong warrant could constitute a policy of
deliberate indifference. 281 F.3d at 918.
And in Oviatt, this court held that even though the county
had a system for tracking arraignment dates for detainees, its
lack of procedures to alleviate the problem of detecting
missed arraignments—which resulted in the plaintiff’s pro-
longed detention without an arraignment, a bail hearing, or a
trial—was a policy of inaction that amounted to deliberate
indifference to pretrial detainees’ constitutional rights. 954
F.2d at 1478.
In the present case, Appellant’s experts have opined that
the County lacked adequate policies requiring MSB medical
staff to transfer patients in the event of signs of medical insta-
bility, and to notify a physician promptly when an inmate
falls, and when an inmate refuses essential medical treatment,
such as when Mr. Idlet refused oxygen. The experts conclude
that these inadequacies reflected deliberate indifference to Mr.
Idlet’s medical care and resulted in his death.
In rebuttal, the County provides testimony of its expert doc-
tors and the MSB nurses, as well as relevant portions of the
medical record, to show that Mr. Idlet was seen by nurses
numerous times while he was in the MSB and that the staff
afforded him proper care. The County asserts that the alleged
instances of the MSB medical staff’s neglect were isolated
occurrences that do not reflect deliberate indifference and
cannot be the basis for municipal liability.
[11] We conclude that Appellant has presented evidence
that creates a triable issue regarding whether the County’s
failure to implement a policy for responding to the fall of a
medically unstable patient, a policy providing for prompt
medical assessment if an MSB patient refuses necessary treat-
LONG v. COUNTY OF LOS ANGELES 3363
ment, and a transfer policy, directing MSB staff immediately
to transfer patients no longer medically stable, amounted to
deliberate indifference to Mr. Idlet’s constitutional rights.
C. Policy as the Moving Force Behind the Violation
For a policy to be the moving force behind the deprivation
of a constitutional right, the identified deficiency in the policy
must be “closely related to the ultimate injury.” Gibson, 290
F.3d at 1196 (citation omitted). The plaintiff’s burden is to
establish “ ‘that the injury would have been avoided’ ” had
proper policies been implemented. Id. (quoting Oviatt, 954
F.2d at 1478). Thus, in order to demonstrate that the County’s
policy deficiencies were the moving force behind the depriva-
tion of Mr. Idlet’s constitutional rights, Appellant must prove
that the injury to Mr. Idlet would have been avoided had the
County adequately trained MSB medical staff and/or insti-
tuted adequate general policies to guide the medical staff’s
exercise of its professionally-informed discretion. The evi-
dence Appellant has presented creates a triable issue as to
whether the County’s policy deficiencies were the moving
force behind Mr. Idlet’s death.
CONCLUSION
[12] In the context of Monell claims this court has empha-
sized, “Whether a local government has displayed a policy of
deliberate indifference to the constitutional rights of its citi-
zens is generally a jury question.” Gibson, 290 F.3d at 1194-
95 (citation omitted). Appellant has presented sufficient pro-
bative evidence to create a triable issue regarding whether the
County’s policy deficiencies constituted deliberate indiffer-
ence to Mr. Idlet’s constitutional rights and were the moving
force behind his death. Accordingly, the district court’s ruling
granting the County’s motion for summary judgment on the
question of municipal liability is REVERSED and this case is
REMANDED for further proceedings.
REVERSED AND REMANDED.
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Case: 15-40154 Document: 00513212363 Page: 1 Date Filed: 09/29/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40154 FILED
Summary Calendar September 29, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALVARO ZERMENO-CAMPOS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:13-CR-232
Before KING, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Alvaro Zermeno-Campos appeals the 38-month below-guidelines
sentence imposed by the district court for his conviction for being found in the
United States after deportation, having been previously convicted of an
aggravated felony. Zermeno-Campos argues that the sentence was
procedurally unreasonable because the district court failed to explain it
adequately. He also asserts that the sentence was substantively unreasonable
* 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: 15-40154 Document: 00513212363 Page: 2 Date Filed: 09/29/2015
No. 15-40154
because the district court failed to give proper consideration and proper weight
to all of the factors that he raised, including his motive for returning to the
United States to visit his ill mother, his limited criminal history, and his
education including some college. He further contends that the applicable
guidelines provision, U.S.S.G. § 2L1.2, does not consider the type or quantity
of drugs involved in the prior offense. In addition, he maintains that the
sentence is substantively unreasonable in light of Amendment 782 1, because if
Amendment 782 had applied to his prior drug trafficking offense, he likely
would have received a 12-level enhancement rather than a 16-level
enhancement in the instant case.
Because Zermeno-Campos did not object to the adequacy of the district
court’s explanation in the district court, review is limited to plain error. See
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). The
district court considered Zermeno-Campos’s arguments, as well as the
presentence report, and the 18 U.S.C. § 3553(a) factors. The district court
granted a variance to 38 months of imprisonment based in part on Zermeno-
Campos’s military service, despite the fact that he was discharged for other
than honorable circumstances because of a pattern of misconduct. The record
indicates that the district court provided an adequate explanation for the
below-guidelines sentence. See Rita v. United States, 551 U.S. 338, 356-57
(2007). Further, Zermeno-Campos has not shown that his substantial rights
were affected by any purported error as there is nothing in the record to
indicate that the district court would have imposed a lower sentence if it had
provided a more thorough explanation or more specifically addressed his
mitigation arguments. See Mondragon-Santiago, 564 F.3d at 365.
1 U.S.S.G., App. C., Amend. 782.
2
Case: 15-40154 Document: 00513212363 Page: 3 Date Filed: 09/29/2015
No. 15-40154
Zermeno-Campos also has not shown that the sentence imposed was
substantively unreasonable. The district court considered all of his arguments,
as well as the PSR and the § 3553(a) factors and determined that a below-
guidelines sentence was appropriate. On appeal, Zermeno-Campos is
essentially asking this court to reweigh the sentencing factors. “[T]he
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant.” United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Zermeno-Campos has
not shown that the sentence did not account for a factor that should have
received significant weight, gave significant weight to an irrelevant or
improper factor, or represented a clear error of judgment in balancing the
sentencing factors. See United States v. Smith, 440 F.3d 704, 708 (5th Cir.
2006). Therefore, he has not shown that the below-guidelines sentence
imposed by the district court was substantively unreasonable. See id.
AFFIRMED.
3
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984 A.2d 1006 (2009)
COM.
v.
BALDWIN.
No. 2131 MDA 2008.
Superior Court of Pennsylvania.
August 6, 2009.
Affirmed.
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In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3583
LM, GUARDIAN ON BEHALF OF KM, A MINOR,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 8538—Joan Humphrey Lefkow, Judge.
____________
ARGUED FEBRUARY 27, 2003—DECIDED SEPTEMBER 24, 2003
____________
Before KANNE, DIANE P. WOOD, and EVANS, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. No one can condone
the sexual abuse of a young child. Nevertheless, however
deplorable such behavior is, the question here is whether
someone other than the perpetrator him- or herself is re-
sponsible for the resulting injury. Specifically, we must de-
cide whether the United States is liable under the Federal
Tort Claims Act (FTCA) for a mail carrier’s sexual abuse of
2 No. 02-3583
a seven-year-old girl who lived in a home on his mail deliv-
ery route. The answer is yes only if the United States Postal
Service (USPS or Postal Service) undertook a voluntary,
Good Samaritan duty to protect the girl and other children
from the mail carrier when it temporarily assigned him to
desk duty pending the investigation of earlier sexual abuse
allegations, and then if it breached that duty when it later
reassigned the mail carrier to a delivery route in a nearby
suburb. The district court dismissed the complaint filed by
the girl’s father on the government’s motion, finding a lack
of jurisdiction. FED. R. CIV. P. 12(b)(1). Although we feel
great sympathy for the child and family involved, we must
affirm the district court’s judgment.
I
LM filed a lawsuit invoking the FTCA, 28 U.S.C. §§ 1346,
2671 et seq., after exhausting his administrative remedies
by submitting a claim to the USPS, and then filing a writ-
ten request for reconsideration after his claim was denied.
The facts set forth in LM’s complaint were properly taken
as true by the district court in deciding the government’s
motion to dismiss. Transit Express, Inc. v. Ettinger, 246
F.3d 1018, 1023 (7th Cir. 2001). We do the same on appeal.
Thompson v. Illinois Dep’t of Prof’l Regulation, 300 F.3d
750, 753 (7th Cir. 2000).
From some time prior to 1990 until after August 11, 1998,
the USPS employed a mail carrier, Leslie Tucker. Tucker
came to be called “Lester the Molester” by his co-workers
because of his notorious sexual abuse of the children
who lived along his routes. LM is the father and guardian
of KM, a minor, who resides in Park Forest, Illinois. He
brought this lawsuit on his daughter’s behalf, alleging that
she was sexually abused by Tucker when she was seven
years old. LM claimed that on August 11, 1998, a neighbor
observed Tucker lure KM behind his truck where he “re-
No. 02-3583 3
peatedly inserted his hands inside her pants, intermittently
removing, smelling, and tasting his fingers, before proceed-
ing again numerous times over a period of approximately
eight minutes.” The neighbor who witnessed these events
called 911. Tucker was subsequently prosecuted by the
state, pleaded guilty to criminal charges, and was still in
prison at the time LM filed his complaint.
According to LM, during the course of Tucker’s career
with the Postal Service, he sexually abused at least 10 mi-
nor girls who ranged in age from two to twelve years old.
LM further alleged that the USPS learned of Tucker’s
inappropriate and criminal conduct toward young girls both
through numerous complaints from relatives of his various
victims and through notice from the Richton Park police
that Tucker was being investigated for sexually molesting
a two-year-old girl and a four-year-old girl. LM alleged that
at some point in 1990, in response to this information, the
USPS removed Tucker from his mail delivery route. During
this period Tucker was assigned to desk duty. Some time
after 1990, Tucker was reassigned to a postal route. Well
before 1998, when the events giving rise to this appeal
occurred, the authorities responsible for the Park Forest
branch post office were notified by a concerned grandmother
that Tucker was a known child molester, and that he was
observed delivering mail in Park Forest.
Based on these facts, LM sued, initially claiming that the
USPS had negligently hired, screened, and retained Tucker,
a known child molester. LM asserted that by removing
Tucker from his assigned route, the USPS “assumed re-
sponsibility to keep Tucker out of the neighborhoods.” When
Tucker was subsequently given another delivery route, LM
continued, the Postal Service breached “an affirmative duty
to protect the public, given its knowledge of Tucker’s sexual
molestation of children while on his carrier routes.” In
response to the government’s motion to dismiss his com-
plaint, LM disavowed the portion of his complaint that
4 No. 02-3583
sought relief for the USPS’s negligent hiring, supervision
and retention of Tucker. Instead, he confined himself to the
argument that USPS was liable because it had breached an
affirmative, voluntarily assumed duty to protect the
children who lived along Tucker’s mail carrier route. The
district court, finding no support in Illinois law for LM’s
claim that the Postal Service undertook a voluntary duty to
protect children from harm based on its knowledge of the
risk that Tucker may have posed, dismissed LM’s com-
plaint.
II
The U.S. government, like other sovereign entities, enjoys
sovereign immunity from liability for its agents’ tortious
acts. Doe v. United States, 838 F.2d 220, 221 (7th Cir. 1988).
Congress waived this immunity for a wide range of tort
claims when it enacted the Federal Tort Claims Act. Id. at
221. The FTCA permits a tort suit against the United
States “where injury to person or property is ‘caused by the
negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment.’ ” Id. (quoting 28 U.S.C. § 1346(b)). While
this waiver of sovereign immunity is broad, it is not with-
out limit. Calderon v. United States, 123 F.3d 947, 948
(7th Cir. 1997) (explaining that “many important classes of
tort claims are excepted from the Act’s coverage”). For ex-
ample, the government has not consented to be sued for the
intentional torts of its employees and agents. 28 U.S.C.
§ 2680(h); Sheridan v. United States, 487 U.S. 392, 395
(1988). The FTCA contains a jurisdictional limitation that
specifies that its “broad grant of jurisdiction ‘shall not ap-
ply to . . . [a]ny claim arising out of assault, battery’ or
other specified intentional torts.” 487 U.S. at 398 (quoting
28 U.S.C. § 2680(h)) (alterations in original).
The so-called “assault and battery” exception to the FTCA
has been the subject of judicial and scholarly interpretation
No. 02-3583 5
because the phrase “arising out of assault, battery” is sus-
ceptible to both a broad and narrow interpretation. Id. at
399-400 (citing Note, Section 2680(h) of the Federal Tort
Claims Act: Government Liability for the Negligent Failure
to Prevent an Assault and Battery by a Federal Employee, 69
GEO. L.J. 803, 822-25 (1981)); Senger v. United States, 103
F.3d 1437, 1441-42 (9th Cir. 1996); see also Rebecca L.
Andrews, Note, So the Army Hired an Ax-Murderer: The
Assault & Battery Exception to the Federal Tort Claims Act
Does Not Bar Suits for Negligent Hiring, Retention and
Supervision, 78 WASH. L. REV. 161, 168-70 (2003); Geri Ann
Benedetto, Note, Torts—The Talismanic Language of
Section 2680(h) of the Federal Tort Claims Act, 60 TEMP.
L.Q. 243 (1987). As the Court explained in Sheridan, this
phrase could be interpreted literally as a bar to recovery for
any claim that originates in an assault or battery, but it
need not be. 487 U.S. at 400. And the phrase offers little
guidance where a plaintiff seeks to recover for the govern-
ment’s ordinary negligence when it occurs in conjunction
with an employee’s assault or battery. Id. Despite this am-
biguity, a majority of the Court in Sheridan believed that §
2680(h) should not be interpreted so broadly that it serves
as a bar against relief where a plaintiff demonstrates that
the government, in violation of a duty it owed to the victim,
negligently allowed an intentional tort to occur independ-
ently of its employment relationship with the tortfeasor. Id.
at 401-02; see also Leleux v. United States, 178 F.3d 750,
757 (5th Cir. 1999) (“Sheridan stands for the principle that
negligence claims related to a Government employee’s
§ 2680(h) intentional tort may proceed where the negligence
arises out of an independent, antecedent duty unrelated to
the employment relationship between the tortfeasor and the
United States.”).
LM relies heavily on Sheridan and Doe in support of his
claim that the USPS breached a duty that it owed his
daughter that was unrelated to its employment relationship
6 No. 02-3583
with Tucker. In Sheridan, an off-duty member of the mili-
tary injured the plaintiff when he fired shots at the plain-
tiff’s car as the plaintiff drove by the Bethesda Naval Hos-
pital. Id. at 393-94. The Court found the government liable
for the plaintiff’s injuries because earlier in the evening
several naval corps members found the off-duty serviceman
drunk and in possession of a loaded rifle, both in violation
of navy rules. Their subsequent failure to take any steps
to alert base authorities that the serviceman was drunk and
wielding a gun, combined with the Navy’s voluntary deci-
sion to draft rules under which such conduct was pro-
hibited, formed the basis of the government’s tort liability.
As the Court explained: “the negligence of other Govern-
ment employees who allowed a foreseeable assault and bat-
tery to occur may furnish a basis for Government liability
that is entirely independent of Carr’s [the off-duty Naval
corps member] employment status.” Id. at 401 (emphasis
added). The Court distinguished the source of liability in
the case before it from the hypothetical case in which an off-
duty member of the military commits an intentional tort
that the government (or, as in Sheridan, its agents) has
done nothing to try to prevent. Id.
Four Justices, including Justice White, joined Justice
Stevens’s majority opinion in Sheridan. Justice White also
filed a separate concurring opinion and Justice Kennedy
(as a sixth vote) concurred in the Court’s judgment. Justice
White’s one-paragraph concurrence expressly disavowed the
position that he had taken three years earlier when he
joined then-Chief Justice Burger’s plurality opinion in
United States v. Shearer, 473 U.S. 52 (1985). In a section of
the Shearer opinion that commanded the votes of only four
justices, Chief Justice Burger had advocated a very broad
interpretation of the assault and battery exception, stating:
Respondent cannot avoid the reach of § 2680(h) by
framing her complaint in terms of negligent failure to
No. 02-3583 7
prevent the assault and battery. Section 2680(h) does
not merely bar claims for assault or battery; in sweep-
ing language it excludes any claim arising out of assault
or battery. We read this provision to cover claims like
respondent’s that sound in negligence but stem from a
battery committed by a Government employee. Thus
“the express words of the statute” bar respondent’s
claim against the Government.
473 U.S. at 55. The majority in Sheridan rejected this po-
sition. It concluded instead that the government’s consent
to suit under the FTCA extends to cases claiming an injury
that is in part the result of an intentional tort, so long as
the government negligently allowed the independent tort to
occur in a way that is “entirely independent of [the tortfea-
sor’s] employment status.” 487 U.S. at 401. This court’s
earlier decision in Doe v. United States, 838 F.2d 220,
supra, is consistent with Sheridan.
Doe involved the sexual abuse of young children in a
government-run child-care facility. In that case, the facts
did not conclusively establish that employees of the facility
had abused the children. The Doe court accordingly con-
cluded that the harm was visited upon the children by an
act of negligence independent of the employment relation-
ship between the government and the day-care providers.
We drew a distinction between cases involving harms that
result from a breach of a duty that the government assumed
prior to the actual assault, which are actionable under the
FTCA, 838 F.2d at 223, and cases such as Shearer, in which
“the alleged duty of the government to the victim arises
only at the time of the assault and because of the assault.”
Only the latter cases fall within the exception to the waiver
of immunity created by the FTCA. Id. See Sheridan, 487
U.S. at 401-02.
Sheridan and Doe make clear that there is no respondeat
superior liability under the FTCA for garden-variety inten-
8 No. 02-3583
tional torts. Sheridan, 487 U.S. at 401; Doe, 838 F.2d at
224. LM has evidently recognized this, as he has abandoned
the portion of his complaint that sought relief for the ulti-
mate assault based on USPS’s negligent hiring, retention
and supervision of Tucker. It is perhaps worth noting that
a different district court also dismissed a complaint alleging
(on behalf of a different child) that USPS was guilty of
negligent hiring, supervision and retention of Tucker, for
failure to state a claim. See Ryan v. United States, 156 F.
Supp. 2d 900 (N.D. Ill. 2001). With negligent hiring, super-
vision and retention off the table, in order to invoke the
court’s jurisdiction under the FTCA, LM had to allege facts
that if proven at trial would establish that the USPS
voluntarily undertook to protect his daughter from Tucker’s
abuse and then negligently performed that duty prior to
her actual assault. As the FTCA commands, we turn to
Illinois law to resolve these questions. See 28 U.S.C.
§ 1346(b)(1) (adopting “law of the place where the act or
omission occurred”); Stratmeyer v. United States, 67 F.3d
1340, 1345 (7th Cir. 1995); Midwest Knitting Mills, Inc. v.
United States, 950 F.2d 1295, 1297 (7th Cir. 1991).
Illinois recognizes an affirmative duty of care independent
of a special relationship (which LM does not argue exists
between the USPS and his daughter) where a voluntary
undertaking is shown. See Rhodes v. Illinois Central Gulf
R.R., 665 N.E.2d 1260, 1273 (Ill. 1996). The Illinois Su-
preme Court has on several occasions clarified the volun-
tary undertaking theory of tort liability. As early as Nelson
v. Union Wire Rope Corp., 199 N.E.2d 769 (Ill. 1964), and as
recently as Wakulich v. Mraz, 785 N.E.2d 843, 854 (Ill.
2003), the state Supreme Court has considered whether a
defendant’s actions were sufficient to impose a duty upon
it that it then negligently performed. In the state court’s
view, whether a voluntary undertaking has been assumed
is necessarily a fact-specific inquiry. For example, in
Nelson, the court found that the evidence supported the
No. 02-3583 9
conclusion that an insurance company’s gratuitous safety
inspections were not “solely for its own internal purposes,”
199 N.E.2d at 776, and concluded that the various inspec-
tions and reports were “directed to the safety of the employ-
ees on the project.” Id. at 778. The evidence was easily
sufficient to permit a jury to conclude that the defendant’s
safety inspector negligently performed his voluntarily un-
dertaken duty to inspect a piece of construction equipment.
Id. at 784. Relying on this negligent performance of a vol-
untary undertaking, the court held that a jury could find
the insurance company liable for the deaths and injuries
that resulted when a temporary construction hoist snapped
and caused 19 construction workers to plunge six floors
down. Id. Although Nelson applied Florida law, the Su-
preme Court of Illinois has cited it with approval. See, e.g.,
Vesey v. Chicago Housing Auth., 583 N.E.2d 538, 543 (Ill.
1991); Cross v. Wells Fargo Alarm Servs., 412 N.E.2d 472,
474 (Ill. 1980). Other cases in which the court has found a
voluntary undertaking involve facts where the defendant
undertook to provide assistance and then did so negligently,
Wakulich, 785 N.E.2d at 854 (finding voluntary assumption
of duty to care for young woman who became unconscious
after consuming quart of alcoholic beverage); or the defen-
dant voluntarily undertook to provide security services in a
public housing facility, and then did so negligently. Cross,
412 N.E.2d at 474-75 (finding housing authority’s voluntary
assumption of duty to provide guard services obligated it “to
use reasonable care not to create increased dangers to
persons lawfully on its property”).
Once a voluntary undertaking exists, it must be per-
formed with reasonable care. Rowe v. State Bank of
Lombard, 531 N.E.2d 1358, 1365 (Ill. 1988). Illinois relies
on §§ 323 and 324 of the Restatement (Second) of Torts
to assess when a breach of a voluntary undertaking has
occurred. Wakulich, 785 N.E.2d at 855-56. Specifically,
§ 324A establishes liability for breach of a voluntary
10 No. 02-3583
undertaking if: (1) a party undertakes to do something and
then fails to exercise reasonable care in a way that in-
creases a third party’s risk of harm; (2) undertakes to per-
form a duty that a different party was obligated to perform
and then negligently fulfills its duty; or (3) a third party
relies to its detriment on the fact that a duty has been
voluntarily undertaken.
The United States contends that LM cannot establish
that the Postal Service assumed a voluntary duty to protect
KM when it assigned Tucker to a desk position in 1990. It
is also the government’s position that even if we find that
the USPS assumed such a duty when it stripped Tucker of
his mail carrier duties, that duty was not breached several
years later when Tucker was assigned to a mail route in
Park Forest. While we certainly hope that Tucker was not
released upon the community as a known sexual predator,
we agree with the district court that knowledge of the risk
that Tucker may have posed, without more, is not enough
to permit an inference that USPS’s act of assigning him to
a desk job was at the same time a voluntary undertaking
perpetually to protect the local children from him. Even
though we must assume at the motion to dismiss stage that
the USPS did in fact remove Tucker from his original route
while he was being investigated by the Richton Park police,
we simply cannot agree with LM that the procedural
posture of this case warrants the further assumption that
Tucker was removed from his route in order to protect
children from abuse. Moreover, there is also nothing in the
record to suggest that the reassignment was intended to be
permanent, or that USPS communicated any such under-
taking to the community.
Not only has LM not cited any case that supports his
position that knowledge of a risk, together with the reas-
signment of a worker, imposes an affirmative duty, but his
argument is foreclosed by a decision of the Supreme Court
of Illinois. In Frye v. Medicare-Glaser Corp., 605 N.E.2d 557
No. 02-3583 11
(Ill. 1992), the court refused to find that a pharmacist had
a duty to warn plaintiff’s decedent of the risk of consum-
ing alcohol while taking a certain prescription drug simply
because the pharmacist both knew of that and other risks
that the drug posed and chose only to warn the decedent
that the drug may cause drowsiness. Id. at 560-61. Frye
makes clear that a voluntary undertaking is just that—
voluntary—and as such, the scope of the duty that is
assumed is limited to the extent of the undertaking. Id. at
561; Castro v. Brown’s Chicken & Pasta, Inc., 732 N.E.2d
37, 42 (Ill. App. Ct. 2000) (“Under the voluntary undertak-
ing doctrine of liability, the duty of care to be imposed upon
the defendant is limited to the extent of the undertaking.”).
LM’s complaint asks us to find that the Postal Service’s act
of reassigning Tucker amounted to a voluntarily assumed
duty to protect local children. But that act might have been
motivated by a number of considerations, including the de-
sire to permit time for investigation of the charges, protec-
tion of Tucker’s due process rights pending that investiga-
tion, as well as protection of children in case the allegations
turned out to be well founded. A finding that the simple re-
assignment was enough to create liability would have the
undesirable effect of discouraging the Postal Service (or any
government entity) from taking precautionary steps in the
first place. Frye, 605 N.E.2d at 560 (“[I]f we were to hold
that by choosing to place the ‘drowsy eye’ label on Frye’s
prescription container defendants were assuming the duty
to warn Frye of all of Fiorinal’s side effects, we believe that
pharmacists would refrain from placing warning labels on
containers.”).
The district court did not reach the related question
whether the USPS negligently performed its voluntary un-
dertaking because it found no duty in the first instance.
Nonetheless, we should point out that LM would face a
serious hurdle in the test spelled out in § 324A of the
Restatement (Second) of Torts (which Illinois follows) before
12 No. 02-3583
he could prove breach of a voluntary duty. To establish neg-
ligent performance of a voluntary undertaking under the
Restatement, LM would have to prove that the Postal
Service’s reassignment of Tucker to a delivery route in Park
Forest either: (1) increased the risk of harm that the chil-
dren faced; (2) relieved a third party of its duty to protect
the children who were then left without any protection; or
(3) caused the children to suffer harm in reliance on the
voluntary undertaking. Frye, 605 N.E.2d at 560. We do not
see how LM could establish any element of this test.
III
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-24-03
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856 F.2d 1423
129 L.R.R.M. (BNA) 2375, 109 Lab.Cas. P 10,735
MacDONALD MILLER COMPANY, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 87-7254.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Aug. 3, 1988.Decided Sept. 12, 1988.
Judd H. Lees, Williams, Kastner & Gibbs, Bellevue, Wash., for petitioner.
Eric G. Moskowitz, Deputy Asst. General Counsel for Special Litigation, and Kevin C. Brodar, N.L.R.B., Washington, D.C., for respondent.
Petition for Review of an Order of the National Labor Relations Board.
Before ALARCON and BEEZER, Circuit Judges, and NIELSEN,* District Judge.
BEEZER, Circuit Judge:
1
MacDonald Miller Company (Miller) appeals the NLRB's denial of fees under the Equal Access for Justice Act (EAJA), 5 U.S.C. Sec. 504. The NLRB denied EAJA fees to Miller on April 21, 1987. Miller filed its petition for review on June 17, 1987. EAJA requires that a dissatisfied party appeal the agency's decision within thirty days; Miller's failure to do so precludes jurisdiction in this court. We dismiss for lack of jurisdiction.
2
* Since 1986 a party seeking fees and expenses under EAJA has had the right to appeal an adverse agency decision. The statute prescribes jurisdiction as follows:
3
If a party other than the United States is dissatisfied with a determination of fees and other expenses made under subsection (a), that party may, within 30 days after the determination is made, appeal the determination to the court of the United States having jurisdiction to review the merits of the underlying decision of the agency adversary adjudication.
4
5 U.S.C. Sec. 504(c)(2).
5
This passage waives sovereign immunity. As the Supreme Court said in United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769-70, 85 L.Ed. 1058 (1941) (citations omitted), "The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." The thirty day time limit is a term of the United States's consent to be sued under EAJA; the time limit is jurisdictional.
6
The two federal courts of appeals to publish on this issue likewise have concluded that the appeals time limit is jurisdictional. See Sonicraft, Inc. v. NLRB, 814 F.2d 385, 386 (7th Cir.1987); J-I-J Const. Co., Inc. v. United States, 829 F.2d 26, 29 (Fed.Cir.1987). Although we have never before addressed the appeals time limit, we have addressed whether EAJA's thirty day time limit for submitting a fee application to the agency is jurisdictional. We have held the latter limit to be jurisdictional. See Columbia Mfg. Corp. v. NLRB, 715 F.2d 1409, 1410 (9th Cir.1983) (per curiam); Lord Jim's v. NLRB, 772 F.2d 1446, 1448 (9th Cir.1985).
7
The fee application time limit uses language similar to that of the appeals time limit: "A party seeking an award of fees and other expenses shall, within thirty days of a final disposition in the adversary adjudication, submit to the agency an application...." 5 U.S.C. Sec. 504(a)(2). Miller stresses the distinction between "shall" in the application time limit and "may" in the appeals time limit, but as the court pointed out in Sonicraft, this can make no difference. The application time limit "assumes that a party wants fees," while the appeals time limit "gives the disappointed party 30 days to appeal--but that is the outer limit." 814 F.2d at 386. In both provisions the "within thirty days" is mandatory.
II
8
Miller contends that the appeals time limit conflicts with a former Ninth Circuit rule which, in Miller's view, we should heed. That rule created a procedure relating to the former EAJA, which did not allow an appeal as of right: the Ninth Circuit rule merely provided a timetable for seeking leave to appeal. The rule has no bearing on this appeal. Even if it did, the EAJA time limit would control; we lack power to override a congressional limit on our jurisdiction.
9
Miller also invokes Federal Rule of Appellate Procedure 4(a)(1) and 28 U.S.C. Sec. 2412(d)(1)(B). The first provision establishes the deadline for appeals from district courts, the second the deadline for applying to a court for EAJA fees in the first instance. Neither provision has any bearing on this appeal.
10
Finally, Miller argues that even if these rules and statutes do not govern, it relied on them in good faith and so the untimely petition should stand. No authority supports this position. In Thompson v. Immigration & Naturalization Service, 375 U.S. 384, 387, 84 S.Ct. 397, 398-99, 11 L.Ed.2d 404 (1964) (per curiam), the Supreme Court suggested merely that assurances of timeliness by the district court might save an appeal. See Sonicraft, 814 F.2d at 387. Miller did not rely on assurances by the tribunal below, but rather on rules and statutes which plainly do not apply.
III
11
EAJA's requirement that a dissatisfied party appeal within thirty days is jurisdictional. Miller filed its petition in well over thirty days; we lack jurisdiction over Miller's appeal.
12
DISMISSED.
*
The Honorable Leland C. Nielsen, United States District Judge for the Southern District of California, sitting by designation
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774 F.2d 1170
Bonnerv.Morris
85-1734
United States Court of Appeals,Eighth Circuit.
8/9/85
1
E.D.Mo.
DISMISSED
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia
HARRY JOSEPH McNAIR
MEMORANDUM OPINION * BY
v. Record No. 1238-00-2 JUDGE JERE M. H. WILLIS, JR.
JULY 31, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
James A. Luke, Judge
Barbara G. Mason for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his bench trial conviction of operating a
motor vehicle while under the influence of alcohol, in violation
of Code § 18.2-266, Harry Joseph McNair contends that the trial
court abused its discretion in refusing to admit photographs of
his truck into evidence. Because McNair's appeal is
procedurally barred by Rule 5A:18, we affirm.
I. BACKGROUND
On February 12, 2000, at approximately 3:00 a.m., Officer
Lloyd Ligon was following McNair's pickup truck when he noticed
"objects hanging from the rear view mirror." Although a camper
shell with tinted windows covered the bed of the truck, Officer
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Ligon could see the dangling objects because the "lights from
[his] patrol car were shining through [McNair's] vehicle" and
because of the "lights from oncoming traffic and the street
lights." As Officer Ligon followed, McNair "made a right hand
turn, crossing the center line." Officer Ligon pulled him over.
Officer Ligon noticed that McNair's eyes were bloodshot,
his speech was slurred, and he smelled strongly of alcohol. He
was off balance when he walked. Officer Ligon administered a
preliminary breath test and placed McNair under arrest for
driving while intoxicated.
At trial, McNair sought to introduce six photographs, some
of which showed in the bed of the truck a "high back chair" or
"sofa," which obstructed the rear window. Officer Ligon
testified that the chair could not have been present when he
pulled McNair over because he "could see the driver, the back of
his head. The back of the seat. The rear view mirror. The
objects hanging down."
McNair testified that he took four of the photographs at
night, using a flash, at a location different from where the
stop occurred. He testified that he took the other two
photographs during the daytime. He stated that he took some of
the photographs before his general district court trial and the
rest the morning before his trial in the trial court.
The Commonwealth objected to the admission of the
photographs on the ground that they did not "fairly and
- 2 -
accurately depict the truck on that night, nor [did] they
picture the scene." The trial court refused to admit the
photographs into evidence, holding that
[t]he photos taken with the flash, where the
flash reflects off the glass making it act
[as] a mirror, you see nothing beyond it.
These taken in the daytime you can see
through, but you can't -- you don't see the
detail that the officer has described, and I
don't know why you can't see the detail he
described, except he saw it on entirely
different circumstances then [sic] this.
McNair made no objection to this ruling, offered no
countervailing argument, and did not proffer the photographs for
the record.
II. ANALYSIS
Rule 5A:18 provides, in relevant part:
[n]o ruling of the trial court . . . will be
considered as a basis for reversal unless
the objection was stated together with the
grounds therefor at the time of the ruling,
except for good cause shown or to enable the
Court of Appeals to attain the ends of
justice.
Here, McNair made no objection to the trial court's
rejection of the photographs. He did not dispute the trial
court's ruling. He made to the trial court no argument setting
forth his position as to why the photographs, or any of them,
should be admissible. Thus, he failed to preserve that issue
for appeal.
- 3 -
Moreover, McNair failed to proffer the photographs for the
record. Being unable to view them, we cannot assess the trial
court's exercise of its discretion in rejecting them as
evidence.
The record sets forth no reason for us to apply the "ends
of justice" exception to the application of Rule 5A:18.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
- 4 -
Benton, J., concurring.
I believe the issue whether the trial judge erred in
refusing the photographic exhibits is not barred from review by
Rule 5A:18. I agree, however, that the record on appeal is
insufficient for us to review the issue raised by McNair.
McNair testified as follows on direct examination before
the prosecutor objected:
Q: Why can't you see [the dangling object
on the rear view mirror]?
A: Because there's a black, high back chair
that sits in my camper. It has been in my
camper for over five years and it covers up
the rear view mirror.
Q: Okay.
A: Well, I mean the rear window. It covers
up majority of that rear window.
Q: Okay. And you've even taken pictures of
that in the daytime, correct --
A: Yes, I have.
Q: -- the back of this Chevy. I've shown
these to you.
A: Yes, ma'am.
Q: Does this reflect where that sofa is in
your chair -- pickup truck on the morning
that you were stopped?
A: Yes, it does.
Q: And are you able to see your rear view
mirror from that picture?
A: I can see my side view, but not the rear
view.
- 5 -
Q: You can't see the rear view, you can
only see the side view?
A: No, you can't.
Q: And that's the condition that the truck
was in on the morning it was stopped?
A: It simply had more junk in it.
[Defense Attorney]: I'd like to offer those
pictures into evidence, Your Honor.
[Prosecutor]: We're going to object at this
time, Your Honor. I'd like to voir dire the
Defendant on the photos.
On an extensive voir dire examination, the prosecutor
showed McNair the six photographs. McNair testified about the
matter that each photograph depicted, and he identified when and
where he took the photographs. After this testimony, the
prosecutor again objected to the admission of the photographs,
stating "They don't fairly and accurately depict the truck on
that night, nor do they picture the scene." McNair's counsel
then questioned McNair further about the photographs. After a
voir dire testimony that spanned seven pages of transcript, the
following occurred:
[Defense Attorney]: Again, I move to
introduce these photos. It fairly and
accurately describes the condition of the
truck, at the time the vehicle was stopped.
The witness has testified that he changed
nothing in it. He took the photos. He has
-- the sofa was in there. And it's been in
there for over five, six years and it's
still in there.
[Judge]: You took the photos with a
Polaroid camera?
- 6 -
[Defendant McNair]: Yes, sir, I did.
[Judge]: Using a flash?
[Defendant McNair]: At night I used a
flash. At night.
[Judge]: Thank you. The Court will not
admit the photos; the photos of using a
flash, which is obvious. The --
[Defense Counsel]: There are also photos
without the flash. Maybe I should ask.
There are two photos in the -- in the
daytime that the flash was not used on.
[Judge]: No, I didn't see those. Would you
like to place them up here?
I'll take a look at them.
* * * * * * *
The photos taken with the flash, where
the flash reflects off the glass making it
act a mirror, you see nothing beyond it.
These taken in the daytime you can see
through, but you can't -- you don't see the
detail that the officer has described, and I
don't know why you can't see the detail he
described, except he saw it on entirely
different circumstances then this.
[Defense Attorney]: Your Honor, I would
submit that --
[Judge]: I will not admit the photographs --
The photographs were excluded upon the prosecutor's
objection. After voir dire and a statement of purpose by
McNair's counsel, the trial judge ruled on the prosecutor's
objection. Thus, Rule 5A:18 does not come into issue on
McNair's appeal from that ruling. "The purpose of Rule 5A:18 is
- 7 -
to allow the trial court to correct in the trial court any error
that is called to its attention." Lee v. Lee, 12 Va. App. 512,
514, 404 S.E.2d 736, 737 (1991) (en banc). As the above quoted
passages indicate, the trial judge had the issue before him and
ruled on it. Thus, no risk of judicial inefficiency would arise
by our hearing the case. Moreover, traditionally, when the
trial judge sustains an objection to the admissibility of
evidence, the proponent of the evidence was required to note an
exception to the ruling. See State v. Cheek, 299 S.E.2d 633,
639 (N.C. 1983). In Virginia, however, the legislature has
abolished the requirement to take formal exceptions to rulings
so that "[a]rguments made at trial via . . . oral argument
reduced to transcript . . . shall, unless expressly withdrawn or
waived, be deemed preserved therein for assertion on appeal."
Code § 8.01-384.
The problem this case poses is not a lack of objection or
exception but, rather, the absence of the rejected exhibits in
the record. "Photographs are generally admitted into evidence
for two purposes: to illustrate a witness' testimony, and as an
'independent silent witness' of matters revealed by the
photograph." Bailey v. Commonwealth, 259 Va. 723, 738, 529
S.E.2d 570, 579 (2000). Thus, "a photograph which is verified
by the testimony of a witness as fairly representing what that
witness has observed is admissible in evidence." Ferguson v.
Commonwealth, 212 Va. 745, 746, 187 S.E.2d 189, 190 (1972). The
- 8 -
trial judge viewed the photographs at trial and concluded that
they either did not show the interior of the truck or did not
depict circumstances relevant to the testimony of the events.
The Supreme Court "consistently [has] held that the
admission of photographs into evidence rests within the sound
discretion of a trial [judge]." Bailey, 259 Va. at 738, 529
S.E.2d at 579. In order for us to determine whether the judge
abused his discretion, we must view the photographs. See Fields
v. State, 144 S.E.2d 339, 343 (Ga. 1965); Wood v. State, 512
N.E.2d 1094, 1097 (Ind. 1987). In view of the judge's comments,
the significance of what the photographs might depict is not
readily apparent. "It is simply impossible to determine the
effect of photographs without seeing them." Fields, 144 S.E.2d
at 343. When the judge sustained the objection and barred the
photographs, McNair's attorney should have offered them as
rejected exhibits to complete the record for review on appeal.
See Scott v. Commonwealth, 191 Va. 73, 78, 60 S.E.2d 14, 16
(1950). See also Rule 5A:7(a)(3). In the absence of the
rejected photographs in the record, we have no basis to conclude
that the trial judge abused his discretion in refusing to admit
the photographs.
For these reasons, I concur in affirming the judgment.
- 9 -
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18 So.3d 545 (2009)
LABOY
v.
STATE.
No. 5D09-933.
District Court of Appeal of Florida, Fifth District.
September 29, 2009.
Decision without published opinion Affirmed.
| {
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} |
848 F.2d 976
1988-1 Trade Cases 68,070, 47 Ed. Law Rep. 109
Gerald R. & Helen FERGUSON, Husband and Wife, bothindividually and d/b/a; Roveck Productions,Plaintiffs-Appellants,v.GREATER POCATELLO CHAMBER OF COMMERCE, INC.; the IdahoState Journal, Inc.; the Idaho State University,Defendants-Appellees.
No. 86-3722.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted March 3, 1987.Decided June 6, 1988.
Jeffrey E. Rolig, Hepworth, Nungester & Felton, Twin Falls, Idaho, for plaintiffs-appellants.
Robert L. Berlin, Eberle, Berlin, Kading, Turnbow & Gillespie, Boise, Idaho, for defendant-appellee Journal.
Lowell N. Hawkes, Hawkes, Esplin & Burnham, Pocatello, Idaho, for defendant-appellee Chamber.
J. Kelley Wiltbank, Idaho State University, Pocatello, Idaho, for defendant-appellee ISU.
Appeal from the United States District Court for the District of Idaho.
Before SNEED and HALL, Circuit Judges, and STEPHENS,* District Judge.
CYNTHIA HOLCOMB HALL, Circuit Judge:
1
Gerald and Helen Ferguson timely appeal from the district court's grant of summary judgment disposing of their claims against The Greater Pocatello Chamber of Commerce, Inc. (Chamber), The Idaho State Journal, Inc. (Journal), and The Idaho State University (ISU) for treble damages and injunctive relief under sections 1 and 2 of the Sherman Act. 15 U.S.C. Secs. 1 & 2 (1982). Ferguson v. Greater Pocatello Chamber of Commerce, Inc., 647 F.Supp. 190 (D.Idaho 1985).
I.
2
ISU owns and operates the Minidome, a large, covered, multipurpose stadium located on the ISU campus. For over a decade, ISU has leased the Minidome to businesses that wished to hold general interest consumer trade shows during the spring of each year. In 1979, the Fergusons purchased Roveck Productions and produced their first trade show in the Minidome. The Fergusons also produced trade shows during the first week of April for the years 1980 through 1982. In those same years. Chamber and Journal jointly produced a similar trade show in the Minidome, approximately one month after the Fergusons' show.
3
In 1980, Chamber and Journal determined that the Fergusons' trade show was significantly more profitable than theirs because it was the first trade show of the season. They therefore asked ISU to grant them the first time slot in 1981. ISU refused, stating that the Fergusons already had a lease for that time slot. In 1981, Chamber and Journal requested the first trade show slot for 1982. They also asked ISU if they could alternate on a yearly basis with the Fergusons for the first trade show each spring. Again, ISU refused.
4
In 1982, ISU asked Chamber and Journal if they intended to produce a trade show in 1983. Chamber and Journal apparently did not inform ISU of their decision in a timely manner. ISU therefore gave the Fergusons the sole contract for the 1983 spring trade show season. However, in September of 1982, ISU met with Chamber and Journal to discuss ISU's policies regarding the spring trade shows. Chamber and Journal apparently expressed continued interest in producing a springtime trade show, provided they could at least alternate with the Fergusons for the first trade show time slot each spring. Sometime after this meeting, ISU changed its policy regarding the spring trade shows. ISU decided that it would lease the Minidome for only one trade show during the spring of the years 1984 through 1989. ISU further decided to allow all interested parties to bid for the exclusive right to produce the 1984-89 spring trade shows.
5
In 1983, ISU prepared identical "bid packets" for the 1984 spring show. ISU sent these packets to the Fergusons, Chamber and Journal, and another interested promoter, Craig Ellis. The bid packet contained the following terms and conditions: (1) the minimum acceptable bid for each year was $6,000, (2) ISU would also consider the bidder's projected revenue share for the Minidome and its demonstrated ability to produce a trade show as well as its experience, management, and financial solvency, (3) the successful bidder would have the exclusive right to produce the springtime trade show for 1984, and (4) the lease would be renewable upon mutual consent for five additional one-year terms.
6
The Fergusons bid the minimum amount: $6,000. Craig Ellis bid $12,000. Chamber and Journal bid $20,101 and received the exclusive right to produce the 1984 spring trade show. When awarding the contract, ISU stated that it gave the contract to Chamber and Journal because they had demonstrated the ability to produce profitable trade shows in the past and because their bid was substantially higher than the two other bids. Chamber and Journal have produced the subsequent trade shows and have paid ISU the contract price of $20,101 each year.
7
The Fergusons have not attempted to conduct their trade show elsewhere during the spring of those years, nor have they asked ISU for a contract to produce a trade show at any other time of the year. The Fergusons maintain that the Minidome is the only suitable location for a trade show in the area. The Fergusons therefore contend that the defendants' conduct and the six-year lease agreement between ISU and Chamber and Journal violates sections 1 and 2 of the Sherman Act.
II.
8
We review de novo a grant of summary judgment. Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir.1987). Summary judgment is appropriate if the moving party presents evidence that shows that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Id. Once the moving party has met this initial burden, the nonmoving party has the subsequent burden of presenting significant probative evidence tending to support its claim that material, triable issues of fact remain. Id.
9
In the context of the case before us, the substantive law is the law of antitrust, and if the claim makes no economic sense, a speculative inference from the jury will not help it. In such an instance, the record on summary judgment must contain further persuasive evidence if it is to support the claim. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986).
10
Richards, 810 F.2d at 902.
III.
11
The Sherman Act prohibits only restraints or monopolization of "trade or commerce among the several States." The Sherman Act interstate commerce requirement is both a substantive element of a statutory violation and a prerequisite for federal court jurisdiction. The somewhat conclusory allegations of the Fergusons' complaint might not satisfy the commerce requirement, and in its present condition the record fails to indicate whether additional proceedings will reveal that jurisdiction is proper.1 Here, we address our authority to pass on the merits of the complaint despite the potential jurisdictional defect.
12
The Supreme Court in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), created a three-tier approach for assessing motions to dismiss asserting that defects in the substantive allegations of a complaint have jurisdictional consequences. See Yazoo County Indus. Dev. Corp. v. Suthoff, 454 U.S. 1157, 1160, 102 S.Ct. 1032, 1034, 71 L.Ed.2d 316 (1982) (Rehnquist, J., dissenting from denial of cert.). Under this approach, a court may find the claims raised in the complaint (1) "immaterial" or "wholly insubstantial," (2) "not immaterial," or (3) substantial. See Bell, 327 U.S. at 681-83, 66 S.Ct. at 775-76. Dismissal for lack of jurisdiction is proper only if the claim falls into the first category. Id. The second (and perhaps even the third) tier of Bell contemplates judicial proceedings on the merits under circumstances in which the existence of federal subject matter jurisdiction is open to question. See id.; Yazoo County, 454 U.S. at 1160, 102 S.Ct. at 1034 (Rehnquist, J., dissenting from denial of cert.).
13
The commerce element of the Fergusons' complaint exemplifies the type of allegation courts should address through the three-tier structure of Bell. "[T]he interstate commerce requirement is tied to the merits as well as to the jurisdictional aspects of an antitrust case...." Thornhill Publishing Co. v. General Tel. & Elec. Corp., 594 F.2d 730, 735 (9th Cir.1979); accord Timberlane Lumber Co. v. Bank of America Nat'l Trust & Sav. Ass'n, 549 F.2d 597, 602 (9th Cir.1977). As such, it is distinguishable from "lack of diversity or amount in controversy, or other more traditional jurisdictional defects," with respect to which the Bell approach might speak with less force. See Yazoo County, 454 U.S. at 1161 n. *, 102 S.Ct. at 1034 n. * (Rehnquist, J., dissenting from denial of cert.).
14
We hold that the commerce allegations in the Fergusons' complaint are neither "immaterial" nor "wholly insubstantial" within the meaning of Bell. Accordingly, Bell authorizes us to conduct further proceedings and, if warranted, to dismiss for failure to state a claim even though we are unable at this point to determine conclusively that subject matter jurisdiction exists.
15
In following this procedure we act in conformity with our longstanding practice. We sometimes require a trial in the face of uncertain subject matter jurisdiction. See, e.g., Rosales v. United States, 824 F.2d 799, 803 (9th Cir.1987). And where appropriate, we dispose of substantive issues on appeal in the absence of an unequivocal determination that lower court jurisdiction exists. Our recent opinion in Kerr Center Parents Ass'n v. Charles, 842 F.2d 1052 (9th Cir.1988), is an example of such a case.
16
Among the district court's rulings in Kerr Center was a decision that the eleventh amendment did not bar the plaintiffs' claims. See id. at 1058. After the district court entered judgment, however, we handed down an opinion in a different case contrary to the district court's eleventh amendment ruling. See id. at 1059. Consequently, in Kerr Center we stated that the district court's eleventh amendment determination (a jurisdictional question) "may be open for consideration," and remanded to the district court for a ruling on that issue. See id. Nevertheless, observing that they had "been fully briefed to us and considered by the district court," id. at 1059, we decided additional, nonjurisdictional matters in Kerr Center, including the substantive merits of the claims and the relief ordered. See id. at 1060-63.
17
To similar effect is Kern Oil & Ref. Co. v. Tenneco Oil Co., 840 F.2d 730 (9th Cir.1988). In Kern Oil the district court entered its findings of fact and conclusions of law several days after the entry of judgment and after the appellant had filed its notice of appeal. Appellant argued that the district court lacked jurisdiction to enter its findings of fact and conclusions of law because "filing a notice of appeal usually divests the district court of jurisdiction over the matters appealed." Id. at 734. Nevertheless, we refused to apply this judge-made doctrine because deciding that the district court lacked jurisdiction "would 'induce needless paper shuffling.' " Id. As in Kern Oil, a remand of the Fergusons' appeal to the district court would result in "needless paper shuffling"; we refuse to indulge in such a pointless exercise.2
IV.
18
In addition to the commerce element, the Fergusons must establish the following in order to prevail on their section 1 claims: (1) a contract, combination, or conspiracy (2) between two or more separate persons or entities (3) which has an unreasonable restraint on trade activities. See T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626, 632-33 (9th Cir.1987).
A.
19
In Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 1470, 79 L.Ed.2d 775 (1984), the Supreme Court held that in order to establish a claim of a conspiracy in restraint of trade a plaintiff must provide "evidence that tends to exclude the possibility" that the defendants "were acting independently." According to Monsanto, "the antitrust plaintiff should present direct or circumstantial evidence that reasonably tends to prove that the [defendants] 'had a conscious commitment to a common scheme designed to achieve an unlawful objective.' " Id. (citation omitted); cf. Richards, 810 F.2d at 902.
20
In support of their motion for summary judgment, the defendants "offered understandable and legitimate business reasons for their conduct." Souza v. Estate of Bishop, 821 F.2d 1332, 1335 (9th Cir.1987). ISU presented evidence of facially valid institutional and business reasons for its decision to limit the spring trade shows to one per year. ISU apparently determined that it was preferable to limit the trade shows to one each spring both from a revenue generating standpoint and in the interest of maintaining a more diversified program at the Minidome. Chamber and Journal presented evidence that they took no part in ISU's decision-making process and that they were willing to accept a contract that merely ensured that they would have the first trade show every other year. The defendants therefore met their "burden by proffering a 'plausible and justifiable' alternative interpretation of [their] conduct that rebuts the plaintiff[s'] allegation of conspiracy." T.W. Electrical Service, 809 F.2d at 632 (citations omitted); see also Souza, 821 F.2d at 1335; Richards, 810 F.2d at 902.
21
The Fergusons therefore were required to provide evidence of "specific facts" that undercut the defendants' responses. T.W. Electrical Service, 809 F.2d at 631, 632. This they failed to do: They have presented no probative evidence of any illegal concerted activity. In particular, the Fergusons did not offer any evidence that rebuts the defendants' evidence (1) that ISU unilaterally made a legitimate business decision to hold one spring trade show in the Minidome and to put out bids for the right to produce that show; (2) that ISU drafted bid specifications without input from any outside parties; (3) that the bidding procedures were fair and entirely anonymous; (4) that the renewable term of the lease was a standard clause in ISU contracts of this type, and (5) that there was no prior agreement to reject the Fergusons' bid.
22
Applying the rule of Monsanto, we therefore hold that, based on the record before the district court, the defendants' actions were completely independent and cannot amount to a conspiracy in restraint of trade.
B.
23
Recognizing the lack of sufficient probative evidence of a conspiracy between the defendants, the Fergusons contend that the lease between ISU and Chamber and Journal is itself a "contract" which violates section 1 even if there was no "conspiracy" to eliminate competition. The district court did not specifically rule on this issue; however, it did hold that the Fergusons failed to establish a genuine question of material fact on whether the six-year exclusive lease between ISU and Chamber and Journal constituted an unreasonable restraint of trade. In order to survive a summary judgment motion on their "contract" claim, the Fergusons had to establish genuine questions of material fact on whether the lease between ISU and Chamber and Journal (1) constituted an unreasonable restraint of trade, and (2) caused injury to competition in the relevant market. See, e.g., Reid Bros. Logging Co. v. Ketchikan Pulp Co., 699 F.2d 1292, 1296 (9th Cir.), cert. denied, 464 U.S. 916, 104 S.Ct. 279, 78 L.Ed.2d 259 (1983).3 We hold that they have failed to establish the presence of either question.
24
The Fergusons--and all other interested producers of spring trade shows in the area--had an equal opportunity to bid on the lease for the 1984-1989 spring trade shows. Such an opportunity for free competition shall presumably arise again at the end of the six-year lease. ISU's decision to limit the spring season to one show therefore did not foreclose competition in the market in which the Fergusons compete. The Fergusons have presented no evidence that ISU would not have given the lease to them--or any other qualified competitor of Chamber and Journal--if they had been the highest bidder. As it turned out, the Fergusons' bid was only half as large as that of the second highest bidder, Craig Ellis, and less than one-third of the prevailing bid of Chamber and Journal. The Fergusons therefore provided insufficient evidence of the lease's unreasonableness.
25
Secondly, while the exclusive nature of the lease does preclude the Fergusons from producing a spring trade show in the Minidome, " 'injury to the antitrust plaintiff alone is not sufficient to prove injury to competition.' In the absence of evidence of injury to competition, [the Fergusons'] claim ... would not survive a motion for summary judgment." T.W. Electrical Service, 809 F.2d at 635 (citations omitted). The Fergusons have failed to present such evidence. Nor have they presented any evidence that ISU's lease harms consumers of the trade shows. See 1 P. Areeda & D. Turner, Antitrust Law paragraphs 103-13 (1980).
26
ISU presented evidence that it did not destroy competition for the spring trade show; it merely forced the competitors to bid against one another for the one show ISU was willing to house. Such competition, we presume, will take place at six-year intervals. We find nothing inherently unreasonable about such a restraint on the competition for the spring trade shows.
V.
27
The Fergusons primary contention on appeal is that ISU could not limit use of its "essential facility" (the Minidome) to one springtime show per year without running afoul of the Sherman Act. The "essential facilities" doctrine imposes on the owner of a facility that cannot reasonably be duplicated and which is essential to competition in a given market a duty to make that facility available to its competitors on a nondiscriminatory basis. Fishman v. Estate of Wirtz, 807 F.2d 520, 539-41 (7th Cir.1986); see Interface Group, Inc. v. Massachusetts Port Authority, 816 F.2d 9, 12 (1st Cir.1987). In order to prevail on such a claim, the plaintiffs must establish (1) that the defendant is a monopolist in control of the essential facility, (2) that competitors of the monopolist are unable to duplicate the facility, (3) that the monopolist has refused to provide the competitors access to the facility, and (4) that it is feasible for the monopolist to do so. MCI Communications v. AT & T, 708 F.2d 1081, 1132-33 (7th Cir.), cert. denied, 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983). See generally Hecht v. Pro-Football, Inc., 570 F.2d 982, 992-93 (D.C.Cir.1977), cert. denied, 436 U.S. 956, 98 S.Ct. 3069, 57 L.Ed.2d 1121 (1978); Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1519-21 (10th Cir.1984), aff'd on other grounds, 472 U.S. 585, 600-02 & n. 27, 105 S.Ct. 2847, 2856-57 & n. 27, 86 L.Ed.2d 467 (1985).
28
As applied to the facts of this case, the Fergusons claim is without merit. First, the Fergusons appear to be arguing that, in leasing the Minidome to Chamber and Journal for an exclusive six-year term, ISU has refused to deal with them. But even assuming that ISU is a monopolist and that its Minidome is an essential facility, the Fergusons are not in competition with ISU. Thus, ISU has not refused to deal with a competitor.
29
[The Fergusons'] view of the essential facilities doctrine ... considerably overstates its scope. The doctrine aims to prevent a firm with monopoly power from extending that market power.... [I]t is difficult to see how denying a facility to one who, like [the Fergusons], is not an actual or potential competitor [of ISU] could enhance or reinforce [ISU's] power. See P. Areeda & H. Hovenkamp, Antitrust Law paragraphs 736.2d, 736.2e (Supp.1986). If this is so in the case of a private monopolist, it is still more certain when the monopolist is a public agency [like ISU], for the agency has neither the motive nor the need to solidify its monopoly position.
30
Interface Group, 816 F.2d at 12; cf. Turf Paradise, Inc. v. Arizona Downs, 670 F.2d 813, 822 (9th Cir.), cert. denied, 456 U.S. 1011, 102 S.Ct. 2308, 73 L.Ed.2d 1308 (1982) ("the sharing of an essential facility by two or more competitors accompanied by the exclusion of all other competitors may amount to a violation of the Sherman Act" (emphasis added)). Moreover, ISU has not refused to deal with anyone. It has merely refused to house more than one trade show per spring, and it has decided that that show will be given to the producer who makes the best bid. The Fergusons simply failed to outbid their competitors.
31
Second, the Fergusons presented insufficient evidence that (1) the Minidome, which is a state-owned facility, is the type of "essential facility" protected by the Sherman Act, (2) that the Fergusons were not able to produce reasonably comparable trade shows in the Minidome at another time of the year, and (3) that a competitor of ISU could not construct another, equally adequate, facility in the area. Cf. Fishman, 807 F.2d at 539-41; id. at 563-75 (Easterbrook, J., dissenting in part); Olympia Equip. Leasing Co. v. Western Union Telegraph Co., 797 F.2d 370, 376-80 (7th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1574, 94 L.Ed.2d 765 (1987). See generally Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973); United States v. Terminal R.R. Assoc., 224 U.S. 383, 32 S.Ct. 507, 56 L.Ed. 810 (1912).
32
Third, the grant of an exclusive lease to one lessee does not constitute a illegal contract in restraint of trade merely because it excludes other lessees from the facility. The plaintiffs must additionally establish a conspiracy to restrain competition between the defendants. See United States v. Yellow Cab Co., 332 U.S. 218, 229, 67 S.Ct. 1560, 1566, 91 L.Ed. 2010 (1947) (exclusive lease contracts do not violate Sherman Act unless a conspiracy to obtain them is shown) (citing Donovan v. Pennsylvania Co., 199 U.S. 279, 26 S.Ct. 91, 50 L.Ed. 192 (1905)); Export Liquor Sales, Inc. v. Ammex Warehouse Co., 426 F.2d 251, 252-53 (6th Cir.1970) (same) (citing cases), cert. denied, 400 U.S. 1000, 91 S.Ct. 460, 27 L.Ed.2d 451 (1971); Parmelee Transp. Co. v. Keeshin, 292 F.2d 794, 803-04 (7th Cir.) (exclusive contract does not violate Sherman Act if it is obtained by competitive bids), cert. denied, 368 U.S. 944, 82 S.Ct. 376, 7 L.Ed.2d 340 (1961). As detailed above, see Part IV A, the Fergusons failed to establish a genuine question of fact regarding any conspiracy between the defendants.
33
Finally, even if the Fergusons could establish that they could not conduct their trade show in any facility other than ISU's Minidome, ISU was free to lease a portion of that location's available time to one entity and exclude others without violating the Sherman Act. Export Liquor, 426 F.2d at 252 (lessor who had control over a unique location essential to the conduct of a certain kind of business could nevertheless lease part of facility to single lessee); see Interface Group, 816 F.2d at 11-12; cf. Sakamoto v. Duty Free Shoppers, 613 F.Supp. 381, 388-91 (D.Guam 1983) (exclusive concession, open and fair bidding, reasonable as a matter of law), aff'd on other grounds, 764 F.2d 1285 (9th Cir.1985), cert. denied, 475 U.S. 1081, 106 S.Ct. 1457, 89 L.Ed.2d 715 (1986).4
VI.
34
The Fergusons also failed to establish a cause of action under section 2 of the Sherman Act. The district court applied the appropriate tests for the Fergusons' monopolization and attempt to monopolize claims. See Drinkwine v. Federated Publications, Inc., 780 F.2d 735, 738-41 (9th Cir.1985), cert. denied, 475 U.S. 1087, 106 S.Ct. 1471, 89 L.Ed.2d 727 (1986). The Fergusons do not seriously question the district court's holdings on appeal. We therefore affirm the district court's grant of summary judgment on the Fergusons' section 2 claims.
VII.
35
All of the issues involved were properly "taken from the jury" because "the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict." California Steel and Tube v. Kaiser Steel Corp., 650 F.2d 1001, 1004 (9th Cir.1981) (citation omitted). On the record before the district court, none of the defendants could be held to have violated either section 1 or section 2 of the Sherman Act. The Fergusons' claims make no economic sense, and speculative inferences from the jury can not help them. "In such an instance, the record on summary judgment must contain further persuasive evidence if it is to support the[ir] claim[s]." Richards, 810 F.2d at 902 (citing Matsushita Electric, 106 S.Ct. at 1356-57). Since the record does not contain such evidence, summary judgment was appropriate.5 The district court's grant of summary judgment therefore is AFFIRMED.
STEPHENS, District Judge, dissenting:
36
I dissent from the majority opinion on two grounds: because neither the district court nor the Court of Appeals have subject matter jurisdiction in this case. And, second, because the district court improvidently granted summary judgment despite an unresolved material issue of fact as to whether a nexus with interstate commerce existed.
37
These reasons are the result of the lack of any consideration by the district court of the need for a nexus with interstate commerce as the foundation for jurisdiction and as an element of the claim itself.
38
This means that the commerce element of a Sherman Act claim as identified in the first paragraph of part III of the majority opinion is lacking. It is similarly dispositive of the issue of subject matter jurisdiction which briefly stated requires that the dispute be in or affect interstate commerce since the right of Congress to legislate in this field depends upon the commerce clause of the Constitution. This case came from the district court in the form of a summary judgment. The facts were presented to the trial court by affidavit. On this record which is before us, there is no indication that the alleged violations of the Sherman Act by the defendants were in or had any affect on interstate commerce.
39
The district judge issued a Memorandum Decision which pointed out that the suit was for damages and injunctive relief under sections 1 and 2 of the Sherman Act. It contained a statement of undisputed facts in substantial detail and recognized that summary judgment may be granted only where the movant is entitled to judgment as a matter of law and where there is no genuine dispute as to any material fact. The decision acknowledges that summary judgment must be used sparingly in antitrust cases where motive and interest play a key role, citing Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 680 (9th Cir.1985). Without one word concerning the need for a showing of a nexus with interstate commerce, summary judgment issued.
40
Every court of limited jurisdiction has one first and inescapable duty. This duty is without exception. The court must satisfy itself that it has jurisdiction over the cause before it. The court can not escape this duty on the grounds that the parties did not raise the issue, that the parties stipulated that the court has jurisdiction, or that the defendant failed to deny the plaintiff's averments that the court has jurisdiction. The jurisdictional issue must be adjudicated. At this point in the judicial process we have little concern about the averments of the complaint. The averments of the complaint are of no assistance in a summary judgment proceeding which requires affidavits of witnesses, affidavits which are only available to the court of appeals if they are in the record on appeal.
41
The Supreme Court recently addressed this subject in Bender v. Williamsport School Dist., 475 U.S. 534, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) as follows:
42
Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto. See, e.g., Marbury v. Madison, 1 Cranch 137, 173-180 [2 L.Ed. 60] (1803). For that reason, every federal appellate court has a special obligation to "satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review," even though the parties are prepared to concede it. Mitchell v. Maurer, 293 U.S. 237, 244 [55 S.Ct. 162, 165, 79 L.Ed. 338] (1934). See Juidice v. Vail, 430 U.S. 327, 331-332 [97 S.Ct. 1211, 1215-16, 51 L.Ed.2d 376] (1977) (standing). "And if the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it. [When the lower federal court] lack[s] jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit." United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 831, 80 L.Ed. 1263 (1936) (footnotes omitted).
43
Id. at 541, 106 S.Ct. at 1331 (footnote omitted).
44
Although the focus in Bender is on standing, the basic issue is jurisdiction. The Court continues:
45
Mr. Youngman's status as an aggrieved parent, however, like any other kindred fact showing the existence of a justiciable "case" or "controversy" under Article III, must affirmatively appear in the record. As the first Justice Harlan observed, "the presumption ... is that the court below was without jurisdiction" unless "the contrary appears affirmatively from the record." King Bridge Co. v. Otoe County, 120 U.S. 225, 226 [7 S.Ct. 552, 552, 30 L.Ed. 623] (1887). Accord, Thomas v. Board of Trustees, 195 U.S. 207, 210 [25 S.Ct. 24, 25, 49 L.Ed.2d 160] (1904); Minnesota v. Northern Securities Co., 194 U.S. 48, 62-63 [24 S.Ct. 598, 601, 48 L.Ed. 870] (1904). That lack of standing was not noticed by either party matters not, for as we said in Mansfield C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 [4 S.Ct. 510, 511, 28 L.Ed. 462] (1884):
46
"[T]he rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it."
47
Accord, Chicago, B. & Q.R. Co. v. Willard, 220 U.S. 413, 419 [31 S.Ct. 460, 462, 55 L.Ed. 521] (1911); Kentucky v. Powers, 201 U.S. 1, 35-36 [26 S.Ct. 387, 308, 50 L.Ed. 633] (1906); Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453 [20 S.Ct. 690, 691, 44 L.Ed. 842] (1900). See Thomson v. Gaskill, 315 U.S. 442, 446 [62 S.Ct. 673, 675, 86 L.Ed. 951] (1942). Moreover, because it is not "sufficient that jurisdiction may be inferred argumentatively from averments in the pleadings," Grace v. American Central Ins. Co., 109 U.S. 278, 284 [3 S.Ct. 207, 210, 27 L.Ed. 932] (1883); Thomas v. Board of Trustees, 195 U.S., at 210 [25 S.Ct. at 25], it follows that the necessary factual predicate may not be gleaned from the briefs and arguments themselves. This "first principle of federal jurisdiction" applies "whether the case is at the trial stage or the appellate stage." P. Bator, P. Mishkin, D. Shapiro, & H Wechsler, Hart and Wechsler's The Federal Courts and the Federal System 835-836 (2d ed. 1973).
48
Id. at 546-47, 106 S.Ct. at 1333-34 (footnote omitted).
49
The Bender opinion concludes on page 549, 106 S.Ct. at 1335:
50
We therefore hold that because the Court of Appeals was without jurisdiction to hear the appeal, it was without authority to decide the merits. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded with instructions to dismiss the appeal for want of jurisdiction.
51
The Ninth Circuit is up to date as of March 22, 1988 when it decided Latch v. United States, 842 F.2d 1031 (9th Cir.1988), holding:
52
The issue of subject matter jurisdiction presents a legal question, which we review de novo. Peter Starr Production Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir.1986). Furthermore, "every federal appellate court has a special obligation to 'satisfy itself not only of its own jurisdiction, but also of that of the lower courts in a cause under review,' even though the parties are prepared to concede it." Bender v. Williamsport Area School District, 475 U.S. 534, 541 [106 S.Ct. 1326, 1331, 89 L.Ed.2d 501] (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244 [55 S.Ct. 162, 165, 79 L.Ed. 338] (1934)).
53
As a general rule, if a district court has wrongfully exercised subject matter jurisdiction over a dispute, the appellate court must vacate the district court's decision, including any award of attorney's fees.
54
Latch v. United States, at 1033.
55
In some cases where the issue of jurisdiction is in doubt, the facts needed to establish subject matter jurisdiction are intertwined with the substantive facts in such a way that the most direct and economical way to proceed may be to proceed with trial until the jurisdictional facts can be sorted out. In doing so, the trial court is viewing the issue prospectively, looking forward as the facts unfold, not knowing the answer to the jurisdictional issue until the facts accumulate in the record. Even in the process of considering summary judgment, the trial court has the power to call for affidavits germane to jurisdiction. On the other hand, the court of appeals has an entirely different role. The record on appeal is presented for review of what has already transpired. It is complete as filed. The court of appeals has no means to add testimony by affidavit or otherwise. If it appears from this record that the trial court did not have subject matter jurisdiction, the court of appeals must correct the trial court's error of proceeding to judgment.
56
The court of appeals has no reason whatsoever for deferring this jurisdictional issue and no way to escape deciding it. No case cited by the majority as precedent holds to the contrary.1 The trial court has options, but the court of appeals has none save to vacate the trial court decision and return the case to the trial court. In this case the trial court did not consider the relationship between the plaintiff's claims and interstate commerce, but granted summary judgment, disposing of the case by noting an absence of substantive merit. The majority on the appellate court follows the same course, bypassing the question of jurisdiction and the commerce element of the claim to examine the "conspiracy and contract claims." In the majority opinion, the relationship between the plaintiff's claim and interstate commerce is never resolved.
57
I oppose this decision because it is against the law as articulated in 1986 by the Supreme Court in Bender and by the Ninth Circuit in Latch in March of this year. As a Ninth Circuit precedent it will invite argument that Sherman Act civil cases do not require proof of a nexus with interstate commerce. We have in the majority opinion a ruling which ignores the need to establish a nexus between the claimed wrong and interstate commerce in a Sherman Act case both as an element of the claimed wrong and as a key to establishing or rejecting subject matter jurisdiction.
58
The facts necessary to establish jurisdiction and the commerce element necessary to state a claim under the Sherman Act for monetary damages or for injunctive relief are the same. From the point of view of stating and proving a claim, the commerce element is on the same level as any other element of a claim. Failure to establish a nexus with interstate commerce is sufficient to defeat the claim. On the otherhand, from the point of view of jurisdiction of Sherman Act claims, when the facts presented in the trial court do not establish a nexus with interstate commerce, the federal courts are without authority to decide the merits, and the Court of Appeals has jurisdiction on appeal, not on the merits but merely for the purposes of correcting the error of the trial court in entertaining the suit.
59
In this case the trial court failed its special obligation to satisfy itself of its own jurisdiction and the same may be said of the Court of Appeals. In my opinion the district court produced a void judgment which is approved by the majority opinion.2 The appeal should be dismissed for want of jurisdiction and the district court judgment should be vacated.
*
Honorable Albert Lee Stephens, Jr., Senior United States District Judge for the Central District of California, sitting by designation
1
Assuming that the Fergusons' complaint improperly alleged interstate commerce, we should not dismiss this case "for lack of jurisdiction without giving the plaintiff an opportunity to be heard unless it is clear the deficiency cannot be overcome by amendment." May Dept. Store v. Graphic Process Co., 637 F.2d 1211, 1216 (9th Cir.1980) (citation omitted); see Timberlane Lumber Co. v. Bank of America Nat'l Trust & Sav. Ass'n, 549 F.2d 597, 602 (9th Cir.1977). The record shows that the Fergusons welcomed exhibitors and products from out of state, which were discouraged by Chamber. Although sparse, these indications of interstate commerce are not so deficient and clearly incurable as to warrant sua sponte dismissal for lack of subject matter jurisdiction at this stage of the proceedings. We reach this conclusion in the context of the minimal showing demanded of the Fergusons. The scope of the Sherman Act is coextensive with the breadth of Congress' power to legislate; the Fergusons meet their burden if they can satisfy the very generous "affecting interstate commerce" standard
We also decline to remand to the district court for further proceedings on jurisdiction. Such a remand would be an exercise in futility because we hold that the Fergusons' complaint should be dismissed for failure to state a claim upon which relief can be granted. See Kern Oil & Ref. Co. v. Tenneco Oil Co., 840 F.2d 730, 734 (9th Cir.1988).
2
It is relatively common for courts to render decisions on the merits in antitrust cases notwithstanding uncertain jurisdiction. See generally, e.g., McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 245-47, 100 S.Ct. 502, 510-11, 62 L.Ed.2d 441 (1980); Ronwin v. State Bar, 686 F.2d 692, 698-99 (9th Cir.1981) (explicitly stating that the plaintiff had failed to establish jurisdiction but addressing other grounds), rev'd, 466 U.S. 558, 104 S.Ct. 1989, 80 L.Ed.2d 590 (decision on merits); Timberlane, 549 F.2d at 602-03 (defense attacking commerce allegations is not jurisdictional, but on merits)
3
We agree with the Fergusons that the "rule of reason" analysis applies to the facts of this case and that they need not show specific intent under section 1. See Cascade Cabinet Co. v. Western Cabinet & Millwork Inc., 710 F.2d 1366, 1370-73 (9th Cir.1983); United States v. Champion Internat'l Corp., 557 F.2d 1270, 1274 (9th Cir.1977), cert. denied, 434 U.S. 938, 98 S.Ct. 429, 54 L.Ed.2d 298 (1977)
4
See also BusTop Shelters, Inc. v. Convenience & Safety Corp., 521 F.Supp. 989, 997 (S.D.N.Y.1981) ("Ironically, one of the principal acts [the plaintiff] complains of was the opening of the bidding on the franchise and the receipt of competing bids. It is hard to see how that conduct can be called anticompetitive."); Murdock v. City of Jacksonville, Florida, 361 F.Supp. 1083, 1088-89 (M.D.Fla.1973) (exclusive lease, open bidding, no Sherman Act violation)
5
Because we hold that plaintiffs have failed to present any material issue of fact on the merits of their antitrust claims against all defendants, we do not address whether any of the defendants were entitled to summary judgment under the eleventh amendment to the United States Constitution, the Noerr-Pennington doctrine, or Parker "state action" immunity. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (in private suits against state or its agencies, eleventh amendment bars recovery from state treasury); Eastern R.R. Presidents' Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) (concerted efforts to influence government do not violate antitrust laws); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) (same); Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943) (anticompetitive actions taken pursuant to program administered in detail by state are immune from antitrust laws)
1
None of the cases that the majority opinion cites decided that a panel of the court of appeals may proceed to a decision on the merits after noting lack of subject matter jurisdiction. Bender has overruled all previously decided cases to the extent of any conflict existed, and all subsequently decided court of appeals cases in conflict with Bender are against the law as articulated by the Supreme Court and are not valid precedents. Cases containing appellate observations as to what are proper district court procedures to resolve jurisdictional problems in complicated cases do not constitute precedent as to what is appropriate procedure in the court of appeals
Two Ninth Circuit cases that the majority cites, Kern Oil & Ref. Co. v. Tenneco Oil Co., 840 F.2d 730, 734 (9th Cir.1988), and Kerr Center Parents Ass'n v. Charles, 842 F.2d 1052 (9th Cir.1988), have been decided since Bender. To the extent they are viewed as applicable to this situation, they can not undercut the authoritative value of Bender. This has been recognized within the Ninth Circuit since both cases were decided before this circuit decided Latch. Moreover, neither Kerr Center nor Kern Oil involved the issue of subject matter jurisdiction. Kerr Center involved state immunity under the eleventh amendment, a defense which is not a jurisdictional bar. Kern Oil involved the district court's loss of jurisdiction upon the filing of the notice of appeal. The court noted that the doctrine was a judicial creation. 840 F.2d at 734. As I have heretofore noted, the need to establish a nexus with interstate commerce is a constitutional necessity.
It is also important to note that the majority's reliance on McLain v. Real Estate Bd. of New Orleans, 444 U.S. 232, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980), is misplaced. In McLain the Court articulated a very specific standard for determining the sufficiency of the nexus to interstate commerce in Sherman Act cases at different stages of the proceedings:
[J]urisdiction may not be invoked under [the Sherman Act] unless the relevant aspect of interstate commerce is identified; it is not sufficient merely to rely on identification of a relevant local activity and to presume an interrelationship with some unspecified aspect of interstate commerce. To establish jurisdiction a plaintiff must allege the critical relationship in the pleadings and if these allegations are controverted must proceed to demonstrate by submission of evidence beyond the pleadings either that the defendants' activity is itself in interstate commerce or, if it is local in nature, that it has an effect on some other appreciable activity demonstrably in interstate commerce.
444 U.S. at 242, 100 S.Ct. at 509.
Moreover, under McLain, the Fergusons had the burden of "demonstrat[ing] a substantial effect on interstate commerce." Id. See also Turf Paradise Inc. v. Arizona Downs, 670 F.2d 813, 818-19 (9th Cir.1982). In McLain the Court allowed the plaintiffs-petitioners to proceed to trial only because they had met the strict requirements of the McLain test.
2
Dismissing the appeal for lack of subject matter jurisdiction would not be "an exercise in futility." The Fergusons would then lose only the right to rely on the Sherman Act. The Idaho courts remain open to them to pursue their claims under the anti-trust statutes of Idaho. For this reason the majority decision on the substantive issues is highly prejudicial to the Fergusons who might present a very different case in the state courts if allowed to proceed to trial
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85 F.3d 240
UNITED STATES of America, Plaintiff-Appellee,v.Kevin Glenn RAWLS, Defendant-Appellant.
No. 95-50861
Summary Calendar.United States Court of Appeals,Fifth Circuit.
June 17, 1996.
Richard L. Durbin, Jr., Asst. U.S. Attorney, Joan E.T. Stearns, Office of the United States Attorney, San Antonio, TX, for plaintiff-appellee.
Kevin Glenn Rawls, Lewisburg, PA, pro se.
Appeal from the United States District Court for the Western District of Texas.
Before GARWOOD, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
1
Plaintiff-Appellant Kenneth Glenn Rawls is a federal prisoner serving a sentence imposed following conviction by a jury for possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a) (count one), and acquisition of a firearm by knowingly making a false written statement, in violation of § 922(a)(6) (count two). Seeking relief through 28 U.S.C. § 2255, Rawls filed a motion to vacate, set aside, or correct his sentence, which motion was denied by the district court. For the reasons set forth below, we affirm.
2
* FACTS AND PROCEEDINGS
3
When Rawls was convicted on counts one and two, the government sought an enhanced sentence under 18 U.S.C. § 924(e)(1), on the basis of Rawls' two burglary convictions grounded in different occurrences on the same date, and a conviction for robbery committed three years thereafter. As a result, Rawls was sentenced to an enhanced sentence totaling 188 months of imprisonment, a total period of supervised release of five years, a $1500 fine, and a $100 special assessment. In his unsuccessful direct appeal to this court, Rawls argued that (1) the district court abused its discretion in admitting purported hearsay testimony during the trial; (2) the evidence was insufficient to prove that he knowingly made a false statement in connection with his acquisition of the firearm; (3) his constitutional rights were violated by the court's use of the preponderance-of-the-evidence standard for the government's burden of proof for enhancement of his sentence under § 924(e)(1); and (4) the enhancement under that section was improper because the two burglaries, committed on the same date, could not be deemed "separate occurrences."In his § 2255 motion, Rawls insists that § 922(g)(1) is unconstitutional for exceeding the authority of Congress under the Commerce Clause, and is unconstitutional as applied to him under the facts of this case. He also urges that he had ineffective assistance of counsel and that he should receive a three level downward adjustment for acceptance of responsibility. For good measure, Rawls urges that his two prior burglary offenses should have been counted as only one offense under the authority of U.S.S.G. § 4A1.2, that pre-indictment delay violated his due process rights, and that his Fourth Amendment rights were violated. The district court denied the § 2255 motion and this appeal ensued.
II
ANALYSIS
4
Relying in large part on United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Rawls argues that Congress exceeded its authority to regulate commerce when it enacted § 922(g)(1). That section, however, has been held to be constitutional under the Commerce Clause. United States v. Wallace, 889 F.2d 580, 583 (5th Cir.1989), cert. denied, 497 U.S. 1006, 110 S.Ct. 3243, 111 L.Ed.2d 753 (1990). In Lopez, the Supreme Court affirmed our holding that 18 U.S.C. § 922(q), which purported to criminalize possession of a firearm within a specified proximity to a school, exceeded the power of Congress to legislate under the Commerce Clause because "[t]he possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Lopez, --- U.S. at ----, ----, 115 S.Ct. at 1626, 1634. Central to the Court's holding in Lopez was the fact that § 922(q) contained "no jurisdictional element which would ensure, through a case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. at ----, 115 S.Ct. at 1631.
5
We have not, since Lopez, considered its effect on the constitutionality of § 922(g)(1).1 Other circuits addressing the issue since Lopez have concluded that the Court's reasons for holding § 922(q) unconstitutional are inapplicable to § 922(g)(1). See United States v. Sorrentino, 72 F.3d 294, 296 (2d Cir.1995); United States v. Bell, 70 F.3d 495, 498 (7th Cir.1995); United States v. Shelton, 66 F.3d 991, 992 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1364, 134 L.Ed.2d 530 (1996); United States v. Hanna, 55 F.3d 1456, 1462 & n. 2 (9th Cir.1995); United States v. Collins, 61 F.3d 1379, 1383-84 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 543, 133 L.Ed.2d 446 (1995); United States v. Bolton, 68 F.3d 396, 400 (10th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996). Today we join all other circuits that have considered the issue post-Lopez and hold that neither the holding in Lopez nor the reasons given therefor constitutionally invalidate § 922(g)(1).
6
Rawls also argues that § 922(g)(1) is unconstitutional as applied to him. More specifically, he points out that when he was arrested no interstate activity was occurring. He contends that, as such, he was not involved in an enterprise engaged in interstate or foreign commerce, so his possession of the firearm "had no connection to channels or instrumentalities of interstate commerce." This argument too is unavailing.
7
Section 922(g)(1) makes it unlawful for a person who has been convicted of a felony "to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." The "in or affecting commerce" element can be satisfied if the firearm possessed by a convicted felon had previously traveled in interstate commerce. United States v. Fitzhugh, 984 F.2d 143, 146, cert. denied, --- U.S. ----, 114 S.Ct. 259, 126 L.Ed.2d 211 (1993) ("[A] convicted felon's possession of a firearm having a past connection to interstate commerce violates *243s 922(g)."); Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52 L.Ed.2d 582 (1977) (concluding that Congress did not intend to require any more than the minimal nexus that, at some time, the firearm had been in interstate commerce). As we noted on direct appeal, an ATF weapons expert testified at Rawls' trial that the revolver he possessed was manufactured in Massachusetts, so that the revolver's presence in Texas had to result from transport in interstate commerce. This evidence is sufficient to establish a past connection between the firearm and interstate commerce. See Fitzhugh, 984 F.2d at 146. We hold that § 922(g)(1) is not unconstitutional as applied to Rawls.
8
As for the other issues urged by Rawls in this appeal, it suffices that we have reviewed the record and considered the legal arguments raised by the parties in their briefs to this court, and are satisfied that no reversible error has been committed, and that Rawls is entitled to no relief, in connection with his claims regarding the counting of prior crimes and ineffective assistance of counsel. The remaining claims asserted by Rawls in his § 2255 motion have not been raised on appeal and are thus deemed abandoned. Hobbs v. Blackburn, 752 F.2d 1079, 1083 (5th Cir.), cert. denied, 474 U.S. 838, 106 S.Ct. 117, 88 L.Ed.2d 95 (1985). For the foregoing reasons, the rulings of the district court culminating in the denial of Rawls' § 2255 motion are, in all respects,
9
AFFIRMED.
10
GARWOOD, Circuit Judge, with whom WIENER and EMILIO M. GARZA, Circuit Judges, join, specially concurring:
11
I concur, with these added observations.1 If the matter were res nova, one might well wonder how it could rationally be concluded that mere possession of a firearm in any meaningful way concerns interstate commerce simply because the firearm had, perhaps decades previously before the charged possessor was even born, fortuitously traveled in interstate commerce. It is also difficult to understand how a statute construed never to require any but such a per se nexus could "ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." United States v. Lopez, --- U.S. ----, ----, 115 S.Ct. 1624, 1631, 131 L.Ed.2d 626 (1995). However, the opinion in Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), dealing with the predecessor to section 922(g), requires us to affirm denial of relief here. While Scarborough addresses only questions of statutory construction, and does not expressly purport to resolve any constitutional issue, the language of the opinion and the affirmance of the conviction there carry a strong enough implication of constitutionality to now bind us, as an inferior court, on that issue in this essentially indistinguishable case, whether or not the Supreme Court will ultimately regard it as a controlling holding in that particular respect.2 Nothing in Lopez expressly purports to question Scarborough, and indeed it is not even cited in Lopez. Moreover, section 922(g) at issue here, unlike section 922(q) at issue in Lopez, does expressly require some nexus to interstate commerce, thus importantly reflecting that Congress was exercising that delegated power and not merely functioning as if it were the legislative authority of a unitary state. Lopez refused to "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States" and, though recognizing that "[t]he broad language" in some of its prior opinions "has suggested the possibility of additional expansion," nevertheless "decline[d] here to proceed any further." Id. at ----, 115 S.Ct. at 1634. It is not for us to say that following what seems to be implicit in Scarborough is to proceed "further" down the road closed by Lopez. In any event, this panel is bound by our post-Lopez decision in United States v. Segeada, No. 95-40430, 74 F.3d 1237 (5th Cir. Nov. 30, 1995) (unpublished), holding section 922(g)(1) constitutional.
1
In United States v. Segeada, No. 95-40430, 74 F.3d 1237 (5th Cir. Nov. 30, 1995) (unpublished), we held, without discussion, that the defendant's assertion that § 922(g)(1) was unconstitutional did not constitute reversible error
1
As neither party has requested oral argument, this special concurrence is consistent with summary calendar disposition
2
See, for example, the following from Scarborough where the Court observed: "... we see no indication that Congress intended to require any more than the minimal nexus that the firearm have been, at some time, in interstate commerce." Id. at 575, 97 S.Ct. at 1969 (footnote omitted)
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172 F.Supp.2d 395 (2001)
Robert ELLIOTT, Plaintiff,
v.
BRITISH TOURIST AUTHORITY, Department of Heritage, British Tourist Authority (New York), Defendants.
No. 96 CIV 9154 NRB.
United States District Court, S.D. New York.
April 30, 2001.
*396 *397 Brian A. Mangines, Thomas E. Mangines, Mangines & Burke, LLC, Fairfield, CT for Plaintiff.
Paul W. Werner, Conner & Chopnick, New York City, for Defendants.
OPINION AND ORDER
BUCHWALD, District Judge.
Plaintiff Robert Elliott ("plaintiff" or "Elliott") is a former employee of defendant British Tourist Authority (BTA), an agency of the British Government. Having been terminated by the BTA in March, 1996, plaintiff brought this action for age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the New York State Human Rights Law, N.Y. Exec. Law § 296(3)(a). Pursuant to 28 U.S.C. § 1367, plaintiff also brings pendant state law claims of breach of contract and a breach of the implied covenant of good faith and fair dealing. Now pending is defendant's motion for summary judgment, pursuant to Fed.R.Civ.P. 56. For the following reasons, defendant's motion is granted.
FACTUAL BACKGROUND
The following facts are undisputed.[1] Plaintiff commenced his employment by BTA in 1969 as a marketing executive. He continued as an at-will employee of BTA for twenty-seven years, until his eventual termination effective March 31, 1996. During that time, he generally received satisfactory performance reviews. However, in August, 1995, plaintiff received a "below average" performance rating.
On or about February 26, 1996, when plaintiff was sixty years old, he was informed by Jeffrey Hamblin ("Hamblin"), the General Manager of BTA, that his position was being eliminated due to budget cuts. When terminating plaintiff, Hamblin informed him that he would receive income from BTA through a consulting contract. See Deft. Mem, Exh. A, at 77. At the time of his termination, plaintiff received forty-five weeks severance pay, totaling *398 $35,447.65, and early receipt of his pension in the amount of $1650 per month.
On March 26, 1996, plaintiff filed a complaint with the EEOC alleging age discrimination, and filed the instant action in December, 1996. Plaintiff has not received any consulting contracts with BTA since his termination.
Some facts, however, are in dispute. First, plaintiff asserts that defendant hired a young female employee in her 20s to assume his duties. He further alleges that he was assigned to travel throughout the United States with her to orient her to his job responsibilities and to introduce her to his contacts. Additionally, Elliott alleges that at the time of his termination, there existed two open positions at BTA for which he was qualified and to which he requested reassignment. However, defendant contests each of these three allegations, asserting that plaintiff has provided no evidence in support of any of them.
DISCUSSION
A. Summary Judgment Standard
Summary judgment is properly granted "`if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law.'" R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir.1997) (quoting Fed.R.Civ.P. 56(c)). The Federal Rules of Civil Procedure mandate the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In reviewing the record, we must assess the evidence in "a light most favorable to the nonmoving party" and resolve all ambiguities and "draw all reasonable inferences" in its favor. American Casualty Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir.1994); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nonetheless, the non-moving party must affirmatively set forth at least some facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256, 106 S.Ct. 2505.
We are mindful that summary judgment is "ordinarily inappropriate" in the context of a workplace discrimination case because the allegations usually require an exploration into an employer's true motivation and intent for making a particular employment decision. See Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir.1984). Thus, "trial courts must be especially chary in handing out summary judgment in discrimination cases." Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir.1996); see also Bickerstaff v. Vassar College, 196 F.3d 435, 448 (2d Cir. 1999) ("Employers are rarely so cooperative as to include a notation in the personnel file that the [adverse employment action] is for a reason expressly forbidden by law.").
However, this caution does not absolve the plaintiff from the responsibility of producing sufficient evidence from which a reasonable juror could return a verdict in his favor. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (1986); see also Lane v. Sotheby Parke Bernet, Inc., 758 F.2d 71, 72 (2d Cir.1985) (affirming grant of summary judgment in Title VII action where plaintiff failed to establish prima facie case).
B. ADEA Claims
The ADEA provides that it is "unlawful for an employer ... to fail or refuse or otherwise to hire or to discharge any individual or otherwise discriminate *399 against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 629(a)(1). The critical issue in an ADEA case, as in any discrimination case, is one of proof of discriminatory intent on the part of the defendant. "[L]iability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (emphasis added).
Thus, because allegations of age discrimination are, as here, so often based on circumstantial evidence, they are analyzed using the three-step burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Galabya v. New York City Bd. of Educ., 202 F.3d 636, 639 (2d Cir.2000).
Under the McDonnell Douglas framework, our first inquiry is whether plaintiff has established a prima facie case of discrimination. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If the plaintiff has so pled, then a presumption of discriminatory animus is established and the burden shifts to defendant to produce evidence of a legitimate, non-discriminatory reason for its actions. See Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Assuming that defendant can produce such a justification, then the presumptions and burdens of the McDonnell Douglas framework drop away, and only the ultimate question of "discrimination vel non" remains. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)).
Plaintiff has adequately, if just barely, stated a prima facie case. However, even though he has adequately pled an ADEA claim, he has not marshaled sufficient "evidence from which the factfinder can reasonably find the essential elements of the claim." James v. New York Racing Ass'n., 233 F.3d 149, 154 (2d Cir.2000). Thus, for the following reasons, summary judgment in favor of the defendant on plaintiff's alleged discriminatory discharge is appropriate.
1. Prima Facie Case
In order to plead a prima facie case, plaintiff must show (1) membership in a protected class, (2) qualification for the position, (3) an adverse employment action, and (4) that the "adverse employment decision was made under circumstances giving rise to an inference of unlawful discrimination." Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 101 (2d Cir.2001).
The evidentiary burden on plaintiff in establishing a prima facie case is "minimal". Byrnie, 243 F.3d at 101; see also Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.1994) (describing burden of establishing a prima facie case as "de minimis"). Since, at the summary judgment stage, it is not this Court's role to resolve questions of fact, we must determine only "whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive." Id. at 38.
There is no dispute that plaintiff has established the first three elements of a prima facie case. First, he is older than forty years of age, and thus falls within the class protected by the ADEA. See 29 U.S.C. § 631(a). Second, he was clearly qualified for the position in that he performed it to BTA's satisfaction for a number *400 of years.[2] Third, his termination obviously qualifies as an adverse employment action. See Reeves, 530 U.S. at 141, 120 S.Ct. 2097.
Whether the circumstances of plaintiff's termination give rise to an inference of discrimination is a much closer question. There are three allegations in the complaint that could possibly support such an inference. First, plaintiff states that a female employee in her late 20's was hired to replace him, and that he was asked to train her in his job responsibilities prior to his termination. Second, he states that BTA refused to transfer him to either of two vacant positions at the agency. Third, plaintiff alleges that no individual not part of the protected class indeed, no other individual at all was affected by the reduction in force.
It is ordinarily the case that a plaintiff's replacement by a significantly younger employee is sufficient evidence to establish a prima facie case. See Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir.), cert. denied, 530 U.S. 1261, 120 S.Ct. 2718, 147 L.Ed.2d 983 (2000) (finding inference of discrimination where plaintiff's duties were transferred to employees eighteen and twenty-five years younger than him); see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996) (same). However, plaintiffs allegation that he was replaced by a much younger employee is not supported by even a scintilla of record evidence other than plaintiff's self-serving affirmations. In response to defendant's interrogatories, plaintiff has failed to identify the young hire with whom he allegedly traveled across the nation on an orientation tour. See Deft. Mem., Exh. 6, at 5-8. It cannot be the case that completely unsupported, self-interested assertions meet the standard for establishing a prima facie case, liberal though that standard may be.
Similarly plaintiff offers no evidence regarding the two other positions at BTA for which he was allegedly turned down. The failure to allow an individual who is terminated through a restructuring to transfer into a similar position may qualify as evidence of possible age discrimination. See Tarshis v. The Riese Org., 211 F.3d 30, 37-38 (2d Cir.2000). However, once again plaintiff offers nothing more than his own affidavit in support of these allegations. See Pl. Mem., Exh. B. Such conclusory factual statements will not suffice to state even a prima facie case.
However, the evidence proffered also reveals that plaintiff, a member of a protected class, was the only individual terminated as part of the alleged budgetary cutbacks. A number of Courts of Appeals have held that when a reduction in force takes place, if that personnel action disproportionately affects members of a protected class, the requisite showing for a prima facie case is made.
For example, the court in Washington v. Garrett, 10 F.3d 1421, 1433-34 (9th Cir. 1993), found that when a reduction in force took place in which the plaintiff, a member of a protected class, was the only individual terminated, the plaintiff had adequately pled a prima facie case. That court noted that "when an employee alleges that her position was abolished for discriminatory reasons, the fact that she was not replaced by someone not of her protected class is not fatal to her claims." Id. at 1433.[3]
*401 This case has been repeatedly cited by the Second Circuit with approval as one of several methods by which a plaintiff may establish his prima facie case of discrimination. See, e.g., Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir.2000) ("Circumstances from which invidious discrimination may be inferred include preferential treatment given to employees outside the protected class.") (citing Garrett); Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 91 (2d Cir.1996) (same).
Thus, because plaintiff is a member of a protected class, and was the sole employee terminated in 1996 due to budget cuts, we find that a prima facie case of age discrimination exists. Our Court of Appeals has emphasized that a "plaintiff whose job was eliminated upon his discharge, [and who] failed to show that a new employee took over his job after discharge or even that the position was left open" may still plead a prima facie case of age discrimination if the plaintiff can show some kind of direct or statistical evidence of discrimination. Montana v. First Federal Savings & Loan Assn. of Rochester, 869 F.2d 100, 104 (2d Cir.1989). See also Chertkova, 92 F.3d at 91 ("[T]here is no unbending or rigid rule about what circumstances allow an inference of discrimination when there is an adverse employment decision.")
2. Summary Judgment Analysis
Plaintiff having pled a prima facie case, the burden then shifts to defendant to articulate a "legitimate, non-discriminatory reason" for the adverse employment action. Burdine, 450 U.S. at 254, 101 S.Ct. 1089. That burden "is one of production, not persuasion; it can involve no credibility assessment." Reeves, 530 U.S. at 141, 120 S.Ct. 2097 (quotations omitted). BTA has adequately met that burden here by justifying plaintiff's termination as the result of budget cuts. See Deft. Mem., Exh. A, at 61 (Letter from Hamblin to Elliott, February 26, 1996); id. at 77 (Memo from Hamblin to all BTA staff in the Americas).
Once a showing of a non-discriminatory reason for the adverse employment action is made by defendant, all presumptions and burdens disappear. Accordingly, we analyze the sufficiency of the evidence in this discrimination case as we would in any other case. See Reeves, 530 U.S. at 143, 120 S.Ct. 2097; Schnabel v. Abramson, 232 F.3d 83, 89 & n. 5 (2d Cir.2000) (The amount of evidence "needed to sustain an inference of discrimination is the same as that needed to sustain the ultimate inference in any other civil case.")
The quantum of proof that a plaintiff must provide in order to survive a summary judgment motion was recently revisited by the Supreme Court in Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). In that case, a unanimous Court overturned the Fifth Circuit's per se rule (known as the "pretext plus" rule) that "a prima facie case of discrimination, combined with sufficient evidence for the trier of fact to disbelieve the defendant's legitimate, nondiscriminatory reason for its decision, is insufficient as a matter of law to sustain a jury's finding of intentional discrimination." Id. at 146, 120 S.Ct. 2097.
For the purposes of the case at bar, however, the most relevant aspect of the Reeves decision is the Court's ultimate conclusion that the inquiry at the summary judgment stage of a discrimination case is necessarily a case-specific one that will vary based on the totality of the circumstances in any given case. See id., at 148-49, *402 120 S.Ct. 2097; Schnabel, 232 F.3d at 90 ("[T]he Supreme Court's decision in Reeves clearly mandates a case-by-case approach ....").
As the Second Circuit has noted in interpreting the Reeves decision, the Reeves Court's rejection of the Fifth Circuit's rule does not mean that summary judgment is no longer appropriate in employment discrimination cases. Judge Cabranes observed in Schnabel v. Abramson, 232 F.3d 83 (2d. Cir.2000), that Reeves struck down the per se rule that an ADEA claimant always must offer more than a prima facie case and some evidence of pretext. See Schnabel, 232 F.3d at 90. This is logically quite different from a rule stating that if plaintiff has established a prima facie case and offered evidence of pretext, summary judgment is never available to a defendant. The Schnabel court made quite clear that Reeves did not go so far as to require the inverse of "pretext plus" that if "pretext plus" is established, a plaintiff's case per se reaches a jury.[4]
Thus, in assessing the sufficiency of plaintiff's proof we follow the post-Reeves rule that a prima facie case plus pretext evidence may be enough to reach a jury, but is not always sufficient to do so. See id. at 90-91.
Here, Elliott has not brought forth sufficient evidence to defeat defendant's summary judgment motion. In weighing the evidence proffered by both parties, drawing all inferences in favor of the plaintiff as we must, we find that no reasonable jury could conclude that the BTA acted with discriminatory intent.
On the one hand, there is a lengthy documentary record that defendant had long sought to eliminate Elliott's position due to the apparently disproportionately high cost of his employment.[5] Thus, no factfinder could conclude that this is a case in which a defendant manufactured a pretextual record, after allegations of discrimination, to hide an illicit motive. In fact, the documents produced by defendant in response to plaintiff's document requests (but cited by neither party in their moving papers) illustrate that Elliott's position had in fact been a candidate for a budget cut as far back as 1992. For example, in 1992 the Executive Vice President for North America, Don Ford, wrote in a memorandum that "Robert [Elliott] has performed well for BTA over the years, but he is vastly overpaid, the reasons for which go back before my time.... I would not propose to replace Robert, but we should need a Marketing Executive at a cost to BTA in a full year of around $26,000." Id., at 122 (Memorandum by Don Ford, February 3, 1992). At that time, the annual cost of employing Elliott was approximately $76,000. The elimination of his position would have saved BTA at least $50,000 in annual costs, *403 in addition to proportionate retirement benefits and pension contributions.
It is not, however, unlawful for an employer to dismiss an employee because of some objective factor which may in fact be closely correlated with age, such as seniority or benefits. In Hazen Paper Co. v. Biggins, 507 U.S. 604, 608, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), an unanimous Supreme Court held that an employer does not violate the ADEA "by acting on the basis of a factor, such as an employee's pension status or seniority, that is empirically correlated with age." See also Criley v. Delta Air Lines, 119 F.3d 102, 105 (2d Cir.1997) ("[E]mployment decisions driven by factors that are empirically intertwined with age are not discriminatory so long as they are motivated by `some feature other than the employee's age'. Thus, decisions motivated by economic concerns do not violate the ADEA." (citations omitted)). Accordingly, BTA's evidence that it terminated Elliott because he was disproportionately highly compensated does not raise any inference of an ADEA violation.
Additionally, Elliott marshals no evidence whatsoever of any age-related comments or other specific evidence of animus on the part of his employers. Cf. Schnabel, 232 F.3d at 91 (noting that summary judgment for defendant was appropriate because plaintiff's case was far weaker than that of the plaintiff in Reeves, in part because he "failed to offer any evidence that he was subjected to any age-related comments or criticisms on the job.").
On the other hand, the only evidence supporting plaintiff's claims is, as discussed supra, his own affidavit, which alleges that a young female employee replaced him. However, despite the repeated inquiries from defendant as to the identity of this young woman, he has failed to state her identify with any specificity. Because he has failed to offer any specific detail from which a jury might reasonably infer discriminatory intent, summary judgment in favor of BTA is appropriate.
It is true that when a plaintiff's defense to a summary judgment motion consists solely of his affidavit, that is not insufficient evidence as a matter of law to survive the motion. See Danzer v. Norden Sys., 151 F.3d 50, 57 (2d Cir.1998). In Danzer, however, a case in which defendant's summary judgment motion did not prevail, the plaintiff's affidavit had no "evidentiary infirmity," but instead was a "detailed" and "in-depth" chronicle of the events giving rise to the lawsuit. In the case at bar, however, the plaintiff's six-page affidavit fails to include a detail so basic as the identity of the alleged younger female replacement worker, and is replete with legal conclusions. See, e.g., ¶¶ 15, 16, 19, 20, 27. In these circumstances, plaintiff's affidavit provides no more support for his claim than does his pleading.
Indeed, the very terms of Fed.R.Civ.P. 56(e) support the granting of defendant's motion. That rule provides that "[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's 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." Because plaintiff's allegations do rest on his pleadings, and because they do not set forth any specific facts showing that there is a genuine issue for trial, defendant's motion is granted, and plaintiff's discriminatory discharge claims are dismissed.
C. Retaliation Claim
Plaintiff alleges that in retaliation for his complaints of age discrimination, defendant withdrew its offer of consulting services *404 to him. Defendant's motion for summary judgment on this claim is granted.
The ADEA also prohibits retaliation for complaints of age discrimination. See 29 U.S.C. § 629(d). In order to prevail on a retaliation claim, plaintiff must demonstrate: (1) that he was engaged in protected activity, (2) that the employer was aware of the activity, (3) that the employer took an employment action adverse to plaintiff, and (4) that the adverse action was causally connected to the protected activity. See Hollander v. American Cyanamid Co., 895 F.2d 80, 85 (2d Cir.1990) (listing elements of an ADEA retaliation claim). There is no doubt that plaintiff was engaged in protected activity which was known to defendant; he made a complaint to the EEOC on March 26, 1996. See Deft. Mem., Exh. C, at 81. However, the record does not support a finding that defendant BTA took any adverse employment action against Elliott.
The record is quite clear that BTA had made an offer of consultancy to Elliott upon his termination. Documents provided by defendant, most notable a letter from Hamblin to Elliott, go so far as to detail the number of weeks that Elliott would be spending in each location. However, that letter also stated quite clearly that "[T]hese opportunities would be based upon you establishing yourself as a company whose services we would be able to access. In speaking to our Accountant, I am sure that he will be able to advise you of the processes involved." Deft. Mem., Exh. C, at 87.
As this language makes clear, the offer of consultancy was a contingent one that depended upon plaintiff taking affirmative steps to organize an appropriate corporate form and contact defendant's agents to arrange the logistics. BTA asserts in its moving papers that Elliott never took those simple steps, and thus it should not be held liable for retaliation when it never in fact took an adverse employment action against plaintiff. The ball, BTA argues, was entirely in Elliott's court and his failure to return it should not constitute an ADEA claim.
Elliott offers no evidence in response to these arguments. His affidavit on this point is entirely conclusory and offers no more detail: "[T]he adverse action taken against me by refusing to give me consulting assignments and the resulting connection between that refusal was in retaliation to [sic] the fact that I had filed charges of discrimination as is my statutory right. BTA refused to extend those consulting assignments to me because of my filing the discriminatory [sic] charges." This is the total sum of plaintiff's evidence on this issue.
The failure of BTA and Elliott to consummate the consulting relationship, in conjunction with Elliott's EEOC complaint, does state a prima facie case of retaliation that would survive a motion to dismiss under Rule 12(b). However, at this stage in the litigation plaintiff must be able to offer more than mere conclusory statements where it is reasonable to do so. Having offered no evidence that he took any steps to follow up on defendant's contingent offer of a consultancy, no reasonable jury could find defendant liable for retaliation.
D. State Law Claims
Plaintiff's federal claims all having been dismissed, we decline to exercise our supplemental jurisdiction over plaintiff's remaining state law claims.
CONCLUSION
For the above reasons, defendant's motion is granted, and all claims are dismissed. *405 The Clerk of the Court is respectfully directed to close this case.
IT IS SO ORDERED.
NOTES
[1] Neither party has complied with Local Civil Rule 56.1, which requires that in connection with a summary judgment motion, each party submit "a separate, short and concise statement of the material facts" as to which the party "contends there is no genuine issue to be tried." Defendant's reply memorandum, however, includes five specific points of contention in response to plaintiff's statement of the facts in his opposition papers. We will thus consider the remainder of plaintiff's statement of the facts, which were not contested in defendant's reply, to be admitted.
[2] Plaintiff alleges that his negative performance review in 1995 was a false and malicious attempt to lay the groundwork for his termination. However, defendant justifies plaintiff's termination on the grounds of budgetary cutbacks. The argument that the 1995 review was unfairly harsh thus bears little relevance to the outcome of this motion, because defendant concedes that he was qualified for the position and that his termination was unrelated to performance in any way.
[3] Even in Garrett, a race discrimination case, the record included at least some evidence of "an atmosphere of racial tension" in the workplace. Id., at 1434. This lies in stark contrast to the instant case, and serves to highlight the thinness of the prima facie case here.
[4] It was, prior to Reeves, the law in the Second Circuit that a prima facie case plus some pretext evidence is not always sufficient to reach a jury. See Fisher v. Vassar Coll., 114 F.3d 1332 (2d. Cir.1997) (in banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998) (overruling Binder v. Long Isl. Lighting Co., 57 F.3d 193 (2d Cir.1995)) (holding that a prima facie case plus pretext evidence is always sufficient to reach a jury). There is no reason to believe that the rule of Fisher is inconsistent with that of Reeves; indeed, it appears that they are two sides of the same coin. See James v. New York Racing Ass'n., 233 F.3d 149, 155 (2d Cir.2000) ("We conclude that the Supreme Court's reasoning in Reeves is wholly compatible and harmonious with our reasoning in Fisher. There is no inconsistency between the two rulings.")
[5] Indeed, when plaintiff himself wrote a letter to the CEO of the BTA requesting a more favorable settlement package, he stated, "I was aware of the budgetary constraints within BTA however, I was convinced that BTA would find a position for me ...." Deft. Mem., Exh. C, at 77.
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161 N.W.2d 84 (1968)
CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Appellant,
v.
X. T. PRENTIS et al., Appellees.
CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Appellant,
v.
Lynn POTTER et al., Appellees.
No. 52494.
Supreme Court of Iowa.
September 5, 1968.
Rehearing Denied November 12, 1968.
*86 Frank W. Davis and Frank W. Davis, Jr., Des Moines, and George M. Hollander, Chicago, Ill., for appellant.
Richard C. Turner, Atty. Gen., and George W. Murray, Asst. Atty. Gen., for appellees.
SNELL, Justice.
Two cases involving the Chicago and North Western Railway Company's 1964 and 1965 ad valorem tax assessments determined by Iowa State Tax Commission were consolidated for trial and appeal. The Railway Company sought relief in the district court and appealed from adverse rulings.
Plaintiff railway company will be referred to as North Western. Plaintiff is authorized to do business in Iowa as a foreign corporation.
Defendant Iowa State Tax Commission is the administrative agency of the State of Iowa created under the provisions of chapter 421, Code of Iowa, 1962. The other defendants are the members of the commission and 56 county treasurers. The issues here involve the acts of the commission and its members. The defendants will be referred to as the Commission.
The actions arose under the Code of 1962. Unless otherwise indicated references will be to the Code of 1962.
North Western sought two remedies arising out of single factual situations. In Division I of its petitions in equity North Western sought writs of mandamus and prayed that the court direct the commission to convene, fix the assessed values of the property of the North Western for its 1964 and 1965 assessments at twenty-seven percent (27%) of the current fair market value of said property and to equalize and adjust the percentage of current fair market value at which the property of the North Western is assessed with percentages of current fair market value at which other railway companies and other properties in the State of Iowa are assessed.
In Division II North Western sought declaratory judgments declaring the actions of the commission in failing to equalize and adjust the 1964 and 1965 assessed values of its property with the 1964 and 1965 assessed values of other railway companies and other properties in the State of Iowa were null, void and of no effect, not done in an exercise of honest discretion, done in an arbitrary, illegal, fraudulent and capricious manner, constructive, if not actual and intentional fraud, and compelling North Western to bear an undue, unfair and disproportionate share of the tax burden of the State of Iowa.
As indicated the controversy arises from the dissatisfaction of North Western with the assessment of its property by the commission.
Operating property of railway corporations is assessed annually by the commission under the provisions of chapter 434 of the Code. The chapter does not provide for appeal to review the wisdom of the discretionary acts of the commission.
*87 We agree with this from the trial court's conclusions of law:
This is an action of mandamus and not an appeal from an assessment. It is not the province of this court to fix or determine the value of plaintiff's property for tax purposes, but only to determine if the 1964 and 1965 assessments by the commission were arbitrary, capricious, fraudulent, and not the result of the exercise of discretion. If so determined, the court can only compel the commission to perform its legal duty. It is the burden of the plaintiff to establish not only that its assessment is excessive or that it is inequitable with respect to other property, but also that it is the result of arbitrary and capricious action of the assessor, and not the result of the exercise of discretion. The taxpayer must show more than mere difference of opinion as to values in order to sustain its burden.
As is frequently the case the litigants took divergent views of the trial court's approach and conclusions. Appellant claims the trial court, although recognizing the limitations on review, nevertheless performed assessment functions. The appellee praises the trial court for his thorough review of the voluminous record of highly technical testimony and complicated exhibits and ability as "an excellent statistician and a better than average accountant." We agree with appellee as to the trial court's diligence and ability.
I. Many of the same issues here presented were involved and decided in litigation over the 1963 assessment. See Chicago and North Western Railway Company v. Iowa State Tax Commission, 257 Iowa 1359, 137 N.W.2d 246, decided in 1965. Points of law therein recognized need not be extensively discussed here. These points include:
(1). Considerable discretion is vested in taxing authorities in determining actual value of property. (loc. cit. 1370, 137 N.W.2d 246)
(2). The law contemplates the application of a just and reasonable judgment factor and defies any absolute mathematical formula for testing. The result can only be approximately correct. (loc. cit. 1371, 137 N.W.2d 246)
(3). Taxpayer's burden is not met by showing a difference of opinion between witnesses and assessing authority. Unless the valuation is grossly excessive and the result of the will and not the judgment the assessment will be sustained. (loc. cit. 1371, 137 N.W.2d 246)
(4). Equality of taxation requires a uniform rate of tax and uniformity in valuation. (loc. cit. 1371-1372, 137 N.W.2d 246)
(5). A sales-assessment survey is admissible and entitled to consideration. Its probative value depends on its scope and is not conclusive as a matter of law. (loc. cit. 1377, 137 N.W.2d 246)
(6). Actual value, market value and sales value, are not synonymous terms. (loc. cit. 1378, 137 N.W.2d 246)
(7). A 3 factor formula is used in Iowa and most states for determining a formula value for railroads operating in more than one state:
(a) The first factor is average annual net operating income for the preceding five years capitalized at 6%. A portion based on the extent of the operation in Iowa is then attributed to the value of the operating property in Iowa.
(b) The second factor is the average net stock and bond value for the entire system for the preceding five years with the portion attributable to Iowa determined by the same allocation formula.
(c) The third factor is the reproduction cost of operating property actually situated in Iowa, less depreciation, less a uniform 40% deduction for obsolescence, also allocated.
*88 The three factors averaged together result in the so-called "formula value" in Iowa.
To this figure is applied a judgment factor by the taxing authority and the final result is taken as the actual value which is then assessed at 60% to obtain the assessed value under the provisions of section 434.15, Code of Iowa. (loc. cit. 1365, 137 N.W.2d 246.)
In applying these rules in the former case we held there was discrimination between the North Western and other railroads but the evidence was insufficient to show discrimination between North Western and other real estate (locally assessed real estate).
II. North Western, appellant, stated the issues in the present case as follows:
1. Is North Western valued at its current fair market value?
2. Is the property of North Western assessed at a higher percentage of its current fair market value than the percentage of current fair market value at which the property of other railway companies is assessed?
3. Is the property of North Western assessed at a higher percentage of its current fair market value than the percentage of current fair market value at which other real property subject to taxation, both urban and rural, is assessed?
4. Has North Western sustained its burden of proving that the acts of the Commission were done in an erroneous, arbitrary, illegal, fraudulent and capricious manner?
5. Is North Western entitled to a declaratory judgment and a writ of mandamus?
This statement of the issues is correct if it is kept in mind that we may not substitute our reaction to the evidence for the factual conclusions and discretionary acts of the commission. To reverse we must find that the commission acted in an arbitrary, capricious, illegal and fraudulent manner. The fact that we might disagree with the commission is not enough.
The plaintiff's burden is heavy.
Fourteen witnesses were called by plaintiff. Two were called by defendant. Voluminous exhibits and statistical data were offered and received. The witnesses were highly qualified and experienced in their fields.
The printed record before us is in 9 volumes with over 3300 pages. Detailed analysis of the testimony of the several witnesses is not justified or possible within reasonable space limitations.
Exhibit #221 entitled "Appraisal of Railroad and Other Public Utility Property for Ad Valorem Tax Purposes", a unit valuation report prepared by a committee of National Association of Tax Administrators, was received in evidence by stipulation (Exhibit #1.) This exhibit discusses in detail the many facets of the factors involved in fixing assessed valuations and the problems involved. The different formulas depending on the approach to the problem were discussed. We quote from pages 8 and 9:
"From what has just been said, it is clear that the Committee does not believe in slavish adherence to a formula. But we are equally sure that good results will not flow from the total rejection of formulas. We subscribe, rather, to the viewpoint aptly expressed by the late Thomas S. Adams when he said: `A method of valuation taking the various factors into account in a rigid mechanical way should be used as a datum line or point of departure. The valuation so secured would have a presumption in its favor and should be changed only for cause.' As long as formulas are used to crystallize the assessor's judgment and not to stifle his judgment, we would agree that they are essential to an orderly, equitable assessment process.
*89 "The state statutes and court decisions have delegated to the assessor the exercise of judgment. But judgment implies knowledge of the subject being judged. * * *
"Long ago, Ptolemy, King of Egypt, asked Euclid, a famous mathematician, whether there was some easy way to master the science of geometry. Then came Euclid's famous reply: `There is no royal road to geometry.' Neither is there a royal road to value. Value is a relative thing; there is no such thing as `intrinsic value.' Value cannot be measured with the assurance of accuracy that we measure a pound, an hour, or a mile. * * *"
This is from page 61 of the same exhibit:
"In the assessment of these complex properties, or of property generally for that matter, there is no such thing as one and only one answer. Value is a relative thing."
The trial court referred to this exhibit as follows:
"A widely accepted approach to the valuation of a railroad for ad valorem tax purposes is set forth in the book or pamphlet entitled `Appraisal of Railroad and other Public Utility Property for Ad Valorem Tax Purposes', published in June of 1954 by the National Association of Tax Administrators. This is in evidence as Exhibit 221. In general, the method of valuation outlined therein considers and uses three elements or factors as evidence or indicators of value, as follows: (1) capitalized earnings, (2) market value of stock and debt, and (3) either original or reproduction cost less depreciation.
"Some judgment is involved in the use and application of a formula itself. Rate of capitalization of earnings, determination of operating and non-operating income, rates of depreciation and allowance for obsolescence are all matters involving some judgment within a rather narrow scope, so if these judgments are exercised within reasonable limits and applied uniformly to all railroads, formula values represent a rational and objective approach in the valuation and assessment of railroad property.
"It is also recognized that formula values based on the three factors are not fully conclusive of value and that there is room for the exercise of informed and intelligent judgment by the appraiser or assessing body. * * * This additional consideration has been referred to as the `judgment' factor, and some deviation from the formula valuation through the exercise of the judgment factor is expected. A capitalized earning value in the formula is necessarily based on past earnings, and there may be cogent reasons for believing that past earnings are not indicative of future earnings. Similarly, average stock and debt values for prior years may not be indicative of present value. Labor disputes affecting operations, casualty losses, prospective gains or losses in traffic are some of the matters which might be considered in exercising the judgment factor to vary the formulaic valuation. A variation of 15 percent from the formulaic valuation as a result of the exercise of the judgment factor would not be unreasonable. See: Page 61 of Exhibit 221. Utilizing several of the indicators of value tends toward objectivity and equality in the assessment of railroad or public utility property, and provides an important basis on which to exercise a value judgment.
"The formulaic approach, with some variations or modifications, is used by most states assessing railroads for ad valorem tax purposes. The Commission has purported to use a formulaic approach for the valuation of railroads operating in the state for many years. * * *"
This approach is in accord with our 1965 opinion, supra, Division I.
III. Five railroads represent about 85% of the Class I railroad property assessed in Iowa. Only the physical property located or used in Iowa in the operation of the railway is subject to taxation here (section *90 434.15, Code of Iowa). In the case of interstate carriers the system valuations are determined and allocated proportionately to the several states. As assets and distribution thereof change from year to year there is a responsive change in allocation. The allocation factors are not in dispute.
Formula worksheets are prepared for commission use.
A summarized computation of the formula worksheet for North Western for 1964, as shown by Exhibit 145, is as follows:
I. Average Net Operating
Income for 5 years (1959-63) $ 3,399,327.
Capitalized at 6% 56,655,450.
20.867% allocated to Iowa $11,822,293.
II. Average Stock and Bond Value for
5 years (1959-63) $146,498,315.
20.869% allocated to Iowa $30,569,803.
III. Reproduction Cost Less Depreciation of
Iowa Property at 1941 prices $ 72,287,660.
Less obsolescence 28,915,064. $43,372,596.
____________ ____________
Total $85,764,692.
Formula Value Allocated to Iowa $28,588,231.
A summarized computation of the formula worksheet for North Western for 1965, as shown by Exhibit 150, is as follows:
I. Average Net Operating Income
for 5 years (1960-64) $ 4,720,140.
Capitalized at 6% 78,669,000.
20.723% allocated to Iowa $16,302,577.
II. Average Stock and Bond Value for
5 years (1960-64) 151,579,976.
20.723% allocated to Iowa $31,411,918.
III. Reproduction Cost Less Depreciation of
Iowa Property at 1963 prices 103,745,124.
Less obsolescence 41,498,050. $62,247,074.
____________ ____________
Total 109,961,569.
Formula Value Allocated to Iowa 36,653,856.
A substantial improvement in the position of North Western is indicated by comparison of these two worksheets.
These data sheets are completed by the commission's chief tax analyst and are tentative valuations. North Western was granted a hearing before the commission and presented its case for lowered assessments. Statistical data and comparison charts were presented.
Our problem is not with the accuracy of figures or computations. The problem is whether the commission acted illegally in the use thereof.
In considering the several factors we follow the same chronological order as in Division I(7), supra, and as did the trial court.
IV. The capitalized earnings factor is the net railway operating income referred *91 to by stipulation as N.R.O.I. The figures used are the average annual net railway operating income for the preceding five years as reported to the Interstate Commerce Commission pursuant to its Uniform System of Accounts for railroad companies.
The commission over the years has been accepting this operating income as reported by the various railroads and has capitalized it at the uniform rate of 6%.
In Division V, infra, we recognize the difficulties in determining stock and debt values. Similar problems appear in allocating receipts to income. For example, Mr. Reeves observed that North Western for a number of years has lived substantially off the sales of surplus land and will continue to do so for some time.
The 1964 officers' report to shareholders (Exhibit 108) says that real estate sales in 1964 resulted in a net gain of $10,967,000. Of this net gain $2,492,000 was credited to income and $8,475,000 was credited to retained income and included in special credits.
The method of determining net operating income was summarized by the trial court as follows:
"Under the Uniform System of Accounts all income from carrier operations is segregated into a number of railway operating revenue accounts. Similarly, all expense attributed to carrier operation is segregated into a number of railway operating expense accounts. These accounts are referred to by railroad accountants as `above the line' accounts, and, when balanced against one another, reflect net railway operating income (hereinafter referred to as N.R.O.I.)
"Under the Uniform Systems of Accounts the term N.R.O.I. has a rather definite meaning. The accounting procedures are sufficiently definite to provide uniform data from different railroads as to their financial operations and conditions.
"Ordinarily physical assets (except land) having a service life of a period of years are depreciated each year and a part of the cost of the assets charged as an operating expense each year during the service life of the asset. This is true as to most of the operating property of a railroad under the Uniform System of Accounts. However, under the Uniform System certain of the road accounts, notably rails, ties and ballast, are not subject to depreciation each year, but as these items wear out and require replacement, the costs of replacement are charged as operating expenses. These items remain in the property accounts of the railroad at their original cost without reserve for depreciation. When a particular piece of road is retired, the railroad's investment in rails, ties and ballast (ledger values), less salvage, are ordinarily charged to an operating expense account (Account No. 267) and credited to the particular property account. This procedure in effect allows a railroad to recover its investment in rails, ties and ballast as an operating expense in the year of retirement of the road, rather than a portion of its investment each year during the service life of the property in the form of depreciation. However, the Uniform System of Accounts provides that with the approval of the I.C.C. a railroad may charge the loss from retirement of nondepreciable assets to a retained income account (Account No. 613), or in an investment account (Account No. 80) rather than to the operating expense account (Account No. 267). When this alternative is followed the loss is not reflected in N.R.O.I. When such losses are material in relation to current income, I.C.C. approves the practice of charging such losses to other than the operating expense account (No. 267).
"In each of the years 1959 through 1964 the North Western obtained approval of the I.C.C. to charge losses from the retirement of nondepreciable property to `below the line accounts' rather than to operating expense Account No. 267. The amounts of these losses were substantial and were material with respect to current income each year. It appears that during these years the North Western sought to retire *92 as much of its uneconomic road as possible, and its losses from retirement of undepreciable property greatly exceeded those of comparable Class I railroads operating in Iowa (Exhibit P-374). Over the six year period, 1959 to 1964, inclusive, the North Western had nondepreciable property retirement losses in the sum of $11,825,230. Of this amount, $10,906,015 was charged to below the line accounts. The N.R.O.I. for these years, as reported to the I.C.C. in its Form A Report and in its Stockholders Report, did not reflect the portion of these losses charged to below the line accounts. For these years in its Steam Report to the Commission the North Western adjusted its N.R.O.I. figure by deducting the losses from retirement of nondepreciable property which were not charged to operating expense Account No. 267. The adjustments were clearly set forth and specifically pointed out in the Steam Report. The adjustments were also discussed with the personnel of the Commission in charge of processing the railroad data and reports and with members of the Commission itself. At no time during these years did the Commission question the propriety of these adjustments or ask for additional information or explanation concerning them. There was no concealment or nondisclosure by the North Western with respect to these adjustments."
Plaintiff's witnesses were not in agreement with the commission as to the proper rate of capitalization. Dividend and interest rates on other investments were compared and the factors that would attract an investor were discussed.
Mr. Krucks, Director of Taxation and Assistant Treasurer of plaintiff, qualified and experienced in accounting and taxation testified at length. His testimony covers 959 pages of the record. He used an 8% rate to capitalize N.R.O.I.
Mr. Travis, a consulting valuation engineer, qualified and widely experienced as a valuation engineer of utility and railroad property, discussed at length the allocation of various items (including tax refunds and strike insurance) to N.R.O.I. He used 7½ percent as the capitalization rate. The difficulty of the problem is indicated by his testimony:
"* * * [In] the appraisal process probably there is no one item that caused more grief and more arguments than the rate of capitalization. I have approached this in various ways. There are several ways of doing it. * * * I have been overly cautious and I have gone to 7½ percent as the capitalization rate. * * *
"There's nobody that has the exact figure. It isn't something that is an exact amount that you can find someplace."
Mr. Reeves, Vice President of University of Alabama for Huntsville and Professor of Political Science, was equally qualified and experienced. He used a 6½ percent capitalization rate and called it on the low side of reasonable.
It has been said frequently that courts and judges should admit knowing what everyone else knows. We are fully aware of economic trends and conditions and the lack of attractive returns on many investments. Times and conditions are changing. We recognize that many outstanding economists now say that a capitalization rate of 6 percent is too low but what we might resolve in that area of accounting is not controlling. There is a difference of opinion and we are not inclined to overrule our previous pronouncements as to the discretion of the commission by invading the fields of finance and accounting.
We quote from Florida East Coast Railway v. Green, Division XIII, infra: "Judges are not selected because of their abilities as appraisers of property or their capacity to predict the economic future of business ventures. * * *"
We have said so recently as to make extensive review unnecessary, the taxpayer's burden is not met by showing a difference of opinion. Much more is required. See *93 Divisions I and II, supra, and authority cited therein.
Plaintiff's witnesses were men of outstanding ability. Their opinions are entitled to weight and their reasons quite persuasive that a 6 percent capitalization rate is low, but we cannot say that in allocating items to income and in following its long established rate the action of the commission was arbitrary, illegal fraudulent and capricious.
V. The second factor used in determining system value is the average net stock and bond value.
See Division I, supra.
Stock market prices are available and averages computed but are not necessarily indicative of true value. Prices fluctuate and are frequently distorted by rumor and speculation. This was pointed out to the commission by the tax commissioner for the Milwaukee Railroad on July 7, 1965. (Exhibit P-594)
"I should like to call your attention to the high market value of our stock for the year 1964. There is a reason for this distorted value. On August 17th our common stock was selling for 23.25 and our preferred for 72.50. On September 23rd a newspaper release carried the news that the managements of the Milwaukee and the Northwestern Railway Companies had agreed on terms for a proposed merger. This announcement had an immediate effect upon the market and the common stock on that day sold for 35 and the preferred at 76. On December 30th, the common was selling for 287/8. I believe you gentlemen should consider this when you use the market value of our securities for this year's assessment."
In 1964 the average market value of North Western common stock was $49.30. In March 1966 the stock sold for $130.00 per share. No rational basis for the increase was suggested except speculation and investors' anticipation.
In spite of the obvious uncertainties inherent in stock market prices an average derived therefrom is a starting point.
Nonoperating property is deducted from the full stock and debt value. In computing this deduction the commission has computed and adjusted nonoperating income, capitalized the result at 6 percent and deducted this figure from the total stock and debt value.
Differences of opinion develop over allocation or designation of income as operating or nonoperating. The difficulty in this area is recognized in the unit valuation report referred to in Division II, supra. "No hard and fast rule can be laid down on the best method of dealing with exclusions from the gross stock and debt valuation."
In capitalizing nonoperating income as a basis for computing stock and debt values such items as strike interruption insurance, state and federal tax refunds, gains from the sale of stock in other corporations and gains from sale of real estate were involved.
No useful purpose would be served by our discussion of the various indicators of value that appear. Apparently they were considered. There was lack of uniformity in reporting market value by comparable railroads. North Western used an average of monthly highs and lows. Burlington used par value. Some companies used estimates. There is nothing to indicate that the commission acted with a lack of understanding or in an arbitrary, illegal, fraudulent or capricious manner.
VI. The third factor used in Iowa in computing a formula valuation is reproduction cost less depreciation. See Division I, supra. This factor is referred to as R.C.L.D. This information is called for by the commission. The forms furnished by the commission refer to property accounts as prescribed by the Interstate Commerce Commission. Tremendous variations appear in the various computations by I.C.C., the North Western and the commission depending *94 on the date taken, the effect of reorganization, depreciation and obsolescence.
The effect of obsolescence has been great. For example, once powerful and costly steam locomotives have been retired.
The commission has recognized obsolescence by reducing R.C.L.D. by 40% when including this factor in its formula valuation.
Plaintiff's valuation witnesses used a two factor approach and rejected the three factor approach used by the commission. Mr. Travis testified:
"There is another indicator of value which I looked at. I will say flatly that I didn't give any consideration as to the cost indicator value. * * * Cost I do not consider at the present time and haven't for the last 15 years as an indicator of value for railroads. * * *"
The commission's approach is more in accord with our previous holdings and this from Exhibit 221:
"* * * it would appear that reproduction cost should be included in the family of value evidences in determining the market value of railroad property. The weight it should be accorded in any particular instance, however, can be determined only after a complete survey and analysis of facts in the particular case. Here, as elsewhere in valuation procedure, there is no substitute for the assessor's good judgment."
We find nothing to indicate the commission was beyond the scope of its discretion in using a three-factor approach that we have previously approved.
A similar attempt to disregard reproduction cost was rejected by the Supreme Court of Illinois in Chicago and North Western Railway Co. v. Department of Revenue, 6 Ill.2d 278, 128 N.E.2d 722. We quote:
"The physical value of property, shown either by reproduction cost or historical cost, has been held to be an important factor in fixing values for taxation purposes. [loc. cit. 726, 128 N.E.2d loc. cit.] * * * In our opinion the authorities do not warrant ignoring the physical value of railroad property in determining its assessed value under ordinary circumstances. * * *" [loc. cit. 727, 128 N.E.2d loc. cit.]
In that case the Illinois Court considered and rejected many of the same issues as raised in the case before us.
Railroad property is not the only class of property that suffers diminution in value through obsolescence. Extensive buildings on small farms are considered by investors as liabilities rather than assets but are still assessed.
Taxpayers are generally unhappy and the clamor for relief is universal but until the result reaches the point of illegality the problem is legislative and not judicial.
VII. Section 434.15 Code of 1962, provides that the commission should take into consideration the gross earnings per mile for the year ending January 1 preceding.
Plaintiff claims discrimination when compared with other railroads. The tabulations and charts showing gross revenue per mile of road show North Western to be lower than three and slightly higher than one of the five comparable railroads. It also appears that North Western has more track mileage than any other railroad operating in Iowa. North Western has branch lines with a low traffic volume. This was obviously considered by the commission in fixing the assessment per mile at less than the other roads.
"A difference not shown to be the result of caprice or intentional discrimination is not enough to invalidate the assessment." Chicago and North Western Railway Co. v. Department of Revenue, supra, loc. cit. 728, 128 N.E.2d loc. cit. 728.
There was a difference of opinion between plaintiff's witnesses and the commission, but the evidence does not show the action to be arbitrary or capricious.
*95 VIII. Equality of taxation requires uniformity in valuation. In our 1965 decision we held the evidence insufficient to show discrimination between North Western and locally assessed property. See Division I, supra. In that case we said that the evidence of market value was admissible but too narrow and limited in its scope to establish "either as a matter of fact or of law that the sales-assessment ratio was conclusive of the assessment rate of property generally in the state." That case involved the assessments for 1963. Since then more extensive surveys have been made and data compiled.
Section 441.21, Code of Iowa provides in part:
"In arriving at said actual value the assessor shall take into consideration its productive and earning capacity, if any, past, present, and prospective, its market value, if any, and all other matters that affect the actual value of the property. * * *"
On July 23, 1963 the commission issued a memorandum to local assessors providing:
"The Commission expects all assessors in this state in their valuing, listing, and assessing all classes of real property in the year 1965, as of January 1st of that year, to see to it that the assessed values of all taxable real property are not less than twenty-seven (27) percent of the current fair market value of such property, and the Commission likewise expects all local boards of review in their review of such valuations and assessments to consider this Memorandum."
Reports of thousands of sales were made to the commission. One Hundred Sixteen Thousand Eight Hundred Ninety-seven (116,897) sales during a 3-year period were studied. It appears without dispute that the level of assessment is not in excess of 27% of the current fair market value of locally assessed property. North Western now claims that its property is assessed at more than 27% of its actual value and discrimination appears.
The difficulty arises because there is no basis for comparison of railroad property to farm lands, homes or business buildings.
Railroads are not bought and sold as are farms, homes and buildings. In November 1960 the North Western bought the physical assets of the Minneapolis and St. Louis Railway but one sale of physical assets would not establish a pattern of sales-assessment ratios.
With no sales of railroads upon which to compute a sales-assessment ratio to value some other approach must be used.
The testimony as to value of North Western showed a wide range depending on method of approach and factors included.
Plaintiff's computations were as low as between 19 million and 20 million (for tax purposes). (Mr. Reeves' computations Exhibit P-449) Defendants' formula worksheet recomputed for 1964 allocated a formula value to Iowa of $69,182,825.00, (Exhibit D586B) and a 1965 value of $68,241,098.00 (Exhibit D585B).
To these figures the commission apparently applied a judgment factor in 1964 by reducing the actual value to $28,588,230.00, then deducted locally assessed interstate bridges and found the final net 60% to be $16,470,094.00.
For 1965 the commission reduced actual value to $27,032,568.00, deducted locally assessed interstate bridges and found the final net 60% to be $15,536,697.00.
The difficulty in comparing assessment-value ratios arises at least in part from the use of figures based on fiction rather than reality.
Section 441.21, Code of 1962, provides that property shall be valued at its actual value and assessed at 60% of such value. It also provides that the actual value may be ascertained and determined to be one and two-thirds times the assessed value as shown by the assessment rolls. These provisions in the same section limit assessed value to 60% of the actual value and tie *96 determination of actual value to the assessment roll. This procedure locks the two together as each is computed from the other and rather effectively prevented reflecting market value. The result was that assessors used as actual value a figure that was actually less than one-half the market value and then figured 60%.
To illustrate this fiction (justifiable only for the purpose of holding down taxes) if a property had a market value of $200, its actual value was listed as $100 and assessed at $60. The actual result was that property was generally assessed at less than 30% of market value.
This was recognized by the commission's survey and approved by its directive memorandum. See quotation, supra.
Although not controlling in the case at bar, tried before the act was passed, the legislature has now legalized a comparable but more flexible computation by providing for assessment at 27% of the fair and reasonable market value. See chapter 354, Laws of the 62nd General Assembly.
We have said in prior divisions that we do not find the computations of the commission arbitrary and capricious. If the computations of the commission are accepted North Western has not been assessed out of line with other property.
It is apparent that determination of assessment-value ratio depends on whose figures are used.
If North Western figures are used the assessment ratio is too high. If the commission's high figures are used the assessment ratio is less than 20%. The judgment factor permitted the commission has influenced the final figure.
North Western's reports to the commission were pessimistic as to values. That railroads have serious problems is common knowledge. Costs, labor problems, declining revenues from some services and lines and competition are ever present issues. However, plaintiff's management is optimistic and reflects a better future. The 1964 report to shareholders begins as follows:
"To the Shareholders:
"The year 1964 marked an important milestone in your company's progress. In December, a dividend of $3.00 a common share was declared, payable quarterly throughout 1965. This is the first declaration of a dividend on the company's common stock since December 1950. All classes of your company's securities are now providing a current return to their owners.
"For the second year in succession, the year 1964 resulted in the highest freight revenues in your company's history. Net income was slightly less than in 1963 due to the absorption of net increases in wage and fringe benefit costs of $5,198,000, principally in the last three months of the year. The transportation ratio (the ratio of the expense of moving trains to revenue, and an accepted measure of railroad efficiency) continued to fall and was again the lowest of any year since the war year 1945.
"Once again, in 1964 as in 1963, both revenues and net income from suburban operations were the highest in the company's history. We believe that we are providing unequalled commuter service, and we intend to merchandise it aggressively in the future as we have in the past. We look forward to its further growth and profitability."
IX. Plaintiff-appellant's excellent and exhaustive brief and comprehensive argument covers many legal propositions with which we are in accord. We will mention only a few of the supporting authorities.
X. "The Constitution and Laws of Iowa require that all real estate subject to assessment be valued and taxed under laws of a general nature having uniform operation." Iowa Const. Art. III, § 30. Iowa Const. Art. VIII, § 2. Sections 421.17, 434.15, 439.1, 441.21 and 441.47, 1962 Code of Iowa. Chicago G. W. Ry. Co. v. Kendall, 266 U.S. 94, 45 S.Ct. 55, 69 L.Ed. 183 (1924), 45 S.Ct. 55; Sioux City Bridge *97 Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340 (1923); Wyandotte Chem. Corp. v. City of Wyandotte, 199 F. Supp. 582 (E.D.Mich.1961); Delaware L. & W. RR. v. Kingsley, 189 F.Supp. 39 (D.N.J.1960); Chicago, M. & St. P. Ry. v. Kendall, 278 F. 298 (S.D.Iowa 1921).
Our pronouncements have been in accord. Pierce v. Green, 229 Iowa 22, 53, 294 N.W. 237, 131 A.L.R. 335; Division 1(4), supra.
XI. "Gross discrimination in the assessment of railway property is erroneous, arbitrary, illegal, fraudulent and capricious." We agree. Great No. R. Co. v. Weeks, 297 U.S. 135, 56 S.Ct. 426, 80 L.Ed. 532 (1936); Chicago G. W. Ry. v. Kendall, 266 U.S. 94, 45 S.Ct. 55, 69 L.Ed. 183 (1924); Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340 (1923); Bailey v. Megan, 102 F.2d 651 (8 Cir. 1939); Chicago and North Western v. State Tax Commission, supra, 257 Iowa loc. cit. 1373, 137 N.W.2d 246.
It is not necessary to show actual fraud. Constructive fraud is sufficient. Pierce v. Green, supra, 229 Iowa loc. cit. 53, 294 N.W. 237.
XII. Evidence showing the level of assessment of other property was admissible. Division I(5), supra.
XIII. It appears without serious controversy that appropriate administrative procedures were followed and hearings held by the commission. Exhibit #162, the formal record of the commission hearing on the 1964 assessment, shows the consideration of pertinent data including the information furnished by the taxpayer and the action of the commission. Exhibit #167 is a comparable record for 1965.
The nub of plaintiff's complaint is that the commission did not accept and adopt plaintiff's arguments and thereby reached the wrong result.
In Chicago, Burlington & Quincy Railway Company v. Babcock, 204 U.S. 585, 27 S.Ct. 326, 51 L.Ed. 636, a railroad assessment case, Mr. Justice Holmes said:
"Various arguments were addressed to us upon matters of detail which would afford no ground for interference by the court, and which we do not think it necessary to state at length. Among them is the suggestion of arbitrariness at different points, such as the distribution of the total value set upon the Chicago, Burlington, & Quincy system, among the different roads making it up. But the action does not appear to have been arbitrary except in the sense in which many honest and sensible judgments are so. They express an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions,impressions which may lie beneath consciousness without losing their worth. The board was created for the purpose of using its judgment and its knowledge. [Citations] Within its jurisdiction, except, as we have said, in the case of fraud or a clearly shown adoption of wrong principles, it is the ultimate guardian of certain rights. The state has confided those rights to its protection and has trusted to its honor and capacity as it confides the protection of other social relations to the courts of law."
Chicago Great Western Ry. Co. v. Kendall, 266 U.S. 94, 45 S.Ct. 55, 69 L.Ed. 183 was an assessment case involving Iowa railroad assessments. At that time railways were assessed by the executive council. Plaintiff claimed its property was assessed at a higher percentage value than farm land. Mr. Chief Justice Taft said:
"The three judges in the District Court found that the Executive Council might reasonably and without arbitrary or intentional discrimination reach the conclusion that the properties of the two companies in Iowa, tangible and intangible, were not assessed by the Executive Council in proportion to their actual value substantially more than the 61 percent imposed on farm lands. The court pointed out that railroad values were very difficult to fix and there *98 was a wide range within which reasonable men might differ, and after an examination of the evidence, concluded they could not find that there was any arbitrary and unconscionable difference between the values assessed upon the two kinds of property. * * *"
We have recognized the judgment factor. Division I(1), (2), and (3).
Rowley v. Chicago and North Western Railway Co., 293 U.S. 102, 55 S.Ct. 55, 79 L.Ed. 222, was a railroad assessment case involving issues comparable to the case at bar, i. e. valuations, capitalization of income, market value of stocks and bonds, reproduction costs less depreciation, apportionment and discrimination. In upholding the commission against the claims of North Western the court said:
"The ascertainment of the value of a railway system is not a matter of arithmetical calculation and is not governed by any fixed and definite rule. Facts of great variety and number, estimates that are exact and those that are approximations, forecasts based on probabilities and contingencies have bearing and properly may be taken into account to guide judgment in determining what is the money equivalent the actual valueof the property. [Citations] * * *
"The record shows that the board considered respondent's calculation. Refusal to accept that formula as the measure was not arbitrary. Respondent's use of the average of three ratios indicates that it realized that there were substantial objections against each as the sole test. * * * The other factors that are shown to have been considered by the board give substantial support to the percentage finally adopted as the basis of the assessment.
"There is nothing in this record to suggest any lack of good faith on the part of the board. Overvaluation resulting from error of judgment will not support a claim of discrimination. There must be something that amounts to an intention, or the equivalent of fraudulent purpose, to disregard the fundamental principle of uniformity. * * *"
One of the cases cited and quoted by appellant is In Re Chicago, Burlington & Quincy Railroad Company v. State Board of Equalization and Assessment, 170 Neb. 77, 101 N.W.2d 856, a Nebraska case decided in 1960. The case is interesting for its scathing denunciation of the tax commission's refusal to follow the law and as an illustration of how far prejudice will take some assessing authorities. That case is in no way analogous to ours as to either procedure or record. That case was a direct appeal from the assessment and the court was required by statute to review de novo and fairly determine the assessment. The commission offered no evidence to support its conclusions and the assessment was clearly in violation of the statute. The court left no doubt as to its disapproval. We quote excerpts:
"The assessment is in defiance of that recognized standard of value. * * *
"Appellee destroyed any trace of reasonableness or realism * * *.
"The original assessment order of July 15, 1959, was adopted by only two members of the board voting for it. One member voted against it, one member abstained from voting, and one member was absent. The use of the matter contained in section IV of the order of assessment was not a mistake, an inadvertence, or because of insufficient information. It was done advisedly and arbitrarily. The Tax Commissioner of the state advised against the use of it and presented a proposed order of assessment wholly eliminating that formula. The Tax Commissioner advised appellee that the facts and the law required a reduction in railroad valuations for assessment purposes. One of the members who voted for the assessment order as it exists for 1959 said in a voluntary, formal statement he would never be a party to extending the type of relief suggested to any special interest at the unavoidable tax *99 expense of Nebraska farmers, main street merchants, and homeowners. However, the same statement tacitly conceded that railroad property had been overassessed * * *. The other member who supported the 1959 assessment order said he opposed any concessions to any special interest group when the average taxpayer would have to make up the difference from his own pocket. Neither of these members mentioned anything concerning the value of the property to be assessed nor did they undertake to show where the judgment of the Tax Commissioner was wrong. * * *" (loc. cit. 866)
A recent pronouncement clearly in point and with issues comparable to ours except as to comparison to farm land appears in Florida East Coast Railway Company v. Green, Fla.App., 178 So.2d 355. Plaintiff alleged over-valuation and discrimination as compared to other railroads. The Assessment Board first applied a preliminary formula using the same three factors as used in Iowa. The result was then subjected to a judgment factor whereby the value was adjusted in the light of conditions peculiar to the particular railroad to determine the assessed value. Plaintiff argued for and the court rejected the theory that reproduction cost should be disregarded and a two-factor formula used. The court noted that 31 states gave some consideration to cost of reproduction. The court cited with approval the Illinois case (Division VI, supra) as the leading case on the propriety of considering reproduction cost. The court said the fundamental rule was found in the Rowley case, supra. The court then said:
"Under these circumstances we are not prepared to hold and cannot hold that the defendants' valuations of the plaintiff's properties for 1961 and 1962 were invalid for excessiveness as a matter of law. This conclusion is based not only on the authorities and considerations discussed above, but also upon our concept of the limitations of the power of the courts to review the actions of taxing officials charged by law with the responsibility of evaluating properties for tax purposes."
XIV. As we said in Division I, supra, many of the present issues were decided in our 1965 opinion. However, a difference in the factual premise should be noted. On page 1371 of 257 Iowa, 137 N.W.2d on page 253 this appears:
"The trial court held there was no excessive valuation of plaintiff's property shown, and no question is raised in this appeal as to the propriety of the commission's action in establishing the actual value of plaintiff's operating railroad in Iowa. The North Western's complaint is that the actual value and the assessed value of its property were arbitrarily and capriciously maintained near its formula value, while the other comparable railroads' actual value was inequitably reduced so far below their formula value as to disclose gross discrimination * * *."
There was little controversy over the accuracy of the reports or manner of accounting. We noted in Division IV, supra, that the commission had been accepting operating income as reported by railroads.
Such was not the case for the 1964 and 1965 assessments. Here there were differences. The commission did not accept the manner of accounting by North Western nor its comparability with the accounting of other railroads.
That there was lack of uniformity in the compilation and inclusion of various items appears without question. North Western in its Reply to Substituted Answer said: "* * * any lack of comparability between Steam Reports filed by plaintiff and those filed by other railway companies operating in the State of Iowa results from less detailed or incomplete reports by said other railway companies."
Plaintiff's position was explained to the commission and as found by the trial court there was no concealment or nondisclosure but that does not mean that the commission *100 was required to accept the plaintiff's final figures based on its own method of accounting.
As we have said in previous divisions the answer depends on whose figures and methods are used.
XV. From the reported cases it appears that North Western as well as other railroads have been fighting valiantly for years for the acceptance of accounting practices that would reduce their tax burden. There is nothing wrong with that. It may be that through the efforts of their counsel, accountants and appraisal engineers they will be able to convert taxing authorities to their cause.
However, it is not for us to fix values nor tell the commission whose figures must be used.
There is nothing in the cases before us sufficient to prove that the commission so far exceeded the discretionary power vested in it as to make its decision illegal.
The trial court was right.
The cases are
Affirmed.
All Justices concur.
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NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-
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13-P-1053 Appeals Court
WILLIAM A. LOWELL, trustee,1 vs. MARIA OAKES TALCOTT & others;2
ARNOLD W. HUNNEWELL, JR., & another,3 third-party defendants.
No. 13-P-1053.
Norfolk. April 10, 2014. - August 18, 2014.
Present: Graham, Wolohojian, & Milkey, JJ.
Trust, Beneficiary. Devise and Legacy, Issue. Legitimacy.
Paternity. Probate Court, Interpretation of trust
instrument, Attorney's fees. Practice, Civil, Attorney's
fees. Words, "Issue."
Civil action commenced in the Norfolk Division of the
Probate and Family Court Department on September 28, 2010.
1
Of the trusts under article second of the wills of Francis
J. Oakes, Jr., and Mary P. Oakes. A suggestion of death and a
motion for substitution of parties as to William H. Coburn, Jr.,
the original plaintiff trustee, was filed below. The motion
subsequently was allowed.
2
Lucinda Trombly, Elisabeth Colford Perkins, Katharine Van
Buskirk, Elisabeth Van Buskirk Barter, David Van Buskirk, and
Juliana Colford Van Buskirk. A suggestion of death of Juliana
Colford Van Buskirk was filed below.
3
Elizabeth M. Hunnewell. Both third-party defendants are
named as coexecutors of the estate of Francis O. Hunnewell,
former trustee of the trusts at issue.
2
The case was heard by George F. Phelan, J., on motions for
summary judgment; a motion for attorney's fees and costs was
heard by him; and the entry of final judgment was ordered by
him.
James R. Knudsen for Maria Oakes Talcott.
Maureen E. Curran for Katharine Van Buskirk & others.
Steven E. Gurdin (A. Hether Cahill with him) for William A.
Lowell & others.
GRAHAM, J. In this case, we are asked to consider whether
a child born in 1963 while her mother was married to a man who
is not the child's father, is an "issue" of the mother as that
term is used in the wills of the mother's grandparents, drafted
in 1951. We conclude that on the particular facts presented,
she is.
Background. In 1951, Francis J. Oakes, Jr., and his wife,
Mary P. Oakes (collectively, testators), executed reciprocal
wills leaving the bulk of their property in trust for the
benefit of one another and their issue. Francis4 died on August
14, 1954, and Mary died on July 7, 1956. Upon their deaths,
pursuant to each will, separate trusts were created for each of
their three daughters and their respective "issue." Thus, two
trusts were created for each daughter. Only the trusts for
their daughter, Elisabeth Oakes Colford, and her issue, are
before us.
4
We use the parties' first names to avoid confusion.
3
The wills provided for discretionary distributions of "net
income and/or principal" to the testators' children or to the
"issue of such child." The term "issue" is not defined in the
wills. The trusts are to terminate twenty-one years after the
death of the last survivor of those of the testators' issue who
were living at the time of the testators' deaths, in equal
shares per stirpes.
In 1955, Elisabeth's daughter, Juliana Colford Van Buskirk,
married David Van Buskirk. Their daughters, Katharine and
Elisabeth,5 were born in 1956 and 1958 respectively. David filed
for divorce on April 1, 1963, identifying Katharine and
Elisabeth as children of the marriage. Juliana gave birth to
her third daughter, Maria,6 on October 1, 1963, before a decree
of divorce had issued out of the Probate and Family Court, which
was effective November 19, 1963.
No provisions for Maria were made in the divorce decree nor
in a subsequent modification. David has averred that he had not
had sexual relations with Juliana for more than one year before
Maria was born. David never supported or otherwise parented
Maria. Genetic marker tests performed during the course of this
5
Katharine Van Buskirk and Elisabeth Van Buskirk Barter.
6
Maria Oakes Talcott.
4
litigation indicate that Maria is not David's biological
daughter.
Juliana filled out Maria's birth certificate and listed
David as the father. Although David became aware of this and
asserts he communicated with the city of Worcester and reported
that he was not Maria's father, he took no steps to formally
alter the birth certificate. On February 24, 1969, Maria was
surrendered to the care of the entity then known as the
Department of Public Welfare, and was adopted in 1973 by Donald
and Janet Talcott. Although David averred that he did not
recall being involved in the adoption process, court records
reveal that the guardian ad litem interviewed David who
"disclaimed parenthood" of Maria.
Juliana was placed under guardianship in 2003 by the Rhode
Island Probate Court and, during the course of these
proceedings, resided in a nursing facility in Rhode Island. The
Probate and Family Court docket indicates that Juliana died on
October 1, 2012. The record does not reflect whether she took a
position in this matter.
Maria presented her birth certificate to the trustee7 and
claimed that she is a beneficiary of the Oakes testamentary
7
Pursuant to the trust provisions, two trustees of the
trusts were appointed. One trustee died in 2010, see note 3,
supra, and he was not replaced.
5
trusts as an issue of Juliana. This action was commenced by the
trustee, naming, in addition to Maria, David and the trust
beneficiaries as defendants, and seeking instruction as to
whether Maria is a beneficiary of the trusts. Maria filed a
counterclaim seeking (i) an order establishing her status as a
beneficiary, and (ii) damages for the trustee's breach of
fiduciary duty. In addition, David and his biological daughters
(collectively, Van Buskirk defendants) filed a cross claim
against Maria seeking (i) a declaration that David is not
Maria's biological father, (ii) an order instructing the city of
Worcester to change Maria's birth certificate, and (iii) a
declaration that Maria is not a beneficiary of the trusts.8
Cross motions for summary judgment ensued. A judge of the
Probate and Family Court determined that because the genetic
marker tests show that David is not Maria's biological daughter,
she is not an "issue" of the testators' child as that term was
understood in 1951. The judge entered summary judgment for the
trustee and the Van Buskirk defendants, denied Maria's cross
motion, and dismissed her counterclaim. Determining that
Maria's pursuit of this action was frivolous after the genetic
marker test revealed that David is not her biological father,
8
The third request for relief was requested in the Van
Buskirk defendants' motion for summary judgment.
6
the judge awarded costs and attorney's fees to the trustee.
Maria appeals.
Discussion. The narrow question presented by the trustee's
complaint for instructions is whether Maria qualifies as a
beneficiary of the testamentary trusts. "The fundamental object
in the construction of a will is to ascertain the testator's
intention from the whole instrument, attributing due weight to
all its language, considered in light of the circumstances known
to the testator at the time of its execution, and to give effect
to that intent unless some positive rule of law forbids."
Putnam v. Putnam, 366 Mass. 261, 266 (1974). See Boston Safe
Deposit & Trust Co. v. Wilbur, 431 Mass. 429, 433 (2000). See
also, as to trusts, Powers v. Wilkinson, 399 Mass. 650, 653
(1987) ("It is fundamental that a trust instrument must be
construed to give effect to the intention of the donor as
ascertained from the language of the whole instrument considered
in the light of circumstances known to the donor at the time of
its execution"), quoting from Groden v. Kelley, 382 Mass. 333,
335 (1981). "The settled law in this Commonwealth is and has
been that one executing a will or trust and distributing
property thereby is entitled to rely on the law in effect at the
time the instrument was created." Anderson v. BNY Mellon, N.A.,
463 Mass. 299, 306-307 (2012). Thus, in the absence of a
definition of "issue" in the wills, to resolve whether Maria is
7
an "issue" as that term is used in the wills, we look at how
that term was used in 1951 when the testators' wills were
executed.
It is well settled that in the Commonwealth in 1951, when
the term "issue" was used in a will or a trust and was otherwise
undefined, it did not include "illegitimate" children.
Fiduciary Trust Co. v. Mishou, 321 Mass. 615, 635-636 (1947).
See Powers, supra at 661-662; C.C. v. A.B., 406 Mass. 679, 683-
684 (1990). In recognition of the legal disadvantages and
stigma that illegitimacy attached to innocent children, along
with changing societal attitudes, this "traditional rule of
construction" has since been overruled such that "the word
'issue,' absent clear expressions of a contrary intent, must be
construed to include all biological descendants." Powers, supra
at 662. The court in Powers recognized the "quixotic" nature of
attempting to enforce morality or preserve family values by
rules of construction embedded in the law of trusts, and that
"[o]urs is an era in which logic and compassion have impelled
the law toward unburdening children from the stigma and the
disadvantages heretofore attendant upon the status of
illegitimacy." Id. at 659, 661. Nonetheless, because the bar
had relied on existing precedent defining "issue" as only
"legitimate" descendants, the Powers court held that the new
rule of construction would apply only prospectively to
8
instruments executed after April 16, 1987. Id. at 662-663.
Weller v. Tagge, 67 Mass. App. Ct. 446, 449 (2006).
Accordingly, in interpreting the testators' wills executed in
1951, we construe the term "issue" to include only "legitimate"
descendants.
Even by 1951, however, there had been some recognition of
the unfair burdens illegitimacy placed on innocent children.
Consequently, although the term "issue" was construed to include
legitimate descendants only, there also existed a corresponding
"strong legal presumption" that a child born in lawful wedlock
was legitimate. C.C., 406 Mass. at 684. It has been explained
that, "While the law has always recognized that a child born to
a married woman could nonetheless be an illegitimate child, it
created a strong presumption to avoid that result." Ibid.
Rebuttal of the presumption of legitimacy at the time these
wills were executed required proof beyond a reasonable doubt
that either (1) the husband had no access to the wife during the
time of possible conception, or (2) the husband was impotent.
D.H. v. R.R., 461 Mass. 756, 760 (2012). It was not until 1957
that the Supreme Judicial Court recognized that a properly
conducted blood grouping test also could exclude the husband as
the father. Ibid., citing Commonwealth v. Stappen, 336 Mass.
174, 177 (1957). Moreover, at the time the wills were executed,
husbands and wives were incompetent to testify as to nonaccess
9
to prove the illegitimacy of offspring. See Taylor v. Whittier,
240 Mass. 514, 515-516 (1922); Sayles v. Sayles, 323 Mass. 66,
67 (1948).
Thus, when Maria's maternal great-grandparents created
their wills, we presume they understood both that the term
"issue" meant "legitimate" biological descendants, and that a
child born to a married woman was presumed to be "legitimate."
Moreover, where the heavy burden of rebutting the presumption of
legitimacy at that time would have turned on witness testimony
rather than medical testing, had they anticipated a challenge to
the legitimacy of a child born to one of their issue, they
surely would have expected such a challenge to be pursued within
a reasonable amount of time after the child's birth.
Here, there is no question that Maria is the biological
great-granddaughter of the testators and that she was born while
her mother was lawfully married, albeit to a man who was not
Maria's father. When Maria was born, neither her mother's
husband nor Maria's biological father legally challenged her
legitimacy status. David was aware that he was listed as
Maria's father on her birth certificate yet took no legal steps
to have his name removed. As we stated supra, records indicate
that when he was contacted regarding whether he objected to
Maria's adoption, he "disclaimed parenthood," but made no effort
to seek a judgment of nonpaternity or to amend her birth
10
certificate. During all of this time, the presumption of
legitimacy applied.
By law, for the first forty-eight years of her life, Maria
was considered the "legitimate" issue of Juliana. During this
period, Maria's right to receive discretionary distributions
from the testamentary trusts vested. Anderson, 463 Mass. at
309-310. She presented to the trustee a legal birth certificate
which established that she was born to the testators'
granddaughter while their granddaughter was married to David.
We think it unreasonable to presume the testators intended that
by use of the term "issue," some forty-eight years after their
biological great-granddaughter's "legitimate" birth, her status
as a beneficiary of the trusts could be usurped by proceedings
challenging not her biological connection to them, but
challenging whether their granddaughter's husband had fathered
her.
In the circumstances presented, we recognize a distinction
between the terms "paternity" and "legitimacy" and conclude that
the judge's focus solely on "paternity" was misplaced. David
has no biological connection to the testators and the fact that
he is not Maria's biological father is not dispositive of
determining whether Maria is the testators' children's issue as
that term is used in the wills. For the purposes of
interpreting the testamentary trusts at issue, David's paternity
11
challenge does not alter Maria's legitimacy status both at birth
and for the forty-eight years prior to the genetic marker test,
or her status as a vested beneficiary of the testamentary
trusts.
The beneficiary defendants argue that Maria's argument for
inclusion in the trusts relies on a "presumption" rather than
the "truth." We note, however, that the construction of "issue"
that arose in the common law was inconsistent with the then-
existing dictionary definition, which made no distinction
between legitimate and illegitimate biological descendants.
Powers, 399 Mass. at 653. Rather, the common-law definition
apparently reflected "society's condemnation of irresponsible
liaisons beyond the bonds of marriage" and efforts to enforce
morality or to preserve traditional family values. Id. at 661,
quoting from Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175
(1972). Even if the testators had these considerations in mind,
none of them is furthered by challenging the legitimacy of the
birth of their biological great-granddaughter some forty-eight
years after her birth, after their granddaughter had been placed
under guardianship and, in fact, since has died.
Moreover, in abrogating the construction of "issue" to mean
only "legitimate" descendants, the Powers court noted that an
1827 case appeared to be "the most recent judicial airing of the
reasons for the [common-law] rule," and stated that it was
12
questionable whether the attitudes expressed in that opinion
were representative even of its own era as the Legislature
mitigated the nonmarital child's status within two years after
the decision when it enacted a statute making such children
heirs of their mothers for purposes of intestate succession.
Id. at 658, citing Cooley v. Dewey, 4 Pick. 93, 94 (1827). The
Powers court further opined that "if the rule excluding
nonmarital children from judicial construction of the word
'issue' was not archaic when this court reiterated it in 1947,
it has become so." Id. at 661.
Even assuming, as we must, that the testators were aware
that use of the term "issue" meant "legitimate" descendants,
there is no indication in their wills that they desired to
resort to legal proceedings to rebut the presumption of
legitimacy that they knew would apply to children born to their
married biological descendants. For all of the foregoing
reasons, therefore, we discern no impediment to Maria's status
as a beneficiary of the Oakes testamentary trusts.
We comment briefly on David's standing in this case. David
is neither a donor to, nor a beneficiary of, the trusts. He
divorced Maria's mother more than fifty years ago. That his
adult daughters are beneficiaries of the trusts gives him no
standing. While we do not deny that he has an interest in
establishing his nonpaternity of Maria for the purpose, if no
13
other, of estate planning, he had no standing to do so in the
course of the trustee's petition for instruction. Nor has there
been any showing that he has a personal interest in bastardizing
Maria. Nevertheless, because his cross claim raised a viable
paternity issue, we cannot say the judge erred in denying
Maria's motion to strike his appearance.
The judge entered a judgment of nonpaternity and instructed
the city of Worcester to amend Maria's birth certificate. We
discern no error in these orders; they are separate issues from
Maria's status as a beneficiary of the trusts. Maria does not
refute the paternity tests and concedes that David is not her
biological father. We do hold that the judge's orders, however,
have no effect on Maria's status as a beneficiary of the Oakes
testamentary trusts.
We reverse so much of the September 16, 2012, judgment as
allowed summary judgment in favor of the trustee and the
beneficiary defendants on the issues whether Maria is an issue
of the testators and is a permissible beneficiary of their
trusts. A new portion of the judgment shall enter declaring
Maria an issue of the Oakeses and a beneficiary of the Oakes
testamentary trusts. In all other respects, the September 16,
2012, judgment is affirmed. Furthermore, we vacate the so-
called "further judgment" entered on November 7, 2012,
dismissing Maria's counterclaim for breach of fiduciary duty in
14
order that the probate judge can consider that claim on the
merits in the first instance. We remand the case for further
proceedings consistent with this opinion. In addition, the
order requiring Maria to pay $15,332.06 in attorney's fees to
the trustee's counsel is vacated.9,10
9
Under G. L. c. 231, § 6G, a party aggrieved by an order
awarding attorney's fees pursuant to G. L. c. 231, § 6F, must
file an appeal within ten days of receiving notice of the
attorney's fees order, to the single justice of the Appeals
Court; this appeal is separate from any appeal from the
underlying judgment. See Danger Rec., Inc. v. Berger, 444 Mass.
1, 8 (2005). "[T]he statute contemplates two separate appeals,
one from a judgment, which goes to a panel of this court . . .,
and one from the award of attorney's fees." Bailey v. Shriberg,
31 Mass. App. Ct. 277, 282-283 (1991).
Here, Maria timely filed two notices of appeal, one from
the judgment (and then from the further judgment), and one from
the attorney's fees order. The appeal from the attorney's fees
order, if the record had been assembled, would have been stayed
in the normal course, pending resolution of the underlying
appeal. Id. at 283. However, the clerk of the Probate and
Family Court failed to "forward the motion, the court's findings
and award, and any other documents relevant to the appeal to the
clerk" of the Appeals Court. G. L. c. 231, § 6G, as appearing
in St. 1992, c. 133, § 561. See Mass.R.A.P. 9, as amended, 417
Mass. 1601 (1994). In light of our decision in the underlying
appeal, it seems "too late now," as well as not in the interest
of judicial economy, to proceed in that manner by ordering the
probate clerk to assemble the record. Bailey, supra at 283.
Compare Strand v. Herrick & Smith, 396 Mass. 783, 791 n.8 (1986)
("implicit in our reversal on the merits is a finding that
Strand's action was not 'insubstantial, frivolous and not
advanced in good faith' within the meaning of c. 231, § 6F");
Danger Rec., Inc., supra at 9 ("decision on appeal from the
judgment . . . has the potential to render the § 6G appeal
moot").
15
So ordered.
We also note that, contrary to the assertion in the
trustee's appellate brief, Maria was not required to pay a
filing fee for her § 6G appeal to the single justice. Appeals
pursuant to § 6G are entered automatically onto the court's
docket and no fee is due.
10
We decline the trustee's and the beneficiary defendants'
requests for appellate attorney's fees and costs.
| {
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} |
230 Cal.App.3d 355 (1991)
281 Cal. Rptr. 362
ABBETT ELECTRIC CORPORATION, Plaintiff and Respondent,
v.
CALIFORNIA FEDERAL SAVINGS & LOAN ASSOCIATION et al., Defendants; CITICORP REAL ESTATE, INC., et al., Interveners and Appellants.
Docket No. A049514.
Court of Appeals of California, First District, Division Four.
May 21, 1991.
*356 COUNSEL
Leland, Parachini, Steinberg, Flinn, Matzger & Melnick, Steven R. Walker and Jeffrey H. Lowenthal for Interveners and Appellants.
Raymond H. Levy and Daniel Byrne for Plaintiff and Respondent.
*357 OPINION
PERLEY, J.
In this case we hold that a mechanic's lien claimant with a contractual right to attorney's fees, which prevails in an action against the property owner for breach of contract and foreclosure of the mechanic's lien, is not entitled to have its attorney's fees included in the mechanic's lien.
I. BACKGROUND
Respondent Abbett Electric Corporation entered into a written contract with Storek & Storek Environmental Center (Storek) to perform electrical work on Storek's property at 530 Bush Street, San Francisco. The contract provided for attorney's fees to the prevailing party in case of any dispute. In 1981, respondent recorded a mechanic's lien against the subject property. A few weeks later respondent filed a complaint against Storek for breach of contract and foreclosure of its mechanic's lien, at the same time recording a lis pendens. The complaint prayed for judgment in the sum of $314,652, plus estimated attorney's fees of $100,000 pursuant to the contract.
After an initial mistrial, the case proceeded to trial in May of 1989. During the pendency of those proceedings, appellants Citicorp Real Estate, Inc., and Massachusetts Mutual Life Insurance Co., each recorded a deed of trust against the subject property. In October 1989, the trial court rendered a tentative decision in respondent's favor that provided inter alia for reasonable attorney's fees, but did not indicate whether the fees were to be included in the mechanic's lien. The court permitted appellants, as junior lienors, to intervene on the question of whether the lien could properly include those fees.
The statement of decision filed in March of 1990 found that respondent was "entitled to a judgment against [Storek] both on the contract and to enforce its Mechanic's Lien rights." The judgment awarded the sum of $113,827.36, together with prejudgment interest thereon, costs of suit in excess of $27,000, and attorney's fees of $230,000 pursuant to Civil Code section 1717. Over appellants' objection, the judgment provided that the attorney's fees were included in the mechanic's lien, and appellants have appealed that portion of the judgment.[1]
*358 II. DISCUSSION
(1) Attorney's fees are not available to a prevailing litigant absent a contractual agreement or statutory authorization, and no statute provides for attorney's fees in mechanic's lien foreclosures. (Wilson's Heating & Air Conditioning v. Wells Fargo Bank (1988) 202 Cal. App.3d 1326, 1329-1330 [249 Cal. Rptr. 553].) "Although the statutory scheme [for mechanic's liens] originally provided for the recovery of attorney's fees by the successful lienholder, this provision of the statute was declared unconstitutional (Builders' Supply Depot v. O'Connor (1907) 150 Cal. 265, 268 [88 P. 982]) and no similar provision has been subsequently enacted.... It is thus black letter law that except for any cause of action on a contract between the lien claimant and the owner of the improved property which provides for fees, a lienholder has no entitlement to them from the owner.... [¶] ... [I]f indeed a contract exists, then that is the separate source of attorney's fees; it is not the lien which creates the right." (Id., at p. 1330 [italics original].)
(2) It is not disputed that Storek is personally liable for attorney's fees under its contract with respondent, and there is no question that the judgment in this combined action for breach of contract and foreclosure of the mechanic's lien may include an award of those fees. (See Civ. Code, § 3152 [personal action to recover debt may be maintained in action to foreclose mechanic's lien].) The issue is whether the fees are properly included in the mechanic's lien against the subject property.
Respondent submits that this issue is well settled in its favor, but none of the cases it cites is dispositive. Claims under contracts providing for attorney's fees were joined with actions to foreclose mechanics' liens in Vitek, Inc. v. Alvarado Ice Palace, Inc. (1973) 34 Cal. App.3d 586 [110 Cal. Rptr. 86], Robinson v. Diller (1969) 274 Cal. App.2d 813 [79 Cal. Rptr. 508], and Distefano v. Hal (1968) 263 Cal. App.2d 380 [69 Cal. Rptr. 691], and the judgments in those cases awarded attorney's fees. However, these cases do not indicate whether the fees were included in the liens and the point was never raised. In Cal. Viking Sprinkler Co. v. Cheney (1960) 182 Cal. App.2d 564 [6 Cal. Rptr. 197], a contractual provision for attorney's fees was enforced in the context of a mechanic's lien action without any mention of whether the fees were included in the lien. Our issue does not appear to have been squarely addressed.[2]
*359 Appellants argue, however, that the reasoning of Wilson's Heating & Air Conditioning v. Wells Fargo Bank, supra, 202 Cal.Ap.3d 1326, extends to our situation. There, subcontractors sued the general contractor, construction lender, and others involved in a construction project to enforce their mechanics' liens. The contracts provided for recovery of attorney's fees in case of a dispute. The lender foreclosed and became legal owner of the property. The general contractor went into bankruptcy, and remained in the action only as "a nominal defendant." (Wilson's Heating & Air Conditioning v. Wells Fargo Bank, supra, 202 Cal. App.3d at p. 1329.) The other defendants were dismissed, apparently leaving only the lender to defend the suit. For the reasons quoted ante, at the outset of our discussion, the Wilson's Heating court rejected the subcontractors' claim to attorney's fees based on the mechanic's lien statutes. It also rejected their claim to attorney's fees under Civil Code section 1717 based on their contract with the general contractor. The court noted that Civil Code section 1717 generally assumes the existence of a contract between the parties, and reasoned that the lender could not be liable thereunder without being a party to the contract or assuming its obligations. (Id., at pp. 1330, 1333-1335.) As neither of these conditions was met, the claim for fees failed even though the mechanics' liens had priority over the lender's deed of trust. (Id., at p. 1329.)[3]
We find no persuasive distinction between our case and Wilson's Heating. Respondent has no more right to attorney's fees under the mechanic's lien statutes than did the subcontractors in Wilson's Heating, and no greater contractual claim to those fees against any lender that is not a party to its contract. If we were to hold that respondent's attorney's fees were included in its mechanic's lien by virtue of its contract with Storek, this would subordinate appellants' deeds of trust to a lien for those fees, even though appellants were strangers to the contract. This would produce the result Wilson's Heating found to be untenable.
Respondent notes that, unlike the lender in Wilson's Heating, appellants have not foreclosed. If appellants were to foreclose, however, they would be in the same position as the bank in Wilson's Heating, and we fail to see why they should be subject to a lien for respondent's fees, when the bank in Wilson's Heating was not, simply because they have not yet exercised their *360 powers of sale. Respondent suggests that appellants lack "standing," but appellants have a sufficient financial stake in the attorney's fee issue to have standing to raise it. If those fees are included in the mechanic's lien, then appellants will be obliged to pay them to protect their junior interests. Respondent also emphasizes that, unlike the subcontractors in Wilson's Heating, it is in privity of contract with the present owner of the property, but that distinction also seems to us irrelevant. Insofar as respondent has a contractual claim to fees from Storek, it has the same remedies against Storek and its property as any other party in an action for breach of a contract with an attorney's fee clause. We simply conclude that it does not have the additional remedy of a mechanic's lien for those fees.
This conclusion is consistent with Civil Code section 3123, subdivision (a), which makes no provision for attorney's fees when it limits the amount of a mechanic's lien to "the reasonable value of the labor, services, equipment, or materials furnished or for the price agreed upon by the claimant and the person with whom he or she contracted, whichever is less." (See also Cal. Const., art. XIV, § 3 [providing mechanics' liens only "for the value of such labor done and material furnished"].) Civil Code section 3123 was recently cited by Division Three of this district in Lambert v. Superior Court (1991) 228 Cal. App.3d 383 [279 Cal. Rptr. 32], on the analogous question of whether delay damages may be included in the amount of a mechanic's lien. The Lambert court concluded "that Civil Code section 3123 does not permit a lien for delay damages.... The function of the mechanic's lien is to secure reimbursement for services and materials actually contributed to a construction site, not to facilitate recovery of consequential damages...." (Id., at p. 389 [italics added].) The same reasoning applies to the claim for attorney's fees in our case. Like delay damages, they are beyond the contemplation of the mechanic's lien remedy.
It has been said that the purpose of a mechanic's lien is "to prevent unjust enrichment of a property owner at the expense of a laborer or material supplier" (Burton v. Sosinsky (1988) 203 Cal. App.3d 562, 568 [250 Cal. Rptr. 33]; Industrial Asphalt, Inc. v. Garret Corp. (1986) 180 Cal. App.3d 1001, 1006 [226 Cal. Rptr. 17]), and our conclusion is consistent with that purpose. Since respondent's work benefited appellants, as well as Storek, by enhancing the value of their security, appellants are subject to a lien for labor and materials to prevent their "unjust enrichment." The same rationale, of course, does not apply to respondent's attorneys, who have not added to the value of the subject property. On the other hand, mechanic's liens are said to be "remedial in nature, to be liberally construed in favor of working persons" (Burton v. Sosinsky, supra, 203 Cal. App.3d at p. 568), and they would arguably be a more "efficient" remedy (Cal. Const., art. XIV, § 3) if *361 attorney's fees were available in connection with their foreclosure. We cannot, however, create a right to fees in that context where the Legislature has not seen fit to enact one. (Cf. Civ. Code, §§ 3247, 3248 and Bus. & Prof. Code, §§ 7108.5, 7169 [providing for attorney's fees in analogous contexts].)
Respondent argues that its attorney's fees may be included in the mechanic's lien as costs of suit under Civil Code section 3150, which provides that: "In addition to any other costs allowed by law, the court in an action to foreclose a [mechanic's] lien must also allow as costs the money paid for verifying and recording the lien, such costs to be allowed each claimant whose lien is established, whether he be plaintiff or defendant." Respondent reasons that costs allowable under this statute are included in the lien, and that "other costs allowed by law" in this case include the attorney's fees to which it is entitled by contract, because Civil Code section 1717 deems such fees to be costs of a suit on the contract. Assuming arguendo that costs under Civil Code section 3150 incident to a mechanic's lien foreclosure are included in the lien, notwithstanding the limitation of the lien to labor and materials under Civil Code section 3123, we are not persuaded that those costs include attorney's fees payable solely because an action on a contract has been joined with the foreclosure. Civil Code section 1717 provides for attorney's fees only in contract actions. It does not extend to mechanic's lien foreclosures where, as previously noted, such fees are not recoverable.
Respondent next contends that appellants are subject to a lien for attorney's fees because a lis pendens was recorded that put them on notice of this case before they recorded their deeds of trust. It has been stated that "[t]he effect of such notice is that anyone who acquires an interest in the property after the action has been filed will be bound by any judgment which may thereafter be rendered in the action." (Urez Corp. v. Superior Court (1987) 190 Cal. App.3d 1141, 1144 [235 Cal. Rptr. 837].) Respondent maintains that because the judgment in this case included an award of attorney's fees, and appellants are "bound" by that judgment under the foregoing rule, the lis pendens in effect created a lien for those fees.
Respondent's interpretation of the effect of the lis pendens is too broad. Since a lis pendens "`is purely incidental to the action wherein it is filed,'" and "[i]ts effectiveness depends entirely on the action of which it is a part" (Albertson v. Raboff (1956) 46 Cal.2d 375, 379 [295 P.2d 405]), the lis pendens could not establish any lien not otherwise available in the action, and the lis pendens did not "bind" appellants to pay for attorney's fees awarded in the judgment. The difficulty again appears to stem from joinder of the contract action with the mechanic's lien foreclosure. A lis pendens is *362 authorized in connection with foreclosure of a mechanic's lien (Civ. Code, § 3146), but not in an action solely for damages on a contract (see Urez Corp. v. Superior Court, supra, 190 Cal. App.3d at p. 1145) and it is not the equivalent of an attachment lien (id., at pp. 1148, 1149). In any event, we agree with appellants that the fact they had notice of the pendency of this action is irrelevant. Either respondent had a right to a lien for its fees or it did not, and the lis pendens did not by itself create any such right.
Much the same response is applicable to respondent's final point, that its mechanic's lien should not be "subverted" by a bank's "poor lending decision made with full knowledge of respondent's superior rights." Appellants' loans against the subject property have no bearing on respondent's entitlement to a lien for attorney's fees except insofar as they have given appellants an incentive to litigate the issue. In this regard respondent's quarrel is with the Legislature and not appellants.
CONCLUSION
The judgment is reversed to the extent that it includes attorney's fees in the mechanic's lien, and the case is remanded for modification of the judgment in light of this opinion. Appellants are entitled to their costs on appeal.
Anderson, P.J., and Poche, J., concurred.
Respondent's petition for review by the Supreme Court was denied August 15, 1991.
NOTES
[1] Storek is not a party to this appeal and apparently has filed for bankruptcy protection under chapter 11 of the Bankruptcy Code.
[2] A commentator has observed that: "In the basic action to foreclose a lien or enforce a stop notice as such, there is no right to attorneys' fees (except possibly in cases where there is a written contract providing for such fees; but even with such a written provision, the lien claimant is still faced with the restrictive language of Civil Code section 3123, which confines the lien to the agreed price or the reasonable value, whichever is less. However, it can do no harm to ask for attorney fees as well as legal interests and leave it up to the court)." (Marsh, Cal. Mechanics' Lien Law (5th ed. 1990) § 4.75, p. 4-95 [italics original].) While these comments could be more helpful from this court's standpoint, they do at least suggest that our issue is an open one.
[3] It appears that the mechanics' liens had priority as the subcontractors sued for a declaration of priority of their liens, and the parties stipulated to an entry of judgment in favor of the subcontractors. (Id., at pp. 1328-1329.)]
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290 So.2d 162 (1974)
STATE of Alabama
v.
McMurray GRIFFITH et al.
SC 373.
Supreme Court of Alabama.
February 14, 1974.
Arthur J. Hanes, Special Asst. Atty. Gen., for the State.
William M. Acker, Jr., J. Fred Wood, Jr., Birmingham, for appellees.
MERRILL, Justice.
The sole question requiring a decision in this case is whether evidence of the tax valuation made by the Board of Equalization is admissible, over objection, in a condemnation case.
The question on which this case turns arose twice during the trial. The first time was during the cross-examination of the State's appraiser Cottrell. He was asked "What was the property assessed for"; the State objected and the objection was sustained.
Later, on the direct examination of the landowner, he was asked "What is your property assessed for?" The State again objected, the jury was sent to the jury room and an extended colloquy took place between the judge and counsel. The judge recognized the Alabama rule, but stated that he thought he could take judicial knowledge that Jefferson County had a highly competent Board of Equalization, that the Board had "publically pronounced time and time again that they consider thirty per cent of the market value to be the equal of sixty per cent for purposes of taxation." The judge also stated in reference to the tax valuation:
"THE COURT: That is an official saying of valuation, which, in my opinion, has it in sufficient reliability to require its admittance in evidence and that ismakes a difference, and that mayit may be the ruling I am not making, if properly adhered to, will require the admittance of such valuations on the offer of the State and the people against the property owner.
"MR. LANDRUM: It is your position, then, that assessment should be admissible for either side, is that true?
"THE COURT: In Jefferson County, Alabama."
Following this, the court overruled the objection and permitted the assessment sheet on the property to be admitted into evidence.
It is clear that the trial court was making a new rule of evidence in Jefferson County, based upon his confidence in that county's Board of Equalization and its appraisers. But it is very doubtful that any *163 great number of landowners in Jefferson County would care to be bound by their assessment when their property is taken by condemnation proceedings. The trial court recognized that both sides should receive equal treatment and that its ruling would entitle the condemnor to put the assessment in evidence in each case.
The law of eminent domain ought to be uniform in every county in Alabama. Until the trial of this case it was. If we affirm, there will be one law for Jefferson County and another for the rest of the state.
The right of a person to own property is older than this nation. The Constitution of Alabama of 1901 insures that no landowner will be required to give up his land in eminent domain proceedings without "just compensation" therefor, either by the State, § 23, or by others invested with the privilege, § 235, and the latter section guarantees a trial by jury, if requested, to fix that compensation.
Under the ruling of the trial court the question presented here could arise in every condemnation case in the future and that party to be hurt, in the vast majority of cases, is the landowner who is forced to give up his property.
The greatly predominant view is that the assessed value of land, when placed on the land by the assessors without intervention of the landowner, is not admissible as evidence of market value. 27 Am.Jur.2d, Eminent Domain, § 441, p. 354; 29A C.J.S. Eminent Domain § 273(4); Annotation 39 A.L.R.2d 214, § 4.
Judge J. Russell McElroy, in The Law of Evidence in Alabama (often cited in the opinions of the appellate courts of this state), 2d Ed., Vol. 2, § 267.04, p. 314, states:
"The official record of a tax assessor's, or other tax-assessing authority's, valuation of land for taxation purposes is not admissible against the owner in an action or proceeding between the owner and a third person, unless the owner participated in fixing the valuation."
Judge McElroy was the trial judge in the instant case.
The point is settled in this jurisdiction by decisions of this court and the former Court of Appeals. We list some of the cases and short excerpts from the opinions. Unless otherwise noted, the cases involved eminent domain.
"That the valuation made by the assessor for purposes of taxation, in which the owner does not participate, is inadmissible, is unquestionably correct, on well settled principles. * * *" Birmingham Mineral R.R. Co. v. Smith, 89 Ala. 305, 7 So. 634.
"* * * Before it would be permissible for the defendant to show what value was placed upon the land in its assessment for taxation, it would have to appear that the owner participated in fixing the assessed value. * * *" Pratt Cons. Coal Co. v. Morton, 14 Ala.App. 194, 68 So. 1015 (suit for damages for injury to land).
In an action for damages for allowing fire to be communicated to his barn, it was proper to exclude on plaintiff's cross-examination a question whether his barn was assessed for taxation and how much. Putman v. White, 18 Ala.App. 15, 88 So. 355[5].
"There was no error in sustaining the objection to the question asked the tax assessor concerning the amount at which one of the defendants assessed her property during the year 1917. * * *" United States v. Goodloe, 204 Ala. 484, 86 So. 546.
"* * * It is admitted that such a tax assessment sheet would not have been admissible to prove the value of the property taken. * * *
"* * * Admittedly, the evidence [the tax assessment] was not admissible to prove the value of the property taken, * * *." Etowah County v. Clubview Heights Co., 267 Ala. 355, 102 So.2d 9.
*164 It is clear from these authorities that the rule in Alabama is that evidence of tax valuation, not participated in by the owner, is not admissible for the purpose of establishing fair market value in eminent domain cases.
It could be argued that admitting the tax evaluation into evidence would be proper anywhere in the state when the valuations set by the taxing authorities are shown to be reliable and trustworthy. That really adds a confusing problem.
The ordinary condemnation case in circuit court is concerned only with the amount of compensation. With expert witnesses on both sides, that one question can be difficult for a jury. But where the Board of Equalization of each county is subject to be tried as to the reliability and trustworthiness of their evaluations, few disinterested property owners in the county would care to incur the Board's wrath by saying their evaluations were not reliable or trustworthy. The jury is presented another perplexing question which, under our present rule, has no place in the trial. That rule should be retained for all the counties of the state.
Another reason supporting the rule is that the owner is bound by a valuation set by a governmental board without any prior adversary hearing, and he has no opportunity at trial to cross-examine the people who gave the opinions on which the valuation was set. Such evidence should not be admitted for or against either party in a condemnation case if there is objection to it.
The following statement from Southern Electric Generating Co. v. Leibacher, 269 Ala. 9, 110 So.2d 308, although not on this particular question, is applicable here:
"In cases of this kind, the narrow issue for the jury's determination, the amount of the award to the landowners, should not be broadened nor the verdict of the jury influenced by the interjection of immaterial matters, especially matters calculated to be prejudicial. Whether or not the property is necessary or advisable, or whether more property is taken than necessary, and whether or not it is ever paid for or who pays for it, are not questions for the jury to consider nor to be brought before it in any way."
The landowner argues that the trial judge did not modify the prevailing rule that the assessed valuation of land by tax assessors is generally inadmissible, but that he merely held that an assessed valuation placed on land by officials acting pursuant to state law is admissible as an admission against interest by the Statethe condemnor. It is true that in a small number of cases in other jurisdictions, the assessor's valuation has been held admissible as an admission on the part of the State. See Louisiana Ry. & Navigation Co. v. Morere, 116 La. 997, 41 So. 236; Annotation 39 A. L.R.2d 252. We cannot agree that the trial judge based his decision on this rule, because he did not mention such a reason either on trial or on his reasons at the hearing on the motion for a new trial, which was overruled. Moreover, this court has not applied the rule advocated by the appellees in this case to the State in a condemnation case.
The State also argues that the verdict of $32,500.00 was excessive. Since we reverse the judgment, it is not necessary to discuss that question.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
HEFLIN, C.J., and HARWOOD, MADDOX and FAULKNER, JJ., concur.
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In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2034
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANK KOLLINTZAS,
Defendant.
APPEAL OF:
JOANNA KOLLINTZAS,
Interested Person.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 03 CR 91—Robert L. Miller, Jr., Chief Judge.
____________
ARGUED NOVEMBER 27, 2006—DECIDED SEPTEMBER 5, 2007
____________
Before EASTERBROOK, Chief Judge, and ROVNER and
SYKES, Circuit Judges.
SYKES, Circuit Judge. A jury found Frank Kollintzas
guilty of converting large sums of money from the City of
East Chicago, Indiana. After the trial Kollintzas disap-
peared. The district court sentenced him in absentia and
ordered that he pay over $25 million in restitution. The
government immediately initiated collection proceedings,
including garnishment, under the existing criminal docket
number. While the garnishment proceedings were pending,
2 No. 06-2034
Kollintzas’s wife, Joanna, filed for divorce in Indiana
state court. The government served her with notice of the
garnishments pursuant to the requirements of the Federal
Debt Collection Procedures Act (“FDCPA”), and she made
a general appearance in the district court. She subse-
quently filed a brief asserting an interest in the property
being garnished; she argued that her interest in the
marital assets was a matter for the state court, not the
federal court, to decide. The district court disagreed and
ultimately concluded Mrs. Kollintzas had failed to estab-
lish her property interest under Indiana law. The court
granted the government’s motion to release the funds for
garnishment, and Mrs. Kollintzas appealed. We affirm.
I. Background
In November 2004 Frank Kollintzas was convicted by
a jury of converting money from the City of East Chicago,
Indiana, in violation of 18 U.S.C. § 666(a)(1). Sentencing
was scheduled for February 24, 2005, but he did not
appear. Chief Judge Robert Miller issued a bench warrant,
sentenced Kollintzas in absentia to a term of imprison-
ment, and ordered him to pay restitution of over $25
million pursuant to the Mandatory Victims Restitution
Act of 1996 (“MVRA”), 18 U.S.C. § 3663A. Kollintzas has
not been found.
The government quickly initiated efforts to collect a
portion of the $25 million Kollintzas owes in restitution.
On March 1, 2005, the government filed a Notice of Lien in
Lake County, Indiana, where Kollintzas’s property is
located. The government also initiated garnishment
proceedings before Chief Judge Miller pursuant to the
FDCPA, 28 U.S.C. §§ 3001-3308, and served interrogato-
ries on third-party account holders (“the garnishee-defen-
dants”) to determine the amounts they were holding
and to verify the names on the accounts. Based on infor-
No. 06-2034 3
mation Kollintzas had provided during the presentence
investigation and the garnishee-defendants’ interrogatory
responses, the government decided to pursue the follow-
ing assets (“the Assets”), all held in the sole name of
Frank Kollintzas unless otherwise indicated:
• Northwestern Mutual Life Insurance tax-deferred
annuity with a cash surrender value;
• School of East Chicago retirement package;
• Public Employees Retirement Fund account;
• Wachovia Securities account;
• Peoples Bank checking accounts owned by Frank
and Joanna as joint tenants with rights of
survivorship;
• Northwestern Mutual Life Insurance policies
owned by Frank and with Frank listed as the
person with the right to withdraw cash surrender
values;
• Nationwide Retirement Solutions account;
• Tech Credit Union savings and checking accounts;
• Indiana Teachers Retirement Fund;
• Funds held by the City of East Chicago as a pen-
sion package; and
• Sandridge Bank savings and checking accounts.
On March 31, 2005—while the garnishment proceedings
were pending and after the government’s liens were
perfected—Kollintzas’s wife, Joanna, filed for divorce in
Indiana state court. The state court issued an ex parte
temporary restraining order prohibiting the garnishee-
defendants, who had been served with the garnishment
notice in Kollintzas’s federal criminal case, from transfer-
ring any funds from the Assets. The government then
4 No. 06-2034
served Mrs. Kollintzas with notice of the garnishment
proceedings pursuant to the FDCPA, § 3202(c),1 so that
she could assert any claimed interest in the Assets.
Mrs. Kollintzas made a general appearance in the
district court at a status conference, and at that time
the court set a briefing schedule to address the govern-
ment’s motion for release of the specified funds for gar-
nishment purposes. Mrs. Kollintzas then filed a brief
identifying herself as an “intervenor” and asserting an
interest in Frank’s property based on the fact that she
contributed income to the marriage. She did not, however,
specify the amount of her contribution to the Assets, nor
did she indicate why she was legally entitled to any of
the Assets under state law. Instead, she argued more
generally that the Assets were part of the “marital pot”
and that it was the “province of the state trial court to
determine what interest in marital property is held by
Frank Kollintzas and what interest in marital property
is held by Joanna Kollintzas.”
The district court granted the government’s motion to
release funds. The court held that the government’s liens
relating to “all property and rights to property” of Frank
Kollintzas were superior to Mrs. Kollintzas’s claim to
marital property in the divorce proceedings because the
liens were perfected before she filed for divorce. Moreover,
the court rejected Mrs. Kollintzas’s generalized claim
1
28 U.S.C. § 3202(c) states:
(c) Service. A copy of the notice and a copy of the application
for granting a remedy under this subchapter shall be served
by counsel for the United States on the judgment debtor
against whom such remedy is sought and on each person
whom the United States, after diligent inquiry, has reason-
able cause to believe has an interest in property to which the
remedy is directed.
No. 06-2034 5
regarding her contributions to the marriage as insufficient
to establish an interest in the Assets. Shortly after grant-
ing the government’s motion, the district court issued
final garnishment disposition orders for the Assets. Mrs.
Kollintzas appealed.2
II. Discussion
A. Mrs. Kollintzas’s status as an “interested person”
under the FDCPA
Throughout these proceedings Mrs. Kollintzas has
referred to herself as an “intervenor.” This is procedurally
incorrect. She never filed a motion to intervene, nor did
the district court ever recognize her as an intervening
party. The government initiated these FDCPA collection
proceedings under the existing docket number in Frank
Kollintzas’s criminal case, and Mrs. Kollintzas partici-
pated in the proceedings through counsel after being
served with the garnishment notice. We raised the ques-
tion of Mrs. Kollintzas’s status at oral argument, and
after argument ordered supplemental briefing on the
following questions: (1) whether intervention by a private
party is proper in a criminal case; and (2) whether there
is a basis for continuing jurisdiction in the district court
to make further rulings in the criminal case.
There is no provision in the Federal Rules of Criminal
Procedure for intervention by a third party in a criminal
proceeding; intervention in civil proceedings is governed
2
After Mrs. Kollintzas filed her notice of appeal, she moved the
district court to stay collection with respect to those assets
Mrs. Kollintzas claims an interest in. The district court denied
her motion but ordered the clerk of court to hold moneys col-
lected in connection with the garnishment proceedings pending
resolution of this appeal.
6 No. 06-2034
by Rule 24 of the Federal Rules of Civil Procedure, which
does not apply in a criminal case. Mrs. Kollintzas argues
that the FDCPA collection proceedings, although techni-
cally part of Frank Kollintzas’s criminal case, were civil
in nature and therefore she could have intervened as of
right pursuant to Rule 24. The government sidesteps the
question whether intervention is available in FDCPA
proceedings initiated in the context of a criminal case; it
takes the position that Mrs. Kollintzas is not an intervenor
at all but rather an “interested person” entitled to partici-
pate in the collection proceedings under the FDCPA in
order to assert an interest in the property subject to
garnishment.
We need not decide whether intervention is ever appro-
priate in this situation; as we have noted, Mrs. Kollintzas
never sought to be recognized as an intervening party, a
step which can only be accomplished by motion. See FED.
R. CIV. P. 24(c) (“A person desiring to intervene shall serve
a motion to intervene upon the parties as provided in
Rule 5,” which “shall be accompanied by a pleading . . . .”).
Mrs. Kollintzas’s participation in the garnishment pro-
ceedings was as a person with an interest in property
subject to collection remedies under the FDCPA. That
statute is applicable to the enforcement of restitution
orders and requires the government to serve notice on
“each person whom the United States . . . has reasonable
cause to believe has an interest in property to which the
remedy is directed.” 28 U.S.C. § 3202(c).
It has been established in this and other circuits that
district courts may entertain civil garnishment and other
collection proceedings as postjudgment remedies within
an underlying criminal case; nothing precludes the gov-
ernment from initiating a collection proceeding under an
existing criminal docket number in order to collect a fine
or restitution ordered as part of the criminal sentence.
United States v. Vitek Supply Corp., 151 F.3d 580, 585-86
No. 06-2034 7
(7th Cir. 1998) (holding the government may proceed
against a corporate defendant’s alter egos as a post-
judgment remedy in a criminal case in order to collect on
restitution obligation of individual and corporate defen-
dants); United States v. Mays, 430 F.3d 963, 966 (9th Cir.
2005) (holding FDCPA procedures are available as
postjudgment remedies in criminal cases) (cert. denied, 126
S. Ct. 1416 (Feb. 21, 2006)); United States v. Timilty, 148
F.3d 1, 3 (1st Cir. 1998) (holding the government need not
reduce a restitution order to a civil judgment prior to
enforcing it; the government may proceed with collection
action within a criminal case); United States v. Thornton,
672 F.2d 101, 106 (D.C. Cir. 1982) (stating “[i]t is not
necessary [for the government] to start a new action, civil
or criminal,” to proceed with garnishment).
The Ninth Circuit’s decision in Mays is instructive here.
In Mays, the district court entered a restitution order
against the defendant pursuant to the MVRA. The govern-
ment then initiated garnishment proceedings pursuant
to § 3205 of the FDCPA under the existing criminal docket
number. The Ninth Circuit held this scenario was plainly
contemplated by the MVRA based on the language of
18 U.S.C. § 3613(a), which specifies the civil remedies
available for the satisfaction of fines, and subsection (f ) of
that statute, which makes the same procedures ap-
plicable to the enforcement of orders of restitution. Mays,
430 F.3d at 965. More specifically, § 3613(a) provides:
“The United States may enforce a judgment imposing a
fine in accordance with the practices and procedures for
the enforcement of a civil judgment under Federal law or
State law.” Subsection (f ) of § 3613 provides that “all
provisions of this section are available to the United States
for the enforcement of an order of restitution.” The FDCPA
is a procedural vehicle available to the United States
under federal law for the enforcement of its civil judg-
ments; the Ninth Circuit held that by “importing the
8 No. 06-2034
FDCPA’s procedures into the MVRA, Congress clearly
meant to make those procedures available in criminal
cases.” Mays, 430 F.3d at 966.
Accordingly, the government’s initiation of civil garnish-
ment proceedings within the criminal case was procedur-
ally appropriate under the MVRA and the FDCPA, and
there is no concern about the district court’s jurisdiction.
See Vitek, 151 F.3d at 586 (“The United States always
gets to litigate in its own courts. See 18 U.S.C. § 3231,
28 U.S.C. § 1345. Any effort to collect a debt due to the
United States presents a claim under federal law . . . .”).
And because the government specifically invoked the
remedial procedures of the FDCPA to collect restitution
in this case, Mrs. Kollintzas’s participation was not
improper, even though she was not a party.
The FDCPA requires the government to use reasonable
diligence to identify and serve notice on any person who
may have an interest in the property it targets for col-
lection proceedings under the FDCPA. See 28 U.S.C.
§ 3202(c) (requiring the government to serve a “copy of
the notice and a copy of the application for granting a
remedy under this subchapter” on “each person whom the
United States, after diligent inquiry, has reasonable
cause to believe has an interest in the property to which
the remedy is directed.”). The FDCPA also provides that
the government may proceed against jointly owned prop-
erty to the extent permitted by state law. See 28 U.S.C.
§ 3010(a) (“The remedies available to the United States
under this chapter may be enforced against property
which is co-owned by a debtor and any other person only
to the extent allowed by the law of the State where the
property is located. . . .”). The FDCPA’s third-party notice
requirement and the provision regarding jointly owned
property together imply that nonparties with an interest
in the targeted property may participate in the collection
No. 06-2034 9
proceedings for the purpose of asserting their interest
in the property.
Thus, we agree with the government that Mrs.
Kollintzas’s participation in these proceedings was as
an “interested person” under the FDCPA and not an
intervenor.3 Because the district court’s order granting
the government’s motion to release the funds for garnish-
ment was a final decision as to her claim to the Assets,
we are satisfied that this appeal is properly before us.
United States v. Elliott, 149 F. App’x 489, 492 (7th Cir.
2005) (holding that preliminary forfeiture order, rather
than final forfeiture order, was final because it was
conclusive as to defendant’s interest in the property “and
thus was the final order in the matter as to him”); United
States v. Minneman, 6 F. App’x 422, 424 (7th Cir. 2001)
(holding “disposition order concludes the garnishment
proceedings and therefore that order, and not the order
denying the debtor’s objections, is the final order from
which a debtor should appeal”); Am. Oil Co. v. McMullin,
433 F.2d 1091, 1096 (10th Cir. 1970) (holding order
unrelated to principal lawsuit final and appealable be-
cause “if there were no appeal allowed at this time, there
may never be a timely appeal”); see also Cleveland Hair
Clinic, Inc. v. Puig, 106 F.3d 165, 167 (7th Cir. 1997)
(stating for nonparty found in contempt, adjudication in
contempt usually is the final decision in the case; “there
will never be another, more conclusive, order” for the
nonparty); Carter Prods., Inc. v. Eversharp, Inc., 360 F.2d
868, 871 (7th Cir. 1966) (holding order denying motion
to compel a nonparty witness to answer questions was
a final decision because it was final “for all practical
purposes”).
3
We have revised the caption to reflect Mrs. Kollintzas’s status
in this case.
10 No. 06-2034
B. Garnishment proceedings
An order for payment of restitution becomes a lien on all
property and rights to property of the defendant upon
entry of judgment, see 18 U.S.C. § 3613(c), which in this
case was on February 24, 2005. The lien is subsequently
perfected when a notice of lien is filed, see § 3613(d); 26
U.S.C. § 6323(f ), which in this case was on March 1, 2005.
Liens to pay restitution debts are treated like tax liens, see
§ 3613(c); 26 U.S.C. § 6321 (discussing tax liens), so that
they are “effective against every interest in property
accorded a taxpayer by state law,” United States v.
Denlinger, 982 F.2d 233, 235 (7th Cir. 1992). “We look
initially to state law to determine what rights the tax-
payer [or in this case, the criminal defendant] has in the
property the Government seeks to reach, then to federal
law to determine whether the taxpayer’s state-delineated
rights qualify as ‘property’ or ‘rights to property’ within
the compass of the federal tax lien legislation.” Drye v.
United States, 528 U.S. 49, 58 (1999); United States v.
Nat’l Bank of Commerce, 472 U.S. 713, 727 (1985).
In Indiana marital property is held as a tenancy by the
entireties, so that each spouse has an undivided interest
in the whole, provided title to the property is held by both
husband and wife.4 Denlinger, 982 F.2d at 236. Indiana
4
In Indiana when property is divided in a divorce action, “[a]ll
property owned by either spouse before the marriage, acquired
by either spouse in his or her own right after the marriage
and before the final separation of the parties, or acquired by
the joint effort of the parties is included within the marital
estate.” Deckard v. Deckard, 841 N.E.2d 194, 200 (Ind. Ct. App.
2006) (citing IND. CODE § 31-15-7-4). Indiana courts presume
that an equal division of property is just; however, each party
has an opportunity to rebut this presumption by showing: the
contribution of each spouse to certain property; whether property
(continued...)
No. 06-2034 11
law permits a husband to convey property he owns in his
own name without the consent of his wife—“an act which
extinguishes any right the wife may have in the property
by virtue of marriage.” Id.; IND. CODE § 29-1-2-3.1. Thus,
a tax lien can attach to property held in the husband’s
name when the wife’s name is not on the title. Denlinger,
982 F.2d at 235.
Federal law determines whether the government’s
liens attach to the Assets. The primary consideration is
“the breadth of control” the taxpayer could exercise over
the property. Drye, 528 U.S. at 61 (quoting Morgan v.
Comm’r, 309 U.S. 78, 83 (1940)). For example, the Su-
preme Court has held the following constitute rights to
property: a taxpayer’s right under a life insurance policy
to compel his insurer to pay him the cash surrender value,
United States v. Bess, 357 U.S. 51 (1958); a taxpayer’s
right under state law to withdraw the whole of the pro-
ceeds from a joint bank account, Nat’l Bank of Commerce,
472 U.S. at 724-25; and a taxpayer’s right to receive the
entire value of an estate, even if he immediately elects to
pass that value on to someone else, Drye, 528 U.S. at 61.
In this case, most of the Assets are in Frank Kollintzas’s
name alone. Only the Peoples Bank checking accounts
are held by Frank and Joanna jointly, and because Frank
had the right to withdraw all of the money at any time
without Joanna’s permission, the government’s lien
attached to the full value of the account. IND. CODE 32-17-
11-22(b) (“Any multiple party account may be paid, on
request, to any one (1) or more of the parties.”); see Nat’l
Bank of Commerce, 472 U.S. at 724-25.
4
(...continued)
was acquired before the marriage, through inheritance, or as a
gift; the conduct of the parties during the marriage related to
property; and the economic circumstances of having custody
of children. IND. CODE § 31-15-7-5.
12 No. 06-2034
After the government’s liens attached and after she
filed for divorce, Mrs. Kollintzas had an opportunity to
establish her claimed interest in the Assets in the garnish-
ment proceedings before the district court. The government
conceded in its brief in the district court that “Mrs.
Kollintzas may establish ownership of all or part of these
account funds in this action by producing evidence that
she has made contribution of the funds representing
these balances.” She did not attempt to do so, however.
Instead, she argued that the property sought by the
government was marital property and as such it was “the
province of the state trial court,” not the federal court, to
determine the extent of her interest in the Assets.
But the government’s liens were perfected and the
garnishment proceedings commenced before Mrs.
Kollintzas filed for divorce; her opportunity to establish
her interest in the property sought to be garnished was
therefore in the district court. Her claim that she has a
presumptive right to half of the marital property in her
divorce action under Indiana law is subject to the gov-
ernment’s previously perfected liens, which encumber
the Assets to the extent they are part of the marital
estate. Mrs. Kollintzas asserted a generalized marital
property interest in the district court, but made no effort
to establish the amounts (if any) she contributed to the
various Assets subject to garnishment. Accordingly, the
district court properly concluded that Mrs. Kollintzas
failed to establish a claim to the Assets superior to that of
the government.
AFFIRMED.
No. 06-2034 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-5-07
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778 F.2d 62
The Honorable Alejandro CRUZ, Jr., et al., Petitioners,v.Honorable William E. BROCK, Secretary of Labor of the UnitedStates, Respondent.
No. 85-1375.
United States Court of Appeals,First Circuit.
Argued Oct. 8, 1985.Decided Dec. 2, 1985.
Stephen Sale with whom Fehrenbacher, Sale, Fudesco & Quinn, P.C., Washington, D.C., Thomas F. Holt, Jr., and DiCara, Selig, Sawyer & Holt, Boston, Mass., were on brief for petitioners.
William S. Rhyne, Asst. Counsel for Litigation, U.S. Dept. of Labor, Office of the Sol., with whom Francis X. Lilly, Sol. of Labor, William H. DuRoss, III, Associate Sol. for Employment and Training, and Harry L. Sheinfeld, Counsel for Litigation, Washington, D.C., were on brief for respondent.
Before COFFIN and BREYER, Circuit Judges, and TIMBERS,* Senior Circuit Judge.
BREYER, Circuit Judge.
1
Petitioners, the mayors of three municipalities in Puerto Rico, ask us to set aside a Federal Department of Labor determination that their towns are not big enough to qualify automatically as "Service Delivery Areas" (SDA) under the Job Training Partnership Act (JTPA). 29 U.S.C. Sec. 1511 (1982). All parties agree that Puerto Rico's governor must certify the three-town "consortium" as an SDA if it contains an "aggregate population of 200,000 or more." 29 U.S.C. Sec. 1511(a)(4)(A)(ii). But, the municipalities and the governor disagree about whether by February 28, 1985 (the biennial SDA designation due date) the municipalities had hit the 200,000 mark. The municipalities carried their argument to the Secretary of Labor (29 U.S.C. Sec. 1511(a)(4)(C) ) who agreed with the governor that the population of the three towns was too small. The towns now appeal the Labor Department's decision to us.
2
At the outset the Secretary denies our power to review his decision. He says that Congress "committed" factual population questions to his "agency's discretion" under 29 U.S.C. Sec. 1572(a), thereby insulating them from ordinary judicial review. We doubt his argument--at least if he means we lack the power to review for abuses of discretion. See 5 K. Davis, Administrative Law Treatise Sec. 28.7 (1984); California Human Development Corp. v. Brock, 762 F.2d 1044 (D.C.Cir.1985). But, we need not decide the matter definitively, for, in any event, the decision before us is lawful. It satisfies all relevant standards of judicial review. It is reasonable, it is not "arbitrary," nor is it "capricious." 5 U.S.C. Sec. 706(2)(A). Moreover, if, for the sake of argument, we assume with petitioners that the decision must be supported by "substantial" evidence, it is so supported. 29 U.S.C. Sec. 1578(a)(3) ("Review shall be limited to questions of law and the Secretary's findings of fact shall be conclusive if supported by substantial evidence."). But cf. 5 U.S.C. Sec. 706(2)(E) (using the words "substantial evidence" to refer to review of an agency decision based on a formal record); Association of Data Processing Service Organizations, Inc. v. Board of Governors, 745 F.2d 677, 683 (D.C.Cir.1984) (The substantial evidence test "is only a specific application of the [arbitrary or capricious test], separately recited in the APA not to establish a more rigorous standard of factual support but to emphasize that in the case of formal proceedings the factual support must be found in the closed record as opposed to elsewhere.... [The] operation [of the two standards] is precisely the same.").
3
As we read the record, the evidence before the Secretary suggesting that the towns' population amounted to less than 200,000 consisted of the following. First, official 1980 census figures stated that their combined population was 185,231. Second, population estimates made jointly by the Bureau of the Census and the Puerto Rico Planning Board estimated the July, 1982 population at 190,300. Bureau of Census, U.S. Department of Commerce, Series P-26, No. 82-51-C, Current Population Reports: Local Population Estimates, "Estimates of the Population of Puerto Rico Municipios and Metropolitan Areas: July 1, 1981, and 1982 (Provisional)" (Dec.1984). Third, an April 15, 1985 letter from the President of the Planning Board (Patricia G. Custodio) to an assistant to Puerto Rico's governor "certified" that "according to the estimates" of the "Federal-State Cooperative Program for Local Population Estimates," the estimate for 1981 is 187,700; for 1982, 190,300; and the preliminary estimate for 1983 is 187,304.
4
On the other hand, there was evidence suggesting that the population exceeded 200,000 as of February 28, 1985. It consisted of the following items. First, a letter written on December 3, 1984, by the then head of the Puerto Rico Planning Board to an official of the Chase Manhattan Bank "confirm[ing] population projections for the [three municipalities] ... provided in last Friday's telephone conversation," says the population for 1985 amounts to 205,481. Second, a handwritten note dated December 28, 1984 and signed by the then President and two members of the Planning Board refers to "certified" population projections for 1985, 1990, 1995, 2000 and 2005. The note does not say what the projections were, but other documents and counsels' arguments suggest the "certification" is likely to be the source of the 205,481 figure mentioned in the December 3 letter.
5
The Secretary concluded on the basis of this evidence that the towns' joint population did not amount to 200,000 on February 28, 1985. And, we believe this evidence adequately supports that decision. The official census data, together with the joint Census Bureau/Planning Board estimates, show that the towns, taken together, were growing, but not fast enough to have reached 200,000 by 1985. The conflicting evidence consists, not of joint Census Bureau/Planning Board estimates, but of a letter and other reports referring to "preliminary" projections made by the Planning Board. Indeed, a handwritten memorandum of March 15, 1985, signed by the President and one member of the Planning Board states that the Board leaves its December 28, 1984 figures "without effect" because it considers the figures "to be preliminary," a fact which the Department takes to mean the December projection was withdrawn.
6
We see nothing unreasonable, arbitrary, or capricious in the Department of Labor having relied upon official census data and joint estimates, while disregarding preliminary, less official data. Petitioners point to no other instance in which the Department has accepted or preferred unofficial preliminary data to relevant official data when considering qualifications for an SDA certification. The Department, at oral argument, assured us there is no such instance.
7
Petitioners point to a related section of the JTPA which says that "allotments and allocations ... shall be based on the latest available data and estimates satisfactory to the Secretary." 29 U.S.C. Sec. 1572(a). But the last four words, "satisfactory to the Secretary," make petitioners' argument here unconvincing. In addition, petitioners discuss various political factors they believe affected the Planning Board's or the governor's decision about which figures to accept as valid. But this argument and other related arguments are beside the legal point. We are concerned only with the legal question of whether the Secretary of Labor's decision was "arbitrary" or "capricious," and whether it had adequate factual support. The record demonstrates that the decision was adequately supported and therefore lawful. Thus, the petition for review is
8
Denied.
*
Of the Second Circuit, sitting by designation
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 04 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 11-57240
Plaintiff - Appellee, D.C. Nos. 2:11-cv-03080-PA
2:07-cr-01276-PA-2
v.
CHRISTOPHER NDIAGU, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted February 2, 2015**
Pasadena, California
Before: D.W. NELSON, BYBEE, and IKUTA, Circuit Judges.
Christopher Ndiagu (“Ndiagu”) appeals the district court’s dismissal of his
motion to vacate, set aside or correct sentence filed pursuant to 28 U.S.C. § 2255
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
(“§2255 Motion”) based on a claim of ineffective assistance of counsel. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
After being charged in a nine-count indictment in the district court, Ndiagu
pleaded guilty to two counts: mail theft and identity theft under 18 U.S.C. §§
1028A(a)(1), 1708. Prior to pleading guilty, Ndiagu alleges his attorney assured
him that his resulting convictions would not render him mandatorily deportable
and that an immigration judge could consider certain factors to grant him relief
from deportation.
Ndiagu was sentenced to 30 months in custody followed by two years of
supervised release. After completing his sentence, Ndiagu was immediately
transferred into the custody of the Department of Homeland Security (“DHS”) on
December 21, 2009. On that date, Ndiagu was served with both a Notice to
Appear (“NTA”) and a Notice of Custody Determination (“NCD”) from DHS.
Ndiagu alleges that at a hearing before an immigration judge on January 6, 2011,
he was informed for the first time that he was mandatorily deportable based on his
convictions.
On March 9, 2011, Ndiagu filed his § 2255 Motion pro se in the district
court. On November 30, 2011, the district court dismissed his § 2255 Motion as
untimely.
2
Although not raised by either of the parties, we first consider our jurisdiction
over this case. A petition for writ of habeas corpus under 28 U.S.C. § 2255 may
only be filed by “[a] prisoner in custody.” The “in custody” requirement is
jurisdictional in nature and applies at the time the petition is filed. United States v.
Reves, 774 F.3d 562, 564–65 (9th Cir. 2014). Although Ndiagu was no longer in
federal prison when he filed his § 2255 Motion, he was still subject to a term of
supervised release, which satisfies the “in custody” requirement. Matus-Leva v.
United States, 287 F.3d 758, 761 (9th Cir. 2002). Additionally, because Ndiagu
remains subject to the collateral consequence of removal, his case is not mooted by
the fact that he is no longer “in custody.” Zegarra-Gomez v. I.N.S., 314 F.3d 1124,
1126 (9th Cir. 2003).
Under 28 U.S.C. § 2255(f)(4), the one-year statute of limitations for Ndiagu
to file his § 2255 Motion began to run from “the date on which the facts supporting
the claim or claims presented could have been discovered through the exercise of
due diligence.” “Due diligence does not require the maximum feasible diligence,
but it does require reasonable diligence in the circumstances.” Ford v. Gonzalez,
683 F.3d 1230, 1235 (9th Cir. 2012) (internal quotation marks and citation
3
omitted).1 Had Ndiagu exercised due diligence, he would have discovered the
factual predicate for his claims when he was transferred into DHS custody and
received both the NTA and the NCD on December 21, 2009. Those documents
informed Ndiagu that he was being charged with a crime involving moral
turpitude, which would clearly render him ineligible for cancellation of removal or
adjustment of status and mandatorily detainable under the Immigration and
Nationality Act. 8 U.S.C. §§ 1229b(b)(1)(C), 1226(c). Although Ndiagu may not
have “underst[ood] the legal significance” of these facts, he was aware of “the facts
themselves” on December 21, 2009. See Hasan v. Galaza, 254 F.3d 1150, 1154
n.3 (9th Cir. 2001). His § 2255 Motion filed on March 9, 2011, is therefore
untimely under 28 U.S.C. § 2255(f)(4).
AFFIRMED.
1
Although Ford involved analysis of the nearly identical statute of
limitations under 28 U.S.C. § 2244, we have previously noted that “the Supreme
Court has interpreted the statute-of-limitations provisions of § 2244 and § 2255 in
concert with one another.” Shannon v. Newland, 410 F.3d 1083, 1088 (9th Cir.
2005).
4
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574 N.W.2d 505 (1998)
254 Neb. 111
Ellen C. SMART, Appellee,
v.
SCRIVNER/FOOD 4 LESS and Gallagher Bassett Services, Inc., Appellants.
No. S-97-693.
Supreme Court of Nebraska.
February 27, 1998.
*506 John R. Timmermier, of Timmermier, Gross & Burns, Omaha, for appellants.
Glenn A. Pettis, Jr., Omaha, for appellee.
WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.
GERRARD, Justice.
While employed by Scrivner/Food 4 Less (Scrivner), Ellen C. Smart was involved in an on-the-job accident on March 20, 1992, and, as a result, she sustained bodily injuries. Immediately following the accident, Gallagher Bassett Services, Inc. (Gallagher), Scrivner's claims agent, began paying Smart workers' compensation benefits, which payments continued until January 27, 1993. On December 2, 1993, and July 7, 1994, Gallagher made payments for medical case-management services rendered in an attempt to assess Smart's medical status. On December 1, 1995, Smart filed a petition in the Nebraska Workers' Compensation Court, claiming that she was entitled to additional payments of compensation. Scrivner and Gallagher filed an answer, contending that Smart's claim was barred under Neb.Rev. Stat. § 48-137 (Reissue 1993), which provides that an injured employee has 2 years from the time of the making of the last payment of compensation to file a claim. Agreeing with Scrivner and Gallagher, a single judge of the compensation court entered an order of dismissal, finding that Smart's December 1, 1995, petition was barred by the statute of limitations because Gallagher made its last payment of compensation on January 27, 1993. However, on review of this determination, a three-judge review panel of the compensation court, in a two-to-one decision, reversed the judgment and remanded the case, finding that Smart's petition was timely filed because Gallagher's December 2, 1993, and July 7, 1994, payments for medical case-management services were payments of compensation that tolled the statute of limitations. Scrivner and Gallagher appeal. Because we determine that payments for medical case-management services do not constitute payments of compensation which toll the statute of limitations, we reverse the judgment of the three-judge review panel and remand this cause to the Workers' Compensation Court with directions to dismiss Smart's petition.
FACTUAL BACKGROUND
While employed by Scrivner, Smart was involved in an on-the-job accident on March 20, 1992, and, as a result, she sustained shoulder and cervical injuries, a fractured elbow, and associated psychological trauma. Immediately following the accident, Gallagher began paying Smart workers' compensation benefits for her injuries, which payments continued until January 27, 1993. On December 2, 1993, and July 7, 1994, Gallagher made payments of $108.80 and $91, respectively, to General Rehabilitation Services Inc. (GRS) for the medical case-management services of GRS' employee, Patricia Hart.
On December 1, 1995, Smart filed a petition in the Workers' Compensation Court, claiming that she was entitled to additional payments of compensation for her continuing disabilities as a result of the March 20, 1992, accident. Scrivner and Gallagher filed an answer, contending that Smart's claim was barred by the applicable statute of limitations. Section 48-137 provides, inter alia, that an injured employee has 2 years from the date of the accident or 2 years from the time of the making of the last payment of compensation to file a claim for workers' compensation benefits.
Prior to the hearing on Smart's petition, Hart testified by deposition that she was employed by GRS as a medical case manager during 1993 and 1994. Hart described her function and purpose as a medical case manager as follows: "I review files. See what's going on. Meet with the clients, employees, doctors, [and] therapist[s]. See what's going on in the case, how things are going. And make recommendations. Assist as needed to get [the injured employee] medically better." *507 Hart testified that Gallagher had asked her on October 11, 1993, to reopen Smart's case and to assess Smart's medical status and make a recommendation.
By letter dated December 7, 1993, Hart informed Smart's attorney of Gallagher's request that she reopen Smart's case. Hart wrote, in relevant part, as follows:
I am a rehabilitation specialist with [GRS]. My role is to assist injured workers by providing medical case management or vocational assistance to return to work. I have been asked by ... Gallagher ... to work with your client, Ellen Smart. [Gallagher] has requested [that] I meet with Ms. Smart, if possible, to get an update on her status and to find out where we stand from the medical/vocational standpoints.
Based on her experience, Hart testified that, in her opinion, Gallagher believed that it still owed a duty to help Smart from both a medical and a vocational standpoint. Hart then discussed the services that she conducted on Smart's case, which included reviewing Smart's file and making arrangements with Smart's attorney to meet with Smart, although no meeting or conversation between Smart and Hart ever took place. In addition, Hart made telephone calls and sent correspondence to Gallagher and analyzed whether Smart still suffered from posttraumatic reactive depression disorder in light of new circumstances that had come to Gallagher's attention.
Following the evidentiary hearing on Smart's petition, a single judge of the compensation court entered an order of dismissal, finding that Smart's December 1, 1995, petition was barred by the 2-year statute of limitations because Gallagher made its last payment of compensation on January 27, 1993. Smart filed an application for review of the single judge's determination. A three-judge review panel of the Workers' Compensation Court, in a two-to-one decision, reversed the judgment and remanded the case for further proceedings, finding that Smart's petition was timely filed because Gallagher's December 2, 1993, and July 7, 1994, payments for GRS' medical case-management services were payments of compensation which tolled the statute of limitations. Scrivner and Gallagher appeal.
SCOPE OF REVIEW
Pursuant to Neb.Rev.Stat. § 48-185 (Reissue 1993), an appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Roth v. Sarpy Cty. Highway Dept., 253 Neb. 703, 572 N.W.2d 786 (1998); Acosta v. Seedorf Masonry, Inc., 253 Neb. 196, 569 N.W.2d 248 (1997). However, as to questions of law, an appellate court in workers' compensation cases is obligated to make its own determinations. Roth v. Sarpy Cty. Highway Dept., supra; Sheridan v. Catering Mgmt., Inc., 252 Neb. 825, 566 N.W.2d 110 (1997).
ASSIGNMENT OF ERROR
Scrivner and Gallagher's three assignments of error can be consolidated and restated into the following single assignment: The three-judge review panel of the compensation court erred in determining that Smart's December 1, 1995, petition was timely filed by finding that the December 2, 1993, and July 7, 1994, payments for medical case-management services were payments of workers' compensation which tolled the 2-year statute of limitations as set forth in § 48-137.
ANALYSIS
Section 48-137 provides that when payments of workers' compensation have been made, the statute of limitations will not take effect until the expiration of 2 years from the time of the making of the last payment of compensation. See Snipes v. Sperry Vickers, 251 Neb. 415, 557 N.W.2d 662 (1997). Scrivner and Gallagher assert that Smart's December 1, 1995, petition was not timely filed because Gallagher's December 2, 1993, and July 7, 1994, payments for GRS' medical *508 case-management services were not payments of workers' compensation, but, rather, were payments to an agency for administrative expenses incurred by it in an attempt to assess Smart's medical status. Smart, on the other hand, contends that Gallagher's payments for GRS' services were payments of workers' compensation because Hart's December 7, 1993, letter created the reasonable impression that Hart was intending to provide Smart with vocational assistance. Therefore, the issue we must resolve is whether the payments made by Gallagher for GRS' medical case-management services were payments of "compensation" which tolled the statute of limitations.
The term "compensation" is not defined in the Nebraska Workers' Compensation Act (Act). We have, however, previously characterized "compensation" as a chameleonlike expression which takes its meaning from the context in which the word is used in the statute. See Bituminous Casualty Corp. v. Deyle, 234 Neb. 537, 451 N.W.2d 910 (1990). In addressing the definition of "compensation" under § 48-137, we have held that where an employee who suffered an accident arising out of and in the course of his or her employment requests and receives medical services and medicines furnished by the employer, it constitutes the receipt of compensation within the meaning of the Act. Schwieger v. Island Supply Co., 178 Neb. 547, 134 N.W.2d 233 (1965). In addition, we have held that payments made by the employer's insurance carrier for hospital and medical expenses incurred by the injured employee "clearly constitute payments of compensation." Baade v. Omaha Flour Mills Co., 118 Neb. 445, 448, 225 N.W. 117, 119 (1929). The rationale underlying our prior holdings, as succinctly stated by Professor Larson in 7 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 78.43(h) at 15-348 (1997), is that the "furnishing of any kind of benefit required by compensation law indicates an acceptance of liability and thus satisfies the policy of the `last payment' clause."
Although we have held that payments for medical services constitute payments of compensation, we have never addressed the question of whether payments for medical case-management services constitute payments of compensation. However, as distinguished from medical services, an employer is not obligated to provide medical case-management services with regard to an injured employee's claim. See, e.g., Neb.Rev.Stat. § 48-120(1) (Reissue 1993) ("employer shall be liable for all reasonable medical, surgical, and hospital services ... which are required by the nature of the injury and which will relieve pain or promote and hasten the employee's restoration to health and employment"); Neb.Rev.Stat. §§ 48-120.01 through 48-124 (Reissue 1993). The evidence reveals that, in the instant case, Gallagher hired GRS to assess Smart's medical status and to analyze whether Smart still suffered from posttraumatic reactive depression disorder in light of new circumstances that had come to Gallagher's attention. In that regard, GRS' employee, Hart, reviewed Smart's file and attempted to make arrangements with Smart's attorney to meet with Smart, although no meeting or conversation between Smart and Hart ever took place. In contrast to medical services intended for the benefit of the injured employee, it is clear that the type of medical case-management services provided in this case were neither required by the Act nor did the services provide a benefit to Smart so as to indicate an acceptance of liability by Scrivner and Gallagher. Hart's function was to assess Smart's medical status and make an administrative recommendation to Scrivner and Gallagher.
Therefore, we hold that payments for medical case-management services that are not required by the Act and that result in no benefit to the injured employee do not constitute payments of compensation which toll the statute of limitations set forth in § 48-137.
Smart, however, argues that Hart's December 7, 1993, letter created the reasonable impression that Gallagher was continuing to recognize liability by intending to provide her with vocational rehabilitation services. In support of her argument, Smart relies on Maxey v. Fremont Department of Utilities, 220 Neb. 627, 636-37, 371 N.W.2d 294, 301 (1985), wherein we stated that the statute of limitations will be tolled if from the "conduct *509 of the employer, it may reasonably be inferred that such payments were made with an intent that payment constitute compensation and a conscious recognition of liability for compensation benefits on the part of the employer."
While it is true that Hart's letter stated that she was a rehabilitation specialist and that her role was to assist injured workers "by providing medical case management or vocational assistance to return [them] to work," Hart testified that she never provided Smart with vocational assistance and that the sole purpose for her employment by Scrivner and Gallagher was to assess Smart's medical status. Indeed, the record is clear that Smart derived no benefit, in the form of vocational assistance, from the services provided by Hart, since the nature of Hart's services was purely administrative in determining whether Smart still suffered from a psychiatric disorder. Therefore, it cannot reasonably be inferred that Gallagher's payments for Hart's services were made with an intent to provide Smart compensation in the form of vocational assistance or that Scrivner and Gallagher were continuing to recognize liability for Smart's disability, since Scrivner and Gallagher were not obligated to provide the type of medical case-management services rendered in the instant case. Accordingly, we conclude that Gallagher's December 2, 1993, and July 7, 1994, payments for GRS' medical case-management services rendered in an attempt to assess Smart's medical status were not payments of compensation which tolled the 2-year statute of limitations, and, thus, Smart's December 1, 1995, petition was not timely filed.
CONCLUSION
Based on our independent determination of the dispositive question of law, we conclude that the three-judge review panel of the Workers' Compensation Court erred in finding that Gallagher's December 2, 1993, and July 7, 1994, payments for GRS' medical case-management services were payments of "compensation" within the meaning of § 48-137. Therefore, there is not sufficient competent evidence in the record of a payment of compensation to Smart after January 27, 1993; thus, there is no sufficient evidence to warrant the order of reversal entered by the three-judge review panel. Accordingly, the judgment of the three-judge review panel is reversed, and this matter is remanded to the Workers' Compensation Court with directions to dismiss Smart's petition.
REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS.
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466 F.2d 507
W.T. HUTCHENS, Plaintiff-Appellant,v.STATE OF ALABAMA, Defendant-Appellee.
No.72-2750.
United States Court of Appeals,Fifth Circuit.
Aug. 15, 1972.
W.T.Hutchens, pro se.
William J. Baxley, Atty. Gen., Montgomery, Ala., for defendant-appellee.
Before BELL, DYER and CLARK, Circuit Judges.
PER CURIAM:
1
Under the unusual circumstances present here, we deem it in the interest of justice and judicial economy to dispose of this pro se appeal summarily.1 Petitioner is an inmate of the Alabama State Prison system, who alleges that he is suffering from a cancerous disease of the palate and throat which has been medically determined to be terminal. He complains of the failure of prison officials to meet minimum medical needs subsequent to his discharge from hospitalization. His present life expectancy is alleged to be less than two months.
2
The district court treated petitioner's pleadings as an application for habeas corpus relief (28 U.S.C.A. Sec. 2254) and as an action to secure civil rights (42 U.S.C.A. Sec. 1983). After considering the written response of the State of Alabama, the court dismissed the cause without a hearing. To the extent that the petitioner sought habeastype relief in the form of a court compelled transfer to a particular prison institution, the action of the court is affirmed. However, to the extent that the petitioner alleges a present daily lack of medical attention and medication which both produces intolerable pain and further shortens his life expectancy, dismissal on the pleadings was improper regardless of the medical strength of the showing made by the State as to past medical efforts. The proper disposition of this part of this case is controlled by Campbell v. Beto, 460 F.2d 765 (5th Cir. 1972) and Williams v. Wainwright, 460 F.2d 1080 (5th Cir. 1972), rather than by Flint v. Wainwright, 433 F.2d 961 (5th Cir. 1970).
3
Affirmed in part, and in part vacated and remanded.
1
It is appropriate to dispose of this case summarily. See Groendyke Transport, Inc. v. Davis, 5 Cir., 1969, 406 F.2d 1158
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297 F.2d 686
Marshall F. DANCY, Plaintiff-Appellee,v.WILLIAM J. HOWARD, INC., a corporation, Defendant-Appellant.
No. 13399.
United States Court of Appeals Seventh Circuit.
Dec. 28, 1961.
Robert V. Hogan, Melvan M. Jacobs, Francis E. Schlax, Chicago, Ill., for appellant. Quinn, Jacobs, Barry & Latchford, Chicago, Ill., of counsel.
Thomas J. Johnson, Jr., Edward J. Griffin, Chicago, Ill., for appellee. Defrees, Fiske, Thomson & Simmons, Chicago, Ill., of counsel.
Before HASTINGS, Chief Judge, and KILEY and SWYGERT, Circuit Judges.
HASTINGS, Chief Judge.
1
Marshall F. Dancy (plaintiff-appellee) brought this diversity action against William J. Howard, Inc. (defendant-appellant) to recover the amount due under an agreement for the services of plaintiff. The cause was tried to the court without the intervention of a jury. Judgment for plaintiff was entered in the amount of $20,000 with interest, and this appeal followed.
2
On October 3, 1951, defendant executed a preliminary agrrement with the City of Dunbar, West Virginia and its Bridge Commission contemplating the construction of a bridge over the Kanawha River. The agreement provided that defendant would do preliminary engineering work, make traffic reports, and arrange for financing the project and all costs incident thereto through the sale of bonds. On November 5, 1951, plaintiff accepted an assignment from defendant of that part of the preliminary agreement relating to the arranging of Financing.
3
After signing the final bridge construction contract with the City and Bridge Commission on December 29, 1951, defendant entered into an agreement with Marshall Dancy & Associates. This agreement was in the form of a letter to Marshall Dancy & Associates from defendant and was a re-write of a letter that had previously been sent to defendant from Marshall Dancy & Associates. It was dated January 18, 1952. The pertinent paragraph of this agreement provides:
4
'Marshall Dancy & Associates have agreed to provide financing for constuction of said bridge, and to continue to provide said service in connection therewith until such time as the project has been completed. Thereupon for the aforesaid financing and additional services, William J. Howard, Inc., has agreed to pay Marshall Dancy & Associates, through Marshall Dancy (plaintiff), the sum of $100,000 to be paid in monthly installments starting at the time William J. Howard, Inc., receives his first partial payment under its contract and in amounts in direct proportions to the ratio of the construction contract monthly payments to the total construction contract. * * *'
5
No question is raised as to the foregoing agreement, and the full amount of $100,000 therein mentioned was paid to plaintiff by defendant between July 1, 1952 and January 1, 1954.
6
The supplemental agreement sued upon by plaintiff was accepted by defendant on the same day as the above agreement. The pertinent parts of this contract provide:
7
'This supplemental contract on the Dunbar Bridge is in addition to that signed the 18th day of January, 1952, in the sum of $100,000 and it is to be considered in payment for services outside the purely functional aspect of the other contract, as well as to make up for a lack of personal earning power in the above stated principal contract.
8
'This contract shall not become payable until William J. Howard, Incorporated, has recived final payment for construction of the said dunbar Bridge.
9
'The amount herein agreed to between the principals shall be $20,000 (Twenty thousand dollars).
10
'If there is no contract nor any financing, there will be due no fees or expenses from William J. Howard, Incorporated, to Marshall F. Dancy.'
11
The date and amount to be paid plaintiff were inserted therein be William J. Howard as president of defendant. Spaces for these items had been left blank by plaintiff when the supplemental contract was sent to defendant. No part of the agreed payment of $20,000 to plaintiff has been paid by defendant.
12
The trial court admitted, over defendant's objection, parol testimony as to what was meant by 'services outside the purely functional aspects of the other contract,' as this phrase appears in the supplemental agreement.
13
Under these agreements. Marshall Dancy & Associates handled the City's bond issue for financing the bridge construction. Marshall Dancy obtained the consent of the Federal Reserve Credit Restraint Committee for the bond issue and dealt with right-of-way problems.
14
The bridge was ultimately constructed, and under defendant's contract with the City of Dunbar and the Bridge Commission it became entitled to receive a bonus for early completion in the amount of $197,340. Of this bonus, $97,340 was unpaid at the time of trial. On March 10, 1954, the final payment for construction (the total amount paid being $2,846,481.89), as distinguished from bonus, was paid to defendant. On May 13, 1954, engineers from the City and Bridge Commission issued their certificate of completion of the bridge construction.
15
Defendant contends that the trial court erroneously permitted parol testimony to vary the terms of the contract; that the supplemental contract was without consideration in that plaintiff was obliged by the original contract to perform the services called for in the supplemental contract; in the alternative, that this suit is premature since it has not received 'final payment for construction' of the bridge because of the balance due on the bonus payment; and finally, that the trial court's award of interest on the amount of the judgment was erroneous. These contentions present the issues for consideration in this appeal.
16
The trial court did not err in admitting parol evidence to explain the meaning of 'services outside the purely functional aspects of the other contract.' At the time defendant objected to the explanation offered by plaintiff, the trial court remarked, 'Well, I am Frank to say that I do not understand what it means,' and permitted the witness to answer the inquiry. We agree that this clause in the agreement is ambiguous and required an explanation.
17
Plaintiff then testified that the 'functional aspects' meant 'providing the money, the sale of the bonds.' It is undisputed that plaintiff did provide the required amount of financing for the bridge construction project.
18
Plaintiff further testified that he successfully handled problems dealing with rights-of-way and that the bonds to be issued could not be delivered without the consent of the Federal Reserve Credit Restraint Committee, which had been formed as a result of the Korean War. These services were actually within the province of the City Attorney of Dunbar, West Virginia, who was unable to perform them because of lack of experience in this type of work. In this connection, plaintiff was required to do considerable research and engage in time consuming activities in order to establish the military necessity for the bridge project. Plaintiff rendered these services and the trial court found that they were of benefit to defendant.
19
The admission of such testimony comes within the rule 'that parol or extrinsic evidence is admissible to explain the purpose of the execution of a written instrument, what the parties intended, the consideration for its execution and the circumstances surrounding its execution.' Lincoln Nat. Life Ins. Co. v. Horwich, 7 Cir., 115 F.2d 892, 895-96 (1940).
20
We are satisfied from our examination of the record that services rendered by plaintiff pursuant to the supplemental contract were not in contemplation of those already required under the primary agreement. Defendant itself, through its president, actually fixed the amount plaintiff was to receive for such services by filling in the sum of $20,000 in the blank space left by plaintiff in the letter-agreement and at the time endorsed defendant's acceptance thereon. The agreement made specific reference to the services plaintiff was to perform individually in return for this payment. This recitation in the agreement is an adequate and valid consideration for its execution.
21
The parties have devoted considerable effort in trying to demonstrate whether the two agreements were one contract or separate agreements. The trial court found that the two instruments were executed contemporaneously and that they were but a single contract. We think this dispute is immaterial to the resolution of this appeal. In either event, plaintiff admittedly rendered the services bargained for. These were different from and outside those he was already obligated to perform. Defendant is bound to pay him the sum it fixed as the value of such services.
22
We are not impressed with defendant's alternative argument that plaintiff's cause of action, if any exists, has not matured. The supplemental agreement provides that the $20,000 in suit shall not become payable until defendant 'has received final payment for construction of the said Dunbar Bridge.' Defendant contends that the unpaid balance of $97,340 due it as part of the bonus payable for early completion is a part of the payment due it for construction and that, therefore, it has not yet received its 'final payment for construction.'
23
Defendant's construction contract with the City and its Bridge Commission provides that, subject to certain changes and extras, the defendant shall be paid the sum of $2,798,000 'plus the amount earned by the Contractor (defendant) as bonus for early completion, or minus the amount owed by the Contractor as liquidated damages for delayed completion, as the case may be. (and that) Such total amount is the contract lump sum price.'
24
Defendant equates 'the contract lump sum price' in the construction contract with 'final payment for construction' in the supplemental agreement in suit. Plaintiff was not a party to the construction contract. The construction contract followed the supplemental agreement, and plaintiff never saw it until the trial. It was not referred to or made a part of the supplemental contract. Plaintiff could not be bound by its contents in the construction ofthe supplemental agreement.
25
It is quite clear that the schedule of payments by defendant to plaintiff of the $100,000 to be paid under the primary contract was directly related to the receipt by defendant of payments for construction and not for bonus. The total sum of $100,000 was paid to plaintiff well in advance of both the final payment for construction (March 10, 1954) and the payment of $100,000 on bonus (June 1, 1955). The parties have placed their own construction on the words in the supplemental agreement by their actions in carrying out their primary contract. We shall let it stand.
26
The trial court aptly noted in its conclusions of law that even if 'final payment for construction' could be interpreted to include bonus payments as claimed by defendant, this would not preclude recovery by plaintiff. The supplemental agreement merely provides that the contract sum shall not be payable until defendant has received final payment for construction. It is reasonable to believe that the parties did not intend to make such receipt of final payment by defendant a condition precedent to payment to plaintiff, but rather fixed it as a convenient time for payment. See, North American Graphite Corp. v. Allan, 87 U.S.App.D.C. 154, 184 F.2d 387, 390-91 (1950).
27
That this was the intention of the parties is borne out by the facts of this case. Defendant received final payment for construction and had earned a bonus for early completion. It received pary payment of the bonus on June 1, 1955, almost fifteen months after the final construction. Since that time, defendant has failed to take any action to collect the balance of the bonus, other than to send periodic statements to the City. There is no finding why this failure occurred although defendant argued and offered to show the balance was uncollectible. We think the trial court properly held that neither defendant's failure to act nor the City's failure to pay after this long period of time can excuse defendant's refusal to pay plaintiff the sum earned under the supplemental agreement and thereby defeat plaintiff's claim.
28
We have considered the numerous cases cited by both parties in support of well known principles of contract law. It would serve no good purpose to analyze them here. Under the facts of this case plaintiff is clearly entitled to recover the amount fixed in the agreement in question.
29
The trial court properly allowed interest on the amount of $20,000 at the rate of five per cent per annum from April 10, 1954 to the date of judgment. We conclude that the amount of the recovery is 'due on * * * (an) instrument of writing' within the purview of the Illinois Interest Act, Smith-Hurd Ill Ann. Stat., ch. 74, 2.1 Lewis Mach. Co v. Aztec Lines, 7 Cir., 172 F.2d 746, 750 (1949); In re Morrison, 7 Cir., 261 F. 355, 356 (1919); E.J. & E. Ry. Co. v. N.W. Nat'l B'k of Chicago, 165 Ill.App. 35, 42 (1911). Cf. Continental Casualty Co. v. American Fidelity & Casualty Co., 7 Cir., 275 F.2d 381, 385-86 (1960).
30
The judgment of the district court is in all respects affirmed.
31
Affirmed.
1
'Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; on money received to the use of another and retained without the owner's knowledge; and on money withheld by an unreasonable and vexatious delay of payment.'
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807 F.Supp. 586 (1992)
William BONIN, Petitioner,
v.
Daniel VASQUEZ, et al., Respondents.
No. CV 91-0693-ER.
United States District Court, C.D. California.
November 9, 1992.
Fern M. Laetham, State Public Defender, Barry Helft, William D. Freeman, and Michael H. Roquemore, Deputies State Public Defenders, San Francisco, CA, for petitioner.
Daniel E. Lungren, Atty. Gen., George Williamson, Asst. Atty. Gen., Gary Schons, Sr. Asst. Atty. Gen., Steven Zeigan, and Esteban Hernandez, Deputies Attys. Gen., San Diego, CA, for respondents.
ORDER RE: PETITIONER'S MOTION TO AMEND THE PETITION FOR WRIT OF HABEAS CORPUS
RAFEEDIE, District Judge.
On August 18, 1992, petitioner moved to amend his petition and add six new claims pursuant to Rule 15 of the Federal Rules of Civil Procedure. Rule 15(a) states that once a responsive pleading has been served, "a party may amend the party's pleadings only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." The grant or denial of a motion to amend "is within the sound discretion of the District Court...." Hodges v. Rose, 570 F.2d 643, 649 (6th Cir.1978).
In this case, respondent does not consent to the amendments, and, as discussed in detail below, the Court DENIES petitioner's request to amend; therefore, the Court will not consider petitioner's six additional claims.
Despite the liberal language of Rule 15(a), there exists a number of valid reasons for denying petitioner's motion to amend. For example, a court need not allow an amendment at this stage of the proceedings if doing so will cause undue delay or if the court finds that the motion is brought in bad faith or is a dilatory move by petitioner. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Similarly, a district court has no obligation to disrupt proceedings by honoring a last-minute request to amend a petition filed 19 months earlier. See Hodges, 570 F.2d at 649. A denial is also warranted when the moving party had an earlier opportunity to amend the petition. See United States Labor Party v. Oremus, 619 F.2d 683, 692 (7th Cir.1980).
A review of the proceedings in this case demonstrates that each of the reasons discussed above is present and justifies a denial of the motion to amend. Petitioner first filed a petition for writ of habeas corpus on February 7, 1991. In March 1991, respondent moved to require petitioner to identify all known claims, both exhausted and unexhausted. Petitioner vigorously opposed the motion, in part because he argued that his petition was full and complete.
On April 19, 1991, in response to the ruling in McCleskey v. Zant, ___ U.S. ___, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), the *587 Court allowed petitioner to amend his petition. The Court gave petitioner until May 13, 1991 to file an amended petition in either or both of the cases pending before the Court. On May 15, 1991, following a short extension of time granted by the Court, petitioner moved to amend only the Orange County petition; petitioner did not move to amend the Los Angeles petition.
Seven months later, on December 23, 1991, petitioner moved the Court to amend the Los Angeles petition without offering any justification for his delay. The Court denied the motion on two grounds. First, the amendments were untimely given the Court's April, 1991 order to file amendments by May 13, 1991. Second, the Court found the amendments to be an abuse of the writ since the five new claims were all ones which petitioner knew about or should have known about at the time he filed his initial petition.
In January, 1992, the Court held an evidentiary hearing on some of petitioner's claims. Following the hearing, the Court took the petition under submission. At that point all briefing had concluded, all evidence had been presented, and all that remained was the Court's final order and opinion.
On July 23, 1992, the Court denied the Orange County petition and entered final judgment in that case. 794 F.Supp. 957. Less than one month later, on August 18, 1992, petitioner filed simultaneous motions in both his Los Angeles and Orange County cases. He sought relief from judgment in Orange County in order to add six new claims and sought to amend his Los Angeles petition with the same six claims.
On September 29, 1992, the Court denied petitioner's motion for relief from judgment in the Orange County case. In doing so, the Court held that petitioner's actions amounted to an abuse of the writ. The Court now rules that petitioner's amendments in the Los Angeles case also amount to an abuse of the writ.
The principles that underlie the notion of abuse of the writ in subsequent petitions compel a similar finding under the circumstances of this case. First, petitioner brought his motion long after the work in the case had concluded and seven months after the Court took the petition under submission. None of the new issues are exhausted. Consequently, if the Court were to allow the amendments, petitioner would need to return to state court to exhaust his claims and then return to this Court to brief the claims. Thus, allowing amendments at this time would create an unreasonable delay in a case that has already been pending for 19 months.
Second, petitioner brought the motion only after the Court denied the petition in his Orange County case. Coincidentally, petitioner happened to uncover six "new" claims mere weeks after his petition was denied. Petitioner, not surprisingly, sought to add the six new claims in both cases, not just the case that was denied. The Court cannot help but assume bad faith on the part of petitioner.
Third, petitioner already had one opportunity to amend his petition. Petitioner took ten months to respond to the Court's invitation; when he did respond, he failed to raise any of the six issues he now wishes to add, issues which, as demonstrated below, were clearly available either from the record or with very little investigation.
Fourth, the basis for each of the new claims was available at the time petitioner filed his initial petition either from the record or with the briefest of investigation. In claim A, petitioner argues that the prosecution knowingly presented the perjured testimony of informant Lloyd Carlos Douglas and failed to disclose material impeaching evidence to the defense. In arguing this claim, petitioner relies heavily upon information derived from the Los Angeles' jailhouse informant scandal that started in October, 1988 and culminated in a Grand Jury report released in July, 1990. Indeed, at least 20 exhibits (newspaper articles, memoranda, and television show transcript) presented by petitioner in support this claim carry dates between 1988-1990. This information, therefore, was available to petitioner prior to the filing of his petition in February, 1991.
*588 In claim B, petitioner alleges that Charvet failed to present a witness, Roy Norris, who could impeach informant, Douglas, because Charvet also represented Norris who had pled guilty to multiple murder charges. The trial transcripts show that Charvet questioned Douglas at trial about statements Douglas made about Roy Norris. [LART 13/3917]. The transcripts also show that Douglas testified that Charvet represented Norris. [LART 13/3977]. Therefore, petitioner had the information that comprises the substance of this claim at the time he filed his petition in February, 1991.
Petitioner's third claim, claim C, alleges ineffective assistance of counsel for failing to have prosecution witness, Greg Miley, declared incompetent to testify, or alternatively, for failing to introduce expert testimony concerning the unreliability of Miley's testimony. The underlying basis for this claim Miley's mental deficits was readily apparent from the record. Even a cursory review of Miley's testimony would alert the reader that Miley's mental acuity was less than average. In addition, the record reflects Miley's inability to read since Miley, unlike the other witnesses at the trial, needed to have the oath read to him rather than reading it aloud himself. [LART 12/3592]. Similarly, the Orange County trial transcripts contain specific examples of Miley's below average intelligence.[1] For example, during direct examination, Miley testified that he could not read or write and that he had never been able to do so. [OCRT 54/8067]. Miley also stated that his IQ was 56. Id. In sum, the transcripts provided a basis for this claim; therefore, petitioner could have raised this claim when he initially filed his petition.
In claim D, petitioner contends that Miley was subjected to hypnosis prior to testifying. Petitioner acquired this information from a post-judgment (Orange County case) interview with Miley. Miley was a key prosecution witness. Due diligence would seem to mandate an interview with such an important witness at a significantly earlier juncture than occurred in this case. The Court finds that the ease with which petitioner acquired this information gives rise to an inference that petitioner should have discovered this issue prior to filing his initial petition.
Claim F[2] involves allegations of prosecutorial misconduct concerning the testimony of prosecution witness, James Munro. Once again, the underpinnings of this claim that Munro was threatened and that he was made promises in exchange for his testimony were available in the record. Indeed, the record in both Orange County and Los Angeles is replete with such evidence. See e.g. [OCRT 56/8215] (Munro testified that he lied during the Los Angeles trial because he was threatened by the prosecutor and the homicide investigators); [OCRT 64/9130] (Munro discussed threats and his efforts to go to federal prison); [LART 15/4419] (Munro discussed threats and efforts to get into federal custody).
In the same vein, the "further investigation" required by petitioner to flesh out claim F was also easily conducted. Petitioner cites the transcripts of Munro's plea session and sentencing, and also presents a declaration written by Munro after a post-judgment (Orange County case) interview concerning petitioner's literary rights agreement claim.[3] Petitioner could have acquired Munro's transcripts anytime in the past decade. In addition, it took petitioner less than two weeks after the entry *589 of judgment in the Orange County case to contact Munro and acquire "new" information. On the basis of the evidence from the record and the ease with which petitioner could have obtained his "new" information, the Court finds no reason why petitioner could not have raised this claim in his initial petition.
In sum, the Court finds that the circumstances under which petitioner brought his motion to amend demand that the Court deny petitioner's motion. Accordingly, petitioner's Motion to Amend the Petition is DENIED.
IT IS SO ORDERED.
NOTES
[1] The Court notes that the same entity the Office of the State Public Defender has represented petitioner in both his Orange County and Los Angeles cases beginning with the automatic appeal stage.
[2] Claim E realleges the facts of claim C and claim D. Accordingly, the same discussion applies to claim E.
[3] The Court questions why petitioner waited until after the discovery period, after the evidentiary hearing, and after the petition had been under submission for eight months before interviewing Munro regarding his knowledge of the literary rights agreement. Munro testified during the Orange County case that petitioner told him he was going to be receiving money from a book about his life that was to be written by Mary Neiswender. [OCRT 64/9145-9147]. Certainly this testimony put petitioner on notice that Munro might have information relevant to proving a literary rights agreement.
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Matter of Ardell v Ardell (2016 NY Slip Op 04409)
Matter of Ardell v Ardell
2016 NY Slip Op 04409
Decided on June 8, 2016
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on June 8, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
THOMAS A. DICKERSON
SANDRA L. SGROI
JEFFREY A. COHEN, JJ.
2016-00037
2016-00038
(Docket No. F-11218-15/15A)
[*1]In the Matter of Diane Ardell, respondent,
vMikael Ardell, appellant.
Goldschmidt & Genovese, LLP, White Plains, NY (Donna M. Genovese of counsel), for appellant.
McGuire Condon, P.C., Huntington, NY (Karen D. McGuire of counsel) for respondent.
DECISION & ORDER
Appeals, by permission, from (1) an order of the Family Court, Suffolk County (Isabel E. Buse, S.M.), dated December 4, 2015, and (2) an order of that court (Bernard Cheng, J.), dated December 24, 2015. The order dated December 4, 2015, denied the father's motion to dismiss the mother's petition for a de novo award of child support or, in the alternative, to modify a foreign order of child support. The order dated December 24, 2015, denied the father's objections to the order dated December 4, 2015.
ORDERED that the order dated December 24, 2015, is reversed, on the law and the facts, the father's objections are granted, the order dated December 4, 2015, is vacated, and the father's motion to dismiss the petition is granted; and it is further,
ORDERED that the appeal from the order dated December 4, 2015, is dismissed as academic in light of our determination on the appeal from the order dated December 24, 2015; and it is further,
ORDERED that one bill of costs is awarded to the father.
The parties have three children together, all of whom were born in New York. In 2004, the family moved to Sweden. The father is a Swedish citizen, and the mother, who is an American citizen, obtained Swedish citizenship in February 2011. The parties were divorced in June 2011 pursuant to a partial judgment of the Attunda District Court, Sollentuna, Sweden. In July 2012, the Svea Court of Appeal, Stockholm, Sweden, awarded the parties joint legal custody of the children, with the mother having primary physical custody of the children and the father having visitation.
In October 2012, the mother moved to New York with the children. The father remained in Sweden, although he later moved to Singapore in connection with his employment. He retained his Swedish citizenship and remained registered with the Swedish authorities at his home address in Stockholm.
In 2013, the parties entered into a child support agreement that was thereafter entered as a judgment by the Attunda District Court on September 23, 2013 (hereinafter the Swedish support order). The father made child support payments to the mother's New York bank account pursuant [*2]to that order. There is no allegation that the father is in arrears on those payments.
In July 2015, the mother commenced this proceeding in the Family Court, Suffolk County, for a de novo award of child support or, in the alternative, to modify the Swedish support order. The father moved to dismiss the petition on the ground, inter alia, of lack of jurisdiction. In an order dated December 4, 2015, the Support Magistrate denied the motion. In an order dated December 24, 2015, the Family Court denied the father's objections to the Support Magistrate's order. By permission, the father appeals.
In 2015, New York adopted, as Family Court Act article 5-B, a new version of the Uniform Interstate Family Support Act (hereinafter the UIFSA), that, among other things, incorporates the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (hereinafter the Convention), of which Sweden is a member (see L 2015, ch 347, § 2). Although the new version became effective January 1, 2016, Family Court Act § 580-903 provides that the new version "shall apply to any action or proceeding filed or order issued on or before the effective date." Accordingly, we apply the new version of the UIFSA to the order appealed from.
Family Court Act § 580-201(a) provides that, in a proceeding to establish or enforce a support order, a tribunal of this state may exercise personal jurisdiction over a nonresident individual if, among other things, the individual resided with the child in this state, the individual resided in this state and provided prenatal expenses or support for the child, or the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse (see Family Ct Act § 580-201[a][3], [4], [6]; see also Matter of Samuels v Britton, 243 AD2d 570). Here, it is undisputed that the children were conceived in New York, that the father lived with them in New York, and that he presently pays support for them. However, Family Court Act § 580-201(b) provides that the bases for personal jurisdiction set forth in Family Court Act § 580-201(a) "may not be used to acquire personal jurisdiction for a tribunal of this state to modify a . . . foreign support order . . . unless the requirements of [Family Court Act § ] 580-615 . . . are met." Family Court Act § 580-615 allows tribunals of this state to modify foreign child support orders in certain circumstances, "[e]xcept as otherwise provided in [Family Court Act § ] 580-711." Family Court Act § 580-711(a) provides:
"A tribunal of this state may not modify a Convention child support order if the obligee remains a resident of the foreign country where the support order was issued unless:
"(1) the obligee submits to the jurisdiction of a tribunal of this state, either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity; or
"(2) the foreign tribunal lacks or refuses to exercise jurisdiction to modify its support order or issue a new support order."
Any child support order issued after a prior child support order has been issued constitutes a "modification" of the prior child support order within the meaning of the UIFSA (see Matter of Spencer v Spencer, 10 NY3d 60, 67-68).
Here, the mother contends that, after the father moved to Singapore, he was no longer "a resident of the foreign country where the support order was issued," and that Family Court Act § 580-711(a) therefore does not apply. However, the father has submitted evidence demonstrating that, notwithstanding his move to Singapore, he remained registered as a resident of Stockholm pursuant to the laws of Sweden. It is also clear that the father did not expressly submit to the jurisdiction of the courts of this state, and that he objected to the jurisdiction at the first available opportunity. Furthermore, contrary to the mother's contention, the record does not demonstrate that the courts of Sweden lack or have refused to exercise jurisdiction to modify the Swedish support order or issue a new support order. Accordingly, the courts of this state do not have jurisdiction to issue a new support order unless there is a reason not to recognize the Swedish support order (see Family Ct Act § 580-711[b]; 580-708[c]).
Family Court Act § 580-708 provides that tribunals of this state shall recognize [*3]registered support orders issued by tribunals located in members of the Convention except under certain specified circumstances, including where recognition of the order "is manifestly incompatible with public policy, including the failure of the issuing tribunal to observe minimum standards of due process, which include notice and an opportunity to be heard" (Family Ct Act § 580-708[b][1]). Here, contrary to the mother's contention, she has failed to demonstrate that recognition of the Swedish support order is manifestly incompatible with public policy.
Accordingly, since the Family Court was without jurisdiction to entertain the mother's petition, we reverse the order dated December 24, 2015, vacate the order dated December 4, 2015, and grant the father's motion to dismiss the petition.
In light of our determination, we need not reach the father's remaining contentions.
LEVENTHAL, J.P., DICKERSON, SGROI and COHEN, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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207 F.3d 1238 (10th Cir. 2000)
UNITED STATES OF AMERICA, Plaintiff - Appellee,v.ANDREA ASCH, Defendant - Appellant.
No. 99-8005
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
March 29, 2000
Appeal from the United States District Court for the District of Wyoming. D.C. No. 98-CR-3-13-D[Copyrighted Material Omitted]
Maynard D. Grant, Grant & Newcomb, Seattle, Washington, for the appellant.
David A. Kubichek, Assistant United States Attorney (David D. Freudenthal, United States Attorney with him on the brief), District of Wyoming, Casper, Wyoming, for the appellee.
Before LUCERO, Circuit Judge, HOLLOWAY, Senior Circuit Judge, and MURPHY, Circuit Judge.
LUCERO, Circuit Judge.
1
This case requires us to address, as a matter of first impression, whether a sentencing court, when determining the applicable sentencing range for an individual convicted of conspiracy to distribute and possess with intent to distribute controlled substances, can, under the United States Sentencing Guidelines and 21 U.S.C. § 841(b), include in its quantity calculations drugs possessed for personal consumption. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we hold that drugs possessed for personal consumption cannot be considered when determining the statutory sentencing range pursuant to 21 U.S.C. § 841(b), but such drugs can be considered when determining the sentencing range under the more expansive Sentencing Guidelines. We further hold that appellant Andrea Asch's guilty plea was knowing and voluntary. Accordingly, we remand for resentencing consistent with this opinion.
2
* An eleven-count indictment, naming fifteen people, charged Asch with one count of conspiring to distribute and conspiring to possess with intent to distribute methamphetamine from approximately June 1, 1996, to approximately February 4, 1998, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Asch initially pleaded not guilty. Pending trial, she completed a drug treatment program and began speaking in school drug prevention programs.
3
The day before her trial was scheduled to begin, Asch changed her plea to guilty. It was a "cold" plea--there was no plea agreement with the government. At the change-of-plea hearing, the district court expressed considerable concern that Asch did not fully appreciate the very real possibility that she would be sentenced to a mandatory minimum term of ten years in prison if the government's allegations concerning the quantity of drugs were supported by the evidence at the sentencing hearing. The judge engaged in lengthy conversations with both defense counsel and Asch, the import of which was to ensure she understood the likely degree of punishment awaiting her. Ultimately, the district court accepted her guilty plea.
4
The sentencing hearing focused on evidence of the quantity of drugs that should be used to determine the appropriate sentencing range under the statute, 21 U.S.C. § 841(b), and the Sentencing Guidelines, U.S.S.G. § 2D1.1. The government's primary witness was Wes Counts, a co-conspirator who testified pursuant to a plea agreement. In a proffer made at the time of that plea agreement, Counts stated that he delivered approximately two ounces of methamphetamine to Asch every week from May 1997 to January 1998. At the sentencing hearing, Counts's story changed to some degree. He testified he delivered methamphetamine to Asch weekly from May 1997 to approximately November or December 1998; he made no deliveries during a period of at least four weeks; his deliveries were irregular; and his deliveries were never more frequent than weekly. During the time he was supplying Asch, he testified his deliveries generally were between one and two ounces, though on one occasion he delivered eight ounces and on one or two occasions he delivered four ounces. All of these amounts were rough estimates.
5
Asch also offered two different versions of these transactions. At the time of her arrest, she told police she had received between two and four ounces of methamphetamine per month from Counts beginning in May 1997 and continuing until January 1998. At sentencing, Asch recanted that story, alleging her prior statements were made under duress. Instead, she testified that she began her dealings with Counts in June 1997, at which time she obtained one-eighth-ounce quantities, most of which she and her husband consumed themselves. After a few weeks, she began receiving one-fourth-ounce deliveries approximately twice a month, half of which she and her husband consumed themselves and half of which she sold. She further testified that the largest quantity she ever received from Counts was two ounces, on three occasions, of which she consumed half and sold half. Asch ceased receiving drugs from Counts in mid-November. Towards the end of that period, she was using methamphetamine multiple times a day.
6
The final fact witness at the sentencing hearing was Regina Smith, another co-conspirator who also testified pursuant to a plea agreement. Smith testified that in August or September 1996, she began purchasing one-fourth to one-half grams of methamphetamine from Asch and eventually was purchasing one-eighth-ounce quantities four or five times a week. On one or two occasions she purchased one-fourth of an ounce from Asch. Smith stopped purchasing from Asch some time between March 27, 1997, and June 1997. The government also introduced ledgers seized from Asch's home that purportedly demonstrate she was dealing multiple-ounce quantities from late 1996 through October 1997.
7
The district court characterized Asch's testimony at the sentencing hearing as "very troubling." (X R. at 46.) It relied instead on her earlier statement to police. Assuming that Asch dealt with Counts over a period of eight months, the court found this statement supported an estimate of a minimum of 453.6 grams and a maximum of 907.2 grams, which corresponded with Counts's minimum estimate of 963.9 grams.1 The court concluded "[j]ust looking at Counts' testimony, it stretches credulity to believe that it was under 1,000 grams." (X R. at 45.) Based on this quantity, the district court sentenced Asch to the statutory minimum penalty of 120 months imprisonment, see 21 U.S.C. § 841(b)(1)(A)(viii),2 a term which also fell within the applicable range set forth in the Sentencing Guidelines.
8
On appeal, Asch claims the district court erred by accepting her guilty plea because it was not knowing and voluntary. She also contends the district court erred when calculating the quantity of drugs for sentencing purposes because the calculation was not supported by the facts, the court failed to compensate for drugs consumed by the defendant, and the court included quantities not involved in the offense of conviction.
II
9
A district court has a duty to ensure that a defendant's guilty plea is truly voluntary. See Fed. R. Crim. P. 11(d); United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998). "[W]hether the defendant's plea was knowing, intelligent, and voluntary is a question of law we review de novo." Gigot, 147 F.3d at 1197 (citing United States v. Browning, 61 F.3d 752, 753 (10th Cir. 1995); United States v. Gomez-Cuevas, 917 F.2d 1521, 1524 (10th Cir. 1990)). Asch alleges her plea was not knowing, intelligent, and voluntary because she did not appreciate the full extent of the punishment she was facing. Specifically, she argues her counsel advised her that a substantial downward departure from the prescribed sentencing range was possible, and her perspective was tainted by her personal transformation since being arrested.3
10
The record belies this argument. As Asch herself notes, the district court was "admirably cautious in its adherence to Rule 11's requirements . . . ." (Appellant's Br. at 24.) The sentencing judge was deeply concerned that Asch was in a state of denial regarding her predicament and for that reason took substantial steps to rectify any misconceptions. He had a lengthy discussion with defense counsel to ascertain whether counsel had appropriately advised Asch of the risk of incarceration, emphasizing that from his perspective a mandatory minimum of ten years was "probably more a fact" than a "worse case scenario." (VII R. at 6.) He then had a lengthy discussion with Asch, during which he told her that in "all likelihood . . . you'll be going to serve a term of incarceration," (VII R. at 39), carefully discussed the potential applicable sentencing ranges as set forth in the Guidelines, emphasized the possible application of a statutory mandatory minimum, and even went so far as to tell her he seldom departs downward from the applicable Guidelines range. Far from being erroneous, the district court's efforts to ensure that Asch's plea was knowing, intelligent, and voluntary were exemplary.
III
11
Asch argues the district court committed three errors when calculating the drug quantity for purposes of determining the appropriate sentencing range pursuant to the Sentencing Guidelines and 21 U.S.C. § 841(b): (1) its findings lack factual support; (2) it failed to adjust its calculations for quantities of drugs she herself had consumed; and (3) it improperly included in its calculations quantities of drugs collateral to the offense of conviction. A district court's findings as to drug quantity are reviewed for clear error. See United States v. Wacker, 72 F.3d 1453, 1477 (10th Cir. 1995). However, we review de novo a district court's interpretation and application of a statute or the Guidelines. See United States v. Myers, 106 F.3d 936, 941 (10th Cir. 1997).
12
* The district court's findings as to quantity are not clearly erroneous. The court determined that Asch's statement to the police when she was arrested was more credible than her testimony at the sentencing hearing and that her earlier statement was corroborated by Counts's testimony at the hearing. This court is loath to second-guess a district court's determination of a witness's credibility, see Anderson v. Bessemer City, 470 U.S. 564, 575 (1985) (holding that a trial court's decision to credit testimony of one individual over another is "virtually never" clear error), and we see no reason to do so here. The government demonstrated that Asch committed perjury during an earlier court appearance, and the district court found that more instructive than the defense's claim that Asch was under duress when she made her initial statement to the police. Her initial statement, Counts's testimony, and the drug ledgers are more than sufficient evidence to support the district court's conclusion that Asch received from Counts an average of two ounces (57.7 grams) of methamphetamine every two weeks for eight months and on occasion received larger quantities. The quantity of methamphetamine in these transactions totals at least 1000 grams.
B
13
Simply by virtue of the fact that Asch handled at least 1000 grams of methamphetamine, however, the sentencing court was not necessarily permitted to include that entire quantity in its calculation of her sentence. Rather, a sentencing court can only include in its calculations those drugs possessing the proper relation to the offense of conviction. Asch argues that quantities of methamphetamine she consumed did not possess the proper relation as required by either the Guidelines, U.S.S.G. §§ 1B1.3 and 2D1.1, or the statute, 21 U.S.C. § 841(b).
14
Our analyses of this question in the context of the Sentencing Guidelines and 21 U.S.C. § 841(b) are distinct. The Guidelines permit a court to consider all "relevant conduct" when determining the base offense level for someone convicted of an offense involving drugs. See U.S.S.G. §§ 1B1.3, 2D1.1. As we recently made clear in United States v. Santos, 195 F.3d 549, 551 (10th Cir. 1999), however, "Guideline constructs such as relevant conduct . . . are limited to their designed role in Guideline-range calculations and do not affect the independent determination of the statutory sentencing directives." Under a plain reading of § 841(b), "the statutory directives are exclusively a function of the quantities involved in the offense of conviction." Id. at 552.
1. Relevant Conduct Under the Guidelines
15
Under the Guidelines, whether conduct is relevant to the defendant's role in a conspiracy is determined by reference to "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and . . . all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." U.S.S.G. §§ 1B1.3(a)(1)(A), 1B1.3(a)(1)(B). The commentary to U.S.S.G. § 1B1.3 elaborates: A person convicted of conspiracy to distribute controlled substances "is accountable for all quantities of contraband with which he was directly involved and . . . all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook." U.S.S.G. § 1B1.3 comment. (n. 2); see also United States v. Morales, 108 F.3d 1213, 1226 n.11 (10th Cir. 1997) (holding that application note to be an authoritative interpretation of the Guidelines). This Circuit has construed broadly the meaning of relevant conduct. See, e.g., United States v. Hankins, 127 F.3d 932, 934 (10th Cir. 1997); United States v. Johnson, 977 F.2d 1360, 1383 (10th Cir. 1992).
16
Every circuit to address the question has held that where a member of a conspiracy to distribute drugs handles drugs both for personal consumption and distribution in the course of the conspiracy, the entire quantity of drugs handled is relevant conduct for purposes of calculating the base offense level pursuant to the Guidelines. See United States v. Fregoso, 60 F.3d 1314, 1328-29 (8th Cir. 1995); United States v. Snook, 60 F.3d 394, 395-96 (7th Cir. 1995); United States v. Innamorati, 996 F.2d 456, 492 (1st Cir. 1993); cf. United States v. Antonietti, 86 F.3d 206, 209-10 (11th Cir. 1996) (holding that drugs possessed for personal use were relevant to offenses of manufacturing, possessing with intent to distribute, and conspiring to manufacture and possess with intent to distribute, without recognizing the distinctions among these offenses).4 We conclude that this is the proper interpretation of the broad Guidelines concept of "relevant conduct," as demonstrated by the facts of this case.5 Counts fronted Asch substantial quantities of methamphetamine, at least a portion of which she sold in order to satisfy her debt to him. That she apparently chose to consume a substantial portion of the balance does not alter the fact that she was "directly involved" with the entire quantity of contraband she obtained from her co-conspirator, Counts. U.S.S.G. § 1B1.3 comment. (n. 2); cf. United States v. Bara, 13 F.3d 1418, 1420 (10th Cir. 1994) (holding that drugs delivered to the defendant by the government in a reverse sting could be included as relevant conduct for purposes of the Sentencing Guidelines, despite the fact that the drugs were never distributed to the public, because the defendant agreed to and intended to distribute the drugs). Therefore, Asch's consumption of methamphetamine obtained from Counts was conduct relevant to their conspiracy for purposes of calculating her sentence under the Sentencing Guidelines.6
17
2. Quantity of Drugs Involved in the Offense Under 21 U.S.C. § 841(b)
18
The scope of conduct that can be taken into consideration when determining the appropriate statutory sentencing range is narrower than the relevant conduct appropriate to a sentencing determination under the Guidelines. Our recent decision in Santos, 195 F.3d at 552, holds that "the operative drug quantities in the mandatory sentencing provisions of § 841(b) . . . are exclusively a function of the quantities involved in the offense of conviction." We made clear that, unlike in the Guidelines context, drug quantities collateral to the underlying § 841(a) violation are not relevant to determinations of the statutory sentencing range pursuant to § 841(b). See id. at 551. Neither this Circuit, nor any other circuit, has addressed the question of whether drugs possessed for personal use are involved in the offense of conspiracy to distribute and possess with intent to distribute a controlled substance for statutory sentencing purposes.7
19
A conspiracy involves a common purpose or objective between at least two people to commit an unlawful act. See United States v. Evans, 970 F.2d 663, 669 (10th Cir. 1992).
20
The objective of the conspiracy becomes especially important when the government attempts to establish a conspiracy on the basis of purchases and sales. Evidence that an intermediate distributor bought from a supplier might be sufficient to link that buyer to a conspiracy to distribute drugs because both buyer and seller share the distribution objective. However, a consumer generally does not share the distribution objective and thus would not be part of a conspiracy to distribute crack cocaine. Of course, a consumer may conspire to possess crack cocaine.
21
Id. Asch pleaded guilty to entering into a conspiracy with Counts with the shared objective of distributing and possessing with intent to distribute methamphetamine. In providing the factual basis for that plea, she testified that Counts fronted her drugs, which she either sold or consumed herself. The objective of the conspiracy was thus established on the basis of purchases and sales. See Evans, 970 F.2d at 669. The common objective of distribution and possession with intent to distribute can be inferred to the extent Counts fronted Asch drugs, she redistributed them, and she then satisfied her debt to Counts with the proceeds. With respect to drugs that Asch used for personal consumption, by contrast, the common objective of distribution is not readily apparent: Counts's objective may have been to distribute drugs but Asch's objective may have been to feed her powerful addiction. See id. (concluding that "a consumer generally does not share the distribution objective"). Drugs handled by Asch in transactions, or components of a transaction, that lacked the common objective of distribution were not involved in the offenses of conviction and cannot be included when determining the applicable sentencing range under 21 U.S.C. § 841(b). See Santos, 195 F.3d at 552.8
22
The framework of the governing statute compels this conclusion. Section 846 provides that any person who conspires to distribute or possess with intent to distribute drugs "shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the . . . conspiracy." 21 U.S.C. § 846. The object of the instant conspiracy was to distribute and possess with intent to distribute methamphetamine. While this circuit has not ruled on the question of whether drugs possessed for personal consumption can be included when determining the appropriate statutory sentencing range for someone convicted of distribution or possession with intent to distribute, one circuit has done so. See United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1494-95 (9th Cir. 1994). In Rodriguez-Sanchez, the Ninth Circuit held that personally consumed drugs cannot be included, reasoning that § 841(b) is intended to "punish distributors more harshly than consumers of drugs and to make sentence [sic] proportional to the amount of harm to society represented by the quantity of drugs to be distributed." Id. at 1496. We concur with this characterization of the statute's intent. Absent evidence Asch agreed to or intended to distribute the drugs she personally consumed, the proportionality embodied in the statute requires that these quantities be excluded when determining the applicable sentencing range.
23
The government must prove the quantity of drugs involved in the offense of conviction "by a preponderance of the evidence at sentencing in order to trigger the mandatory minimum sentences prescribed in 21 U.S.C. § 841(b)." United States v. Silvers, 84 F.3d 1317, 1320 (10th Cir. 1996) (citing United States v. Underwood, 982 F.2d 426, 429 (10th Cir. 1992)). Under that standard, only those quantities of drugs that the government proves by a preponderance of the evidence Asch obtained from Counts with the intent to distribute could be included when determining the statutory sentencing range.9 Such a burden might appear unduly onerous when, as in this case, the conspiracy to distribute and possess with intent to distribute drugs involved multiple transactions over an extended period of time. The district court in its role as fact finder, however, is permitted to infer that the entire quantity of drugs the defendant obtained from her co-conspirator during the course of the conspiracy to distribute, as proven by the government by a preponderance of the evidence, was obtained with the common objective of distribution. Cf. Wingfield v. Massie, 122 F.3d 1329, 1333 (10th Cir. 1997) (holding that "a jury is permitted to draw inferences of subjective intent from a defendant's objective acts"). Furthermore, we hold that a defendant must produce evidence tending to demonstrate that she always intended to personally consume some specific portion of the drugs received from her co-conspirator in order to place at issue the absence of a common objective. Cf. United States v. Wyss, 147 F.3d 631, 633 (7th Cir. 1998) (suggesting, without holding, that "when the defendant buys drugs both for his own consumption and for resale, he has some burden of producing evidence concerning the amount that he consumed--he cannot just say to the government, 'I'm an addict, so prove how much of the cocaine that I bought I kept for my own use rather than to resell'"). Evidence, including personal testimony, of actual consumption of specific quantities would be probative of such an intent. Although the defendant bears the burden of producing evidence of her intent to consume, we emphasize that the ultimate burden of proof on the quantity of drugs involved in the offense remains with the government at all times.
24
At sentencing, the district court did not determine whether the entire quantity of drugs Asch obtained from Counts was obtained with the intent to distribute, despite her testimony that she consumed approximately half of those drugs. On remand, it should make this finding in accordance with the burden of production and proof established above.
C
25
Asch also argues that the district court improperly included in its sentencing calculations drugs she handled prior to her involvement in the conspiracy to which she pleaded guilty. Pursuant to Santos, a sentencing court is not permitted to take into account quantities of drugs collateral to the offense of conviction when determining the applicable sentencing range under § 841(b). See Santos, 195 F.3d at 551-52.
26
Asch pleaded guilty to conspiring with Counts and other named individuals to distribute and possess with intent to distribute methamphetamine between approximately June 1, 1996, and February 4, 1998. In making its findings at sentencing, the district court stated that using the low end of Counts's estimate, Asch had obtained 963.9 grams between May 1997 and January 1998. It continued:
27
To reach the statutory minimum, she would have to have sold a bare a mere 37 grams in in the remainder of her transactions over 3 ½ years prior to her involvement with Counts which doesn't make any sense. But forget that. Just looking at Counts' testimony, it stretches credulity to believe that it was under 1,000 grams.
28
. . .
29
In the judgment of this judge, the United States has established overwhelmingly that there was 1,000 grams of drugs involved in this transaction. Counts' low estimate is only slightly higher than this witness' own estimate which she doesn't accept now but which was testimony before the Court, Exhibit 3, less than 60 grams difference, and that discounts anything to Lee of an ounce and a half. That's all it would have to be. Over three over that many years? Doesn't make any sense at all.
30
(X R. at 45-56.)
31
Based on these statements, it appears the district court, in calculating Asch's sentence, considered, but ultimately did not rely on, quantities of drugs she obtained from an individual named Lee as early as January 1994. This conduct was collateral to the offense of conviction and therefore irrelevant when determining the applicable statutory sentencing range. On remand, the district court should take notice of the fact that only drugs involved in the offense of conviction may be taken into account when determining the applicable statutory sentencing range under § 841(b).
IV
32
We AFFIRM Asch's conviction, but REVERSE and REMAND for resentencing consistent with this opinion.
NOTES:
1
One ounce is equivalent to approximately 28.35 grams.
2
At the time of Asch's offense, 21 U.S.C. § 841(b)(1)(A)(viii) mandated a sentence of at least 10 years for a violation of § 841(a) involving one kilogram or more of a substance containing methamphetamine. Congress subsequently amended this section to reduce the threshold quantity to 500 grams. See Methamphetamine Trafficking Penalty Enhancement Act of 1998, Pub. L. No. 105-277, § 2(a), 112 Stat. 2681 (1998). The provision in effect at the time of the offenses applies in this case. See Miller v. Florida, 482 U.S. 423, 430-33 (1987) (holding that the Ex Post Facto Clause bars the application of more onerous state sentencing guidelines to criminal conduct that occurred prior to the effective date of the change).
3
Asch does not raise an ineffective assistance of counsel claim, but has preserved that issue for purposes of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) ("Ineffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal.").
4
Many circuits that have addressed this question define relevant conduct as all acts and omissions "that were part of the same course of conduct or common scheme or plan as the offense of conviction," U.S.S.G. § 1B1.3(a)(2). See, e.g., Antonietti, 86 F.3d at 209; Snook, 60 F.3d at 395-96. That definition, however, only applies to "offenses for which grouping of counts would be required under § 3D1.2(d) had the defendant been convicted of multiple counts." U.S.S.G. § 1B1.3, comment. (n.3). Under § 3D1.2(d), grouping of conspiracy to possess with conspiracy to distribute or possess with intent to distribute is specifically prohibited. But cf. United States v. Barela, 973 F.2d 852 (10th Cir. 1992) (holding that a conviction on the lesser included offense of possession could be grouped with convictions for conspiracy to distribute and aiding and abetting distribution). Therefore, we apply the definition of relevant conduct found at U.S.S.G. § 1B1.3(a)(1) and the commentary thereto.
5
This court addressed a similar but distinct issue in United States v. Wood, 57 F.3d 913 (10th Cir. 1995). In that case, we held that a sentencing court could consider drugs possessed for personal consumption when calculating the base offense level pursuant to the Sentencing Guidelines where the offenses of conviction were manufacturing controlled substances, possessing with intent to distribute controlled substances, maintaining a place for the purpose of manufacturing, distributing, and conspiring to commit the above offenses. See id. at 915. We reasoned that, because the quantity of drugs involved in each of these crimes had to be aggregated for sentencing pursuant to U.S.S.G. §§ 1B1.3(a)(2) and 3D1.2(d), and because the intended use of the controlled substance is irrelevant to the crime of manufacturing, manufactured drugs possessed for personal use could be included when calculating the defendant's base offense level. See id. at 920. Thus, the holding in Wood necessarily depends on the nature of the offense of manufacturing, an offense for which Asch was not convicted.
6
We need not decide whether our result would be different if the offense of conviction was distribution or possession with intent to distribute instead of conspiracy to commit those offenses. See United States v. Wyss, 147 F.3d 631, 632 (7th Cir. 1998) (holding that drugs used for personal consumption are not relevant to the crime of possession with intent to distribute); United States v. Kipp, 10 F.3d 1463, 1465-66 (9th Cir. 1993) (same).
7
One of our cases approaches, but does not address, this question. United States v. Arias-Santos, 39 F.3d 1070, 1078 (10th Cir. 1994), holds that an individual convicted of conspiracy to distribute is liable, under § 841(b), for all amounts handled by other conspirators that are within the scope of the agreement and reasonably foreseeable to the defendant. This standard is inapplicable to this case: It is specifically concerned with a conspirator's liability for the actions of co-conspirators, and there is little or no evidence in the record relating to amounts of drugs distributed by Counts to any other individuals, let alone evidence that such amounts were within the scope of the conspiracy for which Asch was convicted.
8
Asch argues that the sentencing court should exclude both the quantities she obtained for personal consumption and the quantities she obtained for her husband's consumption. Because the sharing of drugs constitutes distribution, see Fregoso, 60 F.3d at 1325; United States v. Washington, 41 F.3d 917, 919 (4th Cir. 1994), those quantities she obtained for the purpose of supplying her husband were involved in the offense for sentencing purposes.
9
While a defendant's statutory sentencing range also may be based on quantities of drugs handled by co-conspirators in the scope of the conspiracy which are reasonably foreseeable to the defendant, no such evidence was presented in this case. See supra note 7.
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FILED
NOT FOR PUBLICATION MAY 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLENDA PALMER, as surviving mother, No. 12-16340
personal representative of the Estate of
Timothy Lucero and as Guardian of D.L.; D.C. No. 2:09-cv-01791-JWS
D. L., a minor child; LEROY L.
LUCERO, Sr., surviving father of Timothy
L. Lucero, deceased, MEMORANDUM*
Plaintiffs - Appellees,
v.
ARIZONA DEPARTMENT OF
CORRECTIONS; ARIZONA, STATE
OF; RONALD CARLSON; ROBERT
STEWART,
Defendants,
UNKNOWN CARLSON; UNKNOWN
GAMBLIN; UNKNOWN STEWART,
Defendants,
And
PRESTON GAMBLIN, Corrections
officer at ASPC Eyman,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
John W. Sedwick, District Judge, Presiding
Argued and Submitted May 15, 2014
San Francisco, California
Before: GRABER, W. FLETCHER, and PAEZ, Circuit Judges.
On September 4, 2008, Timothy L. Lucero was stabbed to death by another
inmate while in the custody of the Arizona Department of Corrections (“ADC”) at
the Arizona State Prison Complex (“ASPC”)-Tucson. Four months before his
death, Lucero had been transferred to ASPC-Tucson from Special Management
Unit I (“SMU I”), a maximum-custody facility, at ASPC-Eyman. ASPC-Tucson
was a lower-security facility. Plaintiffs-Appellees are Lucero’s survivors.
Defendant-Appellant Preston Gamblin is a prison official at SMU I.
Gamblin appeals the district court’s denial of his motion for summary
judgment on his defense of qualified immunity from plaintiffs’ § 1983 deliberate
indifference claim. Plaintiffs assert that Gamblin violated Lucero’s Eighth
Amendment rights by failing to initiate the protective-segregation process required
2
under prison policy at SMU I upon learning of threats of mortal harm to Lucero.
We affirm.
Under ADC’s protective-segregation policy, known as DI 67, any inmate
may make a written or verbal request for protection against other inmates. Such a
request triggers a review process to determine whether the inmate requires long-
term protective segregation. DI 67 requires “any staff member . . . who becomes
aware of a threat to an inmate [to] immediately isolate the inmate in a safe,
reasonably secure area and notify the Shift Commander.”
Gamblin learned of specific, severe threats to Lucero’s safety on two
occasions. First, on January 25, 2008, he interviewed Lucero about the murder of
another inmate, Christopher Wathen. Gamblin wrote in his report that “since
[Lucero] . . . refused to carry out the assault on I/M Wathen, I/M Lucero . . . had
many individuals inform him that he is going to get the same fate as I/M Wathen.”
There is evidence that this report went only to Gamblin’s supervisor, Sergeant
Carlson, and did not make it into any personnel file for Lucero. It is undisputed
that the report did not trigger the DI 67 process. There is evidence from which a
reasonable juror could conclude that Gamblin knew that the report would stay in
Carlson’s file and would not trigger the DI 67 process.
3
Second, on January 31, 2008, Gamblin escorted Lucero to an interview with
ADC Special Investigator Henry Ross and Yuma County Attorney’s Office
attorneys who were investigating Wathen’s murder. During that interview, Lucero
provided information about the Wathen murder. Lucero stated several times that
his life was in danger because he had refused to carry out the assault on Wathen
and because he was divulging information about the Aryan Brotherhood’s
operations. Gamblin was in a position to hear Lucero’s statements.
Despite learning of these serious threats to Lucero’s safety, it is undisputed
that Gamblin did not initiate the DI 67 process. Lucero was likely safely isolated
at that time because he was then detained at SMU I, where he was housed in a
single cell and had limited contact with other inmates. But Gamblin has placed
nothing in the record to show that he notified the Shift Commander of the danger
to Lucero, as required by ADC’s mandatory policy.
Taking the facts in the light most favorable to the plaintiffs, a reasonable
juror could conclude that Gamblin’s failure to notify the Shift Commander, and
thereby to set the DI 67 process in motion, evinced deliberate indifference to
Lucero’s safety. A reasonable officer would have known that the DI 67 process
would almost certainly have resulted in a formal order providing protective
segregation for Lucero. A reasonable officer would also have known that, in the
4
absence of the DI 67 process and resulting formal order, Lucero was at some risk
of being transferred to an unsecure location. The degree of the risk that would
have been known to Gamblin is a question of fact that can be determined only at
trial. We therefore conclude that Gamblin was not entitled to qualified immunity
on summary judgment.
AFFIRMED.
5
FILED
Palmer v. Gamblin, No. 12-16340 MAY 30 2014
MOLLY C. DWYER, CLERK
GRABER, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent.
Even taking all facts in the light most favorable to Plaintiffs, a reasonable
officer in Gamblin’s circumstances could not have known that it would be
deliberate indifference to fail to prevent an attack that occurred months later in a
different, less secure facility. Deliberate indifference requires that a prison official
"know of and disregard[] excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be drawn that a substantial
risk of harm exists, and he must also draw the inference." Farmer v. Brennan, 511
U.S. 825, 837 (1994).
Here, Lucero was not attacked in the facility in which Gamblin worked. As
the majority recognizes, Lucero was housed there safely, in a single cell and with
limited contact with other inmates. It is undisputed that Gamblin documented
Lucero’s concerns in a report to his supervisor and that Lucero was not harmed at
that facility. Rather, Lucero was not attacked until months after his interaction
with Gamblin, and only after being transferred to a less secure facility. There is no
evidence that Gamblin knew of the possibility that Lucero would be transferred
and no evidence that Gamblin was involved in the transfer process in any way.
We require that prison officials act in the face of a known future risk to
prisoners, Farmer, 511 U.S. at 837, but we also require, at the very least, that the
risk be known, Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1077–78
(9th Cir. 2013); see id. at 1078 ("Plaintiffs must demonstrate that the risk was
obvious or provide other circumstantial or direct evidence that the prison officials
were aware of the substantial risk to the [prisoner’s] safety."). In order to hold
Gamblin liable we must hold that he reasonably knew that his failure to notify the
Shift Commander of Lucero’s concerns would lead to Lucero’s being transferred,
and being transferred to a less secure facility, to which Lucero would not object,
where Lucero would be exposed to his enemies. Perhaps the Department or some
other defendant might be liable, but Gamblin, even assuming a deliberate or hostile
state of mind, could not have foreseen this highly speculative future risk. Because
no genuine issue of material fact exists as to whether Gamblin knew of the risk that
Lucero might be transferred to a less secure facility and might be attacked at that
other facility, Gamblin is entitled to qualified immunity.
2
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802 F.2d 455
First Nat. Bank of Jacksonv.Pursue Energy Corp.
85-4291
United States Court of Appeals,Fifth Circuit.
10/7/86
S.D.Miss., 799 F.2d 149
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771 F.Supp.2d 739 (2011)
Robert John LOW, et al., Plaintiffs,
v.
LOWE'S HOME CENTERS, INC., et al., Defendants.
Civil Action No. 09-72-ART.
United States District Court, E.D. Kentucky, Southern Division, London.
February 14, 2011.
*740 Brien G. Freeman, Freeman & Childers, Corbin, KY, for Plaintiffs.
Shea W. Conley, Reminger & Reminger Co., LPA, Lexington, KY, Defendants.
MEMORANDUM OPINION & ORDER
AMUL R. THAPAR, District Judge.
One day after he bought his new miter saw, Rob Low noticed something. When he lowered the saw to commence cutting, it "hung up" and required him to force the saw past the hang-up point. The jury gets to decide whether this proves the saw had a manufacturing defectand whether that defect was a "substantial factor" in Low's injury. The defendants' motion for summary judgment is denied in part.
BACKGROUND
On April 15, 2007, Rob Low bought a Rexon sliding compound miter saw, R. 1, Attach. 4 at 2. He brought it home, sealed in an undamaged box. R. 46, Ex. F ("Low Depo.") at 29, 216. He opened it and "looked at every page" of the owner's manual, which warned "DO NOT FORCE THE TOOL"; "ALWAYS keep the blade guards in place"; "Check for . . . binding of moving parts"; and repair or replace "a guard . . . that is damaged." Id. at 47; Ex. N. ("Manual") at 3, 4. Quickly assembling the saw, he noticed no missing parts or problems with the blade guard, which *741 properly covered the blade in resting position. Low Depo. at 48, 115, 207.
The very next day, Low and his friend Kermit Lang began construction of a wheelchair ramp. Id. at 31-32, 35. Putting the saw to work for the first time, they encountered a "hang-up" while lowering it into the cutting position. Id. at 176. They had to apply a "considerable amount of force ... to get past where it hung," id. at 55, but they nonetheless completed the project. The ramp, it turns out, was just the first in a series of projects during which the saw would hang upwith increasing stubbornness. See R. 46., Ex. J ("Collins Depo.") at 11; Ex. I ("Lang Depo.") at 15.
The problem, allegedly, was binding in the blade guard's linkage, which caused the linkage to bend and grew worse with time. R. 46, Ex. K ("Riggs Report") at 3. This binding and bending not only caused the saw to hang up, butas Mr. Low himself noticed once or twice, Low Depo. at 191-92also caused the blade guard to stick open on occasion. Id.; Lang Depo. at 19; Collins Depo. at 11-12.
A year after the wheelchair ramp project, Low was working on another project. One night, while using the saw, a piece of wood he was cutting snapped and threw his hand across the spinning blade, id. at 103-04, resulting in serious injury. Low says that the saw was no longer in the cutting position when his hand made contact, id. at 205-06meaning the blade guard should have covered the bladebut he does not actually remember noticing the guard's position until after his injury. At that point, he says, it was stuck open. Id. at 99-100.
Low sued, alleging that the saw had design, manufacturing, and warning defects; that the defendants were negligent in producing and selling the saw; and that the defendants breached an implied warranty that the saw was fit for its intended use. R. 1, Attach. 4. The defendants moved for summary judgment.
DISCUSSION
I. Design Defect
The defendants are correct that Low cannot sustain some of his causes of action. For starters, this is not a design defect case. In a true design defect case, whether based on a negligence or strict liability theory, Jones v. Hutchinson Mfg., Inc., 502 S.W.2d 66, 69-70 (Ky.1973), the plaintiff must show that the "design itself selected by the manufacturer"the plan, structure, choice of materials, and specifications, id. at 69was "unreasonably dangerous." Nichols v. Union Underwear Co., 602 S.W.2d 429, 433 (Ky.1980). Low makes no such allegation. Although his expert initially filed a report seeming to say the Rexon saw's design was defective, Riggs Report at 1-3, he more recently abandoned that position and instead claims that the particular saw in this case was assembled improperly. R. 46, Ex. L ("Riggs Depo.") 16-17. And Low's brief makes no argument about the product's overall design, emphasizing his expert's current position instead. See R. 50 at 6-8.
In fact, even if Low does mean to assert a true design defect claimresting on his expert's abandoned initial assessmenthis evidence is insufficient. To prove a design defect, he must show that the defendants could have used a safer, and still feasible, design. Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 42 (Ky.2004). He presents no such proof here.[1]
*742 II. Failure to Warn
Nor can Low maintain his claim that the defendants failed to adequately warn him. Kentucky law gives a products-liability plaintiff two possible routes to lodge such a challenge. First, the strict liability route: A plaintiff can show that a manufacturer failed to apprise him of dangers inherent in the design of the product, rendering it unreasonably dangerous. Tipton v. Michelin Tire Co., 101 F.3d 1145, 1149 (6th Cir.1996) (citing C & S Fuel, Inc. v. Clark Equip. Co., 552 F.Supp. 340, 347 (E.D.Ky.1982)). For example, a drug manufacturer might fail to alert customers that its product is unsafe for patients with high blood pressure. C & S Fuel, 552 F.Supp. at 347; see also Byrd v. Proctor & Gamble Mfg. Co., 629 F.Supp. 602, 605 (E.D.Ky.1986) (accurate replica of a revolver with a safety purposely below the modern state of the art requires a warning to escape strict liability) (citing Sturm, Ruger & Co. v. Bloyd, 586 S.W.2d 19 (Ky.1979)). Or, second, a plaintiff can show that the manufacturer negligently failed to warn him of foreseeable risks. Id.; see also Tipton, 101 F.3d at 1149. That is, he can prove that a manufacturer knew or had reason to know that its product was likely to be dangerous, had no reason to expect the plaintiff would know it, and failed to exercise reasonable care to give an adequate warning. Tipton, 101 F.3d at 1149-50.
Low has not presented evidence, viewed in the light most favorable to him, upon which a reasonable jury could conclude that the defendants failed to warn under either theory. Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To begin, he makes no argument that the defendants failed to warn about a danger inherent in the design of the saw. Instead, he says that the defendants failed to warn him that his particular saw was brokenthat "this new saw was not operating as the manufacturer intended." See R. 50 at 12-13. And even with this allegation, he cannot show that the defendants negligently failed to adequately warn of foreseeable dangers. Not only has he failed to supply any evidence that the defendants knew or should have known about any assembly problems with this particular saw (or the line of saws), but the warnings the defendants did give were clearly sufficient to apprise him of foreseeable risks. To repeat, the owner's manual, which Low says he read, admonished: "DO NOT FORCE THE TOOL;" "ALWAYS keep the blade guards in place"; "[c]heck for ... binding of moving parts"; and repair or replace "a guard ... that is damaged." Given Kentucky's rule that manufacturers need not warn of "obvious" dangers or "every conceivable risk," Edwards v. Hop Sin, Inc., 140 S.W.3d 13, 16 (Ky.App.2003), what more should the defendants have said?
Perhaps Low has done so little to support his design-defect and failure-to-warn claims because he wrongly believes he only needs to give circumstantial evidence that *743 something was amiss with his saw. He argues that "to withstand a motion for summary judgment as to liability in a Kentucky products liability case, the Plaintiff `is not required to establish precisely why the [product] failed, but whether it did.'" R. 50 at 10 (citing Siegel v. Ky. Farm Bureau, No. 3:08-0429, 2010 WL 4536769, at *3 (W.D.Ky. Nov. 2, 2010)). The argument seems to be that the different products liability theoriesdesign defect, warning defect, manufacturing defectare all just glosses on one single product-defect cause of action, and so he only needs to present evidence that the product had some defect to carry all three past summary judgment.
But he misreads Kentucky law. While these theories are related, they are still different bases for relief. See, e.g., Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 250 (Ky.1995) overruled on other grounds by Martin v. Ohio Cnty. Hosp. Corp., 295 S.W.3d 104 (Ky.2009) ("Each theory is different and therefore independent of the other."). And the case Low relies upon, Siegel, does not really help him. The Siegel court held only that the plaintiff, who had circumstantial evidence to suggest a manufacturing defectand concededly not a design defectcould proceed to trial even though he could not eliminate other potential, external causes at that stage. Siegel, 2010 WL 4536769, at *1. It did not go so far as to hold that a plaintiff can maintain all three product-defect theories against summary judgment with evidence to support only one and, importantly, with evidence clearly repudiating two.
Low might respond with cases more clearly on pointcases where the court did seem to hold that a plaintiff could maintain an omnibus defect claim with circumstantial evidence that something went wrong. In Perkins v. Trailco Mfg. and Sales Co., 613 S.W.2d 855, 857-58 (Ky. 1981), for instance, the court held that while there was no "direct proof of a specific defect" in the subject trailer, the evidence was still sufficient to show that a defect in the trailer, "design or otherwise," caused the injury. The court reasoned that the trailer malfunctioned despite being brand new and that the plaintiff could eliminate other potential causes. Id. Similarly, the court in Kentucky Farm Bureau Mutual Insurance Co. v. Hitachi Home Electronics, Inc., held that the plaintiff could preserve his generalized defect claim without identifying a particular defect because he had circumstantial evidence to support his claim and because he could eliminate other potential causes. No. 08-30, at *3, 4-5, 7, 2009 WL 2760956 (E.D.Ky. Aug. 26, 2009), available at http://docs.justia.com/cases/federal/district-courts/Kentucky/kyedce/3:2008cv00030/57422/30/. But see Gray v. Gen. Motors Corp., 133 F.Supp.2d 530, 534 (E.D.Ky. 2001). But this case is different from Perkins and Hitachi Home. Unlike those cases, the record here includes evidence negating two defect theories. There is no reason to let them go to trial as riders on the manufacturing-defect claim.
III. Manufacturing Defect
But while Low may not have a design or warning defect claim, he does have a manufacturing defect claim. To prevail on this third theory, a litigant must show that a product "was not manufactured or assembled in accordance with its specifications" and that the deviation was a "substantial factor" in his injury. Greene v. B.F. Goodrich Avionics Sys., Inc., 409 F.3d 784, 788 (6th Cir.2005).[2] To do this, *744 he can rely on circumstantial evidence if it is enough to "tilt the balance from possibility to probability" that a manufacturing defect was a cause of the accident. Id.
Low has done precisely this. While he presents no direct evidence that the saw was damaged when he bought it, or that the damage was the cause of his injury, he has plenty of circumstantial evidence that it was. He testified that he discovered the hang up just one day after he bought the saw, brand new in a sealed, undamaged box. See Perkins, 613 S.W.2d at 858 (holding that product's malfunction while still new was circumstantial evidence of a defect). That hang up, his expert says, appears to have been the result of binding and bending in the link that is supposed to cause the blade guard to lower as the saw returns to resting position. That binding and bending also purportedly caused the blade guard to stick open on occasions. Low remembers the blade guard sticking open immediately after his injury. Viewing all of this in a light most favorable to Low, a reasonable jury could find that the linkage "probably" suffered binding when Low brought it home, that the binding caused the linkage to bend and that by causing the blade guard to stick open, it was a substantial factor in allowing his hand to come into contact with the spinning blade.
The defendants' responses are unconvincing. First, they say that Low's own expert acknowledges that it is "possible" Low may have damaged the saw himself by using the linkage to lift the saw from the box or dropping a tool on the saw. R. 46 at 18 (citing Riggs. Depo. at 58-59). Certainly true. But that does not mean a reasonable jury would be compelled to conclude that those possibilities are just as likely as Low's manufacturing-defect theory. Remember, the circumstantial evidence that Low bought the saw damaged, and that he was unlikely to damage it himself, is not insubstantial. Low, an "experienced carpenter," R. 46, Attach. 1 at 1, bought the saw in a sealed, undamaged box, assembled it, conscientiously read "every page" of the owner's manual, and tested the saw to make sure it moved correctly. Low Depo. at 49. And, importantly, we know he discovered the hang up during its very first usejust one day after the purchase. See Perkins, 613 S.W.2d at 858 (holding that product's malfunction while still new was circumstantial evidence of a defect). And what contrary evidence do the defendants have that this "experienced carpenter," R. 46, Attach. 1. at 1, was the one who damaged the saw immediately after he bought it? Basically none. The defendants point to virtually nothing in the record to suggest Low mishandled the saw immediately out of the box or dropped anything on it at that early stage. Indeed, the only evidence that someone might have contributed to the linkage problem at any time between the purchase of the saw and Mr. Riggs's later analysis of it is that someone appears to have "used a screwdriver on the heads attached to the bent linkage." R. 46, Attach. 1 at 19. Viewing the evidence in the light most favorable to Low, a reasonable jury could conclude that it is marginally more likely that the saw was damaged on arrival.
Contrary to the defendants' claim, the Sixth Circuit's holding in Greene v. B.F. Goodrich Avionics does not raise the "degree of proof" necessary for Low's claim to *745 survive. There, a helicopter crashed on a foggy day after the pilot was heard to say, "Okay I think my gyro just quit." 409 F.3d at 787. The gyroscope was a sensor in the nose of the helicopter which fed data to the Attitude Display Indicators ("ADIs"), which, in turn, told the pilot the helicopter's position relative to the earth. Id. The pilot's wife sued, alleging that the gyroscope had a manufacturing defect. In support, she submitted records revealing multiple gyroscope replacements for both the subject helicopter and the rest of the fleet in the six-month period before the crash. She also presented data indicating the ADI's reading of the plane's position during the crash was wrong. Id. And she called an expert, who testified that gyroscope failure was more likely than the possibility that wiring between the gyroscope and ADI failed because the former was more common. Id. The court held that the defendant was entitled to a directed verdict, not because the "degree of proof" was elevated, but instead becauseunlike hereit was "equally" likely that the ADI, not the gyroscope, failed. Id. at 792. The court explained that there was no way to know whether the number of gyroscope replacements was unusual; that many ADIs were replaced as well; that the record included no information about the expected life of a gyroscope; that work orders for recently replaced gyroscopes revealed that the gyroscopes were tested or exhibited no problems; and that it was quite possible other problems caused the crash because the pilot could have relied on other ADIs. Id. at 791-92.
Nor do the defendants succeed in completely discrediting the claims of Low's expert. They say he failed to employ any "empirical" or "scientific" testing to determine whether the linkage binding and bending were the cause of the blade guard's sticking or to determine whether the binding occurred during the manufacturing process. R. 46, Attach. 1. at 18-20. For example, they say, the expert failed to determine the "metallurgical make-up" of the linkage. Id. at 20. And, they add, the expert relies on Low's testimony to decide when the binding and bending began. Id. But, whatever tests the expert failed to take, he still examined the saw and determined, with his trained eye, that the blade guard linkage suffered binding and bending at the time he examined it, and that the binding and bending caused both the saw to hang up and the blade guard to stick open. And even if it is true that the expert has no way of independently determining when the binding and bending began, Low's testimony that he experienced problems with the saw from day one is enough to suggest the binding and bending started then.
Finally, the defendants unpersuasively argue that Low has not shown that whatever manufacturing defect existed was "the cause" of his injuries. R. 46, Attach. 1 at 21 (emphasis added). Instead, they say, the real cause was Low's failure to heed the warnings and the common sense judgment that he should not continue to use a saw that hung up and had blade guard problems. But this argument suffers two shortcomings.
First, Kentucky law does not require that a manufacturing defect be the only cause of Low's injuries. Instead, it requires simply that it be "a substantial factor," Greene, 409 F.3d at 788 (emphasis added)meaning "a legal cause," Perkins, 613 S.W.2d at 857, or something "reasonable men" would regard as a cause, using the word "in the popular sense," Deutsch v. Shein, 597 S.W.2d 141, 144 (Ky.1980). Certainly, the defendants make a strong case that Low was less than responsible in overlooking the hang up and blade guard problems, particularly when considered against the backdrop of the product's ample warnings and his own expert's testimony *746 that he would have stopped using the saw before the accident. R. 46, Attach. 1 at 21-26; Riggs Depo. at 82-83. That irresponsibility doubtless played a role in the accident. But was it all his fault? Was Low completely unreasonable? Not necessarily. He testified that this was the first time he had bought a saw of this kind and that he had no reason to believe this brand new saw was operating other than as it was intended. Low Depo. at 49-50. And he personally only noticed the blade guard stick open once or twice. Low Depo. 191-92. A reasonable jury could conclude that the manufacturing defect was also a substantial factor contributing to Low's injury.
Second, even assuming the warnings and obviousness of the danger in this case makes Low primarily responsible for his injury, it is unclear simply dismissing his manufacturing defect claim would be the correct way to account for his fault in this case. It usually is not the correct way in design defect cases, at least. See, e.g., Busch, 2005 WL 877805 at *4; Nichols, 602 S.W.2d at 432-433. (Though it is true a different rational might apply to manufacturing defect claims. See supra note 2.) And Kentucky law already supplies an alternative means of accounting for Low's own negligenceapportioning damages. Owens Corning Fiberglas Corp. v. Parrish, 58 S.W.3d 467, 475 (Ky.2001).
Neither of the cases the defendants cite is to the contrary. They say that Vaughn v. Alternative Design, No. 07-429, 2008 WL 4602960, 2008 U.S. Dist. LEXIS 82325 (E.D.Ky. Oct. 16, 2008) and Hood v. Ryobi Am. Corp., 181 F.3d 608 (4th Cir.1999) support their view that, where a plaintiff behaves irresponsibly in handling a product, a defect in the product is not the cause of his injuries. But in Vaughn, the product the defendant actually produced was quite clearly not responsible for the plaintiff's injuries. There, a chicken-house employee stepped on a manure-removing auger missing its safety guards. Vaughn, 2008 WL 4602960, at *1, 2008 U.S. Dist. LEXIS 82325, at *1-2. He sued the company who installed component parts for the auger at issue. Id. at *1, 2008 U.S. Dist. LEXIS 82325, at *2. The court held that the defendant's conduct was not the cause of the plaintiff's injuries because he only installed auger components and had never been charged with also installing safety guards. In fact, others were responsible for adding the safety guards, and the defendant had no control over installation of those guards. Id. at *6-8, 2008 U.S. Dist. LEXIS 82325, at *15-19. And in Hood, there was simply nothing wrong with the subject saw as designed. The saw had ample warnings and a safety guard that would have prevented the plaintiff's injurythe blade flying off the saw and attacking him. 181 F.3d at 609, 611-12. Yet the plaintiff made the unfortunate decision to remove the blade guard himself to cut a piece of wood without ever reattaching the guard. Id. at 609. This case is different from Vaughn and Hood, therefore, because the defendants were responsible for manufacturing the saw in its entirety and because there is virtually no evidence Low altered the saw or failed to assemble it correctly.
As to Low's remaining claims: The defendants' solitary argument for dismissing Low's generalized negligence and breach-of-warranty causes of action is that they must fail if Low cannot first show a defect. R. 46, Attach. 1 at 12. Because Low can still pursue his manufacturing defect claim, the defendant has not shown that these lingering claims should be dismissed.
CONCLUSION
The defendants' motion for summary judgment, R. 46, is therefore GRANTED IN PART AND DENIED IN PART. Only *747 Low's design and warning defect claims are dismissed.
NOTES
[1] Prevailing on the design defect claim, the defendants make some hay about KRS § 411.310, which says that if a product's design, testing, and method of manufacture conform to industry standards, "it shall be presumed, until rebutted by a preponderance of the evidence . .. that the product was not defective." But the purpose of the statute is simply "to protect a manufacturer from liability for failure to anticipate safety features which were unknown or unavailable at the time the product in question was manufactured and distributed." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 411 (Ky.1998). It does nothing to change the plaintiff's burden in warning or manufacturing defect claims. For those, the statute merely reiterates the plaintiff's usual burden to prove, by a preponderance of the evidence, that the product suffered a warning or manufacturing defect if it suffered no design defect. See, e.g., Clark v. Chrysler Corp., 310 F.3d 461, 476 (6th Cir.2002), vacated on other grounds by Chrysler Corp. v. Clark, 540 U.S. 801, 124 S.Ct. 102, 157 L.Ed.2d 12 (2003); Boon Edam, Inc. v. Saunders, 324 S.W.3d 422, 432 (Ky.App.2010); Leslie v. Cincinnati Sub-Zero Prods., Inc., 961 S.W.2d 799, 803-804 (Ky. App.1998).
[2] As best the Court can tell, this is the full extent of the test for deciding whether there was a manufacturing defect. Some decisions could be read as saying that courts should decide whether there is a defect not just based on problems with the design or assembly of a product, but also the feasibility of making a safer product, patency of the danger, warnings and instructions, subsequent maintenance and repair, misuse, and the product's inherently unsafe characteristics. Busch v. Ansell, No. 3:01CV126H, 2005 WL 877805, at *4 (W.D.Ky. Mar. 8, 2005) (citing Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776, 780-81 (Ky.1984)). But, really, these factors appear to apply only to design defect cases. See Ford Motor Co. v. Fulkerson, 812 S.W.2d 119, 128 (Ky.1991) (Spain, J., dissenting).
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648 N.W.2d 271 (2002)
STATE of Minnesota, Respondent,
v.
John Mark COLOSIMO, Appellant.
No. C7-01-2181.
Court of Appeals of Minnesota.
July 23, 2002.
*272 Mike Hatch, Attorney General, St. Paul, and Jeffrey M. Vlatkovich, Hibbing, for respondent.
John Mark Colosimo, Virginia, pro se appellant.
Considered and decided by HALBROOKS, Presiding Judge, KLAPHAKE, Judge, and HANSON, Judge.
OPINION
HANSON, Judge.
Appellant challenges his conviction of refusal to allow inspection of a boat, arguing that he was unlawfully stopped by a conservation officer; that the officer did not have probable cause to inspect the boat; and that the officer's request to inspect the boat was an unlawful seizure. We reverse.
FACTS
Pro se appellant John Mark Colosimo, an attorney, and four others were in Colosimo's boat as it was being towed to a boat landing by a truck driven by Sean Oveson. When Oveson stopped at the landing, Conservation Officer Lloyd Steen, who was standing nearby, approached the boat and asked Colosimo if they had been fishing. Colosimo said they had and discussed the types and amounts of fish they had caught and were transporting. Officer Steen asked to see the fish. Colosimo refused, stating that Officer Steen had stopped the fishing party without reasonable suspicion for doing so and that Officer Steen did not have probable cause to inspect the boat. When Colosimo asked Officer Steen to articulate a reason for stopping and detaining his fishing party, and to explain why he had a right to inspect the boat, Officer Steen replied that he did not need a reason and, because he knew they had fish on board, he had a right to inspect the fish. After a lengthy conversation and Colosimo's continued refusal to allow the inspection, Officer Steen ticketed Colosimo for refusal to allow inspection of a boat. Colosimo and his party then left the scene.
Colosimo was charged with hindering and obstructing an officer in the performance of his official duties, in violation of Minn.Stat. § 97A.251, subds. 1 and 2 (1998), and refusal to allow inspection of a boat, in violation of Minn.Stat. § 97A.251, *273 subd. 1(3). Colosimo moved to suppress the evidence of his refusal and to dismiss both charges, alleging that the evidence was acquired by Officer Steen's illegal seizure of him. The district court dismissed the obstruction charge, holding that Colosimo acted in good faith to assert his constitutional rights and no physical obstruction occurred, citing State v. Tomlin, 622 N.W.2d 546 (Minn.2001). But the court denied the motion as to the refusal charge, finding that Officer Steen's conversation with Colosimo did not constitute a seizure because Oveson had already stopped the truck.
The parties stipulated to the facts in the omnibus hearing transcript. The district court found Colosimo guilty of refusal to allow inspection of a boat. While the district court agreed that Officer Steen could not have stopped Colosimo without reasonable suspicion, it reasoned that Officer Steen had a right to inspect the fish when he approached the stopped vehicle and learned there were fish on board. Colosimo appealed.
ISSUE
Is a boat owner guilty of the crime of refusal to allow inspection of a boat when the conservation officer does not have probable cause to request the inspection?
ANALYSIS
Our review of the district court's denial of the motion to dismiss is de novo. See State v. Linville, 598 N.W.2d 1, 2 (Minn.App.1999) (reviewing dismissal for lack of probable cause); see also State v. Harris, 590 N.W.2d 90, 98 (Minn.1999) (stating that courts may independently review the facts and determine whether the district court erred by not suppressing evidence). Whether a statute has been properly construed is a question of law, also subject to de novo review. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998).
I
Colosimo was found guilty of violating Minn.Stat. § 97A.251, subd. 1(3) (1998), which states:
A person may not:
* * * *
(3) refuse to allow inspection of a motor vehicle, boat, or other conveyance used while taking or transporting wild animals.
"Wild animals" is defined to include "fish." Minn.Stat. § 97A.015, subd. 55 (1998).
We first address the question of whether the state must prove, as a predicate to the crime of refusal to allow inspection, that the officer had probable cause to request the inspection. Although the description of the crime in Minn.Stat. § 97A.251, subd. 1(3) does not expressly include that predicate, we conclude that it must be implied because of constitutional and other statutory requirements.
Constitutional Requirements
We analyze a conservation officer's request to inspect fish in a boat under the constitutional standards applicable generally to searches and seizures. The Minnesota Supreme Court has consistently held that the Fourth Amendment's prohibition against unreasonable searches and seizures applies to searches made by conservation officers. State v. Richards, 284 N.W.2d 549, 551 (Minn.1979); State v. Sorenson, 441 N.W.2d 455, 459 (Minn.1989); see also State v. Krenz, 634 N.W.2d 231, 234 (Minn.App.2001) (holding that conservation officer violated the Fourth Amendment when he entered defendant's fish house without consent, a warrant, probable cause or any articulable basis for suspicion).
*274 Further, we have held that an owner of a vehicle has a reasonable expectation of privacy sufficient for Fourth Amendment protections to attach to the vehicle. See State v. Nace, 404 N.W.2d 357, 360-61 (Minn.App.1987), review denied (Minn. June 25, 1987) (stating that an automobile owner's expectation of privacy in an automobile is somewhat less than in a home, but a warrantless search of an automobile still must be supported by probable cause); see also Carroll v. United States, 267 U.S. 132, 147-55, 45 S.Ct. 280, 283-86, 69 L.Ed. 543 (1925) (explaining that probable cause is required to search an owner's automobile because of the owner's reasonable expectation of privacy). We see no reason to distinguish between an automobile and a boat, both of which are vehicles that transport people and goods in a regulated environment.[1]
If, under these constitutional standards, a conservation officer must have probable cause to believe that a crime has been committed in order to justify a warrantless search of a boat without the owner's consent, then it follows that any evidence obtained by an inspection of a boat without consent would be subject to suppression on grounds that the officer did not have probable cause to search the boat. That being so, could the legislature constitutionally require a person to consent to a warrantless search of protected property without probable cause, or make it a crime for a person to refuse such consent? Although the narrow words of Minn.Stat. § 97A.251, subd. 1(3), could be read to do just that, when we construe that section to be consistent with the constitution, we conclude that it implies a predicate that the officer requesting inspection has either a search warrant or probable cause to support the request. Minn.Stat. § 645.17(3) (1998) (providing the presumption that the legislature does not intend to violate the constitution of the United States or of this state).
Other Statutory Requirements
This conclusion, that the crime of refusal to permit inspection of a boat implies the predicate that the officer has a warrant or probable cause to support the request, is reinforced by the statutory provisions that authorize inspections under the game and fish laws. Minn.Stat. § 97A.215, subd. 1(b) (1998), states:
When an enforcement officer has probable cause to believe that wild animals taken or possessed in violation of game and fish laws are present, the officer may:
(1) enter and inspect any place or vehicle; and
(2) open and inspect any package or container.
(Emphasis added.)
Construing the provisions establishing the crime of refusal to allow inspections of a boat, under Minn.Stat. § 97A.251, subd. 1(3), together with the limitations placed on the authority of an enforcement officer to conduct an inspection only upon probable cause, we conclude that a boat owner cannot be convicted of the crime of refusal to allow inspection of a boat unless the state can prove that the officer had probable cause to request that inspection.
II
At oral argument, the state asserted that probable cause was not a necessary predicate to a request to inspect the boat because of the regulated activity exception. Some courts have recognized that a *275 person engaged in a pervasively regulated activity may have a reduced expectation of privacy and, therefore, certain searches of the place where that activity occurs may not be unreasonable under the constitution, even in the absence of probable cause. See, e.g., New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) (holding reasonable warrantless inspections of junkyards because vehicle dismantlers constitute "closely regulated" industry). The state argues that recreational fishing has been regulated by the requirement of a fishing license and by the imposition of specified restrictions.
We have already rejected the state's argument as applied to recreational fishing in Minnesota. Krenz, 634 N.W.2d at 236-37 (declining to accept the state's argument that warrantless searches of fish houses are justified to enforce the regulatory scheme for recreational fishing); see also State v. Larsen, 637 N.W.2d 315, 321 (Minn.App.2001) ("a citizen accused of stealing ... fish has the same constitutional guarantees of fairness and due process as citizens accused of other crimes"), review granted (Minn. Mar. 19, 2002).[2] As we said in Krenz, warrantless searches conducted to enforce regulatory schemes are only reasonable in the context of a pervasively regulated business activity, not a personal recreational activity. 634 N.W.2d at 236. Krenz dealt with a warrantless search of a fish house and it could be argued that a person in a fish house had a greater expectation of privacy than one in a boat. But the limitation placed by legislature on the authority of an officer to inspect applies equally to a "place" and a "vehicle." Minn.Stat. § 97A.215, subd. 1(b)(1). This effectively establishes that persons in a boat have the same reasonable expectation of privacy. Thus, unless a person is using a boat for a pervasively regulated business activity, the statute requires probable cause to enter and inspect a boat.
The state suggests that this construction of the statute places an unreasonable burden on conservation officers. We acknowledge the difficulty a conservation officer faces in acquiring probable cause for fishing violations that are committed essentially in private. And, while we agree that the analysis of constitutional requirements and the construction of the statute should not simply be mechanistic, we are not persuaded that public policy concerns raised by the state can override otherwise applicable constitutional protections or statutory limitations. Further, we cannot conclude that the legislature has clearly expressed an intent to prefer the enforcement of the fish laws to individual privacy rights. We have required such a clear expression in other licensing contexts.
For example, in State v. Greyeagle, 541 N.W.2d 326 (Minn.App.1995), we considered whether the application for and display of a special series license plate, to an owner who has a limited driver's license, implies consent by the driver to stops of the vehicle based solely on the plates, without some independent reasonable suspicion or probable cause. We held that it did not, noting that the statute did not expressly authorize stops based solely on the plates. Id. at 328. After Greyeagle, the legislature amended the statute to provide that specific authorization. In State v. Henning, 644 N.W.2d 500, 503 (Minn. App.2002), we construed the amended statute *276 to establish the driver's implied consent to stops based solely on the plates.
In contrast here, Minn.Stat. Ch. 97A does not expressly authorize a conservation officer to inspect a boat based solely on the fact that a fishing license is required to take or transport fish, or because there are fish in the boat. To the contrary, the statute conditions the conservation officer's inspection authority to situations where the officer has "probable cause." Minn.Stat. § 97A.215, subd. 1(b). Thus, as in Greyeagle, we need not address the ultimate question, "whether states may statutorily provide that [fishing licenses] be granted on condition that the user enjoys lesser constitutional rights." See Greyeagle, 541 N.W.2d at 328 n. 3 (stating that the question of an officer's statutory power to make suspicionless stops need not be addressed in the absence of specific statutory authority to do so).
III
The state argues that if probable cause is required, Colosimo's refusal to allow the inspection, together with knowledge that fish were being transported in the boat, gave Officer Steen sufficient probable cause to believe that Colosimo violated fish laws and that there was a fair probability that evidence of the violation was in the boat. Officer Steen testified that in the previous 21 years, no one had ever refused his request to inspect fish in a boat.
But the "[Fourth] Amendment gives [the occupant] a constitutional right to refuse to consent to entry and search," where the officer lacks probable cause. United States v. Prescott, 581 F.2d 1343, 1350-51 (9th Cir.1978). Passive refusal cannot be a crime, nor can it be evidence of a crime. Id. at 1351. Therefore, Colosimo's refusal to allow Officer Steen to inspect the boat did not give Officer Steen probable cause to believe that Colosimo had incriminating evidence on the boat. A contrary conclusion would effectively eliminate the requirement of probable cause from the law because an officer could always avoid the requirement by simply requesting inspection: if the boat owner consents, probable cause would not be required, and if the boat owner refuses, the officer would use that refusal to supply probable cause.
Officer Steen admitted that he had no probable cause to inspect the boat when he approached the boat, and Colosimo's refusal could not give Officer Steen probable cause.
DECISION
We do not address Colosimo's other arguments, concerning whether Officer Steen had reasonable suspicion to effectuate an investigatory stop or to seize the boat or its occupants. The dispositive issue before us, when considering Colosimo's conviction for refusal to allow inspection, is whether Officer Steen was required to have probable cause to request inspection of Colosimo's boat. We hold that Officer Steen was required to have probable cause to request inspection of the boat; that he did not have probable cause to make such request; and that, absent probable cause to request inspection, Colosimo cannot be convicted for refusal to allow inspection.
NOTES
[1] Such a distinction is further blurred under our facts, where the boat is being towed by a motor vehicle.
[2] Other jurisdictions have also rejected such arguments. See, e.g., People ex rel. Attorney General v. Younger Mun. Judge, 327 Mich. 410, 42 N.W.2d 120, 125 (1950) (rejecting argument that a fishing license is distinguishable from a driver's license); Sitz v. Dep't of State Police, 443 Mich. 744, 506 N.W.2d 209, 222 (1993) (rejecting regulatory argument).
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1997
JOHN DUNAWAY,
Plaintiff - Appellant,
versus
DALE E. HARTFORD, G.L.R. of I.A.M.,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District Judge.
(1:03-cv-03398-BEL)
Submitted: November 20, 2006 Decided: December 13, 2006
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Dunaway, Appellant Pro Se. Joel Allen Smith, Steven Marc
Lubar, Jeffrey M. Ross, KAHN, SMITH & COLLINS, PA, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Dunaway appeals the district court order granting
Dale E. Hartford’s motion for summary judgment and dismissing his
complaint. We have reviewed the record and the district court
order and affirm for the reasons cited by the district court. See
Dunaway v. Hartford, No. 1:03-cv-03398-BEL (D. Md. filed Aug. 30,
2006; entered Aug. 31, 2006). We deny the motion for sanctions.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 2 -
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT June 20, 2012
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 11-1527
(D.C. No. 1:09-CR-00056-PAB-1)
JOSE GARCIA-SANCHEZ, a/k/a (D. Colo.)
Catracho,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.
Jose Garcia-Sanchez, a federal prisoner, pled guilty to knowingly and intentionally
conspiring to distribute 50 or more grams of actual methamphetamine, and 500 grams or
more of a substance containing methamphetamine, and 500 grams or more of a substance
with a detectable amount of cocaine, all Schedule II Controlled Substances, in violation
*
The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.
This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 841(b)(1)(ii)(II), and 846.1 Although the
advisory Sentencing Guidelines range calls for imprisonment of 360 months to life, the
government and Garcia-Sanchez each moved for a variant sentence within the range of
180 to 216 months of imprisonment. After noting the properly computed advisory
sentence and considering the 18 U.S.C. § 3553(a) factors, the judge denied the motions
for a downward variance and sentenced Garcia-Sanchez to 360 months of imprisonment
and 5 years of supervised release.2 He appeals from that sentence and repeats the
argument he made to the district court—the sentence is procedurally unreasonable
because it did not properly take into account his traumatic teenage years.
When Garcia-Sanchez was 14, he was shot and at the same time witnessed the
killing of his parents and brother in their Honduras home. Those tragic crimes left him
without parental supervision and forced him continually to seek a place to live. He
contends this aspect of his life is particularly relevant, and his sentence should have been
reduced because of it.
In his plea agreement, Garcia-Sanchez stipulated to his consistent involvement in
methamphetamine distribution, including using weapons, from 2005 to 2008. Some of
his crimes resulted in convictions and imprisonment, the details of which are contained in
1
The total weight of each narcotic attributable to the conspiracy was 1,733.12
grams of actual methamphetamine, 2,050.24 grams of a substance containing
methamphetamine, and 1,319 grams of a mixture containing cocaine.
2
The judge explained at sentencing: “[T]he reason he has had a 360-month
guideline sentence is because of the drug quantity involved. That’s why he is at 360.”
(R. Vol. II at 25).
-2-
the Presentence Report (“PSR”). Since neither the government nor Garcia-Sanchez had
objected to the PSR the judge relied upon it; he said, “therefore, the factual statements
and guideline applications in the report are adopted without objection as the Court’s
findings of fact concerning sentencing.” (R. Vol. II at 22)
With respect to his unfortunate youthful experiences, the only matter at issue in
this appeal, the judge addressed it:
How long does that excuse work? If we take a look at his criminal history,
this isn’t his first conviction, so does that last for a lifetime?
....
[A] family history even one as horrific as what Mr. Garcia-Sanchez
experienced when he was 14 doesn’t justify continuing to break the law and
certainly doesn’t justify you[r] becoming a drug dealer and leading up your
own drug organization. Nothing has been explained to the Court that
would somehow have any cause and effect between experiencing some
horrific crime happening to your family and running a drug organization
where you arm yourselves as part of the drug organization.
....
The next question becomes where within the guideline range the
defendant should be sentenced, and that actually isn’t too hard of a
question. The defendant has not been subject to any type of a lengthy
sentence before and a 360-month sentence is a very, very long sentence for
someone of any age, and that is what the Court believes is the appropriate
sentence in this case.
(R. Vol. II at 17-18, 24, 30).
“The district court has a wide range of discretion in striking a balance among the
18 U.S.C. § 3553(a) factors.” United States v. Gambino-Zavala, 539 F.3d 1221, 1232
(10th Cir. 2008). It is sufficient for a sentencing judge to note generally the Sentencing
Guidelines range and consideration of the § 3553(a) factors. United States v. Ruiz-
-3-
Terrazas, 477 F.3d 1196, 1202 (10th Cir. 2007). “A sentence is procedurally reasonable
when the district court computes the applicable Guidelines range, properly considers the
§ 3553(a) factors, and affords the defendant his rights under the Federal Rules of
Criminal Procedure.” United States v. Begaye, 635 F.3d 456, 461 (10th Cir. 2011)
(citation, alteration, and internal quotation marks omitted). Here, the judge did exactly
that. After explaining why a downward variance was not warranted, he imposed a
sentence at the low end of the advisory sentencing range. While a judge is required to
consider sentencing factors the defendant advances, he has no obligation to assign them
controlling weight. Contrary to Garcia-Sanchez’s arguments, the judge did not refuse to
consider his difficult life experiences as a mitigating factor. The Judge simply chose not
to permit him to use them as a crutch, thereby minimizing his repeated, serious, and
dangerous lawlessness. There was no procedural error.
AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
-4-
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571 So.2d 941 (1990)
In re GANNETT RIVER STATES PUBLISHING CO.
v.
Ralph Hand, III.
No. 90-M-798.
Supreme Court of Mississippi.
November 28, 1990.
*942 Leonard D. Van Slyke, Jr., Terryl K. Rushing, Thomas Price Alston Jones & Davis, Jackson, for petitioner.
Mike C. Moore, Atty. Gen., Wayne Snuggs, Asst. Atty. Gen., Charlene R. Pierce, Sp. Asst. Atty. Gen., Jackson, William G. Willard, Jr., Holocomb Dunbar Connell Chaffin & Willard, Clarksdale, for respondent.
Before HAWKINS, P.J., and ANDERSON and BLASS, JJ.
ANDERSON, Justice, for the Court.
Petitioner, Gannett River States Publishing Co. (Gannett), pursuant to Miss.Sup. Ct.R. 21, seeks from this Court a writ of mandamus compelling Circuit Court Judge George Carlson to vacate a closure order entered in the case of State v. Ralph Hand, III, in the Circuit Court of Tallahatchie County. Hand is charged with capital murder.
We write today to address issues not specifically before us in our previous consideration of the conflict which sometimes arises between the constitutional right to a fair trial and the constitutional right to a free press in Mississippi Publishers Corp. v. Coleman, 515 So.2d 1163 (Miss. 1987). As we noted in that opinion, "The natural and praiseworthy desire of the press to inform the public about important criminal proceedings can result in the publication of matter that can deprive a defendant of his right to a fair trial." Id. at 1165.
Where a trial court makes an on-the-record determination that there is a substantial probability that a defendant's right to a fair trial will be prejudiced by publicity that closure will prevent, and where it is determined that there are no less restrictive alternatives to closure, all supported by substantial evidence, we have not hesitated to recognize that "[p]ress access to the trial and pretrial processess may be qualified." Mississippi Publishers Corp., 515 So.2d at 1165. Press-Enterprise Co. v. Superior Court, (Press-Enterprise II), 478 U.S. 1, 9, 106 S.Ct. 2735, 2741, 92 L.Ed.2d 1, 10 (1986). For we recognize that "[n]o right ranks higher than the right of the accused to a fair trial." Press-Enterprise Co. v. Superior Court, (Press-Enterprise I), 464 U.S. 501, 508, 104 S.Ct. 819, 823, 78 L.Ed.2d 629, 637 (1984). But we also recognize that "[t]he right to an open public trial is a shared right of the accused and the public, the common concern being the assurance of fairness." Press-Enterprise II, 478 U.S. at 7, 106 S.Ct. at 2739, 92 L.Ed.2d at 9. Conflict arises when the right of the accused to a fair trial might be undermined by publicity. "In such cases, the trial court must determine whether the situation is such that the rights of the accused override the qualified First Amendment right of access." Id. As an appellate court, we are often called upon to review that determination. We set forth procedures today to aid in balancing an accused's right to a fair trial and the press and public's right of access to criminal proceedings.
FACTS
At some point in the discovery process of Hand's case, on July 5, 1990, one of Hand's attorneys contacted Judge Carlson by telephone to request that the court review pleadings and motions that had been filed in the case to determine if some should be placed in a closed file pending a hearing on closure. This conversation was followed with a letter to Judge Carlson outlining the same request. On July 6, 1990, Judge Carlson contacted the Circuit Clerk's office in Sumner and instructed that motions be placed in a sealed file, not for public disclosure, pending entry of a formal closure order.
On July 24, 1990, a reporter for the Clarion-Ledger, Carole Lawes, visited the Circuit Clerk's office in Sumner in order to conduct a routine review of the Hand files, since Hand was scheduled to go to trial on August 20, 1990 (the trial date has since been continued). Comparing the docket entries with the motions and pleadings actually available in the file, she noted that 10 motions were missing from the file. She *943 asked a deputy circuit clerk if there were another file somewhere containing these 10 motions. Lawes was handed more files. She began looking through these files and noted that one file contained investigative reports. She gave this file back to the deputy clerk without looking further, saying that she did not think the press and public were supposed to look at these reports. As she handed the files back, she noticed that on the front of two of the files was the heading "Non-public." She had continued to look at the other "Non-public" file before noting that it was "Non-public." In that file were some of the 10 missing motions.
After leaving the clerk's office, Lawes tried to ascertain whether or not a closure order had been entered. She apparently never did ascertain this information; nevertheless, she wrote an article which appeared in the Clarion-Ledger on July 25, 1990, about one of the motions found in a "Non-public" file.
On July 26, 1990, Lawes and Gannett attorney Leonard Van Slyke, Jr. were subpoenaed by defendant to appear in Tallahatchie County Circuit Court on July 31, 1990, as witnesses. It was the desire of defense counsel, and apparently the court, to determine how Lawes obtained the information from the closed files to write her article. They were set to appear at 10:00 a.m., but upon arriving at 9:30 a.m., they walked into court just as Judge Carlson was issuing a closure order from the bench. Mr. Van Slyke sought to intervene on behalf of his client, Gannett, and requested a hearing on the closure motion; however, the court continued to enter the order on its own motion with no formal motion for closure having been filed by either Hand or the State, even though Hand's attorney had written the letter to Judge Carlson requesting that he consider closing some of the files. A written order followed. The judge allowed Mr. Van Slyke, as well as Hand's counsel and the District Attorney, Robert Williams, to make comments and arguments. Both Hand and the State agreed that the court's closure order was proper and made no objection. Mr. Van Slyke urged the court to reconsider the closure order, asking that a formal hearing on closure be held. The Judge denied the ore tenus motion to reconsider, but explained that Gannett could file a motion to vacate the closure order and he would hold a hearing on the motion as soon as possible, probably on August 13, 1990, then a week before trial was scheduled to begin.
Gannett filed an emergency motion in this Court to stay any further proceedings under the closure order pending consideration by this Court of Gannett's forthcoming petition for writ of mandamus. The emergency motion for stay was denied on July 31, 1990. Gannett subsequently proceeded into this Court with this Petition for Writ of Mandamus.
DISCUSSION
Gannett contends that the closure order entered by Judge Carlson is unconstitutional for the reason that no evidentiary basis exists for his finding that there is a substantial probability that Hand's fair-trial rights will be prejudiced which closure will prevent and that there are no less-restrictive alternatives to closure. Underlying the argument that no evidentiary basis exists for this finding is that no hearing on the closure issue was afforded before closure was initiated and before the closure order was entered. We agree with Gannett's contention that a closure order cannot be entered without public notice and a hearing.
Hand and the State both respond by noting that in Mississippi Publishers v. Coleman, 515 So.2d 1163 (Miss. 1987), Judge Coleman, on the court's own motion, entered the closure order and then entertained a motion to vacate by Mississippi Publishers, which was denied. Id. at 1164. However, as the Mississippi Publishers opinion continues, after the motion to vacate was denied, Pruett, the defendant, filed a motion that the press and public be excluded from the pretrial proceedings and jury selection. After a hearing on that motion, the closure order under attack in this Court was entered. Id. Therefore, the procedure the press urges in this petition *944 was actually followed, though belatedly, by Judge Coleman.
Earlier this year, this Court confronted a similar situation in State v. Carr and State v. Simon in Quitman County. In that instance, a preliminary hearing involving both Simon and Carr was closed by a Quitman County Justice Court, including the files and transcript of the preliminary hearing, without a public hearing. On March 14, 1990, this Court remanded the matter to the Quitman County Circuit Court for a hearing as to the appropriateness of closing the preliminary hearing, the transcript, and the files. In Re: Gannett River States Publishing Co. and Memphis Publishing Co., 90-M-267 (order entered March 21, 1990). In this situation, defendants and the State had moved for closure.
The closure order entered in the Hand case came about on the court's own motion, albeit prompted by a letter from Hand's attorney, without public notice and without a public hearing. While it is true that Gannett's attorney, Mr. Van Slyke, was present in court when the closure order was actually entered and was given the opportunity to argue against closure, his presence was fortuitous and not in response to notice of a hearing. The presumption of openness of the criminal process and the press and public's qualified First Amendment right of access to this process is not well served by such action except in the most unique and drastic of circumstances, such as that involved in our Mississippi Publishers decision. We explained, however, in Mississippi Publishers that the "criminal process should be open to public scrutiny. Exceptions can be made, but only for good cause [cites omitted]." 515 So.2d at 1165. Further, openness in the pre-trial setting is likewise of value and importance, and a preliminary hearing shall be closed only if specific findings are made demonstrating that there is a substantial probability that the defendant's right to a fair trial will be prejudiced by the publicity which closure would prevent and that reasonable alternatives to closure cannot adequately protect the defendant's free trial rights. Id., quoting from Press-Enterprise II, 478 U.S. 1, 14, 106 S.Ct. 2735, 2743, 92 L.Ed.2d 1, 13-14 (1986). Further, "[i]t is well settled that representatives of the news media have the standing to contest a court order restricting public access to legal proceedings. [cites omitted]." 515 So.2d at 1164.
The United States Supreme Court noted in Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609, 102 S.Ct. 2613, 2621, 73 L.Ed.2d 248, 259 (1982), n. 25, that "for a case-by-case approach to closure to be meaningful, the press and public must be given an opportunity to be heard on the question of their exclusion." In U.S. v. Criden, 675 F.2d 550, 558 (3rd Cir.1982), the court discussed the importance of the interest affected by closure of pretrial criminal proceedings in these words:
The interests of the public will not necessarily be represented either by defendants or prosecutors. The defendant's interests will obviously not coincide with that of the press. The Government, quite properly, has the duty to ensure a fair trial and has an obvious interest in securing a conviction that will withstand appeal; reversal of a conviction because of prejudicial publicity, though perhaps rare, poses a risk to a successful prosecution. We therefore cannot expect the Government to vindicate the public's first amendment rights. Nor should the trial judge be placed "in the position of sole guardian of first amendment interests even against the express wishes of both parties." Younger, The Sheppard Mandate Today: A Trial Judge's Perspective, 56 Neb.L.Rev. 1, 6-7 (1977). We believe that due process requires some notice to the public before a trial court may close a pretrial criminal proceeding. [cite omitted]
We note that other states, when faced with these circumstances, have set forth procedures for insuring that the press and public have an opportunity to be heard on closure motions. See, e.g. Minot Daily News v. Holum, 380 N.W.2d 347 (N.D. 1986); State v. Drake, 701 S.W.2d 604 (Tenn. 1985); R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 292 S.E.2d 815 (1982).
*945 Because of the frequency with which closure orders have been entered in the trial courts of our State, we find it is time that this Court issue some procedural guidelines as to how closure motions should be handled in the trial courts in order to protect the First Amendment rights of the press and public, qualified though they be in the face of an overriding interest such as fair-trial rights of a defendant. Beginning with the principle that the press and public are entitled to notice and a hearing before a closure order is entered, we hold that any submission in a trial court for closure, either by a party or on the court's own motion, and be it a letter, written motion, or oral motion either in chambers or open court, must be docketed, as notice to the press and public, in the court clerk's office for at least 24 hours before any hearing on such submission, with the usual notice to all parties. This requirement should not be taken to mean that a greater notice period may not be afforded where feasible. Preferably the submission should be a written motion if time and circumstances allow.
A hearing must be held in which the press is allowed to intervene on behalf of the public and present argument, if any, against closure. The movant must be required to "advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceedings, and it must make findings adequate to support the closure." Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 2216, 81 L.Ed.2d 31, 39 (1984). In considering the less restrictive alternatives to closure, the court must articulate the alternatives considered and why they were rejected. Then the court must make written findings of fact and conclusions of law "specific enough that a reviewing court can determine whether the closure order was properly entered." Press-Enterprise I, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629, 638 (1984). A transcript of the closure hearing should be made public and if a petition for extraordinary relief concerning a closure order is filed in this Court, it should be accompanied by the transcript, the court's findings of fact and conclusions of law, and the evidence adduced at the hearing upon which the judge bases the findings and conclusions. These requirements cannot be avoided by an agreement between the defendant and State that proceedings and files should be closed.
Turning briefly to the closure order entered in this case, the party seeking closure, presumably Hand, was not required to, nor did he, present proof that his overriding interest in a fair trial was likely to be prejudiced by publicity that closure would prevent. Therefore, the court's finding of a substantial likelihood that Hand's fair-trial rights would be prejudiced without closure has no evidentiary support, and even though the court considered alternatives to closure and rejected them, there is no evidence to support the rejections since there was no evidence presented to support a claim that Hand's overriding interest was likely to be prejudiced in the first place. All that was in evidence was the July 25 article published by the Clarion-Ledger. This Court has nothing else to review by way of an evidentiary basis for the court's findings and there is no way to tell if the order is narrowly drawn to protect an overriding interest.
THE PETITION FOR WRIT OF MANDAMUS IS GRANTED, THE CLOSURE ORDER IS VACATED, AND THE MATTER IS RETURNED TO THE CIRCUIT COURT OF TALLAHATCHIE COUNTY, SECOND JUDICIAL DISTRICT, FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.
ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PRATHER, ROBERTSON, SULLIVAN, PITTMAN and BLASS, JJ., concur.
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972 F.2d 1334
U.S.v.Sardinha (Isaias); U.S. v. Marabello (Angelo)
NOS. 91-5788, 91-5818
United States Court of Appeals,Third Circuit.
July 28, 1992
Appeal From: D.N.J.,
Bissell, J.
1
AFFIRMED.
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FILED
NOT FOR PUBLICATION MAY 25 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MANUEL F. MARQUES, No. 11-16789
Plaintiff - Appellant, D.C. No. 3:10-cv-00222-ECR-
RAM
v.
N.D.O.C.; et al,, MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., District Judge, Presiding
Submitted May 15, 2012 **
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Nevada state prisoner Manuel F. Marques appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging prison officials
confiscated and lost his personal property. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291. We review de novo, Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010),
and we affirm.
The district court properly dismissed Marques’ claims that prison officials
violated his constitutional rights when they took and lost his property because
Marques had an adequate post-deprivation remedy under Nevada law. See Hudson
v. Palmer, 468 U.S. 517, 533 (1984) (“[A]n unauthorized intentional deprivation of
property by a state employee does not constitute a violation of the procedural
requirements of the Due Process Clause of the Fourteenth Amendment if a
meaningful postdeprivation remedy for the loss is available.”); Barnett v. Centoni,
31 F.3d 813, 816 (9th Cir. 1994) (per curiam) (“[A] negligent or intentional
deprivation of a prisoner’s property fails to state a claim under section 1983 if the
state has an adequate post deprivation remedy.”); see also Nev. Rev. Stat.
§§ 41.031, 41.0322.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, nor arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Marques’ remaining contentions are unpersuasive.
AFFIRMED.
2 11-16789
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Case: 15-11671 Date Filed: 11/17/2015 Page: 1 of 2
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11671
Non-Argument Calendar
________________________
D.C. Docket No. 4:14-cr-00007-CDL-MSH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KRISTOPHER CARVER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(November 17, 2015)
Before HULL, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 15-11671 Date Filed: 11/17/2015 Page: 2 of 2
David L. Roberts, appointed counsel for Kristopher Carver, in this appeal,
has moved to withdraw from further representation of the appellant and has filed a
brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967). Our independent review of the entire record reveals that counsel’s
assessment of the relative merit of the appeal is correct. Because independent
examination of the entire record reveals no arguable issues of merit, counsel’s
motion to withdraw is GRANTED, and Carver’s convictions and sentences are
AFFIRMED.
2
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76 F.3d 370
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.UNITED STATES, Appellee,v.Domingo PEGUERO, Defendant, Appellant.
No. 95-1659.
United States Court of Appeals, First Circuit.
Feb. 7, 1996.
Kara M. Fay on brief for appellant.
Sheldon Whitehouse, United States Attorney, and Zechariah Chafee, Assistant United States Attorney, on brief for appellee.
Before Selya, Cyr and Lynch, Circuit Judges.
PER CURIAM.
1
Defendant-Appellant Domingo Peguero pleaded guilty to three counts of distribution of cocaine base. He was sentenced to a prison term of 108 months, at the low end of the applicable guideline sentencing range. He appeals from that sentence. We affirm.
I. Unconstitutional Vagueness
2
Peguero's first argument is that the relevant statutes and sections of the United States Sentencing Guidelines are unconstitutionally vague because of their failure to adequately define "cocaine base." As Peguero concedes, we rejected this argument in United States v. Barnes, 8909 F.2d 545, 552 (1st Cir.1989), cert. denied, 494 U.S. 1019 (1990). The argument has also been rejected by every other federal circuit court that has considered it. See, e.g., United States v. Jones, 979 F.2d 317, 319-20 (3d Cir.1992); United States v. Jackson, 968 F.2d 158, 161-64 (2d Cir.1992); United States v. Thomas, 932 F.2d 1085, 1090 (5th Cir.1991).1
3
Peguero suggests that the investigation by the Sentencing Guidelines Commission into the "disparate treatment and arbitrary enforcement the statute has fostered ... warrants [this court] to reconsider the issue." We reviewed the recent legislative developments in this area in United States v. Camilo, No. 95-1565, slip op. at 14 (1st Cir. Dec. 18, 1995) (rejecting appellant's argument that ambiguity in the Guideline's distinction between cocaine powder and cocaine base entitled him to a downward departure pursuant to U.S.S.G. § 5K2.0). None of these developments persuade us that it is necessary to revisit the issue of unconstitutional vagueness.
II. Failure to Depart
4
Peguero's second argument is that the district court erred in failing to grant a downward departure from the relevant guideline sentencing range pursuant to 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0. The sentencing court did not directly respond to Peguero's oblique requests for departure based upon the following factors: his drug addiction, the disparity between sentences for cocaine base and cocaine powder, family ties and employment record. We are persuaded that the district court's failure to depart did not result from an erroneous belief that it lacked the authority to do so.
5
The first two factors are not permissible bases for departure. See United States v. Rivera, 994 F.2d 942, 949 (1st Cir.1993)("drug or alcohol dependence or abuse is not a reason for imposing a sentence below the guidelines") and United States v. Haynes, 985 F.2d 65, 70 (2d Cir.1993) (holding that "a downward departure may not be predicated on the fact that penalties for cocaine crack are more severe than those involving cocaine.") The facts and circumstances relating to Peguero's family ties and employment record were not sufficiently unusual to take the case outside of the heartland. See Rivera, 994 F.2d at 953 (noting that even if court misapprehended its authority to depart, resentencing should not be ordered if there is "no significant possibility that the facts and circumstances would permit the district court lawfully to order a departure").
III. Evidence from Co-Defendant's Trial
6
Peguero's third argument on appeal is that the sentencing court "impermissibly referenced and in fact utilized evidence of Appellant's alleged leadership role in the charged offenses which were brought out in the trial of a co-defendant [Marcelino Enrique Adames-Santos] in an entirely separate proceeding." Peguero, relying upon United States v. Berzon, 941 F.2d 8, 17 (1st Cir.1991), requests that the sentence be vacated and his case remanded for resentencing "without consideration of evidence obtained in the Adames-Santos trial."
7
Peguero made no objection at the time of sentencing, when the court referred to the conclusions it had drawn based on the evidence at co-defendant's trial. If Peguero was concerned that the information would influence his sentence, he ought to have requested a copy of the trial transcript and sought a continuance of his sentencing hearing so that he could prepare a rebuttal to the information contained therein. "Having failed to raise these contentions before the sentencing court, they may not be raised for the first time on appeal." United States v. Jackson, 3 F.3d 506, 511 (1st Cir.1993). In any event, it is clear that Peguero was not prejudiced. The court did not impose an upward adjustment for a leadership role (despite its conclusion that Peguero was a leader) and it sentenced him to the minimum guideline sentence. As Peguero has identified no permissible basis for a downward departure, he was not prejudiced by the sentencing judge's knowledge of the evidence received at the co-defendant's trial.
IV. References to Deportation
8
Peguero's final argument that the district court "attempted to usurp powers held by the Immigration and Naturalization Service" by including an order of deportation in his sentence, is belied by the record. The sentencing transcript reveals that the district court included a clear statement of the relevant deportation procedures as they applied to Peguero. Therefore, there was no error.
9
Peguero's sentence is affirmed. See Loc. R. 27.1.
1
To the extent that Peguero's argument is meant to challenge the distinction between cocaine powder and cocaine base as an irrational and racially discriminatory classification (in violation of the equal protection clause), those arguments have also been rejected by this court. See United States v. Singleterry, 29 F.3d 733, 740-41 (1st Cir.1994)
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655 F.2d 234
* U. S.v.Parrado-Martinez
80-5780
UNITED STATES COURT OF APPEALS Fifth Circuit
8/6/81
1
S.D.Fla.
AFFIRMED
2
---------------
* Fed.R.App. P. 34(a); 5th Cir. R. 18.
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Filed 9/25/13 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2013 ND 172
Nicholas Baatz, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20130066
Appeal from the District Court of Grant County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Crothers, Justice.
Robert W. Martin, North Dakota Public Defenders’ Office, 11 1st Avenue Southwest, Minot, N.D. 58701, for petitioner and appellant.
Jonathan R. Byers, Assistant Attorney General, Office of Attorney General, 600 East Boulevard Avenue, Bismarck, N.D. 58505-0040, for respondent and appellee.
Baatz v. State
No. 20130066
Crothers, Justice.
[¶1]
Nicholas Baatz appeals from an order denying his second application for postconviction relief. We reverse and remand for the district court to address the merits of Baatz’s claims of denial of the right to counsel and of ineffective assistance of trial counsel because, under the law of the case doctrine this Court’s decision in
State v. Baatz
, 2011 ND 195, ¶ 2, 806 N.W.2d 438, allowed him to raise these issues in a second postconviction proceeding.
I
[¶2] Baatz was convicted by a jury of gross sexual imposition in 2009 and was sentenced to 20 years in prison. In 2010 Baatz filed an application for postconviction relief alleging he was denied effective assistance of counsel because no attorney was appointed for him before trial and because the attorney who finally was appointed failed to appeal his criminal conviction. A hearing was held, and Baatz testified in support of his claims. The district court granted the petition insofar as Baatz requested the right to file an untimely appeal from his criminal conviction, but did not specifically address the other issues raised because “[t]estimony by Defendant at the hearing indicated his only contention at this point was his denial of a right to appeal issue and not ineffective assistance of counsel at trial.”
[¶3] Baatz appealed from the criminal judgment and filed a N.D.R.App.P. 24 supplemental brief raising the same arguments that were not specifically addressed by the district court in the postconviction order. Baatz did not appeal from the postconviction order, but the State appealed, arguing the court erred in allowing Baatz to file an untimely appeal from the criminal judgment. In
Baatz
, 2011 ND 195, ¶¶ 1-
3, 806 N.W.2d 438, this Court affirmed the conviction and the court’s decision to allow the appeal “without prejudice to Baatz’s right to raise denial of his constitutional right to counsel and ineffective assistance of counsel in postconviction proceedings.” No petitions for rehearing were filed.
[¶4] In 2012 Baatz filed a second application for postconviction relief again alleging he was denied his right to counsel before trial and effective assistance of trial counsel after counsel was appointed. Baatz also claimed he received ineffective assistance of appellate counsel in the prior appeal. Another hearing was held, and Baatz testified in support of his claims. The district court denied the application, concluding the first two grounds alleged were barred by res judicata or misuse of process and Baatz had not shown how appellate counsel was ineffective. The court interpreted its ruling on the first application for postconviction relief as a “deni[al]” of “any relief regarding the issues raised of lack of counsel or ineffective assistance of counsel.” The court reasoned:
“The issue of denial of counsel and ineffective assistance of counsel are Res Judicata. Baatz raised these issues on his 1PCR [first application for postconviction relief] and failed to carry his burden on those issues at that time and cannot now decide to try and bring[]those same issues before the court. NDCC 29-32.1-12 states a post conviction application can be denied if the same claim or claims were fully and finally determined in a previous[]proceeding.
Owens v. State
, 1998 ND 106 [578 N.W.2d 542];
Murchison v. State
, 1998 ND 96 [578 N.W.2d 514]. Baatz cannot expect to raise the issues in his 1PCR and then be allowed to raise the same issues in his 2PCR [second application for postconviction relief]. This would simply be a misuse of process as Baatz obviously[]did raise these issues in his 1PCR and now attempts to raise the same issues in his 2PCR. These two issues are barred.”
II
[¶5] On appeal, Baatz does not challenge the district court’s finding that appellate counsel was not ineffective, but argues the court erred in denying his application for postconviction relief on the grounds of res judicata or misuse of process because this Court in the prior appeal specifically allowed him to raise these issues in further postconviction proceedings.
[¶6] Under ordinary circumstances, the district court’s decision would be affirmed because the claims would be barred by res judicata or misuse of process under
N.D.C.C. § 29-32.1-12. But this Court affirmed the conviction and first postconviction order “without prejudice to Baatz’s right to raise denial of his constitutional right to counsel and ineffective assistance of counsel in postconviction proceedings.”
Baatz
, 2011 ND 195, ¶ 2, 806 N.W.2d 438. In
Coppage v. State
, 2013 ND 10, ¶ 23, 826 N.W.2d 320, this Court explained:
“The law-of-the-case doctrine is ‘the principle that if an appellate court has passed on a legal question and remanded the cause to the court below for further proceedings, the legal question thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same.’
State v. Burckhard
, 1999 ND 64, ¶ 7, 592 N.W.2d 523 (quoting
Tom Beuchler Constr. v. City of Williston
, 413 N.W.2d 336, 339 (N.D. 1987)). ‘The mandate rule, a more specific application of law of the case, requires the trial court to follow pronouncements of an appellate court on legal issues in subsequent proceedings of the case and to carry the [appellate court’s] mandate into effect according to its terms. . . . and we retain the authority to decide whether the district court scrupulously and fully carried out our mandate’s terms.’
Carlson v. Workforce Safety and Ins.
, 2012 ND 203, ¶ 16, 821 N.W.2d 760 (quoting
Burckhard
, at ¶ 7).”
[¶7] This Court long ago ruled “[q]uestions fairly raised and decided on a former appeal in the same action are not open for consideration on a subsequent appeal, as such decision on the first appeal, whether right or wrong, became and is the law of the case.”
Schmidt v. Beiseker
, 19 N.D. 35, 120 N.W. 1096 Syll. 1 (1909). The “rule is applicable regardless of whether the decision of the appellate court is right or wrong, since it is only where the decision is deemed erroneous that the doctrine of the law of the case becomes at all important.” 5 C.J.S.
Appeal and Error
§ 1131 (2007) (footnotes omitted), and cases cited therein;
see also
Dewey v. Lutz
, 462
N.W.2d 435, 445 (N.D. 1990) (unobjected-to jury instructions become “the law of the case whether right or wrong”). In
Baatz
, 2011 ND 195, ¶ 2, 806 N.W.2d 438, we left the door open for Baatz to assert these issues in another postconviction proceeding. The district court closed the door by ruling the claims were barred by res judicata or misuse of process. Under principles of the law of the case doctrine, we reverse and remand for the court to address the merits of Baatz’s claims.
III
[¶8] We reverse the order and remand for further proceedings.
[¶9] Daniel J. Crothers
Mary Muehlen Maring
Carol Ronning Kapsner
Gerald W. VandeWalle, C.J.
Sandstrom, Justice, concurring specially.
[¶10] As I understand it, the majority does not suggest that there is any merit to Baatz’s claims, but only that the district court must specifically address them without resort to res judicata (precluding relitigating an already decided matter) or abuse of process for their resolution. As such, the majority appears to hand Baatz only a temporary victory. I concur in the result.
[¶11] Dale V. Sandstrom
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26 F.3d 920
UNITED STATES of America, Plaintiff-Appellee,v.Randall T. QUEMADO, Defendant-Appellant.
No. 93-10093.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted May 9, 1994.Decided June 3, 1994.
Deana S. Spencer, Asst. Federal Public Defender, Honolulu, HI, for defendant-appellant.
No appearance for plaintiff-appellee.
Appeal from the United States District Court for the District of Hawaii.
Before: FARRIS, BEEZER, and RYMER, Circuit Judges.
Opinion by Judge FARRIS.
FARRIS, Circuit Judge:
1
Randall T. Quemado appeals his conditional guilty plea conviction for driving while his license was revoked in violation of Hawaii Revised Statutes Sec. 291-4.5. The district court rejected Quemado's arguments that it lacked federal jurisdiction under the Assimilative Crimes Act, 18 U.S.C. Sec. 13 (1988), and that H.R.S. Sec. 291-4.5 is unconstitutional. We have jurisdiction of the timely appeal under 28 U.S.C. Sec. 1291. We affirm.
2
* On February 4, 1992, Quemado appeared before a United States Magistrate Judge for arraignment and plea on a charge of violating Hawaii Revised Statute Sec. 286-132, driving while license suspended or revoked. A federal court had jurisdiction over the case because Quemado was apprehended in a federal enclave.
3
The government's subsequent investigation revealed that on November 11, 1991, Quemado's license was administratively revoked for driving while intoxicated pursuant to H.R.S. Chapter 286, part XIV, entitled Administrative Revocation of Driver's License. On March 31, 1992, the government amended the Information to instead charge Quemado with violating H.R.S. Sec. 291-4.5, driving after license suspended or revoked for driving under the influence of intoxicating liquor.
4
On April 21, 1992, Quemado orally moved to dismiss the amended charge on the grounds that H.R.S. Sec. 291-4.5 was unconstitutional on its face and as applied. The Magistrate Judge denied the motion after hearing arguments from both parties. With the consent of the government, Quemado then entered a conditional plea of guilty to the amended charge, reserving the right to appeal the constitutionality of the statute. The Magistrate Judge accepted the conditional plea and imposed the statutorily mandated penalty. Execution of the sentence was stayed pending appeal.
5
Quemado timely appealed to a United States District Judge from the judgment and sentence imposed by the Magistrate Judge. On January 26, 1993, the District Judge issued an order affirming the Magistrate Judge. A timely Notice of Appeal was filed on January 29, 1993. On February 4, 1993, the district court granted a stay of mittimus pending resolution of the appeal.
II
6
Quemado argues that the district court erred in concluding that it had jurisdiction to enforce the penal provisions of H.R.S. Sec. 291-4.5 under the Assimilative Crimes Act. We review de novo. United States v. Peralta, 941 F.2d 1003, 1010 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1484, 117 L.Ed.2d 626 (1992).
7
Quemado's basic argument is that because 1) H.R.S Sec. 291-4.5 punishes persons who have already violated H.R.S. Chapter 286, part XIV; and 2) H.R.S. Chapter 286, part XIV provides for administrative revocation of the licenses of drivers who have been arrested for drunk driving and therefore is not a criminal statute enforceable under the Assimilative Crimes Act; then 3) neither can H.R.S. Sec. 291-4.5 be enforced under the Assimilative Crimes Act.
The ACA provides in relevant part that:
8
Whosoever within or upon any [federally reserved land] is guilty of any act ... which, although not made punishable by any enactment of congress, would be punishable if committed ... within the jurisdiction of the State ... in which such place is situated, by the laws thereof in force at the time of such act ..., shall be guilty of a like offense and subject to like punishment.
9
18 U.S.C. Sec. 13(a) (1988).
10
The ACA "incorporates into federal law only the criminal laws of the jurisdiction within which the [federal] enclave exists." United States v. Best, 573 F.2d 1095, 1098 (9th Cir.1978) (emphasis in original). Thus, H.R.S. Chapter 286, part XIV, which only provides for the administrative revocation of a driver's license, is not assimilated under the ACA. However, the fact that H.R.S. Sec. 291-4.5 is directed at drivers who have already had their license revoked pursuant to H.R.S. Chapter 286, part XIV does not mean that it too, by extension, is not assimilated under the ACA.
11
H.R.S. Sec. 291-4.5 provides in relevant part:
12
(a) No person whose driver's license has been revoked, suspended, or otherwise restricted pursuant to part XIV of chapter 286 or section 291-4 shall operate a motor vehicle either upon the highways of this State while the person's license remains suspended or revoked or in violation of the restrictions placed on the person's license....
13
(b) Any person convicted of violating this section shall be sentenced as follows:
14
(1) For a first offense, or any offense not preceded within a five-year period by a conviction under this section:
15
(A) A term of imprisonment at least three consecutive days but not more than thirty days;
16
(B) A fine not less than $250 but not more than $1,000; and
17
(C) License suspension or revocation for an additional year; ....
18
H.R.S. Sec. 291-4.5 (1991).
19
The statute imposes a mandatory term of imprisonment and is therefore defined as criminal under H.R.S. Sec. 701-107(1) (Supp.1989) ("[a]n offense defined by this Code or by any other statute of this State for which a sentence of imprisonment is authorized constitutes a crime."). Moreover, no definition of criminal or penal could exclude a law providing for a mandatory term of imprisonment. H.R.S. Sec. 291-4.5 punishes a class of persons who had their license revoked for drunk driving pursuant to a civil proceeding. However, it is not, therefore, also a civil proceeding. The district court had jurisdiction to enforce H.R.S. Sec. 291-4.5 under the ACA.III
20
Quemado next argues that the mandatory prison sentence imposed under H.R.S. Sec. 291-4.5 for driving a motor vehicle with a revoked license violates the Sixth Amendment right to counsel. The district court disagreed. We review de novo. United States v. Martinez, 967 F.2d 1343, 1348 (9th Cir.1992).
21
The Sixth Amendment right to appointment of counsel is limited to those cases in which imprisonment was actually imposed. Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383 (1979). Thus, there was no right to the appointment of counsel at Quemado's driver's license revocation hearing, where there was no possibility of imprisonment.
22
However, H.R.S. Sec. 291-4.5 is a separate offense from drunk driving. It involves driving with a suspended or revoked license. The statute singles out persons who have had their license revoked for driving while intoxicated for more severe punishment; however, it is not an extension of the drunk driving offense. The statute is not constitutionally deficient.
23
United States v. Foster, 904 F.2d 20 (9th Cir.1990), is inapposite. In Foster, we held that a defendant who had violated parole and had not been represented by counsel in the adjudication of the underlying offense could not be imprisoned following revocation of probation. However, in Foster, only one offense was involved. Here, Quemado has committed two separate offenses: 1) driving while intoxicated; and 2) driving without a license that was revoked for previously driving while intoxicated. Although the second offense builds on the first in as much as only persons who have committed the first offense are eligible to commit the second offense, the two remain distinct. H.R.S. Sec. 291-4.5 is not unconstitutional.
AFFIRMED
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70 F.3d 335
Paul W. DOUGLASS, Plaintiff-Appellant,v.UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant-Appellee.
No. 95-50007.
United States Court of Appeals,Fifth Circuit.
Nov. 15, 1995.
Paul W. Douglass, pro se, Gerrardstown, WV.
Cynthia Glass Bivins, John Joseph Franco, Jr., Groce Locke & Hebdon, San Antonio, TX, for defendant-appellee.
Appeal from the United States District Court for the Western District of Texas, Edward C. Prado, Judge.
(Opinion October 2, 1995, 5 Cir., 1995, 65 F.3d 452)
Before POLITZ, Chief Judge, and KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.*
BY THE COURT:
1
A majority of the Judges in active service, on the court's own motion, having determined to have this case reheard en banc,
2
IT IS ORDERED that this cause shall be reheard by the court en banc without oral argument.
*
Judge Emilio M. Garza is recused and did not participate in this decision
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Case: 10-51104 Document: 00511663269 Page: 1 Date Filed: 11/11/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 11, 2011
No. 10-51104
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FELMO JAMES HARDEMAN,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:10-CR-108-1
Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Felmo James Hardeman appeals his jury trial
conviction under the Assimilative Crimes Act (ACA), 18 U.S.C. § 13, for making
a terroristic threat against a customer service representative of the Social
Security Administration (SSA) in violation of Texas Penal Code § 22.07.
Hardeman does not dispute that after his interview with the representative had
ended, he told the representative, “I’ve got that gun waiting for you. I’ve got that
gun.” Rather, Hardeman contends that the evidence was insufficient to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 10-51104 Document: 00511663269 Page: 2 Date Filed: 11/11/2011
No. 10-51104
demonstrate that he threatened the representative with serious bodily injury
that was imminent and that his statement to the representative was a threat.
Hardeman also claims that the prosecution committed misconduct during closing
arguments by misstating the law on “imminence.”
The ACA pertains to offenses committed within the special and maritime
territorial jurisdiction of the United States, as defined by 18 U.S.C. § 7, see § 13,
and provides a set of criminal laws for federal enclaves by using the penal laws
of the states. United States v. Brown, 608 F.2d 551, 553 (5th Cir. 1979). Under
Texas law, Hardeman is guilty of making a terroristic threat if he threatened to
commit any offense involving violence to any person or property with intent to
place any person in fear of imminent serious bodily injury. See TEX. PENAL CODE
ANN. § 22.07(a)(2) (West 2005). Imminent means “near at hand; mediate rather
than immediate; close rather than touching; impending; on the point of
happening; threatening; menacing; perilous.” Devine v. State, 786 S.W.2d 268,
270 (Tex. Crim. App. 1989) (internal quotation marks and citation omitted).
Hardeman’s assertion that the evidence was insufficient to show that any
threat of serious bodily injury was imminent is without merit. The jury heard
testimony that (1) Hardeman had previously stated to a different representative,
“What do I have to do? Bring a pistol in here for you people”; (2) in the past and
on the day of the underlying statement, Hardeman was aggressive, violent, and
loud; (3) just prior to making the underlying statement, Hardeman had reached
into a very large bag numerous times; and (4) while in the process of being
escorted out of the building, Hardeman walked to an area behind the
representative, then returned and made the above-quoted statement. After
Hardeman made the statement, other patrons of the SSA were fearful and
moved as far away from him as possible. Finally, the representative testified
that he perceived Hardeman’s statement as a threat of imminent serious bodily
injury. See Stults v. State, 23 S.W.3d 198, 205 (Tex. App. 2000) (stating that the
focus of the inquiry should be whether the complainant was afraid of imminent
2
Case: 10-51104 Document: 00511663269 Page: 3 Date Filed: 11/11/2011
No. 10-51104
serious bodily injury at the time of the offense). Viewing the evidence in the
light most favorable to the jury’s verdict, see United States v. Resio-Trejo, 45 F.3d
907, 910, 911 (5th Cir. 1995), we conclude that a rational jury could have found
beyond a reasonable doubt that Hardeman threatened the representative with
bodily injury that was near at hand, mediate, impending, or on the point of
happening. See id.; see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Hardeman’s claim that the evidence was insufficient to prove that any
statement he made was a threat is likewise meritless. As Hardeman did not
specifically object to the sufficiency of the evidence to prove this element, our
review is limited to determining whether there was a manifest miscarriage of
justice, “that is, whether the record is devoid of evidence pointing to guilt.”
United States v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001) (internal quotation
marks and citation omitted). Based on the testimony cited above, the record is
not devoid of evidence that Hardeman threatened the representative with
imminent bodily injury. See id.; see also Walker, 327 S.W.3d 790, 793-95 (Tex.
App. 2010) (holding that the statement, “Let’s do it, [Judge] Nekhom. It’s me
and you now,” was a threat to commit serious bodily injury based on the
defendant’s aggressive behavior, tone, and demeanor at the time of the
statement and based on the fact that the judge perceived the statement as a
threat).
Finally, Hardeman’s contention that the prosecution committed
misconduct by misstating the law on “imminence” is unpersuasive. Even
assuming arguendo that the prosecution’s remarks were improper, Hardeman
has nevertheless failed to establish, based on the foregoing testimony, that “the
prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict.”
United States v. Thompson, 482 F.3d 781, 785 (5th Cir. 2007) (internal quotation
marks and footnote citation omitted).
Accordingly, the judgment of the district court is AFFIRMED.
3
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0429V
UNPUBLISHED
JEFFREY CROSSE, Chief Special Master Corcoran
Petitioner, Filed: July 21, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC, for Petitioner.
Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On March 21, 2019, Jeffrey Crosse 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 he received an influenza (“flu”) vaccine on
November 22, 2017, and subsequently suffered a shoulder injury related to vaccine
administration (“SIRVA). Petition at 1-3. Petitioner further alleges that his injuries
lasted for more than six months. Petition at 3. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On May 13, 2020, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for SIRVA. On July 21, 2020, Respondent filed a proffer on award of
compensation (“Proffer”) indicating Petitioner should be awarded a total of $120,395.99,
comprised of $115,000.00 in pain and suffering, $2,121.00 for past unreimbursable
expenses, and $3,274.99 for past loss of earnings. Proffer at 1-2. In the Proffer,
1
Because this unpublished decision 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 decision 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.
2
National 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).
Respondent represented that Petitioner agrees with the proffered award. Id. Based on
the record as a whole, I find that Petitioner is entitled to an award as stated in the
Proffer.
Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump
sum payment of $120,395.99 (comprised of $115,000.00 in pain and suffering,
$2,121.00 for past unreimbursable expenses, and $3,274.99 for past loss of
earnings) in the form of a check payable to Petitioner. This amount represents
compensation for all damages that would be available under § 15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
JEFFREY CROSSE, )
)
Petitioner, )
) No. 19-429V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On March 21, 2019, Jeffrey Crosse (“petitioner”) filed a petition for compensation under
the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”
or “Act”), alleging that he suffered a Shoulder Injury Related to Vaccine Administration
(“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza
vaccine he received on November 22, 2017. Petition at 1. On May 13, 2020, the Secretary of
Health and Human Services (“respondent”) filed a Rule 4(c) Report indicating that this case is
appropriate for compensation under the terms of the Act for a SIRVA Table injury, and on May
13, 2020, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to
compensation. ECF No. 27; ECF No. 28.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $115,000.00 in pain and suffering.
See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents that he incurred past unreimbursable expenses
related to his vaccine-related injury. Respondent proffers that petitioner should be awarded past
unreimbursable expenses in the amount of $2,121.00. See 42 U.S.C. § 300aa-15(a)(1)(B).
Petitioner agrees.
C. Past Loss of Earnings
Evidence supplied by petitioner documents that he incurred loss of earnings related to his
vaccine-related injury. Respondent proffers that petitioner should be awarded loss of earnings in
the amount of $3,274.99. See 42 U.S.C. § 300aa-15(a)(3)(A). Petitioner agrees.
These amounts represent all elements of compensation to which petitioner is entitled
under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
II. Form of the Award
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respondent recommends that the compensation provided to petitioner should be made through a
lump sum payment as described below and requests that the Chief Special Master’s decision and
the Court’s judgment award the following 1: a lump sum payment of $120,395.99, in the form of
a check payable to petitioner.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Jeffrey Crosse: $120,395.99
Respectfully submitted,
ETHAN P. DAVIS
Acting Assistant Attorney General
1
Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief. In particular, respondent would oppose any award for future lost earnings
and future pain and suffering.
2
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Assistant Director
Torts Branch, Civil Division
/s/ Mollie D. Gorney
MOLLIE D. GORNEY
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
(202) 616-4029
DATED: July 21, 2020
3
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 8, 2007
No. 07-12594 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00064-CR-A-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE ALBERTO DEL CID,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(November 8, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Jorge Alberto Del Cid appeals his 24-month sentence imposed after he pled
guilty to reentering the United States after having been previously deported,
without obtaining the permission of the Secretary of Homeland Security or the
Attorney General, in violation of 8 U.S.C. § 1326(a). Del Cid contends his
sentence is both procedurally and substantively unreasonable. He contends the
sentence is procedurally unreasonable because the district court single-mindedly
focused on the goal of deterrence to the detriment of all of the other 18 U.S.C.
§ 3553(a) factors. Del Cid asserts the sentence is substantively unreasonable
because it is four times the high end of his Guidelines range of zero to six months,
at the statutory maximum, and far greater than necessary to accomplish the goals of
sentencing.
After the district court has correctly calculated the Guidelines range, we
review the final sentence for reasonableness. United States v. Williams, 435 F.3d
1350, 1353 (11th Cir. 2006). “After [United States v. Booker, 125 S. Ct. 738
(2005)], a sentence may be reviewed for procedural or substantive
unreasonableness. A sentence may be unreasonable if it is the product of a
procedure that does not follow Booker’s requirements, regardless of the actual
sentence. Additionally, a sentence may be substantively unreasonable, regardless
of the procedure used.” United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir.
2
2006). A defendant challenging his sentence bears the burden of establishing that
it is unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
“When reviewing a sentence for reasonableness, we must evaluate whether
the sentence achieves the purposes of sentencing as stated in 18 U.S.C. § 3553(a).”
United States v. Williams, 456 F.3d 1353, 1360 (11th Cir. 2006), cert. dismissed,
127 S. Ct. 3040 (2007). The factors presented in § 3553(a) include
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)). The weight to be accorded
any given statutory factor is a matter committed to the sound discretion of the
district court. United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006) .
In United States v. Crisp, 454 F.3d 1285, 1290-92 (11th Cir. 2006), we
found a five-hour term of imprisonment was unreasonable. Although the district
court stated “the sentence reflects the seriousness of the offense, provides just
punishment, affords adequate deterrence and adequately protects the public,” we
noted the district court’s primary concern at sentencing was restitution, and the
3
brief sentence was imposed so the defendant could earn money to make restitution
payments. Id. at 1290. We noted “a district court’s ‘unjustified reliance upon any
one [§ 3553(a)] factor is a symptom of an unreasonable sentence,’” and concluded
that “[t]he district court focused single-mindedly on the goal of restitution to the
detriment of all of the other sentencing factors. An unreasonable approach
produced an unreasonable sentence.” Id. at 1292.
Del Cid’s sentence was not procedurally unreasonable because the district
court did not focus single-mindedly on one of the sentencing factors to the
detriment of all of the others. The district court not only mentioned, but discussed,
the Guidelines range, the nature and circumstances of the offense, the history and
characteristics of the defendant, the seriousness of the offense, the need to promote
respect for the law, specific and general deterrence, and the need to protect the
public. See 18 U.S.C. § 3553(a). Additionally, the district court’s sentence did not
operate to the detriment of the sentencing factors. The sentence in Crisp did not
serve the non-restitution sentencing factors because, by eliminating any real
incarceration in favor of maximizing the defendant’s ability to pay restitution, it
did “not reflect the seriousness of the crime, promote respect for the law, and
provide just punishment for the offense, as § 3553(a)(2)(A) requires, nor [did] it
4
afford adequate deterrence to criminal conduct, as § 3553(a)(2)(B) requires.” Id.
By contrast, Del Cid’s sentence actually promoted these sentencing factors.
Further, Del Cid’s sentence was not substantively unreasonable. The district
court considered the § 3553(a) factors, and found the Guidelines range did not
produce a sentence sufficient to achieve the statutory purposes of sentencing.
While Del Cid’s sentence was four times the high end of the Guidelines range, any
upward variance from an extremely short Guidelines range will necessarily be a
proportionally large increase. In light of these considerations, the district court’s
determination that a two-year sentence was required was not unreasonable.
AFFIRMED.
5
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821 So.2d 459 (2002)
Jamie J. GRAVES, Appellant,
v.
STATE of Florida, Appellee.
No. 2D00-3382.
District Court of Appeal of Florida, Second District.
July 24, 2002.
*460 James Marion Moorman, Public Defender, Bartow, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Robert J. Krauss, Assistant Attorney General, Tampa, for Appellee.
ORDER GRANTING MOTION TO WITHDRAW
FULMER, Judge.
The Public Defender for the Tenth Judicial Circuit moves to withdraw, alleging that he was improperly designated to represent Jamie J. Graves. We grant the motion because we conclude that this appeal of an order finding Graves in indirect criminal contempt[1] is not a "felony appeal" as required by section 27.51(4), Florida Statutes (2001), in order to designate the Tenth Circuit Public Defender.
Section 27.51(4), Florida Statutes (2001), provides that upon transmittal of the record and request of the local public defender, the Public Defender for the Tenth Judicial Circuit shall "handle all felony appeals" in this district. Contempt is a common law crime in Florida, Kramer v. State, 800 So.2d 319 (Fla. 2d DCA 2001), which, although recognized by statute, is not specifically classified by statute as either a felony or a misdemeanor. See § 38.22, Fla. Stat. (2001).
In order to determine whether contempt is a felony for purposes of section 27.51(4), we turn to the definition of felony:
The term "felony" shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by death or imprisonment in a state penitentiary. "State penitentiary" shall include state correctional facilities. A person shall be imprisoned in the state penitentiary for each sentence which, except an extended term, exceeds 1 year.
§ 775.08, Fla. Stat. (2001). Contempt is punishable by imprisonment not to exceed twelve months. See § 775.02, Fla. Stat. (providing punishment for offenses that do not have a specific penalty provision); see also Kramer, 800 So.2d at 321 (noting that there is no specific statutory penalty provision for contempt). Contempt therefore does not meet the statutory definition of felony, and the Public Defender for the Tenth Judicial Circuit is not required to handle an appeal of a contempt conviction.
*461 Graves is nonetheless entitled to appointed counsel. See Moorman v. Bentley, 490 So.2d 186 (Fla. 2d DCA 1986). We therefore reappoint trial level counsel, the Public Defender for the Thirteenth Judicial Circuit. The Tenth Circuit Public Defender shall forward the appellate record, within ten days, to the Thirteenth Circuit Public Defender who shall file the initial brief within forty-five days thereafter.
WHATLEY and NORTHCUTT, JJ., concur.
NOTES
[1] Counsel for Graves incorrectly states that this is an appeal of a judgment and sentence for violation of injunction under section 741.31, Florida Statutes (2001). According to the record before this court, the appellant was not charged pursuant to section 741.31 but rather was proceeded against under the trial court's contempt power.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 3 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
N. L., an infant by his mother and natural Nos. 19-15399
guardian Sandra Lemos, 19-15938
Plaintiff-Appellee, D.C. No.
2:17-cv-01512-JAM-DB
v.
CREDIT ONE BANK, N.A., MEMORANDUM*
Defendant-Appellant,
and
GC SERVICES LIMITED PARTNERSHIP;
IENERGIZER HOLDINGS, LIMITED;
FIRST CONTACT, LLC, AKA Iqor
Holdings, Inc.,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted March 25, 2020**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GOULD, CHRISTEN, and BRESS, Circuit Judges.
Credit One Bank appeals the district court’s order awarding attorneys’ fees to
N.L. under California’s Rosenthal Fair Debt Collection Practices Act. Cal. Civ.
Code § 1788 et seq. We assume familiarity with the relevant facts and procedural
history and discuss them only as necessary to explain our decision. We have
jurisdiction under 28 U.S.C. § 1291 and now affirm.1
“We review the award or denial of attorney’s fees for abuse of discretion, but
any elements of legal analysis and statutory interpretation which figure in the district
court’s decision are reviewable de novo.” Evon v. Law Offices of Sidney Mickell,
688 F.3d 1015, 1032 (9th Cir. 2012) (quotations and citation omitted). Because the
fee award is based on a California state law claim, we apply California law. See
MRO Commc’ns, Inc. v. Am. Tel. & Tel. Co., 197 F.3d 1276, 1282 (9th Cir. 1999).
1. Credit One first argues that the district court erred in failing to limit the
award to fees incurred litigating the Rosenthal Act claim. The Rosenthal Act permits
N.L. to recover “[r]easonable attorney’s fees” based on “time necessarily expended
to enforce the liability” under the statute. Cal. Civ. Code § 1788.30(c). But the
TCPA does not allow an award of fees. See Campbell-Ewald Co. v. Gomez, 136 S.
Ct. 663, 668 (2016). And under California law, “[w]hen a cause of action for which
1
In a published opinion issued concurrently with this memorandum
disposition, we upheld that the district court’s jury instructions for N.L.’s claim
under the Telephone Consumer Protection Act (TCPA).
2
attorney fees are provided by statute is joined with other causes of action for which
attorney fees are not permitted, the prevailing party may recover only on the
statutory cause of action” that allows fees. Akins v. Enterprise Rent-A-Car Co. of
S.F., 94 Cal. Rptr. 2d 448, 452 (Ct. App. 2000).
Most of the arguments that Credit One raises on this point were not raised
below, as the bank in the district court did not identify any entry that was improperly
apportioned or insufficiently detailed. We therefore decline to consider those
arguments now. See Gilbrook v. City of Westminster, 177 F.3d 839, 876–77 (9th
Cir. 1999). The only argument Credit One preserved below was that it was
“implausible” for N.L. to apportion 503.3 hours to the Rosenthal Act claim and 53.9
hours to unrelated issues, including the TCPA claim. But “fees need not be
apportioned when incurred for representation of an issue common to both a cause of
action for which fees are permitted and one for which they are not.” Akins, 94 Cal.
Rptr. 2d at 452. This principle applies when the claims share a “common legal issue”
or a “common factual issue.” Id. (emphasis omitted). Here, all of N.L.’s claims
share a common factual core. We therefore cannot conclude that the district court’s
apportionment was “implausible” or that the district court otherwise abused its
discretion.
2. Credit One next argues that the district court should have reduced the
award due to N.L.’s allegedly limited success in this lawsuit. Credit One did not
3
raise this argument below, and therefore did not preserve it for our review.
Gillbrook, 177 F.3d at 876–77. But even if Credit One had raised the argument in
the district court, we still could not find an abuse of discretion. It is true that “[a]
reduced fee award is appropriate if the relief, however significant, is limited in
comparison to the scope of the litigation as a whole.” ComputerXpress, Inc. v.
Jackson, 113 Cal. Rptr. 2d 625, 648 (Ct. App. 2001) (quotations and citation
omitted). In this case, however, N.L. obtained the full amount of available statutory
damages under the TCPA and the Rosenthal Act. We thus cannot say that the district
court would have abused its discretion in declining to reduce the award based on
other aspects of this case in which N.L. achieved less success. See Evon, 688 F.3d
at 1033.
3. Finally, Credit One argues that the district court abused its discretion
by not offsetting the fee award by the amount of attorneys’ fees awarded to N.L. in
his prior settlement with Credit One’s vendors. But Credit One on appeal does not
cite any specific entries that were allegedly double counted, just as it failed to do
before the district court. Credit One thus does not show that the district court abused
its discretion. Gilbrook, 177 F.3d at 876–77.
AFFIRMED.
4
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128 Cal.Rptr.2d 234 (2002)
104 Cal.App.4th 169
Tony RACKAUCKAS, as District Attorney, etc. Petitioner,
v.
The SUPERIOR COURT of Orange County, Respondent,
Los Angeles Times Communications, Real Party in Interest.
No. G030680.
Court of Appeal, Fourth District, Division Three.
December 9, 2002.
*235 Benjamin P. de Mayo, County Counsel, Marianne Van Riper, Nicole A. Sims and Amy E. Morgan, Deputy County Counsel, for Petitioner.
No appearance for Respondent.
Davis Wright Tremaine, Kelli L. Sager, Los Angeles, Alonzo Wickers IV, Jean-Paul Jassy; Los Angeles Times Communications and Karlene Goller, Los Angeles, for Real Party in Interest.
OPINION
O'LEARY, J.
We decline to rewrite the California Public Records Act (CPRA) (Gov.Code, § 6250 et seq.)[1] to require the public dissemination of a post-investigative closing report that contains the investigators' opinions, thoughts and conclusions regarding potential criminal misconduct.
I
In September 2000, as a result of two separate incidents of alleged police misconduct involving Officer Edmund Kennedy, the Huntington Beach Police Department requested that the Orange County District Attorney initiate an investigation. This could result in the filing of criminal charges "if appropriate."
Ebrahim Baytieh, a deputy district attorney, conducted the investigation at the direction of Douglas Woodsmall, the supervisor of the Special Assignments Unit of the Bureau of Investigation. On July 19, 2001, Baytieh wrote a public letter to the Huntington Beach Police Department stating that "we are of the opinion that there is a lack of sufficient evidence to support a filing of criminal charges against Officer Kennedy .... [¶.] Our decision is mainly based on the fact that we lack sufficient evidence to prove beyond a reasonable doubt that Officer Kennedy engaged in any criminal conduct." In the absence of a criminal filing, Baytieh concluded that "the Office of the District Attorney is closing its inquiry into the matter." The district attorney formally closed its inquiry on July 30, 2001.
In August 2001, the Los Angeles Times (Times) e-mailed a CPRA request for all letters sent by the district attorney to the Huntington Beach Police Department regarding Officer Kennedy. Woodsmall produced the public letter from Baytieh, but asserted various CPRA exemptions to any other material in the investigative file, including the investigatory file privilege in section 6254, subdivision (f), as well as attorney work product, confidentiality and privacy. In January 2002, the Times narrowed *236 its request to post-investigation letters, but the district attorney still declined.
In March 2002, the Times filed a petition for writ of mandate to compel the district attorney to disclose "copies of all records generated by [the district attorney] regarding Officer Kennedy on or after July 19, 2001, ie., after [the district attorney's] investigation of Officer Kennedy's alleged misconduct was complete ...."
In response to the trial court's query, the district attorney identified a nonpublic letter, also written on July 19, 2001, which was "arguably" covered by the Times' CPRA request. That letter was "generated" by the district attorney, dated July 19, 2001, and sent to the Huntington Beach Police Department in confidence.
The district attorney claimed that this nonpublic letter was exempt from disclosure under section 6254, subdivision (f) as part of its investigative file. The district attorney usually prepares a closing report to the presenting police agency regarding its conclusions "[w]hen we have completed our review of police misconduct cases...." Baytieh declared that he prepared the nonpublic letter as part of the investigation and that it contained "my legal opinions, thoughts, impressions and conclusions. That document is part of the District Attorney's investigatory file regarding Officer Kennedy." Woodsmall declared that disclosure of the nonpublic letter would have a "chilling effect" on future police misconduct investigations.[2]
A hearing was held on May 3, 2002. Neither side requested an in camera inspection. On May 14, 2002, the court issued a writ of mandate directing the district attorney to release to the Times "complete and unredacted copies of all records generated on or after July 19, 2001 by you regarding Huntington Beach Police Officer Ed Kennedy."
The district attorney sought extraordinary relief from this court. In June 2002, we issued an alternative writ of mandate directing the court to set aside its order or to show cause why a peremptory writ should not issue. The trial court has declined to set aside its order, and has awarded the Times $11,000 in attorney fees.
II
Because open governments are a hallmark of a democratic society, the public should have full access to information concerning the working of the government "`in order to verify accountability.'" (California State University, Fresno Assn., Inc. v. Superior Court (2001) 90 Cal. App.4th 810, 823, 108 Cal.Rptr.2d 870.) The CPRA was enacted for this very purpose. (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 425-426, 121 Cal.Rptr.2d 844, 49 P.3d 194.)
This, however, is not the be-all and end-all of our analysis. Also important is the right to privacy of people named in government records. (§ 6250 [declaring that the Legislature, in enacting the CPRA, is "mindful of the right of individuals to privacy"]; see City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1017, 88 Cal.Rptr.2d 552 [barring newspaper's CPRA request for disclosure of names of individuals who complained to city about airport noise].) There additionally is a strong government interest in *237 preventing and prosecuting criminal activity, whether street crime, white-collar crime or governmental corruption. (Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1064, 112 Cal.Rptr.2d 80, 31 P.3d 760 [recognizing certain CPRA exemptions "for reasons of privacy, safety, and efficient governmental operation"].) We review de novo the trial court's ruling, but defer to its determination of any express or implied factual findings. (California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 173, 78 Cal.Rptr.2d 847.)
We are here concerned with the "broad" investigation exemption in section 6254, subdivision (f). (Williams v. Superior Court (1993) 5 Cal.4th 337, 349, 19 Cal. Rptr.2d 882, 852 P.2d 377.) It authorizes public agencies to withhold "[r]ecords of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes ...."(§ 6254, subd. (f).) Subdivision (f) further provides that "nothing in this division shall require the disclosure of that portion of those investigative files that reflect the analysis or conclusion of the investigating officer." Unlike its federal analog, the CPRA does not require agency justification of the need for secrecy on a case-by-case basis. (Williams v. Superior Court, supra, 5 Cal.4th at p. 353, 19 Cal.Rptr.2d 882, 852 P.2d 377.)[3]
The investigation exemption does not terminate when the investigation terminates. (Williams v. Superior Court, supra, 5 Cal.4th at pp. 354-355, 19 Cal. Rptr.2d 882, 852 P.2d 377.) In Williams, a newspaper waited until after the completion of a criminal prosecution before requesting copies of criminal investigatory records concerning the conduct of sheriffs deputies during a drug raid. Although there were no pending criminal proceedings, the Supreme Court held that the subdivision (f) exemption "does not terminate with the conclusion of the investigation. Once an investigation ... has come into being because there is a concrete and definite prospect of enforcement proceedings at that time, materials that relate to the investigation and, thus, properly belong in the file, remain exempt subject to the terms of the statute." (Id. at pp. 361-362, 19 Cal.Rptr.2d 882, 852 P.2d 377.)
In Rivero v. Superior Court (1997) 54 Cal.App.4th 1048, 63 Cal.Rptr.2d 213, the San Francisco District Attorney investigated a local official for misuse of public funds, but decided not to prosecute and closed its files. A year later, one of the people who initiated the investigation filed a CPRA request for the closed files. Citing the investigation exemption, Rivero refused to require disclosure, even though there was no showing of any adverse impact upon witness cooperation or evidence destruction. The requester in Rivero raised the same policy arguments as does the Times regarding a sanitized investigation, a governmental cover-up, and the need for the public to understand why government officials escaped legal sanction. The court was unpersuaded: "We observe ... that the Legislature has amended section 6254 more than once ... but has not revised the statute to permit disclosure of closed investigation files. We *238 will not do what the Legislature has declined to do." (Id. at p. 1059, 63 Cal. Rptr.2d 213.)
Rivero further noted that publicity-shy witnesses could be reluctant to come forward if they knew that sensitive information they provided potentially could be turned over. "Every effort must be made to ensure that investigators can gather all evidence that is available and legally obtainable." (Rivero v. Superior Court, supra, 54 Cal.App.4th at p. 1058, 63 Cal. Rptr.2d 213.)
Recently, in Haynie v. Superior Court, supra, 26 Cal.4th 1061, 112 Cal.Rptr.2d 80, 31 P.3d 760, the California Supreme Court rejected an attempt to further limit the investigation exemption. Haynie involved a CPRA request for citizen reports and police radio calls following a "routine" police stop of an African-American motorist based on mere suspicion of criminal conduct. (The neighbor's call that prompted the stop did not necessarily describe a crime, and no arrests were made, although the motorist was handcuffed and briefly detained.) (Id. at p. 1065, 112 Cal.Rptr.2d 80, 31 P.3d 760.) Like the Times, the requester in Haynie argued that there was no danger of disclosing the identity of confidential informants, threatening the safety of police agents, victims, or witnesses, or revealing investigative techniques. Despite this, the Supreme Court applied the investigation exemption: "Limiting the section 6254(f) exemption only to records of investigations where the likelihood of enforcement has ripened into something concrete and definite would expose to the public the very sensitive investigative stages of determining whether a crime has been committed or who has committed it." (Id. at p. 1070, 112 Cal. Rptr.2d 80, 31 P.3d 760.)
The Times attempts to distinguish Williams, Rivero and Haynie by characterizing the undisclosed July 19 letter as a post-investigation record, presumably prepared after the district attorney decided not to prosecute. In contrast, the Times argues, the records in Williams, Rivero and Haynie were each prepared while the investigation was ongoing: "[W]hile Section 6254(f) may exempt investigation records created early in an inquiry before law enforcement authorities can possibly know whether there is a concrete and definite prospect of law enforcement proceedings, it does not exempt documents that are created after the conclusion of an inquiry when authorities expressly have ruled out any prospect of enforcement proceedings."
We follow the plain language of the statute, which contains no such distinction. (Williams v. Superior Court, supra, 5 Cal.4th at p. 350, 19 Cal.Rptr.2d 882, 852 P.2d 377 ["Clearly the Legislature was capable of articulating additional limitations if that is what it had intended to do."].) As the Woodsmall and Baytieh declarations establish, the undisclosed letter directly relates to a "definite and concrete" investigation of Officer Kennedy, and is exempt from disclosure on its face. (Williams v. Superior Court, supra, 5 Cal.4th at p. 362, 19 Cal.Rptr.2d 882, 852 P.2d 377.) Baytieh, its author, stated that he prepared the letter as part of the investigation to convey his "legal opinions, thoughts, impressions and conclusions." Both he and Woodsmall had personal knowledge of the matters stated in their declaration, and their remarks were not conclusory.[4]
*239 Uribe v. Howie (1971) 19 Cal.App.3d 194, 96 Cal.Rptr. 493 is not applicable. In Uribe, a public agency sought to prevent disclosure of mandatory farm reports regarding pesticide use by inserting them into an investigatory file. Uribe refused to sanction such a subterfuge. Here, in contrast, the undisclosed letter had no purpose other than to report Baytieh's thoughts, opinions and conclusions. It properly (and exclusively) related to the investigation and legitimately belonged in the investigatory file. What other use could it serve? It remains exempt subject to the terms of the CPRA. If the Times wishes to redraft the language of the exemption, it should direct its efforts to the Legislature, not the judiciary.[5]
Public policy supports our conclusions. Police investigations contain a vast amount of raw or half-baked data, gleaned from witnesses of varying degrees of reliability, veracity and bias. Much of it is hard to digest, and could prove ruinous to personal reputations, careers, or relationships if released to the general public in unvarnished form. (See, e.g., Daily Journal Corp. v. Superior Court (1999) 20 Cal.4th 1117, 1132, 86 Cal.Rptr.2d 623, 979 P.2d 982 ["In the absence of an indictment, without the protections of the court process, the innocently accused and even witnesses are more vulnerable to a risk of adverse consequences ranging from reputational injury to retaliation."].)
One would hope that the investigators would feel free to candidly comment and communicate upon what they have learned through the investigations, without fear of the chilling effects of disclosure upon them or their sources. (See Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1328-1329, 283 Cal.Rptr. 893, 813 P.2d 240 ["Yet even democratic governments require some degree of confidentiality to ensure, among other things, a candid exchange of ideas and opinions among responsible officials"]; California First Amendment Coalition v. Superior Court, supra, 67 Cal.App.4th at p. 172, 78 Cal. Rptr.2d 847 [denying CPRA petition for disclosure of applications for vacant county supervisorial position]; Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 653, 117 Cal.Rptr. 106 ["Complainants often demand anonymity. The prospect of public exposure discourages complaints and inhibits effective enforcement"].)
Candor is especially needed at the close of an unsuccessful or inconclusive investigation. A case, while promising, may not be strong enough to meet the burdens of proof beyond a reasonable doubt without additional corroborating evidence or more forthcoming witness cooperation. If anything, public policy encourages a frank and outspoken closing report unimpaired by a concern for appearances. "`Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances ... to the detriment of the decision-making process.'" (California First Amendment Coalition v. Superior Court, supra, 67 Cal.App.4th at p. 172, 78 Cal. Rptr.2d 847.)
Disclosure also may compromise the reopening of a case and the effectiveness of related investigations. This is particularly true with police misconduct allegations, where the involved officer may remain on *240 the force, or be part of a like-minded clique. Police officers who step forward to aid in investigations may do so only on assurances of confidentiality; public disclosure of their statements could expose them to unjustified criticism or animosity, and cost the department their future cooperation. Public safety would be imperiled as a result of declining departmental morale, without any offsetting increase in professionalism or discipline.
Although not directly applicable, we find close parallels in the Supreme Court's decision in Daily Journal Corp. v. Superior Court (1999) 20 Cal.4th 1117, 86 Cal. Rptr.2d 623, 979 P.2d 982. In Daily Journal, the district attorney ended the grand jury investigation of the county's bankruptcy without indicting a major investment banking firm which underwrote some of the county's debt offerings. Following media requests, the trial court ordered the release of all transcripts and documents of the closed grand jury investigation. The Supreme Court disagreed. Notwithstanding the strong public policy for openness, the high court held that the documents should not be disclosed. The Supreme Court was concerned about the impact upon the willingness of prospective witnesses to come forward or to speak "`"fully and frankly, as they would be open to retribution"'" or "`"public ridicule.'"" (Id. at p. 1126, 86 Cal.Rptr.2d 623, 979 P.2d 982.)
Our conclusions make it unnecessary to consider any of the other CPRA exemptions raised by the district attorney.
III
The Times objects to the district attorney's "self-serving" statements and asks that we not merely "take its word" regarding the contents of the nonpublic letter.' But, although authorized by the CPRA (§ 6259), the Times never asked the trial court to conduct an in camera review to determine whether the nonpublic letter has been improperly withheld. Accordingly, we consider the Woodsmall and Baytieh declarations to sufficiently establish that the letter actually relates to the investigation and falls within the investigation exemption contained in section 6254, subdivision (f). No remand is necessary to further consider this issue.[6]
IV
We reject the Times' contention that the district attorney waived the investigation exemption by providing the nonpublic letter to the Huntington Beach Police Department, which initiated the criminal investigation and employed Officer Kennedy. The district attorney did so with the understanding that the document would remain confidential. Nothing in the record indicates that this understanding has been breached.
Under the CPRA, particular exemptions may be waived only where the agency has disclosed a document "to any member of the public." (§ 6254.5.) Section 6254.5, subdivision (e) expressly provides that exemptions are not waived for interagency disclosures that are made in confidence. Based on similar concerns about the efficacy of interagency information sharing, we decided in Michael P. v. Superior Court (2001) 92 Cal.App.4th 1036, 1048, 113 Cal.Rptr.2d 11, that a local police department did not waive the official information privilege by *241 divulging privileged information to a county social services agency "`with an official interest in the information.'"
Let a peremptory writ of mandate issue directing respondent court to vacate its judgment of May 14, 2002, and its subsequent award of attorney fees to real party in interest, and to enter a new and different order denying real party in interest's petition for writ of mandate. The alternative writ is discharged. Petitioner is entitled to costs in this proceeding.
WE CONCUR: SILLS, P.J., and FYBEL, J.
NOTES
[1] All further statutory references are to the Government Code unless otherwise indicated.
[2] The Times asserts that this nonpublic letter was "post-investigation correspondence," which was written "[l]ater that same day, July 19." There is no support in the record for this characterization. As the district attorney points out, we have no way of knowing which letter was drafted first, and the investigation was not formally closed until July 30, weeks later.
[3] Subdivision (f) does require disclosure of certain information derived from the arrest and other investigative records, but not the records themselves. (§ 6254, subd. (f)(2).)
[4] It would be self-defeating, as the Times suggests, to apply the secondary evidence rule (Evid.Code, § 1523, subd. (a)) to require the production of the letter since that is what the litigation is all about.
[5] We doubt, for example, that the Times would make a similar contention regarding the application of media shield law. Were a reporter to draft a memorandum to her editor regarding her thoughts, impressions or conclusions about sources used in a published article, would the Times claim that the privilege did not apply because the article already had been completed? (See Miller v. Superior Court (1999) 21 Cal.4th 883, 89 Cal.Rptr.2d 834, 986 P.2d 170.)
[6] The Times itself objected to the district attorney's belated offer in conjunction with this writ proceeding for an in camera review of the subject document because !'[t]he Times' responses to the asserted exemptions stand as a matter of law, and cannot be defeated by the unnecessary and unwarranted additional delay that would flow from an in camera review at this late stage in the proceedings."
| {
"pile_set_name": "FreeLaw"
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517 F.2d 1020
UNITED STATES of America, Appellee,v.Martin L. BAUMGARTEN, Appellant.UNITED STATES of America, Appellee,v.Randolph E. GOULD, Appellant.UNITED STATES of America, Appellee,v.Richard L. STANLEY, Appellant.
Nos. 74-1493, 74-1494, 74-1507.
United States Court of Appeals,Eighth Circuit.
Submitted Feb. 13, 1975.Decided May 1, 1975.Rehearings and Rehearings En Banc Denied May 23, 1975.
Robert G. Duncan, Kansas City, Mo. and Ronald J. Clark, Chicago, Ill., for appellants.
Robert Schneider, Asst. U. S. Atty., Kansas City, Mo., for appellee.
Before BRIGHT, ROSS and STEPHENSON, Circuit Judges.
STEPHENSON, Circuit Judge.
1
These combined appeals are taken from the convictions1 of appellants Baumgarten, Gould and Stanley for conspiracy and related substantive offenses arising out of a series of bombings in the Kansas City area in the spring and early summer of 1970. Essentially, appellants contend that they were denied a speedy trial in violation of their Fifth and Sixth Amendment rights, that the trial court erred in admitting into evidence a letter sent by appellant Gould to a key government witness while that witness was in jail, and that the court erred in admitting into evidence prejudicial testimony and exhibits which went beyond the scope of the indictment. In addition, appellant Baumgarten claims that his conviction on each of three counts was not supported by the record and that the court should have granted his motion for a judgment of acquittal. We affirm.
2
The facts of the case that pertain to the alleged conspiracy and the related charges are significant only with regard to Baumgarten's claim that his convictions were not supported by the record. Accordingly, a recitation of those facts will be reserved until that issue is discussed. However, in order to evaluate appellants' contention that they were denied a speedy trial, a detailed survey of the procedural history of this case must be set forth.
I.
3
In July of 1971 appellants (plus Kenneth Sandusky, who was subsequently exonerated of all charges by means of a directed verdict of acquittal) were named in a six-count indictment handed down by a grand jury in the Western District of Missouri. The first count charged all appellants with conspiring with Arnold A. Stead (not here named as a defendant),2 in violation of 18 U.S.C. § 371, to make destructive devices without paying the tax required by 26 U.S.C. § 5861(f) (1970). The conspiracy count also alleged the transportation of explosives and destructive devices in interstate commerce and the possession of unregistered firearms. This was the only count in which appellant Gould was named. Counts II through VI charged the other appellants, in a variety of combinations with each other and Sandusky, with aiding and abetting Arnold Stead in the making of illegal pipe bombs on five occasions between April 4 and June 29, 1970. Appellants were arraigned on these charges on July 28, 1971 and pled not guilty.
4
Defense counsel filed a variety of written motions but no requests for a speedy trial in the seven-month period following the arraignment. A hearing on these motions was held on January 11 and 12, 1972. During those proceedings, Gould's attorney requested that the case be set for trial on or after February 28 because of his other commitments. On January 18 the court ordered that the final pretrial conference be held on February 29 with the trial commencing the following day.
5
On February 24 the government filed a motion for a continuance based upon the fact that Arnold Stead, the key witness for the government, had declared his intention to refuse to testify at the scheduled trial. The motion was granted by the court ex parte. Four days later the government filed a motion to compel Stead's testimony. At the February 29 pretrial conference, counsel for the appellants objected to the continuance. The next day a hearing was held on the motion to compel. The court informed counsel that he would not rule on the motion until Stead had been called, sworn, and had refused to testify. On March 21 appellant Gould moved for an immediate setting of the trial or the dismissal of the case on speedy trial grounds. Two days later this motion was joined by co-defendant Sandusky.
6
At this point in the proceedings, the focus of the case shifted to Arnold Stead, the maker of the bombs and the chief witness for the prosecution. In late February of 1972, Stead decided, with advice of counsel, to seek suppression of his earlier statements to federal agents on the grounds that he had been coerced. These statements formed the basis of the charges brought against appellants. The legal battle which Stead waged in seeking suppression was not finally lost until August 1972 when this court in an unpublished order dismissed Stead's appeal from the district court's denial of his motion to suppress.
7
During this same time period, state criminal charges based on the bombings were brought against Stead in two Kansas counties. In early September 1972 Stead, on advice of counsel, changed his mind and decided to testify for the state and for the United States.3 Between September and March of 1973 he testified in five state criminal proceedings involving either Gould, Stanley, or Sandusky.
8
In November 1972 the government was informed of Stead's decision to cooperate and withdrew its motion to compel his testimony. On March 2, 1973, all three appellants filed motions to dismiss the indictment on speedy trial grounds. Those motions were discussed with the court at a conference on March 5, at which time the government announced its immediate readiness for trial. Defense counsel responded by reasserting their speedy trial claim but informed the court that other commitments necessitated that the trial not be set until early April. Subsequently, an evidentiary hearing was held on March 9 regarding the speedy trial motions and other defense motions. The trial commenced on April 16, 1973 and lasted 16 days.
9
In contending that they were denied a speedy trial, appellants emphasize the length of the delay between the indictment and trial and the fact that the intervening death of a potential alibi witness in December of 1972 severely prejudiced their defense. Appellants contend that these two factors, plus the fact that the delay was solely for the benefit of the government, require that the case be dismissed in compliance with the standards set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We disagree.
10
In Barker the Supreme Court recognized that "a defendant's constitutional right to a speedy trial can only be determined on an ad hoc balancing basis." Thomas v. United States, 501 F.2d 1169, 1171 (8th Cir. 1974). See also United States v. Cummings, 507 F.2d 324, 330 (8th Cir. 1974); Wallace v. Kern, 499 F.2d 1345, 1349-50 (2d Cir. 1974). Only after consideration of such factors as the length of the delay, the reason for the delay, the defendants' prompt assertion of their speedy trial right, and the prejudice to the defendants caused by the delay can a valid assessment of appellants' claim be made. Barker v. Wingo, supra, 407 U.S. at 531-34, 92 S.Ct. 2182. See also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973).
11
The first factor, the length of the delay, is primarily relevant as a "triggering mechanism" which prompts consideration of the other balancing factors. Barker v. Wingo, supra, 407 U.S. at 530-31, 92 S.Ct. 2182. In a "serious, complex conspiracy" case such as this, as opposed to an "ordinary street crime," a longer delay can be tolerated prior to a finding that the delay was "presumptively prejudicial." Id. at 530, 92 S.Ct. 2182. Nonetheless, in the instant case we find, as the government conceded in its brief, that the 21-month period between the indictment and the trial was sufficient to warrant further inquiry. However, our application of the other Barker factors convinces us that appellants did not suffer prejudice by virtue of this delay and thus, on balance, were not deprived of the right to a speedy trial.
12
With respect to the reason for the delay, appellants contend that because the delay was solely for the purpose of obtaining the testimony of Arnold Stead as a prosecution witness, this factor should be weighed heavily against the government. See Barker v. Wingo, supra at 531, 92 S.Ct. 2182. Cf. United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Arrant v. Wainwright, 468 F.2d 677, 681 (5th Cir. 1972), cert. denied, 410 U.S. 947, 93 S.Ct. 1369, 35 L.Ed.2d 613 (1973); United States v. Golden, 436 F.2d 941, 945-46 (8th Cir.), cert. denied, 404 U.S. 910, 92 S.Ct. 236, 30 L.Ed.2d 183 (1971).
13
However, we agree with the government's contention that its efforts to procure Stead's cooperation constituted a valid reason which, under Barker, " should serve to justify appropriate delay." 407 U.S. at 531, 92 S.Ct. at 2192. Stead's refusal to testify on the eve of trial after months of preparation can be likened to situations in which courts have found some period of delay justified when caused by a missing witness, United States v. Anderson, 471 F.2d 201 (5th Cir. 1973), or by a physically incapacitated witness, United States v. Robinson, 145 U.S.App.D.C. 46, 447 F.2d 1215, 1219-20 (1971). This was not a last-minute change in the testimony of a key witness. Arrant v. Wainwright, 468 F.2d 677, 680 (5th Cir. 1972), cert. denied, 410 U.S. 947, 93 S.Ct. 1369, 35 L.Ed.2d 613 (1973). Stead consistently maintained that his statements to various government agents and the grand jury were truthful.
14
Under the particular circumstances of this case, we conclude that the delay of approximately nine months, beginning with Stead's refusal to testify in February and the communication to the government of his decision to testify in November, was justifiable and should not be weighed to the government's disadvantage. Of the remaining 12 months of delay, seven can be attributed to pretrial activity, much of which was initiated by defense counsel. Another month of delay was occasioned by prior commitments of defense counsel, which caused the court to postpone setting the trial until April despite the government's announcement of readiness in early March. Clearly, neither of these "delays" can be weighed against the government. Finally, the four-month period between the time the government learned of Stead's decision to cooperate and the declaration of readiness for trial was spent by Stead and the appellants in state court trials. This reason for delay could be termed a neutral justification at the very least. See Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. 2182. We cannot strike the balance against the government on this factor. See United States v. Lynch, 163 U.S.App.D.C. 6, 499 F.2d 1011, 1020 (1974).
15
Similarly, the assertion or non-assertion of the speedy trial right is not a factor that works to the advantage of either side in our balancing process. Two sets of motions for a speedy trial were filed by one or more of the appellants in this case. The first came shortly after Stead announced his refusal to testify. The second set of motions was filed in early March of 1973 and was met by the government's response of readiness for trial. Given these facts, this element of the balancing test gives us very little assistance in determining what, if any, prejudice accrued to these appellants and will be assigned little weight. See generally Barker v. Wingo, supra, 407 U.S. at 531-32, 92 S.Ct. 2182.
16
The final and most critical factor to be weighed in the balance is that of actual prejudice to the defendants as a result of the delay. Our assessment of this factor is guided by consideration of three interests which have been identified by the Supreme Court as the primary focus of the speedy trial right:
17
(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.
18
407 U.S. at 532, 92 S.Ct. at 2193. Since appellants here were free on bail during the entire pendency of the action, they obviously suffered no prejudicial incarceration. Nor is there any evidence in the record to suggest that their anxiety over the ultimate outcome of the case worked any unusual hardship on appellants. They were also involved in state criminal litigation.
19
The most serious allegation of prejudice concerns the alleged impairment of the defense caused by the death of a possible alibi witness in December 1972. Appellants contend that the testimony of one Georgene Waddell would have shown that appellant Gould was nowhere near the site of a bombing which Stead claimed to have committed with Gould's assistance. While this testimony would have specifically aided only Gould, the other appellants claim that they would have been aided inasmuch as the Waddell testimony undermined Stead's credibility. These claims of prejudice appear highly speculative and are not entitled to much weight. Cf. Thomas v. United States, 501 F.2d 1169, 1172 (8th Cir. 1974).
20
The record shows that there is considerable disagreement over what the testimony of Mrs. Georgene Waddell would have been. Kathy Gunderson, appellant Gould's girlfriend, testified at a pretrial hearing that Mrs. Waddell could have specifically identified Gould as the driver of the car that stopped in front of her home at approximately the same time as the bombing took place in which Gould allegedly took part. This testimony was based on a phone interview which Gunderson allegedly conducted with Mrs. Waddell shortly after the indictment of Gould. The actuality of Mrs. Waddell's identification of Gould is contradicted in an affidavit by Mrs. Waddell's son. According to James Waddell, his mother's only recollection of the incident in question was that she heard a car pull up in front of the house, a car door opened, and the car pulled away. Mr. Waddell stated that his mother transmitted this recollection to him shortly after hearing of the indictment against Gould. In view of the conflict in the record, it appears that little or no prejudice has resulted to appellants as a result of Mrs. Waddell's intervening death.
21
Upon a careful consideration of each of the factors discussed above, we conclude that the appellants were not denied their constitutional right to a speedy trial.4 Despite the lapse of 21 months between indictment and trial, it is our view that the circumstances in this case are insufficient to strike the balance against the government.
II.
22
The next contention is that the evidence was insufficient to support appellant Baumgarten's conviction of conspiracy and the two aiding and abetting counts. In evaluating this claim we are guided by the well-established rule that this court must view the evidence in the light most favorable to the jury's verdict and accept all reasonable inferences that flow from that evidence in support of the verdict. United States v. Wiebold, 507 F.2d 932, 933 (8th Cir. 1974); United States v. Britton, 500 F.2d 1257 (8th Cir. 1974); Koolish v. United States, 340 F.2d 513, 519 (8th Cir.), cert. denied, 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724 (1965).
23
As to the conspiracy count, the evidence was that Baumgarten on two separate occasions, after Stead told him that he had committed the Mid-Continent Bank bombing, drove Stead to a gun shop and a Sears store, where Stead purchased gunpowder, pipe, and pipe caps. In addition, Baumgarten aided Stead on the day of the latter's arrest on June 29, 1970 by picking up and delivering to him a drill that was used in the making of a pipe bomb.
24
The government's evidence, direct and circumstantial, as to the existence of the conspiracy in the instant case is ample. We are fully satisfied that the prosecution met its burden of proof on this issue. See United States v. Overshon, 494 F.2d 894, 895-96 (8th Cir. 1974). As a result, "even slight evidence connecting a particular defendant to the conspiracy may be substantial and therefore sufficient proof of the defendant's involvement in the scheme." United States v. Overshon, supra at 896. See also United States v. Hutchinson, 488 F.2d 484, 490 (8th Cir. 1973). Once a member of a conspiracy, an individual is responsible for all overt acts that may be or have been done by his co-conspirators in furtherance of the scheme. United States v. Guy, 456 F.2d 1157, 1162 (8th Cir.), cert. denied, 409 U.S. 896, 93 S.Ct. 136, 34 L.Ed.2d 153 (1972). Our review of the evidence against Baumgarten reveals that his connection with the conspiracy was more than slight. His conviction on this count is supported by substantial evidence.
25
On the two aiding and abetting counts the sufficiency of the evidence against Baumgarten is also satisfactory. In order to establish aiding and abetting the government needs to show that the defendant had a "purposeful attitude" and in some manner participated in the unlawful deed. United States v. Hill, 464 F.2d 1287 (8th Cir. 1972); United States v. Kelton, 446 F.2d 669, 671 (8th Cir. 1971); United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938). See also United States v. Atkins, 473 F.2d 308, 310-13 (8th Cir.), cert. denied, 412 U.S. 931, 93 S.Ct. 2751, 37 L.Ed.2d 160 (1973). Essentially, this requires the existence of "some affirmative participation which at least encourages the perpetrator." United States v. Thomas, 469 F.2d 145, 147 (8th Cir. 1972). See also United States v. Wiebold, 507 F.2d 932, 934 (8th Cir. 1974).
26
The jury in this case could reasonably infer that Baumgarten's actions, such as driving Stead to Sears, accompanying him to the gun shop,5 and picking up the electric drill for him, constituted sufficient "affirmative participation" and facilitation of the unlawful act for purposes of an aiding and abetting charge. We cannot, as a matter of law, state that the record provides an insufficient basis for Baumgarten's convictions.
III.
27
The third issue raised by appellants concerns the admission into evidence of a letter written by appellant Gould to Arnold Stead while Stead was being held as a federal prisoner in the Jackson County Jail in Kansas City. The letter contained some very strong language regarding Gould's feelings of hatred toward police in particular and the governmental system in general. In addition, the letter expressed the writer's desire to see these institutions destroyed by violence. Although the admission of the letter was preceded by the court's admonition to the jury to consider it only with respect to Gould, all three appellants claim to have been prejudiced by its introduction. They claim that it was wrong to admit the letter because it was written after the end of the alleged conspiracy. They also assert that the letter should have been suppressed as the product of an illegal search and seizure. We reject both of these contentions.
28
We do not believe that the date at which the letter was written is of any relevance here. It was not introduced as evidence of the conspiracy. Rather, it must be viewed as an admission by Gould reflecting his motive, state of mind, and friendship toward Stead and their common cause. As such, it was properly admissible regardless of when it was written. See United States v. Dellinger, 472 F.2d 340, 380 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973); Isaacs v. United States, 301 F.2d 706, 734 (8th Cir. 1962); Connelly v. United States, 249 F.2d 576, 588 (8th Cir. 1957), cert. denied, 356 U.S. 921, 78 S.Ct. 700, 2 L.Ed.2d 716 (1958); Gulotta v. United States, 113 F.2d 683, 686 (8th Cir. 1940). See generally United States v. Rosenstein, 474 F.2d 705, 713-14 (2d Cir. 1973). The trial court's careful instruction to the jury immediately preceding the reading of the letter by Stead was sufficient to prevent prejudice to the other defendants.6 The limited admission of the letter as to Gould was not an abuse of discretion.
29
Appellants also contend that the letter should have been suppressed as the product of an illegal search and seizure. Based on Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), they claim that both Gould and Stead had their expectations of privacy violated in contravention of the Fourth Amendment when Warden Simpson read, copied and disseminated the letter to the Kansas City and Lawrence, Kansas Police Departments. We disagree.
30
The district court, citing In re Bull, 123 F.Supp. 389 (D.Nev.1954), ruled that the reading of the letter by the jailor was permissible if done pursuant to a custom, practice, or regulation that was reasonably related to the maintenance of jail security. Warden Simpson subsequently testified that the jail policy was to screen all incoming mail for the purpose of uncovering contraband, escape plans, and the like. Based on this evidence, the court found that the reading of inmate mail was a reasonable security measure.
31
Appellants suggest, however, that the Supreme Court's holding in Procunier v. Martinez, supra, requires that we reverse the district court's finding that the mail policy was reasonable. It is our view that the applicability of Martinez to the facts of this case is extremely limited. The prison mail regulations invalidated in Martinez provided for an absolute cut-off of mail to and from prisoners if the correspondence did not satisfy certain vaguely articulated standards. 416 U.S. at 415-19, 94 S.Ct. 1800. In the instant case there is no evidence to suggest that the flow of mail was halted or even impeded by the jail's screening procedure. In our view, the practice of mail scanning employed by the Jackson County Jail satisfied the two-prong test set out in Martinez: (a) It is a procedure that furthers "an important or substantial governmental interest unrelated to the suppression of expression" (namely, jail security), and (b) the limit it places on the prisoner's First Amendment rights are "no greater than (are) necessary or essential to the particular governmental interest involved." Id. at 413-14, 94 S.Ct. at 1811.
32
Having concluded that the procedures pursuant to which the letter from Gould to Stead was initially opened did not violate the constitutional guidelines established in Martinez, we must consider the propriety of the " seizure" by copying that was undertaken by Warden Simpson. We hold, as did the district court, that because the scanning of the Gould letter was a valid " entry" in constitutional terms, the "plain view" doctrine came into play to justify Simpson's actions in copying and disseminating the letter to law enforcement officials. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); United States v. Burton, 485 F.2d 715, 717 (8th Cir. 1973). The admission of Gould's letter into evidence was not an abuse of discretion.7
33
Finally, we note that the record is replete with evidence demonstrating the hatred and disrespect held by Gould as well as the other defendants toward the police and government in general. The disputed letter at most was cumulative evidence of defendants' motive and state of mind in this respect. Prejudice has not been shown. United States v. Kirk, 496 F.2d 947, 951 (8th Cir. 1974); United States v. Tompkins, 487 F.2d 146, 152-53 (8th Cir. 1973).
IV.
34
The final issue raised by appellants is that the district court committed prejudicial error by admitting into evidence testimony and exhibits that pertained to events occurring outside the scope of the indictment. Specifically, they refer to the admission of evidence regarding the history, development, and goals of the Students for a Democratic Society (S.D.S.) organization and the radical movement in general; the fact that the state of Kansas brought an injunctive action against Gould; and the prior arrest of appellant Gould. In addition, they complain of the admission of a document that Stanley filed with his Selective Service Board in 1970 and an S.D.S. newsletter dated June 17, 1969. We find no error in the admission of any of these items.
35
In the context of a conspiracy trial, the trial court is given great latitude in its determination of the relevancy and admissibility of evidence. United States v. Skillman, 442 F.2d 542, 552 (8th Cir.), cert. denied,404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971); Wangrow v. United States,399 F.2d 106, 115 (8th Cir.), cert. denied, 393 U.S. 933, 89 S.Ct. 292, 21 L.Ed.2d 270 (1968). Our review is limited to an inquiry as to whether the court abused that broad discretionary power. Cotton v. United States, 361 F.2d 673, 676 (8th Cir. 1966).
36
In the instant case the evidence concerning the history and philosophy of the S.D.S. and the overall radical movement was relevant and admissible to show the association of the appellants with one another prior to the date fixed in the indictment, Williamson v. United States, 310 F.2d 192, 199 (9th Cir. 1962), and the intent, purpose, aim, and motives of the parties to the conspiracy, United States v. Cioffi, 493 F.2d 1111, 1115 (2d Cir. 1974); United States v. Cohen, 489 F.2d 945, 949 (2d Cir. 1973); United States v. Del Purgatorio, 411 F.2d 84, 86-87 (2d Cir. 1969); Connelly v. United States, 249 F.2d 576, 588 (8th Cir.), cert. denied, 356 U.S. 921, 78 S.Ct. 700, 2 L.Ed.2d 716 (1958). Similarly admissible was (1) the S.D.S. newsletter containing the reference to a meeting at Sandusky's house attended by appellants Baumgarten and Stanley and (2) the transcript containing the document Stanley submitted to his draft board in which he characterized himself as a "revolutionary" and a "Weatherman." In addition, the Stanley draft document could have been admissible as an admission. See Gulotta v. United States, 113 F.2d 683 (8th Cir. 1940).
37
The evidence concerning an injunctive action brought against Gould by County Attorney Daniel Young prior to the alleged beginning of the conspiracy was admissible to show Gould's motive as it related to his participation in a conspiracy that included the bombing of Young's home by one or more of the conspirators. Arnold Stead testified that Gould had suggested the Young bombing because of Young's role in prosecuting activists. It has long been established that courts have broad latitude in admitting evidence that tends to establish a defendant's motive for committing an offense. Moore v. United States, 150 U.S. 57, 14 S.Ct. 26, 37 L.Ed. 996 (1893); United States v. Johnson, 254 F.2d 175 (2d Cir. 1958).
38
Finally, appellants claim error in the admission of testimony regarding a prior arrest of appellant Gould. The record reveals that the topic of prior arrests was opened up by defense counsel in an effort to impeach a government witness. The remark concerning Gould's arrest was volunteered by the witness on redirect examination by the government in an attempt to rehabilitate the witness. No objection was made at the time of the remark. A subsequent motion for a mistrial was made by defense counsel in chambers. Although the court overruled the motion, it offered to give an appropriate instruction to remedy the statement. No such instruction was requested.
39
In our view, the passing reference by the witness to a prior arrest was of very little significance in the trial and did not prejudice appellant Gould. Furthermore, even if we were to assume for the sake of argument that the statement was prejudicial, appellants' failure to make a timely objection and to move that the remark be stricken supports a finding of a waiver of the right to object. United States v. Eaton, 485 F.2d 102, 107-08 (10th Cir. 1973). See generally Isaacs v. United States, 301 F.2d 706, 734 (8th Cir.), cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962).
40
We affirm the convictions as to each of the appellants.
41
Affirmed.
BRIGHT, Circuit Judge (dissenting):
42
I would reverse the convictions in this case on the ground that the prosecution violated appellants' constitutional right to a speedy trial. In my judgment, approximately one year of the 21-month delay from indictment to trial relates to the efforts of the Government to induce the cooperation of their key witness, Arnold Stead, and that delay was unjustified. Furthermore, although the Government had the right to compel Stead's testimony, I would not, in light of the prejudicial effect upon the appellants, place a judicial stamp of approval upon the manner in which the Government obtained Stead's cooperation.
43
In applying the balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to the circumstances of this case, my concern focuses on the delay from March 1, 1972, the originally scheduled trial date, to April 16, 1973, the date the trial finally commenced.1
44
The Government initiated this delay of more than 13 months after Stead notified it on February 24, 1972, that he did not intend to voluntarily testify for the prosecution but would, instead, claim his fifth amendment privilege against self-incrimination if called to testify.
45
Stead, characterized in the record as the principal perpetrator of the bombings, was an unindicted co-conspirator in the Government's criminal proceedings against appellants. His testimony was crucial to the prosecution's case. In February 1971 Stead had pleaded guilty in federal district court to a charge of possession of a destructive device and was sentenced to ten years' imprisonment. Stead thereafter gave a statement to federal agents and gave testimony before the grand jury wherein he implicated appellants in the criminal activities for which they were subsequently indicted. Stead's sentence was reduced to five years in June 1971 in return for this cooperation with the Government.
46
The Government requested an indefinite postponement of the trial one week before it was to begin. This request was prompted by a reversal of Stead's formerly cooperative attitude. Stead's change of heart justified some delay due to its occurrence on the eve of trial. See Arrant v. Wainwright, 468 F.2d 677, 680 (5th Cir. 1972), cert. denied, 410 U.S. 947, 93 S.Ct. 1369, 35 L.Ed.2d 613 (1973). However, the fact that the Government had within its power the capability to compel Stead to testify2 but chose instead to embark upon a lengthy campaign to induce his cooperation invalidates the Government's rationale for the length of the delay which ensued.
47
On February 28, the Government filed a motion to compel Stead's testimony. On March 1, the district court deferred its ruling on the motion until Stead had been called, sworn, and had refused to testify. The Government did not pursue its motion either by calling Stead to testify before the court at that time or by requesting that Stead be granted immunity. Instead, according to Stead's uncontradicted testimony, the Government initiated and encouraged other actions against him to procure his cooperation.
48
The State of Kansas pursued its prosecution of Stead under criminal informations filed on August 6, 1971, and May 1, 1972, alleging his participation in three bombings which occurred in Kansas in 1970. Following an agreement with state and federal authorities that his state sentences would run concurrently with his five-year federal sentence if he testified against the appellants, Stead pleaded guilty to the state charges.3 Also, Stead testified that he had been assured by the Government that he would not be prosecuted under a Missouri criminal information (charging him with possession of a pipe bomb) then pending or under any further federal charges arising out of the bombing incidents if he agreed to testify against the appellants in federal court. In early September 1972 Stead agreed to testify against appellants.4
49
Congress has enacted statutes5 providing government prosecutors with awesome power to compel the testimony of unwilling witnesses, but this power can only be exercised under the guidance and orders of the court under circumstances that assure the witness due process of law. A delay in the trial of appellants to invoke such powers against Stead would have been justified. However, in this case we are asked to approve a lengthy delay in appellants' trial to permit the Government to employ extra-legal coercion to obtain Stead's cooperation. I do not approve such free-wheeling coercion, lacking judicial safeguards. Accordingly, I would weigh the tactics of the prosecution heavily against the Government. Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. 2182; see Arrant v. Wainwright, supra, 468 F.2d at 681.6
50
The majority opinion suggests that the reason for the delay between the time the Government learned of Stead's decision to cooperate and the declaration of readiness for trial was a "neutral justification" because Stead and the appellants were involved in state court trials. I believe that this delay is not a "neutral justification" and should be weighed against the Government for the following reasons:
51
1) Defendants Gould and Sandusky filed motions with the district court in which they asserted their right to a speedy trial shortly after the trial was continued.
52
2) The state criminal proceedings pending against the appellants were not seriously pursued prior to the date appellants' federal trial was originally scheduled. The state prosecutions were renewed after Stead's refusal to testify in federal court and after appellants had asserted their right to a speedy trial in federal court.
53
3) Stead's testimony in the state proceedings against appellants appears to be part of a coordinated arrangement among state and federal authorities and Stead, which guaranteed Stead reduced and concurrently-running prison sentences.
54
Finally, I believe that the delay caused by the trial continuance was inherently prejudicial to appellants and that appellants' defense was thereby impaired. Stead's demeanor and credibility at trial were crucial to both the prosecution and the defense. Persuaded by the Government's extra-legal actions, Stead testified at appellants' trial as a willing and cooperative witness for the prosecution. Had Stead been an unwilling witness forced to testify under legal compulsion, his testimony may have left a different impression upon the jury. Also, the trial record indicates that Stead and other witnesses had occasional losses of memory during their testimony which may be attributable to the delay caused by the postponement of the original trial. Moreover, the death of Georgene Waddell precluded her testimony as an alibi witness for appellant-Gould and as a witness for all of the appellants in their attack on Stead's credibility. The fact that her death occurred during the delay in question accentuates the impairment of appellants' defense.
55
Accordingly, I would reverse the convictions.
1
An indictment involving six separate counts was the source of the charges brought against these appellants. All three were found guilty by the jury on Count I, the conspiracy charge. In addition, the jury found Baumgarten guilty of aiding and abetting one Arnold A. Stead in the making of untaxed pipe bombs in violation of 18 U.S.C. § 2 and 26 U.S.C. § 5861(b) on Counts V and VI. Appellant Stanley was found guilty of the same offenses as to Counts IV and VI. The Honorable William H. Becker, Chief Judge, W.D.Mo., imposed sentence as follows: Baumgarten 1 year concurrent on Counts I and V, 2 years probation on Count VI; Gould 5 years and for a study and report under 18 U.S.C. § 4208(b) on Count I; Stanley 2 years probation under 18 U.S.C. § 5010(a) on Counts I, IV and VI
2
Previously, on February 26, 1971, Stead was sentenced to 10 years imprisonment after pleading guilty to a charge of possession of an illegal firearm without registering or paying the tax on it. The sentence was later reduced to 5 years on June 25, 1971. Stead testified for the government in the instant trial
3
Stead pled guilty to the Kansas state charges and received sentences to run concurrently with his federal sentence
4
Appellants' claim that the delay resulted in the denial of their Fifth Amendment rights is without merit. See United States v. Marion, 404 U.S. 307, 325-26, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)
5
The indictment in Count V charged aiding and abetting on or about June 14, 1970. Overt acts alleged in the conspiracy count were that Baumgarten went with Stead to Sears and the gun shop "on June 18, 1970." Proof adduced at trial likewise showed that these trips were made on June 18, 1970. This slight variance is not fatal to Count V, especially in a case like this one in which the performance of the acts, not the exact date, is the significant event. See United States v. Arradondo, 483 F.2d 980, 984 (8th Cir. 1973), cert. denied, 415 U.S. 924, 94 S.Ct. 1428, 39 L.Ed.2d 480 (1974)
6
The court instructed the jury as follows:
Ladies and gentlemen of the jury, this letter has been agreed to have been written by Defendant Gould. It has been offered in evidence and it is being received in evidence only against the Defendant Gould, and is to be considered in respect to Defendant Gould and is not to be treated by you as evidence in respect to either the Defendants Stanley, Sandusky, or Baumgarten, or any of them.
7
The record in this case also reveals that Arnold Stead gave written consent to the opening of his mail by prison authorities. However, we do not choose to validate the Jackson County Jail scanning procedure on a consent basis. The fact that all prisoners had the choice of either signing the consent or not receiving any mail severely diminishes the voluntariness of the act. Further, Gould as sender of the letter did not consent in any way to having his letter read by jail authorities. As the Supreme Court noted in Martinez, both the sender and the receiver of prisoner mail are entitled to "protection against unjustified governmental interference with the intended communication." 416 U.S. at 409, 94 S.Ct. at 1809. Thus, we could not have resolved this issue solely on the basis of the validity or invalidity of Stead's consent
1
Appellants were indicted in July 1971. The approximately eight-month delay between their indictment and the original date for the trial is adequately justified in the majority opinion
2
Pursuant to 18 U.S.C. §§ 6001-6003, the Government may request an order of the district court requiring an individual to give testimony which he refuses to give by asserting his privilege against self-incrimination
It is clear that a federal prisoner such as Stead may be granted immunity and compelled to testify about circumstances underlying his conviction. Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249 (1960). Also, a recalcitrant witness may be placed in civil contempt under 28 U.S.C. § 1826(a). Further, an unwilling witness may be subject to the imposition or threatened imposition of a criminal contempt sentence. See Piemonte v. United States, 367 U.S. 556, 81 S.Ct. 1720, 6 L.Ed.2d 1028 (1961).
3
On August 23, 1972, the state court sentenced Stead to one to five years in prison for the state charges, each to run concurrently. In December 1972 Stead's state sentences were amended to run concurrently with his federal sentence. Stead thereafter testified in several state criminal proceedings against Gould, Sandusky, and Stanley. Gould and Stanley were acquitted in Kansas state court of criminal charges arising out of bombings which occurred in that state
4
On November 2, 1972, the Government withdrew its motion to compel Stead's testimony. There is conflicting evidence in the record regarding the two-month delay from early September 1972, when Stead decided to cooperate with the Government, to early November, when the Government withdrew its motion to compel Stead's testimony. The majority opinion indicates that the Government was not informed of Stead's decision until early November. On the other hand, Stead testified that the Government participated in his negotiations with state authorities and that government attorneys were present at a meeting in early September when Stead agreed to testify for the Government and the state. Furthermore, Stead was in the custody of the federal government when he was made available as a witness in several state criminal proceedings involving appellants. The majority opinion notes that such proceedings occurred between September 1972 and March 1973
5
See note 2 supra
6
The majority distinguishes Arrant v. Wainwright from the present case by observing that shortly before trial the key witness in Arrant changed her testimony, whereas Stead changed his decision to testify as a government witness. This distinction is irrelevant, however, to the holding in Arrant that prejudicial delay is not permissible under the sixth amendment when the defendant has requested a speedy trial and the delay is used to "persuade" the key witness to reaffirm her original incriminating statement. 468 F.2d at 683-84
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49 Ill. App.2d 287 (1964)
200 N.E.2d 1
Carlisle Moore, Plaintiff-Appellee,
v.
Insurance Company of North America, Defendant-Appellant.
Gen. No. 49,165.
Illinois Appellate Court First District, Second Division.
April 21, 1964.
Vogel & Vogel of Chicago (David F. Holland, of counsel), for appellant.
Edward H. Norton, of Chicago, for appellee.
MR. PRESIDING JUSTICE BURKE delivered the opinion of the court.
Carlisle Moore filed a statement of claim against Insurance Company of North America alleging that *288 on August 29, 1962, Gertrude M. Griffin, applied to defendant for $2,000 insurance on her life, naming her son, plaintiff, as beneficiary and paying to defendant the initial premium of $16.95; that on November 25, 1962, the applicant died; that on November 26, 1962, defendant purportedly rejected the application for insurance by letter to its broker, who advised plaintiff thereof by his letter dated November 30, 1962; that plaintiff refused to recognize the purported rejection of the application after the death of his mother, and that defendant refused to pay any part of the $2,000 to plaintiff except the tendering to him of the $16.95, which he refused. Plaintiff asks judgment for $2,000 plus interest and reasonable attorney's fees. The defendant's motion to strike the statement of claim and to dismiss the action was denied, whereupon defendant stood on the motion and judgment was entered for $2,500, including $500 allowed as attorney's fees. The defendant appeals.
Defendant, in urging reversal, states that the allegation of a mere application for insurance, rejected by the insurance company after the death of the applicant, does not afford a basis for recovery in either contract or tort in a suit brought by applicant's intended beneficiary. Plaintiff rejoins that the attempted rejection of the application and the initial premium paid therefor after the passage of three months and the death of the applicant is ineffectual to bar liability of the insurer for the amount of insurance sought. In support of his position plaintiff cites Lumbermen's Mutual Ins. Co. v. Slide Rule & Scale Co., 177 F.2d 305 (CCA 7 1949) affirming 79 F Supp 394. We do not think that this case supports plaintiff's position. The case involved the question of the authority of a general agent, as distinguished from one who merely solicits applicants for insurance, to bind his principals. The one insurance company that was *289 found not liable in Lumbermen was in substantially the same position as the defendant in the case at bar. The company that was held not liable in the federal court had merely authorized the agent to solicit applications When the agent attempted a binder or temporary coverage this company rejected it and declined to accept the risk. The District Court held that the purported binder was unauthorized and that the insurance company was not liable. The companies that were held had authorized the agent to receive and accept proposals for insurance and to issue binders. In the case at bar the statement of claim does not allege a binder, or temporary coverage or even a parol contract of a binder or temporary coverage. Plaintiff in the instant case merely alleges an application for insurance and a rejection. The subject matter was considered by the Supreme Court of Pennsylvania in Zayc v. John Hancock Mut. Life Ins. Co. of Boston, 338 Pa 426, 13 A2d 34. The court said that the legal relation between an applicant for insurance and the insurer are fundamentally the same as those between parties negotiating any other type of contract and are to be tested and governed by the principles applicable to contracts in general and held that mere delay, however great, in passing upon an application for insurance cannot be construed as an acceptance thereof by the insurer which would support an action ex contractu, notwithstanding payment of premium at time application is made. In the case of Miller v. Illinois Life Ins. Co., 255 Ill. App. 586, decedent's intended beneficiary alleged an application for insurance, payment of the initial premium, the death of the applicant and the rejection of the application after the applicant passed away. In affirming the dismissal of the action, the court said, p 589: "An offer to enter into a contract, which is not accepted, creates no rights, but may be revoked or lapsed before *290 acceptance. [Citing cases.] Delay in passing upon an application for insurance cannot be construed into an acceptance by the insurer."
[1, 2] The plaintiff does not make any attempt to assert liability on a tort theory for negligence in acting upon the application. The statement of claim does not allege any duty owed to him by the defendant or any breach of the duty. Under the Miller case an application for insurance is a mere offer and creates no rights and imposes no duty upon the insurance company. We find that the statement of claim fails to set forth ultimate facts presenting a cause of action upon either a contract or a tort liability theory. Therefore the judgment is reversed and the cause is remanded with directions to allow defendant's motion and to enter judgment for the defendant and against the plaintiff.
Judgment reversed and cause remanded with directions.
FRIEND and BRYANT, JJ., concur.
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11 F.3d 587
Barry W. RITCHIE, Petitioner-Appellant,v.Don EBERHART, Respondent-Appellee.
No. 92-5643.
United States Court of Appeals,Sixth Circuit.
Argued March 5, 1993.Decided Dec. 8, 1993.Certiorari Denied Feb. 22, 1994.See 114 S.Ct. 1111.
Barry W. Ritchie (briefed), pro se.
Gregory D. Smith (argued), Richardson & Richardson, Clarksville, TN, for petitioner-appellant.
Kathy M. Principe, Asst. Atty. Gen. (briefed), Charles W. Burson, Atty. Gen., Bettye Springfield Carter, Asst. Atty. Gen., John B. Nisbet, III, Asst. Atty. Gen. (argued), Nashville, TN, for respondent-appellee.
Before: MERRITT, Chief Judge; NELSON, Circuit Judge; and CONTIE, Senior Circuit Judge.
DAVID A. NELSON, Circuit Judge.
1
This is an appeal from the dismissal of a second habeas corpus petition filed under 28 U.S.C. Sec. 2254 by Barry W. Ritchie, a Tennessee prison inmate. Mr. Ritchie's first such petition was denied on the merits. His second petition, which repeated the single claim made earlier as well as asserting three new claims, was dismissed as an abuse of the writ.
2
Although Mr. Ritchie personally signed a verification of the first petition, thereby attesting to a knowledge of its contents, he now contends that the lawyer who drafted it for him ignored instructions to include the additional claims. Mr. Ritchie does not know, he says, why the claims were left out.
3
Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. Sec. 2254, provides that a second federal habeas petition may be dismissed, notwithstanding its assertion of new grounds for relief, if "the judge finds that the failure of the petitioner to assert those grounds in [the] prior petition constituted an abuse of the writ." United States District Judge R. Allan Edgar made such a finding here. The question presented on appeal is whether Mr. Ritchie's claim of unexplained attorney error nonetheless entitles him as a matter of law to another opportunity to try to persuade a federal court to set aside his state-court conviction.
4
Applying the logic of the Supreme Court's opinion in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), we give the same answer to this question that four of our sister circuits have given under similar circumstances: "No." We shall affirm the dismissal of the second petition.
5
* Twelve years ago the State of Tennessee charged petitioner Ritchie with aggravated rape and armed robbery. Mr. Ritchie was placed on trial in the Criminal Court for Hamilton County, Tennessee, where a jury found him guilty as charged. The trial court entered judgment on the verdict, and Mr. Ritchie was sentenced to ten years' imprisonment for the armed robbery offense and life imprisonment for the aggravated rape offense.
6
Mr. Ritchie then made a series of efforts to obtain judicial relief under procedures authorized by Tennessee law. First he appealed to the Tennessee Court of Criminal Appeals. That court affirmed the conviction. Then he sought permission to appeal to the Supreme Court of Tennessee. The Supreme Court denied his request. Then he returned to the Court of Criminal Appeals, where he filed a delayed petition for post-conviction relief. That petition was denied too, as was a request for permission to appeal the denial to the Tennessee Supreme Court. Mr. Ritchie was represented by counsel throughout all of these proceedings in the Tennessee courts.
7
On June 2, 1987, still represented by counsel, Mr. Ritchie filed his first federal habeas petition in the United States District Court for the Eastern District of Tennessee. The petition set forth a single ground for relief: a claim that Mr. Ritchie's constitutional rights had been violated when the Tennessee trial court refused to grant a continuance. (The continuance had been requested to permit the service of subpoenas on witnesses who had conducted certain scientific tests and whose names and addresses had been furnished to Mr. Ritchie's counsel on the Friday before the start of the trial, which began on a Tuesday.) The 1987 habeas petition was signed by Mr. Ritchie's lawyer, and it bore a verification in which Mr. Ritchie himself declared, under penalty of perjury, that the contents of the petition were "true and correct."
8
After considering the petition on the merits, the district court entered judgment against Mr. Ritchie. The judgment was affirmed by our court on appeal. See Ritchie v. Livesay, No. 88-5773, 1989 WL 34041, 1989 U.S.App.LEXIS 3999 (6th Cir. Mar. 29, 1989) (order reported without published opinion at 872 F.2d 1028). Because the record made it clear that the testimony of the witnesses in question would only have been cumulative, we held that Mr. Ritchie had failed to show that he was denied a fundamentally fair trial.
9
In December of 1990, acting pro se for the first time, Mr. Ritchie asked the district court for permission to proceed there in forma pauperis. With his application he tendered a second federal habeas petition. The new petition set forth four grounds for relief: the denial of the request for a continuance, the use of an allegedly illegal lineup, the denial of a request to have a lawyer present at the lineup, and the failure of the state prosecutor to disclose crime laboratory test results until the Friday before trial.
10
The district court entered an order granting Mr. Ritchie permission to proceed in forma pauperis. Noting that there appeared to be "a high probability that the petition will be barred under Rule 9(b) for abuse of the writ," however, the order gave Mr. Ritchie 20 days within which to show cause why the failure to raise the new claims earlier should be excused.
11
Utilizing a court-supplied form (Model Form 9, 28 U.S.C. foll. Sec. 2254), Mr. Ritchie responded as follows:
12
"I had a lawyer[,] Mr. Jerry Summers[,] file my previous petition. I don't know or understand why he didn't raise these grounds in that petition. I filed the present petition personally. I was not in touch with my [attorney] before he filed the previous petition."
13
On the basis of this response, and prior to the entry of an appearance by representatives of the State of Tennessee, the district court concluded that Mr. Ritchie's failure to raise the three new claims in his prior petition was excusable. The respondent, a Tennessee prison warden, was given 30 days in which to answer the new claims or otherwise respond.
14
Through the state attorney general's office, the warden then moved to dismiss the new petition on the ground it amounted to an abuse of the writ. Following the filing of a response from Mr. Ritchie, and upon reconsideration, the district court entered an order granting the motion to dismiss. The order was accompanied by a memorandum opinion in which the court explained its reasons for concluding that there had been an abuse of the writ and that Mr. Ritchie's allegations of attorney error were not sufficient to excuse it. This appeal followed.
II
15
"Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation...." Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963).
16
The "abuse of the writ" doctrine explicated in Sanders--a doctrine that limits the ability of habeas petitioners to file successive petitions--has repeatedly been approved by Congress. In addition to approving Rule 9(b) of the Rules Governing Habeas Corpus Cases,1 which, as we have seen, authorizes dismissal of a second or successive habeas petition alleging new grounds "if ... the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ," Congress has enacted 28 U.S.C. Sec. 2244(b). That statutory provision reads in pertinent part as follows:
17
"[A] subsequent application for a writ of habeas corpus need not be entertained ... unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier petition for the writ, and unless the court ... is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ." (Emphasis supplied.)
18
Section 2244(b), according to its legislative history, contemplates a "qualified application of the doctrine of res judicata" in habeas corpus litigation. S.Rep. No. 1797, 89th Cong., 2d Sess. 2 (1966).
19
Until recently, the Supreme Court has not devoted much attention to the standard for determining when an abuse of the writ has occurred. This has now changed; after giving the subject "careful consideration" in McCleskey v. Zant, 499 U.S. 467, 477, 111 S.Ct. 1454, 1461, 113 L.Ed.2d 517 (1991), the Court held in McCleskey that the writ is abused when, in a subsequent petition, a petitioner for the first time raises a claim that could have been raised before but was omitted from the earlier petition because of "inexcusable neglect." 499 U.S. at 489, 111 S.Ct. at 1468.
20
Citing Delo v. Stokes, 495 U.S. 320, 110 S.Ct. 1880, 109 L.Ed.2d 325 (1990), and Antone v. Dugger, 465 U.S. 200, 104 S.Ct. 962, 79 L.Ed.2d 147 (1984), the McCleskey Court stressed that "a petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice." 499 U.S. at 489, 111 S.Ct. at 1468. (Emphasis supplied.) "Abuse of the writ," the Court declared in words of unmistakable clarity, "is not confined to instances of deliberate abandonment." Id. 499 U.S. at 489, 111 S.Ct. at 1467. The standard adopted by the Court--"inexcusable neglect"--is a standard that "demands more from a petitioner than the standard of deliberate abandonment." Id. 499 U.S. at 490, 111 S.Ct. at 1468.
21
What is demanded of a habeas petitioner at the federal court stage, McCleskey held, is indistinguishable from what is demanded of him at the state court stage. In the state courts, of course, the petitioner must avoid any "procedural default"--and the commission of such a default will be fatal to a subsequent federal habeas suit unless the petitioner can satisfy the "cause and prejudice" test adopted in Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977).
22
To show "cause" sufficient to excuse a procedural default, the petitioner must point to "some objective factor external to the defense...." See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). At the federal level, similarly, the habeas petitioner is bound to present all available claims for relief in his first habeas petition--and failure to do so will doom any subsequent federal petition, McCleskey teaches, unless the petitioner can show in this situation as well that the omission was caused by "some objective factor external to the defense...." 499 U.S. at 493, 111 S.Ct. at 1470.
23
A procedural default is excused if caused by attorney error so glaring as to constitute ineffective assistance of counsel in a constitutional sense, McCleskey noted, but "[a]ttorney error short of [constitutionally] ineffective assistance of counsel ... does not constitute cause and will not excuse a procedural default." Id., citing Murray v. Carrier, 477 U.S. at 486-88, 106 S.Ct. at 2644-45. Attorney error is not an "objective factor external to the defense," in other words, unless it constitutes a denial of a constitutional right.
24
The McCleskey Court disclaimed any intent to suggest that there is a constitutional right to counsel in federal habeas cases. Id. 499 U.S. at 495, 111 S.Ct. at 1471. On the contrary, quoting Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987), the Court reiterated that "the right to appointed counsel extends to the first appeal of right, and no further." But McCleskey did not explicitly address the question whether attorney error of a sort that would amount to constitutionally ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), would constitute "excusable neglect" if committed at a stage where there is no constitutional right to counsel.
25
In Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), a case decided two months after McCleskey, the Supreme Court came to grips with precisely that question. Because of an inadvertent error on the part of his lawyer, the petitioner in Coleman failed to file a state-court habeas appeal on time--and when the petitioner subsequently sought habeas relief in the federal courts, he argued that his attorney's error constituted "cause" sufficient to excuse the procedural default.
26
The Supreme Court rejected this argument, declaring that "[t]here is no constitutional right to an attorney in state post-conviction proceedings." --- U.S. at ----, 111 S.Ct. at 2566. A petitioner cannot claim constitutionally ineffective assistance of counsel, the Coleman Court held, where the proceedings in which counsel was ineffective were not proceedings in which there was a constitutional right to counsel. Id.
27
The Coleman Court also rejected, flat out, an argument that "[w]here there is no constitutional right to counsel ... it is enough that a petitioner demonstrate that his attorney's conduct would meet the Strickland standard, even though no independent Sixth Amendment claim is possible." Id. Under the cause and prejudice test, Coleman reaffirmed, the "cause" that can excuse a default "must be something external to the petitioner, something that cannot fairly be attributed to him...." Id. Attorney error, as such, is not "external" to the client: "Attorney ignorance or inadvertence is not 'cause' because the attorney is the petitioner's agent when acting or failing to act, in furtherance of the litigation...." Id. --- U.S. at ----, 111 S.Ct. at 2566-67. What matters, Coleman went on to explain, "is not the gravity of the attorney's error ... but that it constitutes a violation of petitioner's [constitutional] right to counsel so that the error must be seen as an external factor...." Id. --- U.S. at ----, 111 S.Ct. at 2567.
III
28
Applying these principles to the case at bar, it seems clear to us that the district court was justified in dismissing Mr. Ritchie's second federal habeas petition as an abuse of the writ.
29
Mr. Ritchie had no constitutional right to effective assistance of counsel in the preparation of his original federal petition. See Pennsylvania v. Finley, 481 U.S. at 556-57, 107 S.Ct. at 1993-94. Even if the lawyer who drafted the first petition disregarded express instructions to include additional claims, and even if Mr. Ritchie did not ratify the omission when he verified the pleading, the omission would clearly constitute "inexcusable neglect" incapable of serving as the kind of external "cause" sufficient to excuse a procedural default. See Coleman v. Thompson, --- U.S. at ---- - ----, 111 S.Ct. at 2566-68. Cf. Johnson v. Singletary, 938 F.2d 1166, 1175 (11th Cir.1991) (counsel's failure to heed instructions could not constitute "cause" sufficient to excuse procedural default where the failure occurred in a proceeding as to which there was no constitutional right to effective assistance of counsel), cert. denied, --- U.S. ----, 113 S.Ct. 361, 121 L.Ed.2d 274 (1992). And if the alleged attorney error could not excuse a procedural default, neither could it excuse the default that occurred when the claims Mr. Ritchie now wishes to assert were omitted from the first petition. See McCleskey v. Zant, 499 U.S. at 493-94, 111 S.Ct. at 1470-71.
30
It is true, to be sure, that the jurisprudential underpinnings of the rule requiring that state procedures be complied with are not identical to the jurisprudential underpinnings of the rule requiring that all available federal habeas claims be asserted at the first opportunity. But this fact hardly precludes use of the same standard to determine whether a violation of either rule can be excused--and McCleskey squarely held that "the same standard applies...." Id. 499 U.S. at 493, 111 S.Ct. at 1470.
31
We are strengthened in our conclusion that the Supreme Court meant what it said in McCleskey by the knowledge that at least four of our sister circuits would decide the case at bar the same way we do. See Johnson v. Hargett, 978 F.2d 855, 859 (5th Cir.1992) ("even if Johnson's first federal habeas counsel were found to have been ineffective, that cannot be cause, under McCleskey, for Johnson's failure to raise [a subsequently-asserted] Brady claim in the first round of federal habeas"), cert. denied, --- U.S. ----, 113 S.Ct. 1652, 123 L.Ed.2d 272 (1993);2 Blair v. Armontrout, 976 F.2d 1130, 1139 (8th Cir.1992) ("Blair may not establish 'cause' based on ineffective assistance of counsel in a federal habeas case"), cert. denied, --- U.S. ----, 113 S.Ct. 2357, 124 L.Ed.2d 265 (1993); United States v. MacDonald, 966 F.2d 854, 859 n. 9 (4th Cir.) ("attorney error in an initial habeas proceeding cannot serve as cause to review subsequent petitions"), cert. denied, --- U.S. ----, 113 S.Ct. 606, 121 L.Ed.2d 542 (1992); Harris v. Vasquez, 949 F.2d 1497, 1513-14 (9th Cir.1991) ("Because Harris has no constitutional right to counsel in his earlier habeas proceedings ... no error by his habeas counsel could constitute ... cause under the standard expressed in McCleskey "), cert. denied, --- U.S. ----, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992).
32
We have no doubt that habeas corpus in general, and the cause and prejudice test in particular, are governed by principles of equity. Because this is so, the federal courts would undoubtedly entertain a second or successive petition from Mr. Ritchie if he could point to a constitutional violation that probably resulted in the conviction of one who was actually innocent. See McCleskey v. Zant, 499 U.S. at 494, 111 S.Ct. at 1470; Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. at 2649-50. We have no more reason to suppose that Mr. Ritchie is actually innocent, however, than did any of the other courts before which he has appeared. And McCleskey makes it very clear indeed that no principle of law or equity requires the federal courts to accept endless habeas corpus applications from the same individual.
33
"Perpetual disrespect for the finality of the convictions," as Justice Kennedy wrote for the Court in McCleskey, "disparages the entire criminal justice system." 499 U.S. at 492, 111 S.Ct. at 1469. In the words of the late Paul Bator, as quoted by Justice Kennedy:
34
"A procedural system which permits an endless repetition of inquiry into facts and law in a vain search for ultimate certitude implies a lack of confidence about the possibilities of justice that cannot but war with the underlying substantive commands.... There comes a point where a procedural system which leaves matters perpetually open no longer reflects humane concern but merely anxiety and a desire for immobility." Id., quoting Bator, 76 Harv.L.Rev. at 452-53.
35
The procedural system in place today has already accorded Mr. Ritchie a trial by jury, with the full panoply of protections required by the constitutions of Tennessee and of the United States. The system has further accorded Mr. Ritchie an appeal, as of right, to a higher court. It has accorded him an opportunity to seek a discretionary appeal to yet another court--the supreme court of his state. It has accorded him an opportunity to seek delayed post-conviction relief from an intermediate state court, and to seek appellate review, again, in the state supreme court. It has allowed Mr. Ritchie to go into a federal district court, as of right, to make a collateral attack on his conviction. And it has allowed an appeal, as of right, from the district court's denial of his claim. There comes a point, McCleskey tells us, where the finality of a conviction must be respected. Because Mr. Ritchie has failed to show any legally sufficient excuse for his failure to assert all of his constitutional claims in his first appearance before the federal district court, we think that this point has finally been reached here.3IV
36
Mr. Ritchie contends that Judge Edgar's preliminary ruling on the excusability of the first petition's omission of the claims now sought to be asserted constituted "res judicata." That doctrine has no application in the absence of a final judgment, however--and the law-of-the-case doctrine, to which Mr. Ritchie probably intended to refer, does not prohibit a district court from reconsidering a preliminary ruling.
37
Judge Edgar did not abuse his discretion in reconsidering his initial ruling. We note, in this connection, that the initial ruling came at a nonadversarial stage, before the court had heard anything at all from the respondent warden. The final ruling came after both sides had been heard from, and we think it was fully in accord with binding Supreme Court precedent.
38
The order dismissing Mr. Ritchie's latest petition for a writ of habeas corpus is AFFIRMED.
39
CONTIE, Senior Circuit Judge, concurring.
40
I concur with the conclusion that defendant's second habeas petition should be dismissed as an abuse of the writ, but for a different reason. I do not believe that this case presents the issue of whether ineffective assistance of counsel in regard to a prior habeas petition constitutes excusable neglect, which would allow a defendant to file a second habeas petition that was not an abuse of the writ. It is not necessary to resolve this issue in the present case because what defendant Ritchie is alleging is mere attorney error, not ineffective assistance of counsel. In Murray v. Carrier, 477 U.S. 478, 486-87, 106 S.Ct. 2639, 2644-45, 91 L.Ed.2d 397 (1986), the Supreme Court held that in that case the omission of a claim from a petition for appeal was attorney error and did not constitute cause for a procedural default. Similarly, in the present case, I believe the alleged omission only rises to the level of attorney error and does not constitute ineffective assistance of counsel. Given the fact that defendant personally signed a verification of his first habeas petition, it can be presumed that he knew of the issues being raised and ratified any omissions. Moreover, as the Supreme Court stated in Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), there is no duty for counsel to raise every " 'colorable' claim suggested by a client." Id. at 754, 103 S.Ct. at 3314.
41
Under the Supreme Court's decision in Murray v. Carrier, 477 U.S. at 486-88, 106 S.Ct. at 2644-45, attorney error short of ineffective assistance of counsel does not constitute cause and will not excuse a procedural default. McCleskey v. Zant, 499 U.S. at 494, 111 S.Ct. 1454, 1470 (1991) states that the same standard is to be used in regard to the abuse of the writ doctrine as is used in determining procedural default. Because attorney error does not constitute cause for excusing a procedural default at the state level, it also does not constitute excusable neglect under the abuse of the writ doctrine at the federal level. Because defendant Ritchie alleges mere attorney error, he has not demonstrated excusable neglect that would allow him to file a second habeas petition. For this reason, the judgment of the district court should be affirmed.
42
MERRITT, Chief Judge, dissenting.
43
The two opinions of my colleagues do not take seriously the language of the congressional enactment on habeas corpus. Judge Nelson argues that two recent Supreme Court decisions combine to prohibit a federal court from ever finding that ineffective assistance of counsel in the preparation of a habeas corpus petition can be sufficient "cause" for a petitioner's failure to raise all available claims in that petition. This reading squarely conflicts with federal legislation and is not required by Supreme Court precedent. Nor can I agree with Judge Contie's determination that "mere attorney error" is all that is at issue in this case and that such error can never constitute cause. I respectfully dissent.
44
The first rule upon which Judge Nelson relies was fashioned for cases involving abuse of the writ questions. McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). In McCleskey, the Court imported the cause and prejudice test from state procedural default law into abuse of the writ law. Under this test, claims raised for the first time in a successive habeas petition are allowed only if the petitioner can establish both a legitimate cause for the failure to include the claims in an earlier petition, and prejudice therefrom.
45
The second new rule was fashioned not in an abuse of the writ case, but in a "state procedural default" or "independent state ground" case. Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The rule in Coleman is that ineffective assistance of counsel is not sufficient to establish cause in cases in which (1) counsel has allowed a state procedural default to occur which serves as an independent state ground barring review of the federal constitutional claim in state court, and (2) the default occurred in a state proceeding in which a defendant has no constitutional right to counsel.
46
In the instant case Judge Nelson imports the reasoning of Coleman into abuse of the writ cases. Noting that there is no right to counsel in a habeas proceeding, Judge Nelson combines these two rules to reach the conclusion that ineffective assistance of counsel may never serve as cause in an abuse of the writ or successive petition case.
47
Such action is unnecessary and contrary to the lawful directive of Congress, which we are bound to respect. The reasoning of Coleman should not be extended from the area of procedural default into habeas proceedings, for at least two reasons. First, Congress has specifically delineated the parameters of "cause" in the habeas context, in 28 U.S.C. Sec. 2244(b), which mandates that federal courts must hear successive petitions asserting new grounds for relief provided these grounds were not deliberately withheld in earlier petitions. An attorney's inadvertent action surely falls within the scope of this mandate. Second, state procedural due process and habeas corpus differ sufficiently to require different applications of the cause and prejudice test.
48
* * * * * *
49
It is true that four circuits have followed Judge Nelson's logic and combined the two rules, arriving at a new per se rule that neglect of counsel can never serve as a legitimate "cause" for raising a new claim in a second or successive habeas petition. See Johnson v. Hargett, 978 F.2d 855, 859 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1652, 123 L.Ed.2d 272 (1993); Blair v. Armontrout, 976 F.2d 1130, 1139 (8th Cir.1992), cert. denied, 113 S.Ct. 2357 (1993); United States v. MacDonald, 966 F.2d 854, 859 n. 9 (4th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 606, 121 L.Ed.2d 542 (1992); Harris v. Vasquez, 949 F.2d 1497, 1513-14 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992).
50
None of these cases provide any real analysis of the question, however, and all ignore the clear language of a federal statute to the contrary. The federal statute codifying the abuse of the writ doctrine, 28 U.S.C. Sec. 2244(b), explicitly prevents the automatic combination of the rules in McCleskey and Coleman. This statute tells federal courts that they must hear a successive petition if the judge "is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ." 28 U.S.C. Sec. 2244(b) (emphasis added). "Deliberately" does not mean its opposite, "unintentionally" or "indeliberately." Judge Nelson, and the circuits which have adopted the same logic, have overlooked this language. The statute allows a successive petition based on counsel's inadvertent failure to present previously all possible claims, but does not allow the "deliberate withholding" of a claim in order to raise it for the first time in a successive petition. "Affirmative words," as Chief Justice Marshall reminded us in Marbury v. Madison, 5 U.S. (1 Cranch) 87, 109, 2 L.Ed. 60 (1803), are usually, "in their operation, negative of other objects than those affirmed." "Expressio unius est exclusio alterius"--the expression of one thing excludes the other. See Singer, 2A Sutherland Statutory Construction Sec. 47.23 (5th ed. 1992).
51
Judge Nelson gives great weight to the fact that Mr. Ritchie "personally signed a verification of the first petition" and that his attorney's failure to include all claims in that petition is "unexplained." However, this Court is not concerned with the factual determination of whether or not Ritchie's failure to submit all his claims in his first habeas petition was truly indeliberate. That is a matter for the district court. We must only determine whether the phrase "deliberately withheld the newly asserted ground or otherwise abused the writ" may be read to include inadvertent withholding of a claim by a lawyer. "Abuse of the writ" is not limited to withholding claims for use in successive petitions, as Judge Nelson seems to believe. A petitioner may "otherwise abuse the writ" by repeating claims raised in an earlier petition, by filing frivolous petitions, by waiting until the day before a scheduled execution to file a petition, etc. The phrase "otherwise abuse," therefore, does not negate the requirement that newly asserted claims be reviewed by this court absent deliberate withholding. Judge Nelson appears satisfied that the petitioner in this case has had a sufficient number of bites at the apple. However, since Congress has already determined the proper number and scope of habeas petitions, this matter is not amenable to judicial discretion. That Congress is presently considering further limits on successive habeas petitions only reinforces my view that legislative action is required to change the law in this case. See 1993 S. 1441, Habeas Corpus Reform Act of 1993; 1993 H.R. 3131, amending 28 U.S.C. Sec. 2244.
52
* * * * * *
53
When the Supreme Court imported the cause and prejudice test from state procedural default law into abuse of the writ law, it did not hold that every circumstance establishing cause for a procedural default must be cause for an abuse of the writ, nor that no circumstance could establish cause for what would otherwise be an abuse of the writ unless it would also be cause for a procedural default. McCleskey held that the "unity of structure and purpose in the jurisprudence of state procedural defaults and abuse of the writ" justified importing the cause and prejudice test from state procedural default law into abuse of the writ law. McCleskey, 499 U.S. at 493, 111 S.Ct. at 1470 (emphasis added). The two areas of law are structurally similar in that each establishes an initial procedural barrier which can prevent a habeas petitioner from having a petition heard on the merits. They are similar in purpose in that they seek to promote the government's interest in finality, comity, federalism, and the orderly administration of justice. See id. 499 U.S. at 491-93, 111 S.Ct. at 1468-70. But these two areas of the law are not identical. State procedural defaults and successive petitions arise in different contexts, and so application of the cause and prejudice test may produce different results.
54
The most important difference between the two areas of law is their source. State procedural default law is based upon the independent state ground rule that a federal court may not correct a state court's error as to federal law if the state court's decision is also based upon a sufficient independent state law ground. Coleman, --- U.S. at ----, 111 S.Ct. at 2554. Because a state procedural default is a sufficient independent ground for a state court's denial of review of a federal constitutional claim, federal courts can only review such claims in carefully limited circumstances. Although this rule is based in part upon strong concerns of comity and federalism (concerns which are much weaker in the abuse of the writ situation), it is justified primarily by the Article III limitation on the jurisdiction of federal courts to cases and controversies. See id. (stating that the rule "is grounded in concerns of comity and federalism" and "the limits of this Court's jurisdiction"). If a federal court were to correct a state court mistake as to federal law when the state court decision is also supported by an independent state ground, it would be issuing an advisory opinion. Id. State procedural default law is, therefore, based upon strong constitutional considerations not present in abuse of the writ cases.
55
In contrast, abuse of the writ is a judicially developed doctrine which has been codified by Congress. Although there are constitutional limits on how liberally the courts or Congress may apply a cause and prejudice test in the context of state procedural default, there are no such limits in the context of abuse of the writ. Just as states may allow exceptions for procedural defaults based upon ineffective assistance of counsel in proceedings in which there is no constitutional right to counsel, e.g., Lozada v. Warden, 613 A.2d 818 (Conn.1992), Palmer v. Dermitt, 102 Idaho 591, 635 P.2d 955 (1981), so may, and so has, Congress. Title 28 U.S.C. Sec. 2244 is a federal statute, it has not been ruled unconstitutional, and we are bound to apply its plain meaning. The statute requires a federal court to hear a successive writ if the "judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ." "Deliberately" does not mean "indeliberately"; the statute clearly contemplates that a claim not asserted in an earlier writ due to counsel's inadvertence may be heard on a subsequent petition. Congress has therefore determined that ineffective assistance of counsel may be cause for a failure to assert all available claims in a habeas petition.
56
* * * * * *
57
For the reasons discussed above I do not agree with Judge Contie's determination that "mere attorney error" cannot constitute cause when the withholding of a claim is indeliberate. Judge Contie relies on Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), which, like Coleman, discusses cause in the context of a state procedural default case. The holding in Carrier is not dispositive with respect to the habeas petition at issue in the present case. Nor am I convinced that attorney error is all that is involved in this case. In Carrier, the Supreme Court held that the omission of a claim was attorney error and not cause for a procedural default. Ritchie alleges that his lawyer omitted four claims. Since the district court judge dismissed Ritchie's petition as a matter of law, these claims were not developed in the record below. Judge Contie may intuitively know the substance and character of Ritchie's claims but I am not sufficiently clairvoyant to know the facts of the matter in the absence of a record.
58
For these reasons, I would reverse the judgment of the district court and remand for determination whether Ritchie's habeas counsel provided ineffective assistance after undertaking to represent him by presenting his best arguments.
1
These rules were proposed by the United States Supreme Court under the Rules Enabling Act. Their effective date was delayed initially by Pub.L. 94-349, but with amendments set forth in Sec. 2 of Pub.L. 94-426 Congress then expressly approved the rules. See Sec. 1 of the latter statute, as quoted in the Historical Note following 28 U.S.C. Sec. 2254. Such rules have the same binding effect as statutes. See Bank of Nova Scotia v. United States, 487 U.S. 250, 255, 108 S.Ct. 2369, 2374, 101 L.Ed.2d 228 (1988)
2
Mr. Ritchie relies heavily on dicta in a pre-McCleskey Fifth Circuit decision, Jones v. Estelle, 722 F.2d 159, 167 (5th Cir.1983) (en banc), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984), where the court said that "incompetence of habeas counsel when it explains an omission or flawed submission can excuse what otherwise would amount to an abuse of the writ." Although McCleskey cited Jones v. Estelle as an example of the appeals court decisions which recognize that "a petitioner may abuse the writ by failing to raise a claim through inexcusable neglect," 499 U.S. at ----, 111 S.Ct. at 1468, the Supreme Court obviously did not endorse the proposition that inexcusable neglect becomes excusable, in habeas proceedings, if the neglect can be attributed to an incompetent lawyer. Dean v. United States, 788 F.Supp. 306 (E.D.Tex.1992), does not support such a proposition either; in Dean a habeas claim was omitted from an initial federal habeas petition by a petitioner who had no lawyer at all, competent or otherwise. And in United States v. Flores, 981 F.2d 231 (5th Cir.1993), the Fifth Circuit held that McCleskey 's cause-and-prejudice standard applies to pro se litigants just as it does to those who are assisted by counsel. Id. at 236 n. 8
3
The abuse of the writ doctrine is codified, to repeat, in two enactments of equal status: Rule 9(b) and 28 U.S.C. Sec. 2244(b). Rule 9(b) makes no mention of deliberately withholding a ground for relief. Section 2244(b) identifies deliberate withholding as a type of abuse, but in the phrase "or otherwise abused the writ" it then makes clear that other types of abuse may also justify rejection of subsequent habeas applications
Chief Judge Merritt suggests that by failing to read Sec. 2244(b) more restrictively than Rule 9(b), we have failed to take the language of Sec. 2244(b) seriously; we have, he says, overlooked the fact that Sec. 2244(b) deals expressly with situations where newly asserted grounds have been withheld deliberately, while using more general language to deal with situations in which the writ has "otherwise" been abused.
But Congress did not qualify its "or otherwise" language in Sec. 2244(b), and we have no more overlooked what Congress said than we have overlooked what the Supreme Court says Congress said. Even if Coleman had never been decided, McCleskey would still tell us, in the plainest of English, that the federal courts are under no Congressional mandate to hear successive petitions asserting grounds for relief that were omitted from earlier petitions because of "inexcusable neglect." The Supreme Court may have misread the "or otherwise" phrase of Sec. 2244(b), to be sure, and Congress is free to correct the Supreme Court's error if error it was. Courts of appeals, as inferior courts, do not have that privilege.
The Supreme Court is not unfamiliar with the maxim expressio unius est exclusio alterius, and the Court nonetheless held in McCleskey that "or otherwise" extends to inexcusable neglect. We are not prepared to give Sec. 2244(b) an interpretation that fails to take seriously the interpretation given it by the Supreme Court. We cannot excuse a neglect that is inexcusable, in short, on the strength of a Latin maxim which the Supreme Court did not see fit to invoke in McCleskey.
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524 F.Supp.2d 74 (2007)
UNITED STATES of America
v.
WINDSOR CAPITAL CORP.
No. 06-MBD-10475-RCL.
United States District Court, D. Massachusetts.
August 16, 2007.
*75 *76 Barbara Healy Smith, United States Attorney's Office, Boston, MA, Nathaniel J.
Dorfman, U.S. Department of Justice, Tax Division, Washington, DC, for United States of America.
Paul F. Ware, David R. Zipps, Kenneth A. Cohen, Goodwin Procter LLP, Boston, MA, for Windsor Capital Corp.
ORDER ON PETITION TO ENFORCE INTERNAL REVENUE SERVICE SUMMONS
LEO T. SOROKIN, United States Magistrate Judge.
Before, the Court is the United States' petition to enforce an Internal Revenue Service ("IRS") summons, and respondent Windsor Capital Corporation's ("Windsor Capital") opposition thereto. The Court's Order of May 24, 2007 (Docket # 24), which describes the factual context out of which this dispute arose and explains the legal standards governing the Court's review of the United States' petition, is incorporated herein and will not be restated. In response to the Order, Windsor Capital submitted all of the documents in dispute for in camera review. After a second hearing, review of the Parties' briefs, and an in camera examination of all of the documents submitted by Windsor Capital, the petition is DENIED. As noted in the Court's prior Order, the United States bears a greater burden to obtain the otherwise privileged documents than to obtain the earlier ordered in camera review.
The Court finds that the United States has not met its burden of proof in this case to pierce the asserted privileges. The United States invokes the crime fraud exception to the privileges and advances only two theories of fraud.[1] Each is discussed below.
*77 1. The Circular Flow Theory of Fraud
Certain Wallace Family trusts donated property worth $18.5 million to the Wallace Foundation which in turn sold the property and donated the $18.5 million in cash to The Nature Conservancy ("TNC"). The TNC then added the $18.5 million to the $45.5 million it already had from other unrelated sources in order to buy the Farm from other Wallace Family entities for a purchase price of $64 million. The government says that the. Wallace Family members knew the $18.5 million donation was going to be returned to entities benefitting them and that therefore the structure of the transaction violated the familiar principle that a "payment of money generally cannot constitute a charitable contribution if the contributor expects a substantial benefit in return." United States v. American Bar Endowment, 477 U.S. 105, 117, 106 S.Ct. 2426, 91 L.Ed.2d 89 (1986). In essence, the government argues that the $18.5 million was funneled back to the Wallace Family in the form of the increased purchase price.
The taxpayers donating the $18.5 million, namely six family trusts benefitting Neil and Monte Wallace's six children, gave up $18.5 million in value and these taxpaying trusts received nothing in return. The TNC paid $18.5 million more for the Farm because of the contribution, a benefit received both by six other family trusts benefitting these same six children and, to a smaller degree, Neil and Monte Wallace personally. Looking beyond the legal formalities of the transaction reveals that the six children benefitted both from the $18.5 million contribution deduction and from the resulting increased purchase price paid by TNC. (Presumably the children, in the form of their taxpaying trusts, also bore the burden of the larger capital gains associated with a sale price increased by $18.5 million although the parties have not discussed that). Another significant fact is plain the Wallace Family intended to donate $32.5 million in value to TNC and did so. No deduction was claimed for value not given by the Wallace Family to TNC (assuming for these purposes that the $78 million appraisal is valid).
As the government points out, the Wallace family retained two Boston law firms, Bingham Dana LLP (now Bingham McCutchen LLP) and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C, to help "craft" the transaction. The undisputed evidence establishes that members of these law firms were involved in negotiating and structuring all aspects of the sale. The complexity of the transaction the numerous entities involved, together with the numerous steps utilized to complete the transaction certainly reflects creativity *78 on the part of the Wallace family's tax attorneys, but neither the complexity nor the deep involvement of counsel are indicative of fraud in this case.
Moreover, the record establishes that lawyers, not the Wallaces, conceived of the circular structure of the transaction, no doubt in an effort to maximize the tax benefits. See Mockus Declaration, at ¶ 72 (stating that structure of the transactions "represents the most tax-beneficial allocation of the $32.5 million charitable contribution deduction across the various Wallace Family entities").
The Court has reviewed the privileged documents in camera. The documents reveal that counsel and the client(s) endeavored to develop an admittedly complicated financial transaction over a substantial period of time in light of various (and changing) business and tax considerations. There is not an indication that the Wallaces acted with an intent to evade taxes, rather the documents indicate they intended to maximize profit and minimize taxes within the bounds of the applicable laws, albeit by taking aggressive positions in a transaction the structure of which was conceived and directed by lawyers.
Whether or not the deduction will ultimately be determined to be proper as a matter of tax law (a question which is not before me, but which is presently pending before the United States Tax Court), in light of the foregoing the government has nevertheless failed to satisfy its burden of proof in this proceeding. Accordingly, the petition is DENIED on the circular flow theory of fraud.
2. Appraisal Theory of Fraud
The government also argues that the Wallace family's instruction to the appraiser, Coleman, to disregard the preemptive purchase rights caused Coleman to substantially overvalue the Farm. According to the government, the Wallace family knew that the preemptive rights were a valid encumbrance on the property and that they had a negative effect on the fair market value of the Farm. The government's, theory is that because TNC was only committed to pay $45.5 million out of pocket, the inflated $78 million appraisal of the Farm allowed various family members and entities to report "contributions" to which they would not otherwise be entitled: the $14 million bargain sale charitable donation, and the $18.5 million charitable contribution.
In tax returns filed with the IRS, the owners of Windsor Capital and the Sliver, Beach, and Blue Heron parcels, and Real Estate Equities, L.P. and its partners, represented that the $78 million was a qualified appraisal within the meaning of the Treasury Regulations, which provide that
[a] qualified appraisal shall include [inter alia] the following information . . . (D) The terms of any agreement or understanding entered into (or expected to be entered into) by or on behalf of the donor or donee that relates to the use, sale, or other disposition of the property contributed, including, for example, the terms of any agreement or understanding that (1) Restricts temporarily or permanently a donee's right to use or dispose of the donated property,(2) Reserves to, or confers upon, anyone (other than a donee organization or an organization participating with a donee organization in cooperative fundraising) any right to the income from the contributed property or to the possession of the property, including the right to vote donated securities, to acquire the property by purchase or otherwise, or to designate the person having such income, possession, or right to acquire . . .
26 C.F.R. § 1.170A-13(c)(3)(ii).
*79 For purposes of determining the amount of a charitable deduction, the Code further provides that if a charitable contribution is made in property other than money, the amount of the charitable deduction is the fair market value of the property at the time of the contribution. The fair market value is the price at which property would change hands between a willing buyer and willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of relevant facts. Treasury Regulations on Income Tax (1954 Code) (26 C.F.R.), 1.170A-1(c). According to the government, the family misrepresented that the appraisal was for the fair market value of the Farm, and that they had no "knowledge of facts that would cause a reasonable person to expect the appraiser falsely to overstate the value of the donated property." 26 C.F.R. § 1.170A-13(c)(5)(ii).
Pursuant to a written agreement, the majority of the Farm's acreage was subject to preemptive purchase rights held by the family that sold the land to the Wallaces in 1969. The appraisal did not consider the potential effect of this contractual right on the value of the property; the Wallaces instructed the appraiser to consider the preemptive purchase rights "waived," an assumption specifically noted in the written appraisal at page 7.[2] The sale agreement between Windsor Capital and TNC provided, as a condition precedent to the closing, that the preemptive purchase rights would be "extinguished." Mockus Declaration Ex. 18, at 3.1(e). Fulfilling this condition prior to closing was TNC's sole responsibility under the contract. Other evidence suggests that the condition was fulfilled later than agreed. The undisputed declaration from the IRS revenue agent states that, in fact, the rights were extinguished after the closing. Mockus Declaration at ¶ 84. At the further hearing held on the petition, counsel for the government stated that he thought that the closing and waiver occurred simultaneously, an assertion defense counsel did not dispute. Of course, there is no doubt that the holders of the preemptive purchase rights did not exercise their rights to purchase the Farm. That non-action necessarily occurred prior to the sale/donation of the land to TNC.[3]
The government argues that disregarding the preemptive purchase rights in the appraisal fraudulently inflated the value of the Farm. But the only cases the government cites, Great Northern Nekoosa v. United States, 711 F.2d 473, 475 (1st Cir. 1983) and McMurray v. Commissioner, 985 F.2d 36, 41 (1st Cir.1993), involved encumbrances on the land that restricted or limited the buyer's use of the land. Here, the preemptive purchase rights did not limit the buyer TNC's use of the land in any way.
Even as the preemptive purchases held by the sellers were described by the government, the rights restricted only the Wallaces: In a 1969 Agreement "Monte Wallace and Neil Wallace agreed not to sell, transfer or convey any part of the Herring Creek Farm to an unrelated party without first offering to sell the same part of Herring Creek Farm to the Sellers (or their descendants) at a predetermined peracre *80 purchase price" plus the fair market value of any structures. Mockus Declaration at ¶ 35 (Docket # 2) (emphasis added).[4] The 1969 Agreement also provides that the "provisions of this Agreement shall run with the land except where they are stated to be personal in nature." 1969 Agreement at ¶ 5(h) pg. 6, Ex. 5 to Mockus Declaration.
The government does not stand alone in describing the rights as personal in nature. In prior litigation cited extensively by the government, the Commonwealth's courts determined, and this Court agrees, that the preemptive purchase rights created in this 1969 Agreement were personal in nature, as opposed to running with the land. In litigation between the Wallaces and the holders of the preemptive purchase rights, the Superior Court declared:
The right of first refusal is not a `restriction on the use of land.' See Labounty v. Vickers, 352 Mass. 337, 347, 225 N.E.2d 333 (1967) ("`restriction of the use of land' is a right to compel the person entitled to possession not to use it in specified ways"); Myers v. Salin, 13 Mass.App.Ct. 127, 133-34, 431 N.E.2d 233 (1982). Nor does the right of first refusal "run with the land." A covenant runs with the land when its benefit or obligation passes with ownership of the land irrespective of the consent of the subsequent parties. See 21 C.J.S.; Covenants 25 (1990); Howard J. Alperin & Lawrence D. Shubow, Summary of Basic Law 17.83, at 659 (1996); see generally Gallison v. Downing, 244 Mass. 33, 36, 138 N.E. 315 (1923) (covenant that did not run with land could not be enforced by subsequent grantee). The right of first refusal, by the plain terms of the [1969] agreement, benefits only specified people, identified by name or by relationship to those named, and only so long as those people remain owners of abutting land containing dwelling houses; it grants no rights to, and imposes no burdens on, anyone else who might come to own the land. The catch-all language contained in the second to last paragraph of the agreement, stating that "the provisions of this Agreement shall run with the land except where they are stated to be personal in nature . . ." cannot trump the plain meaning of the provision in issue.
Johnson v. Cohan, 11 Mass. L. Rep. 421, 2000 WL 282594, *8, 2000 Mass.Super. LEXIS 45 at *25-26 (2000). The government has cited this Superior Court litigation upholding the validity of the right of first refusal as evidence that Windsor Capital was on notice of the vitality Of the agreement and the need to account for its value in the appraisal, however the language above also meaningfully distinguishes the present case from the two federal decisions cited by the government involving encumbrances on the land.
Thus, the government's two cases do not establish a reasonable basis to conclude that assuming the rights of first refusal were waived, for purposes of a valuation of the property at the time of the donation, was a fraudulent effort to evade taxes. *81 This is especially so in light of the personal nature of the preemptive rights, the focus of the appraisal on the time of contribution and the court's in camera review of the privileged documents. The privileged documents do not contain evidence supporting the government's theory of fraud in the appraisal.
Accordingly, the government has not met its burden of proof on its appraisal theory of fraud and the petition is DENIED as to this theory.
3. Challenges to the Assertions of Privilege
Finally, the government argues that even if the crime fraud exception does not apply, seventeen of the documents listed in the summons are excepted from a valid claim of privilege because they implicate Stuart Johnson. Johnson was in-house counsel, vice president, and/or trustee of many of the entities controlled by the Wallace family. The government argues that although Johnson is an attorney, Windsor Capital has not demonstrated that he was acting in his capacity as an attorney, or gave any legal advice in connection with, the documents at issue.
The attorney-client privilege "extends to all communications made to an attorney or counsellor, duly qualified and authorized as such, and applied to by the party in that capacity, with a view to obtain his advice and opinions in matters of law, in relation to his legal rights, duties, and obligations." F.D.I.C. v. Ogden Corp., 202 F.3d 454, 461 (1st Cir.2000) (citation omitted). As the party asserting the privilege, Windsor Capital bears the burden of demonstrating its applicability to the documents at issue. See Town of Norfolk v. U.S. Army Corps of Engineers, 968 F.2d 1438, 1457 (1st Cir.1992). The attorney-client privilege protects communications between corporate officers and in-house counsel. See Upjohn Co. v. United States, 449 U.S. at 389-90, 101 S.Ct. 677. However, the privilege does not apply when in-house counsel is engaged in "nonlegal work." Burlington Industries v. Exxon Corporation, 65 F.R.D. 26, 33 (D.Md.1974). "[A]n in-house lawyer may wear several other hats (e.g., business advisor, financial consultant) and because the distinctions are often hard to draw, the invocation of the attorney-client privilege may be questionable in many instances." City of Springfield, 196 F.R.D. at 9. Courts have held that "nonlegal work" includes the rendering of business or technical advice unrelated to any legal issues. Pacamor Bearings, Inc. v. Minebea Co., Ltd., 918 F.Supp. 491, 510-511 (D.N.H.1996). "A document must have been intended to be confidential and made for the purpose of giving or obtaining legal advice to be vested with the attorney-client privilege. Moreover, so long as the communication is primarily or predominantly of a legal character, the privilege is not merely lost by reason of the fact that it also dealt with nonlegal matters." City of Springfield, 196 F.R.D. at 9 (citation and quotation marks omitted).
For the attorney-client privilege, Windsor Capital must demonstrate that Johnson was acting as an attorney in relation to each of the documents at issue. "Merely saying that he was so acting in a memorandum of law is patently insufficient to meet the burden. Neither can it be assumed." Borase v. M/A COM, Inc., 171 F.R.D. 10, 14 (D.Mass.1997).
Windsor Capital has also asserted the work product privilege. The work product doctrine was first recognized by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The Court noted that in performing his or her duties, it is essential that an attorney work with a certain degree *82 of privacy and free from unnecessary intrusion by opposing parties and their counsel. Id., at 510, 67 S.Ct. 285. "Proper preparation of a client's case demands that [the attorney] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference." Id., at 511, 67 S.Ct. 385. Such attorney work product is reflected in "interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways." Id. Subsequently, the work product doctrine was codified by Fed.R.Civ.P. 26(b)(3), which permits the discovery of otherwise relevant materials which have been
". . . prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means."
The work product privilege applies here. The planning and structuring of this transaction was performed in anticipation of litigation. At least one of the privileged documents specifically references anticipated litigation in that it seeks advice regarding the likely outcome in a Tax Court proceeding of various possible positions. In light of the size of the donation and deductions as well as the nature of the transactions, an audit and subsequent Tax Court proceedings were reasonably anticipated.
The court has reviewed the description of each of the documents listed in the privilege log, the sworn declarations of Johnson and Karen Stratton, Vice President and Director of Tax for GID, and the parties' reasoning in support of, and in opposition to, the production thereof. The following documents are protected because they consist of either (1) in-house counsel's communications with outside counsel, pertaining to legal issues; (2) in-house counsel's communication with the client about legal issues or (3) protected work product:
Bates # 013223, 16278; 016412, 016420, EDOC000322, 01537, 020116, 029421, EML000789,[5] June 1 2001 Richards Documents, Undated Johnson Document # 2.
Windsor Capital must produce the remaining documents as they are not privileged: EML000373, EML000429, Undated Johnson Document # 1,[6] 028988.
CONCLUSION
For the foregoing reasons, the petition is DENIED except that Windsor Capital shall produce to the Petitioner, by August 23, 2007, the documents bearing Bates Numbers EML000373, EML000429, Undated Johnson Document # 1, 028988.
SO ORDERED.
NOTES
[1] Under the Internal Revenue Code, a taxpayer can be held liable for civil tax fraud where he intended to evade taxes that he knew "or believed to be owing." Stoltzfus v. United States, 398 F.2d 1002, 1004 (3rd Cir.1968), Mitchell v. C.I.R., 118 F.2d 308, 310 (5th Cir.1941). In any proceeding involving the issue whether the petitioner has been guilty of fraud with intent to evade tax, the burden of proof in respect of such issue shall be upon the Secretary." 26 U.S.C. § 7454(a).
Of course, an attorney need not know about, or be complicit in, the alleged fraudulent activity. It is the client's behavior that is the focus of the inquiry. United States v. Reeder, 170 F.3d 93, 106 (1st Cir.1999), In addition, the exception applies not only where the client actually knows that the contemplated activity is illegal, but also where the client reasonably should have known. United States v. Rakes, 136 F.3d 1, 4 (1st Cir.1998). In order to pierce the attorney client/work product doctrine privileges, the government need not actually prove that the taxpayer committed fraud. Rather, the First Circuit instructs that the government must demonstrate that there is "a reasonable basis to believe that the lawyer's services were used by the client to foster a crime or fraud." In re Grand Jury Proceedings, 417 F.3d 18, 23 (1st Cir.2005) (emphasis added).
[2] The reference was opaque; it referenced the 1969 Agreement, but the appraisal neither summarized nor attached the relevant portion of the 1969 Agreement.
[3] Although the preemptive purchase rights may not have been extinguished or waived until after the transfer of the land to TNC, the holders of these rights did not exercise their rights prior to the sale of the land to TNC, thereby allowing the sale to go forward. This non-exercise of the rights effectively extinguished them, since the rights did not run with the land. See discussion, infra.
[4] The relevant text of the 1969 agreement states: "the parties hereto hereby agree that until January 1, 2010, . . . the Trustee [of the trust holding the land for the Wallaces] and the Wallaces will not sell, transfer or convey any part of the Trustee's land [other than to Neil or Monte Wallace or their spouses or descendants] without first offering to sell the same to such one or all of a group consisting of" the sellers or their descendants. 1969 Agreement at 4-5, Exhibit 5 to Mockus Declaration. The agreement goes on to establish the offering procedures and, in the event the sellers did not exercise their right of first refusal, provides the Wallaces forty-five days thereafter to sell the property on whatever terms they arrange. Id, at 5-6.
[5] I note that the parties description of this document is inaccurate. The Court's copy is an email from Attorney Milton dated January 18, 2001 at 5:39 p.m. It is a privileged communication, although it appears to be a copy of a document previously produced. Dorfman Declaration Ex. 18.
[6] Respondent pressed a claim for privilege necessitating briefing and consideration by the Court regarding a piece of blank Johnson stationary attached to a produced document. The document is nothing more than a piece of his stationary.
| {
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135 F.3d 694
123 Ed. Law Rep. 1087
Annie SWANSON, a minor child, By and Through her parents andnext friends, Dennis SWANSON and Lucy Swanson,Plaintiffs-Appellants,v.GUTHRIE INDEPENDENT SCHOOL DISTRICT NO. I-L; MelvinScheihing, President; Karl Kinney, 1st Vice President;RICK DAVIS, 2nd Vice President; Hugh Plagg, Member; EvansG. Fowler, Member; Robert Hudson, Member; Janna Pierson,Member; Don Bowman, Superintendent; J.E. Haney, Principal,Defendants-Appellees.
No. 96-6354.
United States Court of Appeals,Tenth Circuit.
Jan. 29, 1998.
1
Douglas Laycock, University of Texas School of Law, Austin, TX (A. Daniel Woska, Conner L. Helms of Woska Helms Dowd Underwood & Hasbrook, Oklahoma City, OK; Todd A. McKinnis of McAlister, McAlister & Burnett, P.C., Edmond OK; Kelly Shakelford of The Rutherford Institute, Dallas, TX, were on the briefs), for Plaintiffs-Appellants.
2
Jerry A. Richardson (Frederick J. Hegenbart with him on the brief) of Rosenstein, Fist & Ringold, Tulsa, OK, for Defendants-Appellees.
3
Walter A. Smith, Jr., Steven J. Routh, and Barbara J. de La Viez of Hogan & Hartson, L.L.P., Washington, DC; Kathryn W. Bradley of Hogan & Hartson, L.L.P., Denver, CO, filed an amici curiae brief.
4
Before BRORBY and McWILLIAMS, Circuit Judges, and BLACK, District Judge.1
5
BLACK, District Judge.
6
Annie Swanson and her parents as next friends (Plaintiffs) appeal the district court's grant of summary judgment to Defendants. Annie had filed suit claiming that Defendants' refusal to allow her to attend public school on a part-time basis violated her rights under the Free Exercise Clause of the United States Constitution, her parents' constitutional right to direct her education, and her rights under Oklahoma state law.2 We affirm the judgment of the district court.
FACTS
7
Annie has been home-schooled by her parents since she started school. The purpose behind the home-schooling is religious-Annie's parents wish to be able to teach her Christian principles that are excluded from the public-school curriculum. When Annie reached the seventh grade, her parents decided that she would benefit by taking a few classes at the public school. Annie's parents believed the public school's ability to teach certain classes (particularly foreign-language classes, vocal music, and some science classes) was superior to their instructional capability in those areas, and that attending some classes at the public school would better prepare Annie for college.
8
Annie's parents spoke to the then-superintendent of schools and received permission for her to attend two seventh-grade classes for the last nine weeks of the school year. She attended those classes, performed very well in them, and caused no disruption to the school system. Annie then pre-registered for two classes for the eighth grade. Before she began school, however, Defendant Bowman was hired as the new superintendent. He refused to allow Annie to attend the eighth grade on a part-time basis, and told her parents they would need permission from the school board. He also made some statements that Mrs. Swanson interpreted as criticism of Christian home-schoolers.
9
In August 1994 the school board held a regularly-scheduled meeting at which the Swansons were allowed to present their position. The board deferred a decision on adopting a policy concerning part-time attendance, but did vote to require Annie to register as a full-time student if she wished to attend eighth-grade classes before such a policy could be adopted. At the September meeting of the school board the board voted to adopt the following part-time-attendance policy:"It is the policy of the Guthrie Board of Education that all students enrolling in Guthrie Public Schools must do so on a full-time basis. Full-time basis shall be defined as attending classes for the full instructional day within the public school system or in con-junction with another state accredited institution such as vocational-technical school or a college or university for concurrent enrollment. The only exceptions to this policy shall be for fifth-year seniors and special education students whose IEP's require variations of student schedules."
10
Following this meeting, attorneys representing Annie and her parents wrote to the school board threatening a lawsuit and requesting an opportunity to address the board. A special meeting of the board was held in October 1994, at which the board reiterated its previously-adopted policy. The board also added the following sentence to the policy: "In the event the State Department of Education advises us that part-time students can be counted for state aid purposes, the Board will reconsider this policy." The board's president also made a public statement concerning the issue, noting the board's respect for the right of parents to home-school their children, and indicating that the basis for the board's decision was simply the fact that part-time students cannot be counted for state financial-aid purposes. The board feared that Annie's request, if granted, could set a precedent allowing other home-schooled children as well as private-school students to use the public school's facilities on an as-wanted basis, without a corresponding increase in state financial aid. Pursuant to the board's policy, Annie was not allowed to take classes of her choice from the public school during the 1994-95 school year, or to otherwise attend the public school on a part-time basis.
11
In April 1995, Plaintiffs filed the instant lawsuit, alleging various constitutional violations and a state-law claim. Following a motion to dismiss by Defendants, a motion for summary judgment by Plaintiffs, and a hearing on Plaintiffs' motion for a preliminary injunction, the district court granted summary judgment for Defendants.
STANDARD OF REVIEW
12
Plaintiffs do not claim there are any material facts in dispute. Instead, they maintain that the trial court should have granted their own motion for summary judgment as a matter of law. "We review the grant of summary judgment de novo, applying the same standard applicable in the district court." Meyerhoff v. Michelin Tire Corp., 70 F.3d 1175, 1178 (10th Cir.1995). When there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Id. Accepting the facts of this case as presented, therefore, we must decide whether Annie or her parents have shown that they, rather than Defendants, were entitled to summary judgment on one or more of their claims.
ANALYSIS
Free-Exercise Claim
13
The question at issue in this case is the validity of the rule or regulation enacted by the school board, as it impacts on Plaintiffs' right to the free exercise of their religion. Plaintiffs maintain that the part-time-attendance policy is a burden, albeit indirect, on the full and free exercise of their religious beliefs concerning the way in which children should be raised and educated. Therefore, they argue, the policy should be subjected to a type of strict scrutiny, requiring that it be justified by a compelling governmental interest and that it be narrowly tailored to meet that interest. See Sherbert v. Verner, 374 U.S. 398, 402-03, 83 S.Ct. 1790, 1792-94, 10 L.Ed.2d 965 (1963) (applying this test to a denial of unemployment compensation benefits that was based on the government's refusal to recognize religious beliefs as a valid reason for terminating one's employment). Defendants, on the other hand, contend that the policy is a neutral policy of general applicability that need not satisfy the compelling-governmental-interest requirement. In the alternative, they claim there were compelling governmental interests at stake in the adoption of the part-time-attendance policy.
14
As a general proposition, a law (or policy) that is neutral and of general applicability need not be justified by a compelling governmental interest even if that law incidentally burdens a particular religious practice or belief. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 2225-26, 124 L.Ed.2d 472 (1993); U.S. v. Meyers, 95 F.3d 1475, 1481 (10th Cir.1996), cert. denied, --- U.S. ----, 118 S.Ct. 583, 139 L.Ed.2d 421 (1997). On its face, the policy enacted by the school board in this case is neutral and of general application-it applies to all persons who might wish to attend public school on a part-time basis, and prohibits such part-time attendance (with certain specific exceptions, such as fifth-year seniors and special-education students). It applies to students who are homeschooled for secular reasons as well as those home-schooled for religious reasons, and it applies to students attending private schools whether or not those private schools are religious or secular in orientation.
15
In their briefs on appeal, Plaintiffs have argued that the policy is not actually neutral and instead was aimed specifically at Annie, for purposes of discriminating against Christian home-schoolers. If that were the case, the general proposition discussed in Lukumi Babalu Aye would not apply and Defendants would have to justify the policy with a compelling governmental interest and a showing that the policy was narrowly tailored to further that interest. Lukumi Babalu Aye, 508 U.S. at 531-32, 113 S.Ct. at 2225-26. However, as Defendants point out, Plaintiffs never made this argument below. That is, Plaintiffs did not attempt to show that the seemingly neutral policy was in fact created for a discriminatory purpose, or that the exceptions to the policy were so pervasive that the policy actually applied only to Christian home-schoolers. Cf. id., 508 U.S. at 534-42, 113 S.Ct. at 2227-32 (although city's ordinance appeared neutral on its face, circumstances surrounding its enactment, statements of city councilors, and fact that exceptions to ordinance meant burden of ordinance fell only on particular religious practice established that ordinance was not in fact neutral but was aimed at suppressing that practice). Since the argument now advanced by Plaintiffs was not made below or ruled on by the district court, we will not address it for the first time on appeal. See Tele-Communications, Inc. v. Commissioner of Internal Revenue, 104 F.3d 1229, 1232-33 (10th Cir.1997) (generally, appellate court will not consider issue raised for first time on appeal; vague, arguable references to a point in the district court proceedings do not preserve the issue for appeal).3
16
We are therefore left with the fact that the board's policy is a neutral policy of general applicability. Plaintiffs do not attempt to argue that the policy directly burdens their right to free expression, nor could they. The policy does not prohibit them from home-schooling Annie in accordance with their religious beliefs, and does not force them to do anything that is contrary to those beliefs. Cf. Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 877-78, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (government may not regulate religious beliefs as such, nor compel affirmation of certain beliefs, nor punish the expression of religious doctrines, nor impose special disabilities on the basis of religious views or religious status, but may enact laws that incidentally burden religious expression). The board's policy therefore does not violate traditional free-exercise principles. See Thiry v. Carlson, 78 F.3d 1491, 1496 (10th Cir.) (law that is religion-neutral and generally applicable does not violate Free Exercise Clause even if it incidentally affects religious practice), cert. denied, --- U.S. ----, 117 S.Ct. 78, 136 L.Ed.2d 36 (1996).
Hybrid-Rights Claim
17
Plaintiffs point out that parents have a constitutional right to raise and educate their children, and that the part-time-attendance policy infringes on this right as well as on the free-exercise right discussed above. Therefore, according to Plaintiffs, the compelling-interest/closely-tailored analysis must be applied to determine the validity of the policy. Plaintiffs' argument is based on a portion of the Smith case, in which the Supreme Court noted the difference between cases solely involving the Free Exercise Clause and those implicating other constitutional protections, such as the parental right to direct the education of children. 494 U.S. at 881, 110 S.Ct. at 1601. The Court also quoted a passage from Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15 (1972), which states the proposition that when the interests of parenthood are combined with a free exercise claim "of the nature revealed by this record," the government must establish more than a mere reasonable relationship between its law and a purpose within the competency of the State. Id., 406 U.S. at 207 fn. 1, 92 S.Ct. at 1529 fn. 1. This more-than-areasonable-relationship requirement, it could be argued, is similar to the compelling-interest test set out in Sherbert.4
18
It is difficult to delineate the exact contours of the hybrid-rights theory discussed in Smith. As we discuss below, however, we believe that simply raising such a claim is not a talisman that automatically leads to the application of the compelling-interest test. We must examine the claimed infringements on the party's claimed rights to determine whether either the claimed rights or the claimed infringements are genuine. We will begin with Plaintiffs' parental-rights claim.
19
We have no quarrel with Plaintiffs' assertion that Annie's parents have a constitutional right to direct her education, up to a point. For example, they have a right to send her to a private school, whether that school is religious or secular. See Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). Numerous cases, however, have made it clear that this constitutional right is limited in scope. Federal courts addressing the issue have held that parents have no right to exempt their children from certain reading programs the parents found objectionable, or from a school's community-service requirement, or from an assembly program that included sexually explicit topics. Immediato v. Rye Neck School Dist., 73 F.3d 454 (2d Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 60, 136 L.Ed.2d 22 (1996); Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525 (1st Cir.1995), cert. denied, 516 U.S. 1159, 116 S.Ct. 1044, 134 L.Ed.2d 191 (1996); Fleischfresser v. Directors of School Dist. 200, 15 F.3d 680 (7th Cir.1994); Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058 (6th Cir.1987), cert. denied, 484 U.S. 1066, 108 S.Ct. 1029, 98 L.Ed.2d 993 (1988). Other courts have determined that home-schooled children may be subjected to standardized testing to assess the quality of education the children are receiving, even over the parents' objections. Murphy v. State of Arkansas, 852 F.2d 1039 (8th Cir.1988). In addition, states may constitutionally require that teachers at religiously-oriented private schools be certified by the state. Fellowship Baptist Church v. Benton, 815 F.2d 485 (8th Cir.1987). The case law in this area establishes that parents simply do not have a constitutional right to control each and every aspect of their children's education and oust the state's authority over that subject. See, e.g., Murphy, 852 F.2d at 1043; see also State v. DeLaBruere, 154 Vt. 237, 577 A.2d 254, 274 (1990) (reasonable state regulations do not infringe on right to home school); In re Charles, 399 Mass. 324, 504 N.E.2d 592, 599-600 (1987) (same).
20
The claimed constitutional right Plaintiffs wish to establish in this case is the right of parents to send their children to public school on a part-time basis, and to pick and choose which courses their children will take from the public school. Plaintiffs would have this right override the local school board's explicit decision to disallow such part-time attendance (except where the school would receive state funding for the part-time attendee). However, decisions as to how to allocate scarce resources, as well as what curriculum to offer or require, are uniquely committed to the discretion of local school authorities, as the cases cited above demonstrate.
21
Plaintiffs maintain that they do not wish to alter the curriculum offered by Defendants, and that they are therefore in a different position than the parents in other cases who wanted to exempt their children from certain classes or requirements. We do not accept this distinction. Plaintiffs do wish to exempt Annie from certain classes-they simply wish to exempt her from more classes than did the parents in, for example, the Mozert case. We see no difference of constitutional dimension between picking and choosing one class your child will not attend, and picking and choosing three, four, or five classes your child will not attend. The right to direct one's child's education does not protect either alternative.
22
The above discussion establishes that Plaintiffs have shown no colorable claim of infringement on the constitutional right to direct a child's education. Accordingly, we hold that this is not a hybrid-rights case. See Brown, 68 F.3d at 539 (plaintiffs had not stated a privacy or substantive-due-process claim, so the Smith hybrid exception did not apply). We note that this case illustrates the difficulty of applying the Smith exception. See Kissinger, 5 F.3d at 180, fn. 1 (quoting Justice Souter's concurrence in the Lukumi Babalu Aye case, which points out the danger that the Smith exception will swallow the Smith rule). At a minimum, however, as we stated above, it cannot be true that a plaintiff can simply invoke the parental rights doctrine, combine it with a claimed free-exercise right, and thereby force the government to demonstrate the presence of a compelling state interest. Whatever the Smith hybrid-rights theory may ultimately mean, we believe that it at least requires a colorable showing of infringement of recognized and specific constitutional rights, rather than the mere invocation of a general right such as the right to control the education of one's child. Cf. Yoder, 406 U.S. at 233, 92 S.Ct. at 1542 (stating that heightened scrutiny applies when one right is combined with a free exercise claim of the nature revealed by this record, indicating that it is not sufficient simply to invoke the Free Exercise Clause as well as another general constitutional claim to trigger the compelling-interest/narrowly-tailored-rule analysis for which Plaintiffs argue). Based on the foregoing, we hold that Defendants were not required to show a compelling state interest in this case, despite Plaintiffs' attempt to invoke the hybrid-rights doctrine.5
Claim to Benefit Conferred by State
23
Relying on a series of Supreme Court cases decided in the unemployment context (see, e.g., Sherbert v. Verner; Thomas v. Review Bd., Indiana Employment Security Div., 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981)), Plaintiffs make the following argument: (1) they have been denied a benefit that has been conferred on other students who are allowed to attend public school part-time; (2) they have been denied that benefit because their religious beliefs require that Annie be educated at home part-time; and (3) therefore, an exception must be made to accommodate their beliefs and allow Annie to attend part-time. Sherbert and its progeny may stand for the proposition that where a system of individualized or particularized exceptions has been set in place, a religious reason for qualifying for such an exception must be given as much weight as a non-religious reason. See Smith, 494 U.S. at 884, 110 S.Ct. at 1603; Kissinger, 5 F.3d at 179-80.6
24
There is some doubt concerning the continued validity of the Sherbert analysis outside the unemployment context. Smith, 494 U.S. at 883, 110 S.Ct. at 1602-03 (noting that in recent years, the Supreme Court has abstained from applying the Sherbert test outside the unemployment-compensation field). Even if the analysis remains applicable to a case such as this one, however, it does not aid Plaintiffs' position. The school board's policy in this case does not establish a system of individualized exceptions that give rise to the application of a subjective test. Instead, the only recognized exceptions to the full-time-attendance requirement are strict categories of students, all of whom have one characteristic in common--the state of Oklahoma recognizes them as students for purposes of calculating the amount of financial aid to provide to the school district. Plaintiffs, and all other home-schoolers (religious or secular) who do not meet that requirement, are ineligible for the exception. As we discussed above, there is no evidence that the exception is in any way based on religious categorization or discrimination. In the absence of a system of individualized exceptions to the no-part-time-attendance policy, there is no room for a Sherbert-type argument that Plaintiffs' religious reasons for wanting Annie to attend public school only part-time must be given credence.
25
Plaintiffs also attempt to extend the Sherbert analysis beyond the individualized-exceptions rule recognized (although not adopted) in Smith. They maintain that part-time attendance is a benefit conferred by the government, and that they may not be disqualified from receiving that benefit if they have a religious motivation for taking certain actions (here, refusing to send Annie to public school full time) that would otherwise disqualify them from receiving the benefit. Put simply, Plaintiffs argue (as they explicitly acknowledged at oral argument) that if anyone is allowed to attend the public school part-time, Annie must be allowed to do so also, because her motivation for wanting to do so is religious. According to Plaintiffs' argument, if a governmental entity offers a benefit such as part-time attendance under limited qualifying conditions, and a claimant's religious beliefs or practices prevent him or her from meeting those conditions, the benefit must be awarded to the claimant despite the failure to meet the conditions.
26
The difficulty we have with this argument is that it would elevate Plaintiffs to a higher status than other home-schoolers who educate their children at home (or, for that matter, in a private school) for secular rather than religious reasons. That is, the part-time attendance policy, which at present precludes Annie and all other home-schooled or private-schooled children from taking a few selected classes from the public school, would be rendered inapplicable to religious home-schooling families but not to secular home-schooling or private-schooling families. The Free Exercise Clause does not extend so far. It is designed to prevent the government from impermissibly burdening an individual's free exercise of religion, not to allow an individual to exact special treatment from the government. See Snyder v. Murray City Corp., 124 F.3d 1349, 1353 (10th Cir.1997) (quoting Justice Douglas' concurring opinion in Sherbert: the Free Exercise Clause "is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government."). Despite Plaintiffs' arguments to the contrary, what they seek in this case is special treatment not accorded other home-schooled or private-schooled students. They seek an added exception to the part-time attendance policy, that would accommodate people who home-school for religious reasons. Nothing in the Free Exercise Clause requires that such special treatment be provided.7 See Bowen, 476 U.S. at 703-07, 106 S.Ct. at 2153-56 (discussing fact that no violation of right to free exercise of religion occurs when government conditions award of benefits on conduct that might be prohibited by some religions).
Parental Right to Direct Education
27
In addition to arguing the parental-rights issue as a component of the hybrid-rights claim, Plaintiffs maintain that the part-time-attendance policy violates the right to control Annie's education, separate and apart from the claimed free-exercise violation. For the reasons stated in the hybrid-rights discussion, however, we hold that the parental right to control a child's education does not extend as far as Plaintiffs would wish. There is no federal parental right that would force a local school board to allow parents to dictate that their children will attend public school for only part of the school day.
Possible State-Law Claims Not Addressed
28
Plaintiffs contend that Defendants should be estopped from applying the part-time-attendance policy to Annie, because she was allowed to attend the public school on a part-time basis for a portion of one semester during her seventh-grade year. This argument was not raised below or ruled on by the district court. Therefore, we will not address it on appeal. See Tele-Communications, Inc., supra, 104 F.3d at 1232-33.
29
The parties' briefs on appeal contain some references to the Oklahoma Constitution and to Oklahoma statutes. In the proceedings held below, the question of Oklahoma law appears to have been raised in two contexts. First, Plaintiffs' complaint claimed a violation of the Oklahoma Governmental Tort Claims Act (GTCA). The district court ruled that this claim had been confessed during the briefing process, and Plaintiffs have not appealed that ruling. We therefore do not discuss the issue.
30
Second, Oklahoma law was argued in the parties' briefs below in connection with a federal due-process argument. (App.28-36, 107-08). Plaintiffs maintained they had a property interest in a free public education, under Oklahoma law, and had been deprived of that interest without due process. The district court ruled that Plaintiffs had no property interest in a part-time free public education and dismissed the due-process claim. Plaintiffs have not argued the dueprocess issue in their briefs on appeal, and so have abandoned it. Cf. Reazin v. Blue Cross and Blue Shield of Kansas, 899 F.2d 951, 979, fn. 43 (10th Cir.) (issue listed in docketing statement but not briefed is considered abandoned), cert. denied, 497 U.S. 1005, 110 S.Ct. 3241, 111 L.Ed.2d 752 (1990).
31
Plaintiffs now, in their briefs on appeal, point to the Oklahoma Constitution in support of their parental-rights claim rather than a due-process claim. They state that a parent's right to direct a child's education is even broader under Oklahoma law than under federal law. Plaintiffs do not explain, however, how the Oklahoma Constitution or Oklahoma statutes have any application to federal law, apart from the due-process claim that has been abandoned. They have never clearly argued an independent state-law basis for applying Oklahoma law, other than the GTCA claim abandoned below. Given the confused state of the pleadings concerning the position of Oklahoma law in this litigation, as well as the fact that all federal claims are being disposed of in this opinion, we will not address any potential claim involving Oklahoma law. Cf. Snyder, supra, 124 F.3d at 1354 (refusing to address state constitutional claim where state law on the subject was unclear and all federal claims were resolved in this Court's opinion). We express no opinion as to any preclusive effect that might result from the district court's holdings in this case and Plaintiffs' failure to clearly brief the possible state-law issues.
CONCLUSION
32
Plaintiffs have attempted to portray this case as one involving religious discrimination against Christian home-schoolers. The record provided to the district court and this court, however, indicates that it involves only financial distinctions between certain part-time students and all home-schoolers, secular or religious, as well as private-school students. Since this case involved only a neutral rule of general applicability, it was sufficient for Defendants to prove a reasonable relationship between the part-time-attendance policy and a legitimate purpose of the school board. Plaintiffs have not argued that Defendants failed to meet this low threshold, and it is clear that Defendants have satisfied it. Therefore, the district court's decision dismissing all of Plaintiffs' claims is AFFIRMED.
1
The Honorable Bruce D. Black, United States District Judge for the District of New Mexico, sitting by designation
2
Annie had also claimed that Defendants' actions violated the Religious Freedom Restoration Act. However, as she acknowledged at oral argument, the Supreme Court has declared that statute unconstitutional. City of Boerne v. Flores, --- U.S. ----, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997)
3
We note that Plaintiffs do not appear to have made a sufficient evidentiary showing below to raise an issue of fact concerning the neutrality of the part-time-attendance policy. It is undisputed that the only exceptions to the policy constitute categories of students that are counted for state-aid purposes; that is, if the state counts a part-time student, such as a student enrolled in a vocational-technical program as well as the high school, as a full-time student for purposes of doling out educational funds, the policy grants an exception to the full-time-attendance requirement. This is not discrimination on the basis of religion, but on the basis of funding. In addition, it is undisputed that no school board member made any derogatory comments about Christian home-schoolers or home-schoolers of any kind, unlike the city councilors in Lukumi Babalu Aye. Finally, the fact that Annie is the only student who has to this point requested the privilege of attending public school part-time does not mean that the policy was aimed solely at her. The school board expressly discussed the fact that the problem was the precedent that would be set, not that Annie's attendance alone would cause difficulties. Perhaps because the neutrality issue was not raised below, Plaintiffs failed to make any evidentiary showing that the adoption of the policy was motivated by a discriminatory motive of any kind
4
But see Kissinger v. Board of Trustees, 5 F.3d 177, 180 (6th Cir.1993), in which the Sixth Circuit held that the legal standard applicable to a constitutional claim would not change simply because constitutional principles other than the Free Exercise Clause had been implicated
5
The Smith opinion does not make it clear whether it is constitutionally sufficient for a law or policy to be neutral and of general applicability, or whether the law or policy will still have to satisfy some lesser standard than the compelling-interest test. See Bowen v. Roy, 476 U.S. 693, 707-08, 106 S.Ct. 2147, 2156-57, 90 L.Ed.2d 735 (1986) (where there is no intent to discriminate against a particular religion, the government's burden will be met if the condition required is a reasonable means of promoting a legitimate public interest). Plaintiffs have not argued that the part-time-attendance policy does not satisfy such a reasonable-relationship test, as opposed to the more stringent compelling-interest analysis. Assuming that the reasonable-means test applies in this case, however, it is clear that the policy is a reasonable means of promoting a legitimate governmental interest. The policy is designed to ensure that any student attending the public school on a part-time basis provides a concomitant source of state financial aid, because he or she is recognized by the state department of education as a countable unit for purposes of determining attendance at the public school. While Plaintiffs hold a dim view of the wisdom of the policy, it can certainly not be denied that attempting to maximize the state funding available on a per-student basis is a legitimate interest of Defendants, and that limiting part-time attendance to those categories of students recognized by the policy is a reasonable means of accomplishing that goal. See Lisa M. Lukasik, Comment, The Latest Home Education Challenge: The Relationship Between Home Schools and Public Schools, 74 N.C.L.R.1913, 1967-69 (1996), for a discussion of other legitimate reasons a school board might have for restricting part-time enrollment
6
In the unemployment context, the system of individualized exceptions that has been created consists of the "good cause" standard. That is, a worker is eligible for unemployment benefits if he or she leaves her employment for good cause, but not if he or she simply resigns. Smith. Under the Sherbert line of cases, a person who resigns from employment due to strongly-held religious beliefs (e.g., a Seventh-Day Adventist who could not work on the Sabbath, or a Quaker who could not in good conscience work on weapons of war) has established good cause for resigning to the same extent as a person who resigns due to poor health, or lack of transportation to the job site, or any other secular reason that might prevent a person from continuing to work at a particular job
7
In fact, there is a real possibility that creating an exception for religious purposes but not for secular purposes would run afoul of the Establishment Clause, which complements the Free Exercise Clause by prohibiting discrimination in favor of, rather than against, a certain religion or religions. See, e.g., Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 696, 706, 114 S.Ct. 2481, 2487-88, 2492-93, 129 L.Ed.2d 546 (1994) (proper respect for both Free Exercise Clause and Establishment Clause requires neutrality toward religion, favoring neither one religion over others nor religious adherents over nonadherents; statute that singled out a particular religious sect for special treatment in school context violated First Amendment); Parents' Ass'n of P.S. 16 v. Quinones, 803 F.2d 1235, 1242 (2d Cir.1986) (violation of Establishment Clause if students at a private Jewish school allowed to attend remedial classes at public school); Americans United for Separation of Church and State v. Porter, 485 F.Supp. 432, 444 (W.D.Mich.1980) (after examining all facets of dual enrollment program between public and parochial schools, court concluded program violated Establishment Clause)
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-1110
___________
JUSTIN MICHAEL CREDICO,
Appellant
v.
COMMONWEALTH OF PENNSYLVANIA,
(UNDER SOVEREIGN IMMUNITY ACT-VACCINE WAIVER FOR RABIES);
PENNSYLVANIA DEPT. OF HEALTH;
JOHN AND JANE DOE #1 (INDIVIDUAL AND OFFICIAL CAPACITY);
JOHN AND JANE DOE #2 (INDIVIDUAL AND OFFICIAL CAPACITY);
JOHN AND JANE DOE #3 (INDIVIDUAL AND OFFICIAL CAPACITY);
JOHN AND JANE DOE #4 (INDIVIDUAL AND OFFICIAL CAPACITY);
JOHN AND JANE DOE #5 (INDIVIDUAL AND OFFICIAL CAPACITY);
JOHN AND JANE DOE #6 (INDIVIDUAL AND OFFICIAL CAPACITY);
JOHN AND JANE DOE #7 (INDIVIDUAL AND OFFICIAL CAPACITY);
JOHN AND JANE DOE #8 (INDIVIDUAL AND OFFICIAL CAPACITY);
JOHN AND JANE DOE #9 (INDIVIDUAL AND OFFICIAL CAPACITY);
ANY OTHER UNKNOWN PERSON OR PERSONS (IN THEIR
INDIVIDUAL & OFFICIAL CAPACITY) THAT WERE IN THE
PREVIOUSLY FILED RABIES CLAIM);
U.S. DEPARTMENT OF STATE;
DISTRICT ATTORNEY'S OFFICE OF CHESTER COUNTY;
CHIEF OFFICER OF DISTRICT ATTORNEY OFFICE,
(INDIVIDUAL & OFFICIAL CAPACITY)
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 13-cv-03310)
District Judge: Honorable Juan R. Sanchez
____________________________________
1
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 9, 2014
Before: CHAGARES, GARTH and SLOVITER, Circuit Judges
(Opinion filed: July 15, 2014)
___________
OPINION
___________
PER CURIAM
Appellant Justin Credico appeals from the order of the United States District Court
for the Eastern District of Pennsylvania dismissing his second amended complaint with
prejudice. We will affirm the judgment of the District Court.
This litigation began in June 2013, when Credico filed a complaint against
numerous defendants purportedly seeking to advance, inter alia, a “rabies claim.”
Credico’s complaint was replete with deficiencies. After permitting Credico to file an
amended complaint on two separate occasions, the District Court dismissed his second
amended complaint without prejudice for failure to comply with Fed. R. Civ. P. 8. The
District Court afforded Credico one final opportunity to file a proper complaint. The
court specifically instructed him to state, as “clearly and briefly” as possible, how each
named defendant has violated his constitutional rights and what harm, if any, he suffered
as a result of each defendant’s actions. The District Court admonished Credico to refrain
from including any legal arguments or scientific research information. Having received
no amended pleading from Credico, the District Court entered an order dismissing the
action with prejudice. This appeal followed.
2
We have jurisdiction under 28 U.S.C. § 1291, and review the District Court’s
decision to dismiss a claim under Rule 8 for abuse of discretion. In re Westinghouse Sec.
Litig., 90 F.3d 696, 702 (3d Cir. 1996). While mindful that we are under an obligation to
liberally construe the submissions of a pro se litigant, see Haines v. Kerner, 404 U.S. 519,
520 (1972), Credico provides no basis on appeal for concluding that the District Court
abused its discretion in dismissing the second amended complaint for failure to comply
with Rule 8.
Initially, we note that Credico is an experienced pro se litigator. Even taking into
account his status as a pro se litigant, we agree with the District Court that he failed to
comply with the basic pleading requirements. His second amended complaint lacked
“short and plain statement[s]” of any “claim showing that [he] is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). Furthermore, Credico’s specific allegations were neither “‘simple,
concise, [nor] direct.’” See Rule 8(d)(1). Moreover, despite the District Court’s previous
admonition, Credico again set forth – among many other things – extensive legal
arguments and an entire section on “rabies research.”
The District Court provided Credico with an opportunity to comply with Rule 8
and gave him specific instructions as to what must be included in a proper complaint.
Credico failed to follow the District Court’s directions. Accordingly, granting him leave
to file a yet another amended complaint would have been futile, and the District Court did
not abuse its discretion by dismissing the second amended complaint with prejudice.1
1
Credico has attached to his Informal Brief what appears to be yet another amended
complaint which he alleges was submitted to the District Court for filing, but apparently
3
See, e.g., Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002);
Westinghouse, 90 F.3d at 703-04. For these reasons, we will affirm the District Court’s
judgment.
never received by that court. Aside from the fact that this submission is not part of the
record on appeal and, thus, not properly before us for review, see Fed. R. App. P. 10(a), it
does nothing to show that the District Court committed an abuse of discretion. If
anything, it does just the opposite.
4
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897 F.Supp. 184 (1995)
Mildred ROBINSON
v.
NATIONAL MEDICAL CARE, INC., et al.
No. 93-4050.
United States District Court, E.D. Pennsylvania.
March 15, 1995.
*185 James W. Gicking, Litvin, Blumberg, Matusow & Young, Philadelphia, PA, Theodore Q. Thompson, Ambler, PA, Arnold Laikin, Philadelphia, PA, for Mildred V. Robinson.
Mildred V. Robinson, pro se.
Thomas G. Servodidio, Lisa Wolff, Deborah Tate Pecci, Duane, Morris & Heckscher, Philadelphia, PA, for National Medical Care Inc.
Thomas G. Servodidio, Lisa Wolff, Deborah Tate Pecci, Duane, Morris & Heckscher, Philadelphia, PA, for Bio-Medical Applications Management Co., Inc., Bio-Medical Applications of Pennsylvania, Inc.
MEMORANDUM
LUDWIG, District Judge.
Plaintiff Mildred Robinson's motion for reconsideration and to set aside summary judgment entered for defendants will be denied. Fed.R.Civ.P. 56; Local Rule 20(g).
This is a Title VII action claiming race discrimination in violation of 42 U.S.C. § 2000(e) et seq. as amended, the Civil Rights Act of 1866, 42 U.S.C. § 1981 as amended, and the Pennsylvania Human Relations Act, 43 Pa.C.S.A. § 951 et seq.. The complaint also alleged wrongful discharge under Pennsylvania common law.[1] Plaintiff, an African-American, was terminated on January 23, 1992 from her position with defendant National Medical Care, Inc. and its subsidiaries as an administrator of two kidney dialysis facilities.
After defendants moved for summary judgment and plaintiff responded, there did not appear to be a triable issue of intentional discrimination. Before a ruling was made, plaintiff was given an opportunity on the trial date, October 31, 1994, to make argument and a proffer. Following a further presentation on the following day, summary judgment was granted. Nov. 1, 1994, N.T. 44-45.
I.
The elements and allocations of the burden of proof in an employment discrimination action have been delineated by the Supreme Court and applied by our Circuit. St. Mary's Honor Center v. Hicks, ___ U.S. ___, ___-___, 113 S.Ct. 2742, 2746-47, 125 L.Ed.2d 407 (1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 1094 n. 8, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Armbruster v. Unisys Corp., 32 F.3d 768, 782-83 (3d Cir.1994); Fuentes v. Perskie, 32 F.3d 759, 763-64 (3d Cir.1994). First, plaintiff must make out a prima facie case of discrimination. Hicks, ___ U.S. at ___, 113 S.Ct. at 2747. Second, the burden shifts to defendant to produce evidence that the adverse employment action was precipitated by a legitimate nondiscriminatory reason. Id. Third, if steps one and two are satisfied, and the shifting burden mechanism has raised a triable issue, plaintiff must carry the ultimate burden of intentional discrimination. Id.
As our Circuit has recently explained, the summary judgment stage must be viewed from the prospective standpoint of the fact-finder:
Because the factfinder may infer from the combination of the plaintiff's prima facie case and its own rejection of the employer's proffered non-discriminatory reasons that the employer unlawfully discriminated against the plaintiff and was merely trying to conceal its illegal act with the articulated reasons, see Hicks, ___ U.S. at ___, 113 S.Ct. at 2749, a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative *186 cause of the adverse employment action. Thus, if the plaintiff has pointed to some evidence discrediting the defendant's proffered reasons, to survive summary judgment the plaintiff need not also come forward with additional evidence of discrimination beyond his or her prima facie case. See Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122-24 (7th Cir. 1994).
Fuentes, 32 F.3d at 764 (emphasis in original). Accord Torre v. Casio, Inc., 42 F.3d 825 (3d Cir.1994).[2] Here, plaintiff and defendants agree that steps one and two of the shifting burden analysis have been satisfied. However, summary judgment is necessary because plaintiff did not present a triable issue of either pretext or discrimination.
II.
Initially, plaintiff did not produce sufficient evidence to create a triable issue of pretext. To defeat a summary judgment motion in a pretext case:
[T]he plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder to reasonably infer that each of the employer's proffered non-discriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext).
Fuentes, 32 F.3d at 764 (citations omitted) (emphasis in original). However, a plaintiff need not cast doubt on every proffered reason if she "manages to cast substantial doubt on a fair number of them." Id. at n. 7.
Here, defendants addressed their "light" burden of evidencing reasons for plaintiff's dismissal with two affidavits and numerous exhibits. Defendants' motion for summary judgment at 11-13. Mardell v. Harleysville Life Ins. Co., No. 93-3258, 31 F.3d 1221 at n. 6, 1994 U.S.App. LEXIS 19884 at n. 6 (3d Cir. Oct. 2, 1994). Examples of alleged deficient performance and other inadequacies from 1988 to 1992 included plaintiff's reassignment from a company facility because of a personality conflict; state certification problems that cost the company over $200,000; poor financial presentations; failure to attend meetings and follow company policy; and written complaints to a supervisor by the medical director of one of plaintiff's facilities and an accounting manager about incompetence, bad relations with other employees, not meeting deadlines, lack of concern for patients, and inattention to quality assurance. Id. See, e.g., Billet v. CIGNA Corp. 940 F.2d 812, 828 (3d Cir.1991) (granting summary judgment where "there was simply too much objective evidence of problems with [plaintiff's] performance to make his claim of pretext plausible") (emphasis in original).
Plaintiff's response and motion for reconsideration made several arguments that are not supported by any evidence in the summary judgment record.[3] For example, plaintiff asserted that "from April, 1987 though April, 1991, she received positive comments about her performance as an administrator and received high ratings in her evaluations." Plaintiff's memorandum in support of her motion for reconsideration at 1, 5. However, the motion does not refer to evidence of positive comments or high ratings, and defendants have documented severe performance problems dating back to 1988. Plaintiff also contended that warnings she received "were contrived, baseless and pretextual," plaintiff's response to summary judgment motion at 2, but proffered no substantiating evidence.[4]
*187 Another example is plaintiff's contention that criticism of her financial presentations was "unfair" and, inferentially, pretextual. As proof, she submitted a handwritten letter from one supervisor to another stating, "I believe this idea of administrator presentations has finally provided us with a tool to quantify and measure administrative knowledge, understanding and competence and [plaintiff] failed all three." Plaintiff's supplemental memorandum, exhibit 3. Plaintiff asserts that the use of "tool" in the same sentence as her name demonstrates contrivance. Nov. 1, 1994, N.T. 29. However, read most favorably to plaintiff, it is an unreasonable construction to suggest that the letter writer believed the presentations were designed or used to "flunk" plaintiff. Moreover, possibilities or conjectures of pretext are insufficient to overcome summary judgment. Tenthoff v. McGraw-Hill, Inc., 808 F.Supp. 403, 407 (E.D.Pa.), aff'd, 981 F.2d 1248 (3d Cir.1992).
In countering a properly supported summary judgment motion, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Otherwise, "summary judgment, if appropriate, shall be entered." Id. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Witco Corp. v. Beekhuis, 38 F.3d 682, 686 (3d Cir.1994). Because plaintiff has not evidenced "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them `unworthy of credence,'" Fuentes, 32 F.3d at 765, summary judgment was required. Merely saying "`[n]ot so' ... does not create a material issue of fact." Id. at 766. Billet, 940 F.2d at 828 ("employer's articulated reasons are not incredible simply because the employee asserts that such is the case"). See, e.g., Kober v. Mack Trucks, Inc., No. 94-3130, 1994 WL 702659 (E.D.Pa. Dec. 15, 1994); Adams v. Dupont Merck Pharmaceutical Co., No. 93-207, 1994 WL 702606 (E.D.Pa. Dec. 15, 1994); Kershaw v. Aspin, No. 94-216, 1994 WL 683384 (E.D.Pa. Dec. 5, 1994); Rivadeneira v. City of Philadelphia, No. 90-4979, 1994 WL 594122 (E.D.Pa. Oct. 31, 1994).
III.
Furthermore, plaintiff has not presented a triable issue of discrimination. As evidence of discriminatory animus, plaintiff submitted her deposition testimony describing nine categories of race discrimination alleged to have occurred during her employment. Plaintiff's response to summary judgment motion, exhibit at 58-90. See Weldon v. Kraft, Inc., 896 F.2d 793, 800 (3d Cir.1990) (plaintiff's uncorroborated deposition testimony may create a genuine issue of discriminatory intent). Nevertheless, in each category, plaintiff either could not recall the specific incidents or responsible supervisors, or did not provide evidence of disparate treatment. Id. at 58-90. Her conclusory allegations are insufficient. Taylor v. Illinois Dept. of Revenue, No. 91-2341 at *6, 1994 WL 55679 (N.D.Ill. Feb. 23, 1994) (subjective beliefs of discrimination are not enough to overcome summary judgment).
For example, plaintiff testified that special goals were set for her and another black administrator. Plaintiff's response to summary judgment motion, exhibit at 71. However, she could not recall what the goals were or how they differed from those given her colleagues. Id. at 70-71. In contrast, defendants provided evidence that easier goals were established for plaintiff to assist her when she failed to meet regular goals. Defendants' reply, exhibit B at 217-220. Similarly, plaintiff stated she was denied access to computer diskettes necessary for her work. Plaintiff's response to summary judgment motion, exhibit at 66. However, there was no offered evidence as to who denied her the diskettes or how they would have been utilized. That supervisors sanctioned or condoned the denial of necessary work materials could support an inference of intentional discrimination. *188 Such evidence, however, was not presented here.
At argument, plaintiff also submitted additional deposition transcripts to demonstrate that similarly situated employees were treated differently. However, this evidence did not support an inference of discrimination.[5] For example, it was proffered that another employee, presumably white, asked and was allowed to apply for a different position in the company after first being requested to resign. Nov. 1, 1994, N.T. 10-11. However, uncontroverted evidence showed that when plaintiff was asked to resign, she stated she preferred to be fired. Affidavit of Gary W. Scher, Exhibit A. Moreover, there was insufficient information to determine whether the other employee was similarly situated to plaintiff. Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 531 (3d Cir.) (relevant comparison of employees must involve particular qualification at issue), cert. denied, ___ U.S. ___, 114 S.Ct. 88, 126 L.Ed.2d 56 (1992).
Plaintiff further argued that the fact that she was the only African-American "continuously employed" from 1987-91 in her company was circumstantial evidence of discrimination. Plaintiff's response to summary judgment motion at 4. While plaintiff has not provided evidence to buttress that assertion, defendants have shown by affidavit that other black administrators were employed during this time-period.[6] Defendants' reply to plaintiff's response to summary judgment motion, exhibit A.
In one instance, according to plaintiff's evidence, a supervisor was abrupt and spoke with an accusatory tone during a telephone conversation after she had called to take a sick day. Plaintiff's response to summary judgment motion, at 13-18. Incidents of this type, unless systematic and reflective of disparate treatment, are not probative of pretext.[7]
ORDER
AND NOW, this 15th day of March, 1995, plaintiff Mildred V. Robinson's motion for reconsideration and to set aside the judgment is denied.
NOTES
[1] In response to the summary judgment motion, plaintiff asserted two new claims retaliation and deprivation of property and liberty without due process of law. Inasmuch as these claims were not mentioned at the summary judgment argument and are not supported by any Rule 56 materials, summary judgment will be granted as to them as well.
[2] During argument on the motion, I noted my belief that under Hicks and Armbruster plaintiff, as summary judgment nonmovant at step three, must point to evidence of both pretext and discriminatory animus. Oct. 31, 1994, N.T. 15-16; Nov. 1, 1994, N.T. 44. In light of Fuentes, it appears that pretext taken with the prima facie case can be sufficient to survive summary judgment whether or not animus may be found in the proof of pretext.
[3] Plaintiff's initial response to the summary judgment motion stated: "An almost endless stream of documents have been exchanged between the parties in this matter. From this database, it is almost impossible to factually summarize this claim...." pp. 1-2. Plaintiff has not specifically pointed to any evidence but only made broad references to plaintiff's deposition.
[4] Plaintiff relied on matters that do not justify an inference of pretext absent evidence of disparate treatment such as inconsistency with company practice the receipt of an annual review four months late; written warnings for failure to follow personnel policy; the acceleration of her discharge after she called in sick.
[5] Plaintiff was permitted to file a supplemental memorandum to her motion for reconsideration after review of the oral argument transcript. However, the supplemental memorandum does not attempt to clarify or expound upon the previous positions taken by plaintiff.
[6] Regardless of the number, the degree of minority representation as a pretext factor cannot be evaluated in a statistical and qualitative vacuum.
[7] Defendants filed a motion in limine containing the deposition transcript of a former black administrator who said he was told "blacks do not represent the corporate image," or words to that effect. Defendants' motion in limine, exhibit A at 101. While not made part of the summary judgment record, this statement allegedly occurred two years prior to any decision to terminate plaintiff, was not made to plaintiff, and was made by one employee to another. Ezold, 983 F.2d at 546 (stray remarks by non-decisionmakers or decision-makers unrelated to the decisional process not ordinarily entitled to much weight).
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64 So.3d 1162 (2009)
COURTNEY JAMES BOYD
v.
STATE.
No. CR-08-1984.
Court of Criminal Appeals of Alabama.
December 4, 2009.
DECISION WITHOUT PUBLISHED OPINION
Reh. denied.
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341 F.2d 448
Charles Lee McINTOSH, Appellant,v.UNITED STATES of America, Appellee.
No. 17790.
United States Court of Appeals Eighth Circuit.
Feb. 24, 1965, Rehearing Denied March 5, 1965.
Charles Lee McIntosh, pro se.
Donald A. Wine, U.S. Atty., Philip T. Reiley and Jerry E. Williams, Asst. U.S. Attys., Des Moines, Iowa, filed printed brief.
Before VOGEL, MATTHES and RIDGE, Circuit Judges.
VOGEL, Circuit Judge.
1
The defendant-appellant, Charles Lee McIntosh, was tried and convicted by a jury in the United States District Court for the Southern District of Iowa on an indictment charging him with violation of 18 U.S.C.A. 2312.1 On August 6, 1964, he was sentenced to imprisonment for a period of four years. Thereafter notice of appeal was filed. On August 25, 1964, an order was entered by the trial court authorizing the appeal in forma pauperis.
2
The main question McIntosh raises here is whether the trial court erred in refusing to grant his motion for judgment of acquittal based upon insufficiency of the evidence, particularly in that he claims the government failed to establish that the tractor described in the indictment, stolen in Indianapolis, Indiana, and identified in Des Moines, Iowa, was the one which the appellant wrecked near Granger, Iowa, on or about November 7, 1961.
3
We have examined the record in detail. It consists entirely of the government's case. The defendant did not testify and offered no evidence in his own behalf. He was represented by able, court-appointed counsel during the trial in District Court. On this appeal he appears pro se.2
4
The evidence was mainly circumstantial. It must be considered in the light most favorable to sustaining the jury's verdict. All reasonable inferences flowing from such evidence and tending to support the verdict must be accepted as established. Glasser v. United States, 1941, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; Valentine v. United States, 8 Cir., 1961, 293 F.2d 708, 710; Blumenfield v. United States, 8 Cir., 1960, 284 F.2d 46, 52.
5
The evidence indicated and the jury was entitled to believe that on or about November 7, 1961, an International tractor and trailer unit was involved in a one-car accident near Granger, Iowa, at about 12:30 a.m. A witness, Gene Pion, was near the scene in his own car and noticed the tractor and trailer unit approaching an intersection at a high rate of speed. It proceeded through a stop sign, rolling over an embankment. Pion stopped his car and on investigation found the defendant McIntosh walking around the outside of the truck and an injured man, Willie Ayers, inside the cab. He talked with McIntosh, whom he assumed to have been the driver, and also with the injured man. He offered to get an ambulance and was told to do so. He left and drove into Granger, calling the Highway Patrol and an ambulance. Upon his return to the scene of the accident both men had disappeared. At the trial, Pion identified the defendant and Willie Ayers as being the two men he saw and talked to at the scene of the accident.
6
Willie Ayers testified, identifying himself as the party injured in the accident. He had been working with McIntosh and at the time had been asleep in the sleeper compartment of the cab behind the driver. He described the vehicle they were operating as a 1959 'Emeryville International' truck, driven by the defendant McIntosh. He had known McIntosh prior to this particular trip, having seen him with the same tractor some two or three weeks prior thereto in Florida and also in Georgia. He testified that after the accident the defendant McIntosh told him the 'truck was hot' and to 'get out'. He did not remember getting out of the truck. He apparently was taken or somehow got to the Broadlands Hospital in Des Moines, Iowa, where he was confined for three to four weeks with a ruptured spleen. He also testified that McIntosh, on a prior trip, had told him, 'Don't cross no scales' and that he, McIntosh, didn't want to go through Indianapolis.
7
Special Agent Maurice E. Murphy testified that he was notified by the Iowa Highway Patrol of a wrecked tractor at Owen Crist's lot in Des Moines, Iowa, and that on November 9, 1961 he examined the wrecked vehicle, which was locked in a garage adjacent to the office. He identified it as a 1959 International cab-over tractor bearing serial No. EF-344OG and as being red in color with a base coat of yellow. On examination of the interior of the cab he found a number of items identified as driver's logs, receipts, miscellaneous papers and a pair of shoes. These items were introduced as group Exhibit No. 1, and were itemized by the witness. A driver's log found therein indicated McIntosh as being the driver. It carried entries from October 13 to November 3, 1961, referring to numerous trips. There was also a driver's log for 'W. Ayers'. An envelope contained numerous receipts, contracts with transportation companies, highway permits, identification cards, variously made out to 'McIntosh Trucking Service, Dayton, Ohio', 'McIntosh', 'Charles McIntosh, 4517 Wire Drive, Dayton, Ohio', 'Charles L. McIntosh, 4517 Wire Drive, Dayton, Ohio', 'Charles McIntosh, Dayton, Ohio', and 'Charles Lee McIntosh, Route 1, Box 979, Ozark, Alabama'. The papers were signed 'Charles McIntosh' and 'Charles Lee McIntosh'. Defendant's objection to the receipt of Exhibit 1 was overruled.
8
Paul F. O'Brien, branch manager of the International Harvester Company at Indianapolis, Indiana, testified that his company was the owner of a 1959 International Harvester tractor serial No. EF-344OG and that such tractor had been stolen from their lot in Indianapolis, Indiana, between Saturday, October 7, 1961, at 4:00 p.m. and Monday, October 9, 1961, at 8:00 a.m. He testified that the stolen tractor had a value of $8,900; that it had been painted red by his company over the previous yellow. He further described it as a Model DCO3 -405, of which there were others, such being a description of the model only, not an identification of the particular vehicle.
9
Special Agent Edward B. Hogan testified that he interviewed the defendant McIntosh on January 17, 1962, at the defendant's home in Dayton, Ohio, at which time he inquired of the defendant about a tractor with which the latter was involved in an accident in Iowa. McIntosh told him the tractor was a 1957 International Harvester leased by him from one Joseph Starr in Danville, Illinois, in late October 1961 and that it had been wrecked in Iowa. McIntosh exhibited and gave to Hogan a lease which he said covered the 1957 vehicle he claimed to have obtained from Starr and which he said was the vehicle he had wrecked in Iowa. The lease was dated September 2, 1961, and described a 1957 International, DCO-405-32 AF. (This is a description of the model only, not an identification symbol of that particular vehicle.) The lease was marked Exhibit No. 2 and was received in evidence over defendant's objection. McIntosh described for Hogan the person from whom he claimed to have leased the tractor as one he had probably called on long distance telephone on October 17, 1961, at either Danville, Illinois, or Penfield, Illinois.
10
Joseph Starr, of Penfield, Illinois, testified that he knew the defendant McIntosh as a trucker. His acquaintance with him was 'casual'. He had received a telephone call from McIntosh sometime in 1961. He stated that so far as he knew, he was the only Joseph Starr in Penfield, a town with a population of approximately 350. He denied having entered into any lease with McIntosh for any tractor of any kind and upon being shown the lease, Exhibit 2, denied its execution. He had examined the telephone book for Danville, Illinois, and found no one there by the name of Joseph Starr.
11
Defendant concedes that the evidence introduced by the government concerning the '1959 International serial No. EF-344OG' established that it had been stolen. He contends, however, that there was no evidence showing or tending to establish his possession of that particular vehicle and the interstate transportation thereof, citing Dixon v. United States, 8 Cir., 1961, 295 F.2d 396. He argues that the vehicle he was driving at Granger, Iowa, was not identified or connected by any evidence with the stolen vehicle set forth in the indictment. It is his position that there was no showing that the tractor examined at Owen Crist's garage by Special Agent Murphy, the concededly stolen vehicle, was the same vehicle driven by him and wrecked near Granger, Iowa, relying upon Cox v. United States, 8 Cir., 1938, 96 F.2d 41, 42; Tyler v. United States, 10 Cir., 1963, 323 F.2d 711, 712; and Thompson v. United States, 5 Cir., 1964, 334 F.2d 207, 209.
12
True enough, the evidence here was mainly circumstantial but we believe there was sufficient thereof from which the jury could draw the conclusions that the 1959 International tractor described in the indictment had been stolen; that the defendant had transported it in interstate commerce and was operating it at the time of the accident, and that at that time he knew it had been stolen. See Dixon v. United States, supra, 8 Cir., 1961, 295 F.2d 396.
13
That the tractor had been stolen from the International Harvester Company lot at Indianapolis, Indiana, was definitely established through O'Brien, International branch manager. Exhibit No. 1, consisting of the articles found by Agent Murphy in the stolen vehicle after it had been hauled in to Owen Crist's lot directly connects the defendant McIntosh with the stolen vehicle. Defendant argues that it was improperly received in evidence and that the items comprising Exhibit 1 were in no way connected to him, nor were they authenticated. The various items, carrying the name 'McIntosh', 'Charles McIntosh' and 'Charles Lee McIntosh' and for the most part giving his address as Dayton, Ohio, together with the driver's logs for both McIntosh and Ayers, were all found in the truck's cab shortly after the occurrence of the accident. The government contends that the items in Exhibit 1 are not 'documents' introduced as binding upon McIntosh but, rather, are 'articles connected with the offense which are introduced as circumstantial evidence of appellant's possession of the tractor'. As articles found in the stolen vehicle shortly after the accident, we find them properly admissible and they, together with other evidence, created a very strong inference that McIntosh had been an occupant of the stolen tractor and had failed to take his papers with him.
14
United States v. Angel, 7 Cir., 1953, 201 F.2d 531, was also a Dyer Act case. Among the articles found in the stolen car by the police were a suitcase belonging to the appellant, an automatic pistol found in the glove compartment, together with a certificate showing ownership in the appellant. There was objection to the introduction of the pistol, claiming that it had no connection with the crime and had an inflammatory effect on the jury. The court said at page 533 of 201 F.2d:
15
'As the government was putting in its proof, it had no way of knowing that Angel would take the stand. The automobile had been abandoned. None of the witnesses had seen the defendant in the car. It was an important part of the government's case to prove the defendant was in the stolen automobile prior to the time that it became mired on the side road. Defendant's suitcase, gun, or other belongings were material evidence to show that he had been in the stolen automobile, and that he had his companion had brought it across a State line.'
16
Bayless v. United States, 9 Cir., 1952, 200 F.2d 113, rehearing denied January 9, 1953, certiorari denied, 345 U.S. 929, 73 S.Ct. 788, 97 L.Ed. 1359, was a case involving the robbery of a federally insured bank. The car in which the alleged robbers fled was identified by license number at the scene of the crime. Later the police found the car with the doors locked. After a forcible entry, they found, among other things, a shotgun, some shotgun shells, some other shells and a bank book with the name 'John R. Bayless'. The defendant objected to the admission into evidence of the shotgun, the extra shells and the bank book with his name on it. The trial court allowed this material into evidence and the appeals court said, at page 114 of 200 F.2d:
17
'A sawed-off, loaded shotgun with extra shells and the bank book bearing appellant's name, both of which were found in the automobile as hereinbefore stated, were introduced into evidence. The shotgun was not used by the robber in the robbery and there was no further proof as to the bank book. Appellant claims prejudice. Everything in the automobile was properly put into evidence in the case. See People v. Mar Gin Suie, 1909, 11 Cal.App. 42, 103 P. 951; Pedersen v. United States, 2 Cir., 1921, 271 F. 187; United States v. Dalhover, 7 Cir., 1938, 96 F.2d 355 at 359. The point is without merit.'
18
See, also, Thogmartin v. United States, 8 Cir., 1963, 313 F.2d 589, 594, where evidence of defendant's business card was properly received into evidence to show the defendant's connection with the person in possession of stolen bonds.
19
Further evidence linking McIntosh to the stolen vehicle is not controverted, such as Special Agent Murphy's examination of the wrecked red over yellow 1959 International tractor serial No. EF-344OG in Des Moines on November 9, 1961, and Ayers' testimony that he was traveling in a red 1959 International tractor with McIntosh, who was driving, and that he had seen McIntosh with the same tractor for two or three weeks; and the driver's log with the name McIntosh in it disclosing entries from October 13th to November 3rd; O'Brien's testimony that his company owned an International Harvester tractor serial No. EF-344OG and that it was stolen from their lot between Saturday, October 7 and Monday, October 9, 1961, and that the tractor was painted red over a base coat of yellow.
20
Ayers' testimony that he was traveling with McIntosh was confirmed by the witness Pion, who saw both Ayers and McIntosh at the accident scene. McIntosh also admitted to Special Agent Hogan that Ayers was with him.
21
Further circumstantial evidence of possession of the stolen tractor can be based upon the testimony of the witness Ayers that McIntosh 'avoided Indianapolis' and 'scales', that after the wreck had occurred, with Ayers injured in the cab, McIntosh told him the tractor was 'hot' and that he had better 'get out'.
22
As to McIntosh having knowledge of the fact that the vehicle was stolen, his driver's log had entries from October 13th to November 3rd. O'Brien testified that the tractor was stolen between October 7th and October 9th. The trial court gave an instruction4 to the effect that possession in one state of property recently stolen in another state, if not explained, is a circumstance from which the jury could infer that the person in possession of the property knew it to be stolen and caused it to be transported in interstate commerce. McIntosh objected to this instruction on the grounds that it violated his constitutional right not to appear and testify in his own behalf and that the instruction effectively deprived him of the constitutional presumption of innocence which surrounds all defendants in criminal trials. In Harding v. United States, 8 Cir., 1964, 337 F.2d 254, at 257, Judge Matthes, speaking for this court, said, in disposing of a similar contention:
23
'* * * When the court's charge in its entirety is accorded proper consideration in light of the facts and circumstances, the challenged portions thereof are not vulnerable to the claim that the appellant's possession of the automobile created a presumption of guilt. Unlike Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946), relied upon by appellant here, the trial court did not inform the jury that a presumption of guilt arises where one is in possession of recently stolen goods, but rather that the jury could draw an inference to that effect. Appellate courts have consistently sustained instructions similar to those given here as non-prejudicial. Bray v. United States, 113 U.S.App.D.C. 136, 306 F.2d 743 (1962); Battaglia v. United States, 4 Cir., 205 F.2d 824 (1953); Herman v. United States, 5 Cir., 289 F.2d 362 (1961).
24
'Neither did the charge have the effect of placing the burden on the defendant to prove his innocence. The jury was instructed on the presumption of innocence * * *. Contrary to appellant's contention, this burden was not shifted by the portion of the charge which only permitted, but did not require, the jury to infer from appellant's possession of the automobile that he had transported it in interstate commerce. * * *'
25
Taking the instructions as a whole, including the instruction which was given on the presumption of innocence, we find no error.
26
The appellant also objected to the introduction of Government's Exhibit 2, the purported lease of a truck from a Joseph Starr to 'Charles McIntosh', on the grounds that the indictment charged the interstate transportation of a 1959 International, whereas the lease showed a date of September 2, 1961, and dealt with a 1957 International truck. The alleged lease gave no serial number for the truck but carried the same model number as the stolen vehicle. The court received the exhibit on the ground that it was the same lease produced by defendant McIntosh and given to Special Agent Hogan, attempting to show that the truck he wrecked near Granger was a 1957 International leased from Mr. Starr. Starr denied that he had executed the lease of the truck as shown in Exhibit 2 and denied that the signature on the lease was his. Starr further testified that he did not own either a 1957 or a 1959 International truck. It is clear that Exhibit 2 was admissible and the jury was entitled to infer that the false explanation of possession of stolen property is circumstantial evidence that the defendant McIntosh knew the truck was stolen. Harvey v. United States, 1954, 94 U.S.App.D.C. 303, 215 F.2d 330 at 332:
27
'* * * fabrication of evidence of innocence is cogent evidence of guilt.'
28
Wilson v. United States, 1896, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090; Harris v. United States, 1948, 83 U.S.App.D.C. 348, 169 F.2d 887, certiorari denied, 335 U.S. 872, 69 S.Ct. 161, 93 L.Ed. 416. See, generally, 22A C.J.S. Criminal Law, 663, p. 480.
29
The appellant also moved for a judgment of acquittal on the grounds that there was a variance between the indictment and the proof, in that the indictment charged interstate transportation from Danville, Illinois, while the evidence showed that the truck was transported from Indianapolis, Indiana. The motion for acquittal was overruled by the trial court on the basis that it involved a fact question for the jury. Special Agent Hogan testified that McIntosh had told him that the truck he wrecked was a 1957 International which he had leased from a Joseph Starr and that he had picked it up 'a short distance east of Danville, Illinois in the latter part of October, 1961.' The jury was entitled to believe that the lease was actually non-existent but that McIntosh had indeed transported a 1959 stolen truck from Danville, Illinois, into Iowa.
30
We believe the defendant to have been fairly tried and that no prejudicial errors were committed.
31
Affirmed.
1
The indictment charged:
'That on or about the 7th day of November, 1961, Charles Lee McIntosh transported a stolen motor vehicle, towit: a 1959 International diesel tractor, VIN EF 344OG, in interstate commerce from Danville, Illinois to Granger, Iowa, in the Southern District of Iowa, and the said Charles Lee McIntosh then and there knew the said motor vehicle to have been stolen, in violation of Section 2312, Title 18, United States Code.'
2
On January 21, 1965, long after this case had been briefed and submitted to this court (December 9, 1964), the appellant wrote a letter to the clerk of this court as follows:
'Dear Sir:
'This letter is an explanation for my unusual behavior in requesting that counsel be appointed to represent me on this appeal and my subsequent request that Mr. Roy W. Meadows, attorney, Des Moines, Iowa be dismissed from such representation.
'After due diligence, I have just learned that Mr. Roy W. Meadows was the United States Attorney for the Southern District of Iowa at the time my alleged crime was committed and that he was instrumental in securing the indictment against me. This was not made known to me at the time of trial. I might add that it seems highly improper for any attorney to represent both parties in the same litigation, especially in criminal cases. It would seem proper to call this matter to the attention of the Court.
'The enclosed documents (copies) are self explanatory.
'Please let me hear from you when a decision is reached in this matter.
'Again, my many thanks.
'Very truly yours, (s) Charles Lee McIntosh Charles Lee McIntosh Box P.M.B. 86819-A Atlanta, Georgia.'
The charge, if true, is a very serious matter. It has now been called to the attention of this court. While it is not made under oath and no attempt has so far been made to use it as a grounds for appeal, reversal, new trial or a motion under 2255, nevertheless, because McIntosh appears pro se we deemed it advisable to make inquiry. Charles Lee McIntosh is no stranger to courts and court procedure, particularly that of the federal system. His record is long and varied and includes confinement in and escape from a federal reformatory, confinement in United States Penitentiaries, interstate transportation of stolen aircraft as well as other motor vehicles, and escape from the United States Medical Center at Springfield, Missouri. He has been in and out of Federal District Courts on numerous occasions. He has participated in and been the appellant in United States Courts of Appeals in at least the following cases:
McIntosh v. Pescor, 6 Cir., 1949, 175 F.2d 95 (involving two appeals from the same judgment);
McIntosh v. United States, 8 Cir., 1949, 176 F.2d 514, certiorari denied, 338 U.S. 876, 70 S.Ct. 137, 94 L.Ed. 537;
McIntosh v. Steele, 8 Cir., 1950, 184 F.2d 721, certiorari denied, 340 U.S. 921, 71 S.Ct. 353, 95 L.Ed. 665;
McIntosh ex rel. McIntosh v. Steele, 8 Cir., 1950, 184 F.2d 723.
In all of these cases McIntosh has appeared pro se excepting the last numbered one wherein he was represented by his father, an active attorney. Presently McIntosh is confined in the United States Penitentiary at Atlanta, Georgia, as a result of a plea of guilty to a Dyer Act violation committed in Ohio on or about July 12, 1963, while he was a fugitive following forfeiture of his bond upon which he had been released after indictment and prior to trial in the instant case.
As a result of our inquiry, there has been filed with this court the affidavit of Roy W. Meadows, court-appointed counsel for McIntosh at the time of the trial in District Court. That affidavit we recite in full as follows:
'AFFIDAVIT OF ROY W. MEADOWS
'State of Iowa
Polk County
SS.
'I, Roy W. Meadows, being first duly sworn on oath do depose and state that I was Court-appointed counsel for Charles Lee McIntosh in the abovecaptioned matter for purposes of trial in the District Court.
'I have been advised that the appellant has stated that I was 'instrumental in securing the indictment' against him and desire to make the following statement regarding this allegation:
'That I was Acting United States District Attorney for the Southern District of Iowa until November 17, 1961, when Mr. Donald A. Wine was appointed; that the records in this case show that the complaint was filed on March 5, 1962 and that indictment was returned by the Grand Jury on March 23, 1962. That I had no knowledge of this case at any time as United States Attorney and that I had nothing at all to do with the Grand Jury which met in Des Moines on March 23, 1962, and that no investigative matters were brought to my attention while I was in the United States Attorney's office;
'That after Mr. Donald A. Wine was appointed United States Attorney, I was assigned as a special assistant to the United States Attorney for the purpose of handling the case of United States of America v. Harry Schroeder for a period of some six to eight months; that the Schroeder case involved civil litigation which I had handled as United States Attorney for over a year and that I had no connection with the office of the United States Attorney except in this one case;
'That I am informed that the files of the United States Attorney in this case show that the first report received from the F.B.I. was received on January 11, 1962 and is initialed by Donald A. Wine and no other individual, and that subsequent reports were initialed by Mr. Wine and Mr. Leo Gross and that my initials do not appear on any said reports; that it was customary for me to enter my initials on every report which I reviewed while in the United States Attorney's office;
'That I had no knowledge of this matter until appointed counsel by the Court in this case and that the defense afforded to appellant was my best effort and that the appellant so acknowledged to Judge Stephenson in open Court.
'Further affiant saith naught.
(s) Roy W. Meadows ROY W. MEADOWS
'Subscribed and sworn to before me by the said Roy W. Meadows this 4th day of February, 1965.
(s) Philip T. Riley NOTARY PUBLIC, in and for Polk County
(Seal)'
An examination of the transcript indicates that originally a Judge of the District Court of the Southern District of Iowa first appointed Mr. Harley Whitfield, of Des Moines, to represent McIntosh. Subsequently Mr. Whitfield was relieved of the assignment because of another commitment. One of his associates and a member of his firm, Roy W. Meadows, offered his services instead. Judge Stephenson, who was then presiding, stated:
'The Court: Well, before I would make the change or make any change, I do-- I think that Mr. McIntosh, not being from this area, should be informed, Mr. Meadows, that you were formerly, for seventeen years I believe, a member of the Federal Bureau of Investigation. You have been in the practice for many years now of course and, at one time you were, by appointment of this Court, acting United States Attorney for about a year.
'It is true that Mr. Meadows has appeared as counsel for the defense in several cases, Mr. McIntosh, but I do want you to have that background.
'Mr. McIntosh: Yes, sir.
'The Court: And I do now want to ask you what your preference is.
'Mr. McIntosh: I'm perfectly satisfied with Mr. Meadows, sir.
'The Court: Well, the Court is very familiar with the fact that Mr. Meadows is a very able attorney; very experienced in the practice of law. And he has vigorously defended cases in this court. And from the standpoint of experience, why I know that you are not suffering from the change in appointment, because Mr. Whitfield is an experienced lawyer but perhaps doesn't do as much criminal work.
'You are ready to proceed then with Mr. Roy Meadows as your counsel?
'Mr. McIntosh: Yes, sir, I am.
'The Court: All right. If you will enter an appearance then, Mr. Meadows.
'Mr. Meadows: Yes, sir, I have.
'Your Honor, I would like the record to show that I have informed the defendant, prior to the Court, of my background with the F.B.I. and as United States Attorney in this district, and at that time he indicated that he had no objection to that. And I think I have gone into greater detail of my background so that the defendant is aware of it.
'The Court: Well, I am not surprised that you have, but I just wanted to make sure the defendant was aware of it. Anyone who is a resident of this community, Mr. Meadows, and familiar with your trial work, would know that there is no prejudice involved in your being counsel for the defense, but I wouldn't want Mr. McIntosh to later learn this and think that the Court appointed someone whom he shouldn't.
'Mr. McIntosh: I have talked with Mr. Meadows and I'm satisfied he knows what he is doing.
'The Court: We'll then proceed. * * *'
At the conclusion of the trial, the return of the jury verdict of guilty, and the court's denial of Mr. Meadows' various post-trial motions made in behalf of McIntosh, and just prior to the sentencing, the following transpired:
'Mr. Meadows: Your Honor. I would like to make a statement on behalf of the defendant.
'The Court: Well, before I take up the matter of sentencing, I want to interrogate the defendant. He has filed one motion and had a judgment vacated. And I want to make sure before we take up this matter of sentencing-- first of all, I want to ascertain, Mr. Defendant-- Mr. McIntosh-- the Court has heard these motions made by Mr. Meadows. The oral presentation, as far as the Court is concerned, indicates Mr. Meadows has worked on these motions and they were well presented. And the fact still remains that the Court wants to make sure that you are satisfied that your counsel has had sufficient opportunity and that this is your request that we proceed in this expeditious fashion.
'Mr. McIntosh: Yes, sir. I believe Mr. Meadows doesn't leave an awful lot to be said yet, sir.
'The Court: And you are satisfied that he has represented you ably prior to-- that is, from the time of his appointment, during the trial, and in these post trial motions?
'Mr. McIntosh: Very much so.
'The Court: I want to make sure that you are satisfied and that you are also satisfied that sufficient time has been granted to you and to your counsel to present these motions to the Court, and it has been your request that they be heard today; is that correct?
'Mr. McIntosh: They have, sir.
'The Court: And you do now want me to proceed with sentencing?
'Mr. McIntosh: Yes, sir.'
After the United States Attorney had reviewed for the court McIntosh's prior criminal record, Mr. Meadows spoke at length in behalf of McIntosh, urging leniency in making any sentence imposed to be served concurrently with that which McIntosh, was then serving, and that the court make applicable the provisions of 4208(a) of 18 U.S.C.A. When he had completed, the court asked McIntosh if he had anything to say in his own behalf, to which he replied:
'I'm afraid Mr. Meadows doesn't leave me very much to say.
'The Court: You are ready for the Court to proceed with sentencing?
'Mr. McIntosh: Yes.
'The Court: Everything has been said that you want said?
'Mr. McIntosh: Yes.'
The court refused to accept Mr. Meadows' recommendation that any sentence imposed be served concurrently with the Ohio sentence but did accept his recommendation that 4208(a) be made applicable so that McIntosh would be eligible for possible early parole.
We must conclude from the whole record, including the affidavit of Mr. Roy W. Meadows, that Mr. Meadows' court-appointment representation of the appellant was entirely ethical and completely proper in every respect; that the facts were fully and carefully explained to the appellant at the time Mr. Meadows was appointed; and that Mr. Meadows ably and conscientiously protected the appellant's rights throughout the trial in District Court and that no error exists with reference to such representation.
3
Diesel, cab-over
4
'If you find from the evidence beyond a reasonable doubt that the tractor described in the indictment was stolen, and was transported in interstate commerce as charged, and that, while recently stolen, the property was in the possession of the accused in another state than that in which it was stolen, the jury would be justified in drawing from those facts the inference that the tractor was transported or caused to be transported in interstate commerce by the accused with knowledge that it was stolen, unless possession of the recently stolen property by the accused in such other state is explained to the satisfaction of the jury by other facts and circumstances in evidence.'
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} |
505 F.Supp.2d 1358 (2007)
WHIRLPOOL CORPORATION, Plaintiff,
v.
UNITED STATES, Defendant.
Slip Op. 07-111, Court No. 03-00526.
United States Court of International Trade.
July 18, 2007.
*1359 *1360 Baker & McKenzie LLP, (Lynn S. Preece, Bart M. McMillan and, Louisa V. Carney) for Plaintiff Whirlpool Corporation.
Peter D. Keisler, Assistant Attorney General; Barbara S. Williams, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Bruce N. Stratvert); and Chi S. Choy, Office of Assistant Chief Counsel, U.S. Customs and Border Protection, of Counsel; for Defendant United States.
OPINION
WALLACH, Judge.
I
INTRODUCTION
Plaintiff Whirlpool Corporation ("Whirlpool") challenges the decision of the United States Customs and Border Protection ("Customs") to classify its imported merchandise (entry number XXX-XXXXXXX-X) under Heading 9032 of the Harmonized Tariff Schedule of the United States ("HTSUS") 1999 as an "[a]utomatic regulating or controlling instrument[] and apparatus" at a duty rate of 1.7% ad valorem.[1] This court has jurisdiction pursuant to 28 U.S.C. 1581(a), and jurisdiction is uncontested by, the parties. Because the subject merchandise is classified under an eo nomine designation as an automatically controlling apparatus in HTSUS Heading 9032, Customs' classification of the refrigerator control box subassembly in subheading 9032.89.60 was proper. Accordingly, Plaintiff's Motion, for Summary Judgment is Denied and Defendant's Motion for Summary Judgment is Granted.
II
BACKGROUND
Plaintiff Whirlpool is the importer of record for entry number XXX-XXXXXXX-X, consisting of refrigerator control box subassemblies-1 knob, identified as part number 2204604. Amended Complaint ("Complaint") ¶ 2; Answer to Amended Complaint ("Answer") ¶ 2; Composite Statement of Uncontested Facts ¶ 8. The subject merchandise was exported from Mexico by Whirlpool de Reynosa, S.A. de C.V., and entered the United States through the port of Hidalgo, Texas' on March 30, 1999. In its imported condition the merchandise consisted of a thermostat, defrost timer, light socket, and wire harness, all of which were contained inside, a plastic housing.[2] Complaint ¶ 2-3, 5; Answer ¶ 2-3, 5. Customs classified part number 2204604 under HTSUS Subheading 9032.89.60[3] and liquidated on March 8, 2002, assessing duties at the rate of 1.7% ad valorem and disallowed duty-free treatment *1361 under the North American Free Trade Agreement ("NAFTA"). Complaint ¶ 6-8; Answer ¶ 6-8. Plaintiff timely paid all additional duties and fees assessed on liquidation, and on June 5, 2002, filed a protest against Customs' classification and liquidation decision and its denial of NAFTA benefits for the entry.[4] Complaint ¶ 9, 10; Answer ¶ 9, 10. Customs denied the protest on February 13, 2003, and Plaintiff timely filed a summons with this court on July 30, 2003. Whirlpool argues that the subject merchandise was improperly classified in HTSUS subheading 9032.89.60, and should instead have been classified in HTSUS subheading 8537.10.90,[5] or alternatively in HTSUS subheading 8418.99.80.[6] Complaint ¶ 13, 15, 23. Both parties submitted motions for summary judgment before this court. Oral Argument on those motions was held on April 3, 2007.
III
STANDARD OF REVIEW
A motion for summary judgment is granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." USCIT R. 56(c). In classification cases, "the proper classification under which [an article] falls has always been treated as a question of law," thus, summary judgment will be appropriate when there is no underlying factual issue regarding the nature of the merchandise remaining in dispute. Bausch & Lomb Inc. v. United States, 148 F.3d 1363, 1366 (Fed. Cir.1998).
The court reviews classification cases de novo in accordance with 28 U.S.C. § 2640(a). When deciding classification cases, the court employs a two step analysis in which the first step "concerns the proper meaning of the tariff provisions at hand," and the second step "concerns whether the subject imports properly fall within the scope of the possible headings." Universal Elecs. Inc. v. United States, 112 F.3d 488, 491 (Fed.Cir.1997). Additionally, the factual determinations made by the agency are presumed to be correct, therefore "the party challenging the classification . . . bears the burden of proof." *1362 Totes, Inc. v. United States, 69 F.3d 495, 498 (Fed.Cir.1995) (citing 28 U.S.C. § 2639(a)(1)).
IV
DISCUSSION
The HTSUS General Rules of Interpretation ("GRI") govern the classification of merchandise entering the United States. See Orlando Food Corp. v. United States, 140 F.3d 1437, 1439 (Fed.Cir.1998). GRI 1 states, in pertinent part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes." Harmonized Tariff Schedule of the United States, General Rule of Interpretation ("GRI") 1. An eo nomine provision describes goods according to their "common and commercial meaning." Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed.Cir.1999). A court may "rely upon its own understanding of the terms used" or consult lexicographic authority or other reliable sources to define a term. Id. If classification is not resolved by application of GRI 1, the court will refer to the succeeding GRIs in numerical order. See, e.g., Conair v. United States, Slip Op. 05-95, 2005 WL 1941649, *1, 2005 Ct. Int'l Trade LEXIS 104, at *7 (CIT August 12, 2005).[7]
A
Part Number 2204604 was Properly Classified in HTSUS Heading 9032
1
Apparatus
Plaintiff first argues that the subject merchandise is not an apparatus as termed by Heading 9032 because "it has several and not a single given purpose." Plaintiffs. Memorandum in Support of Motion for Summary Judgment ("Plaintiff's Brief") at 14. In support of this assertion, Whirlpool cites ITT Thompson Industries v. United States, 3 CIT 36, 44, 537 F.Supp. 1272, 1277-78 (1982), aff'd, 703 F.2d 585 (Fed.Cir.1982), which defines an apparatus as "a group of devices, or a collection or set of materials, instruments or appliances to be used for a particular purpose or a given end." Id. at 13.
Plaintiff is incorrect in its assertion that the subject merchandise cannot be an apparatus because all of its components do not share the same purpose. In General Electric Co. v. United States, 247 F.3d 1231 (Fed.Cir.2001), amended on limited grant of rehearing, 273 F.3d 1070 (Fed. Cir.2001), the Court of Appeals for the Federal Circuit found an item to be a "combination apparatus" when it contained two components that needed to "independently perform their nonsubordinate functions if the [item] is to operate properly." General Elec., 247 F.3d at 1235. The refrigerator control box subassembly is similarly a combination apparatus, including several components that have independent and non-subordinate functions.
Plaintiff next argues that, if the subject merchandise is an apparatus, it is not an apparatus under Heading 9032. Plaintiff's Brief at 14. Plaintiff agrees that the thermostat located within part number 2204604 constitutes an apparatus for automatically controlling temperature as specified in Heading 9032, but argues that the control box in its entirety does not meet the requirements to be classified as such. Id. According to Plaintiff, since the given purpose of the apparatus is to act as a user interface and not only to control temperature, classification in Heading 9032 is precluded. *1363 Plaintiff's Brief at 14-15 (citing General Elec., 247 F.3d at 1235 for the proposition that a tariff heading that describes one component of a combination apparatus is not sufficiently specific to mandate classification in that heading).
Defendant counters that the refrigerator control box subassembly can be classified in Heading 9032 by reference to HTSUS GRI 1.[8] Defendant's Reply Brief in Support of Our Motion for Summary Judgment and in Opposition to Plaintiff's Response ("Defendant's Reply") at 9. According to Defendant, the defrost timer and the thermostat both fall within the definition of "automatic regulating or controlling instruments or apparatus" when viewed in conjunction with Note 3[9] (which applies Note 4 of Section XVI to Chapter 90) and Note 6[10] of Chapter 90. Id. at 9-10. Defendant asserts that once the principles of Note 4 of Section XVI are applied the merchandise in issue meets the qualifications of Heading 9032, as it is a machine[11] consisting of individual components which, with the exception of the light socket, contribute together to the function of temperature control. Id. at 10.
2
Instruments
As noted above, analysis of classification within the headings of the HTSUS begins with HTSUS GRI 1, which states that "classification shall be determined according to the terms of the headings and any relative section or chapter notes." HTSUS Heading 9032 provides for "[a]utomatic regulating or controlling instruments or apparatus; parts and accessories thereof," which are further described in Chapter 90, Note 6, as instruments and apparatus "for automatically controlling temperature." Note 2(a) to Chapter 90 states, "[p]arts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85, or 91 . . . are in all cases to be classified in their respective headings."
The parties are in agreement that the thermostat located in part number 2204604 automatically controls temperature,[12] and *1364 that the light socket and wire harness (as individual units) do not automatically control or regulate temperature, but the nature of the role of the defrost timer remains in dispute. Plaintiffs Composite Statement of Uncontested Facts ("Uncontested Facts") ¶ 33; Complaint ¶ 20; Answer ¶ 20. The defrost timer in part 2204604 works in conjunction with the defrost heater to control the defrosting operation of the refrigerator. Uncontested Facts ¶ 49. It accumulates the compressor run time, and, after a pre-determined amount of time, will redirect power to the defrost heater which melts and disburses any ice that had formed on the evaporator coils. Id.; see Michael D. Blankenship 2d Affidavit, August 2, 2006 ("Blankenship 2d Aff."), ¶ 21 (asserting, "the ice [that had accumulated on the evaporator coil] is then cleared from the coil by using a heater controlled by the defrost timer . . . in part number 2204604"). The defrost timer will then terminate the defrost after a set amount of time by redirecting, power through the thermostat. Uncontested Facts ¶ 51.
As the defrost timer functions by monitoring the compressor run time and using that information to regulate when the defrost heater is on or off, Uncontested Facts ¶ 49, it acts as an automatic temperature controller. Though its temperature regulation is not constant, the purpose of the device and the desired outcome of its action is to change temperature such that it will heat the evaporator coils and melt any ice present on them. It does this automatically upon gathering information as to the length of time the compressor has run, and automatically allows the temperature to readjust when the function is complete. Uncontested Facts ¶¶ 49-51. Tellingly, the sole attachment that it controls is described by Mr. Blankenship only as a "heater," clearly designed to raise the temperature on the coils at the defrost timer's signal. Blankenship 2d Aff. ¶ 21. Though the item monitors time, the purpose and intended outcome of the device's function is temperature control, and thus the defrost timer is properly classified in Heading 9032.[13]
The wire harness located within the refrigerator control box subassembly sends electrical signals to and from the other components located therein, allowing them to complete their functions by connecting to the main refrigerator wiring harness, which in turn is connected to the other working parts of the refrigerator. Uncontested Facts ¶ 35, 38. The wire harness is thus a component "intended to contribute . . . to a clearly defined function;" it sends the information from the defrost timer and thermostat to other areas of the refrigerator with the purpose of regulating temperature. HTSUS Section XVI, Note 4. Therefore, according to Section XVI, Note 4 (applied via Chapter 90, Note 3), the wire harness also "falls to be classified in the heading appropriate to that function," and is properly classified in Heading 9032 along with the thermostat and defrost timer components.
The only component of the refrigerator control box that is not involved in the automatic regulation of temperature in any way is the light socket. Thus, the intended purpose of the refrigerator control box as a whole is the automatic regulation of *1365 temperature; it is the main function of the items within the control box and the most important function in relation to the purpose of the refrigerator. Part number 2204604 therefore meets the terms of Heading 9032 when viewed in conjunction with the notes to Chapter 90, and was properly classified under HTSUS subheading 9032.89.60.
B
Part Number 2204604 Cannot be Classified in HTSUS Heading 8537 or 8418
Plaintiff argues that the subject merchandise is properly described under Heading 8537 as a panel, equipped with two or more apparatus of heading 8535 or 8536, for electric control. Plaintiffs Brief at 17. According to Plaintiff, the plastic housing constitutes a foundation or base upon which electrical devices rest, and the light socket and terminals attached to the wire harness are items classified under Heading 8536. Id. Plaintiff also asserts that the control box's function meets the definition of "electric control" as involving a process in which "information is input, and as a consequence, electricity causes the desired result to occur." Id. (quoting Universal Elecs., 112 F.3d at 494). Plaintiff argues that information is input when the thermostat or defrost timer sense temperature or passage of time, causing the wire harness to send electricity to another part of the refrigerator that will lower-the temperature or start the defrost function. Id. at 18-19. Plaintiff additionally argues that the flow of electricity through the wire harness to the light socket resulting from the switch triggered by the refrigerator door also qualifies as an example of the merchandise functioning "for electric control." Id. at 19. Plaintiff concludes that because the merchandise should be classified under Heading 8537, the necessary tariff shift occurred,[14] and part number 2204604 qualified as a NAFTA good on entry. Id. at 20.
Defendant responds that the subject merchandise is not within the scope of Heading 8537 because it does not contain two or more apparatus of Heading 8535 or 8536, and it is not "for electric control." Defendant's Brief at 7. According to Defendant, the merchandise at issue has only one apparatus of Heading 8536, the light socket, as the wire harness and its components identified by Plaintiff falls under Heading 8544 (insulated wire, cable, or other electric conductors, whether or not fitted with connectors). Id. at 8. Defendant also argues that the subject merchandise does not qualify as an item "for electric control" because it does not provide an electrical means for an individual to control the targeted appliance as was there in Universal Electronics, 112 F.3d at 494. Id. at 9-10. Defendant additionally notes that the article in question is not for the distribution of electricity, though Plaintiff does not argue that it is. Id. at 12-13.
Plaintiff also argues that the subject merchandise is described under Heading 8418 as a refrigerator part because it is "an integral, constituent part of a complete, functioning refrigerator," and it is "`dedicated solely for use' with a refrigerator." Plaintiff's Brief at 21 (citing United States v. Willoughby Camera Stores, 21 C.C.P.A. 322, 324, 1933 WL 1887 (1933) *1366 and United States v. Pompeo, 43 C.C.P.A. 9, 14 (1955)). Though it asserts that the subject merchandise properly fits in Heading 8418, Plaintiff states that Note 2(a) to Section XVI requires that it be classified in Heading 8537 if it qualifies for both[15]Id. at 22. While Defendant does not dispute that the subject merchandise comes within the terms of Heading 8418, it argues that because the merchandise at issue is also provided for in Heading 9032, it is properly classified there.[16]Id. at 19.
As established in section A above, the merchandise in question fits into the terms of Heading 9032. Because of this, analysis of the scope of Chapter 84 and 85 falls within the provisions of Note 1(m) to Section XVI, which states that the section does not cover Articles of Chapter 90, such as the refrigerator control box subassembly here. The merchandise thus cannot be classified under subheading 8537 or 8418 regardless of whether it can be described by those headings, due to the mandate of the section notes.
Additionally, even if the subject merchandise were not within the terms of a Chapter 90 Heading, it would still not be classifiable under Heading 8537. While the Court of International Trade in Universal Electronics acknowledges that 8537.10.90 refers to a "broad range of items," it also specifies that in order to fall within the subheading an item "must be part of a system in which information is input, and, as a consequence, electricity causes the result to occur." Universal Elecs., 20 CIT at 340. Though there is a control knob on the unit that allows a person to set the desired temperature in the refrigerator, the consequence of that is too removed to fall within the court's requirement. There is no immediate and exact change as is the case with the remote control; rather, the electrical signal is sent as a result of the thermostat or defrost timer sensing the change in temperature or activity of the compressor. Thus, the desired output is not as much a consequence of the information that was input by the user as it is a consequence of the information sensed by the item. The refrigerator control box subassembly is therefore not equipped with two or more apparatus "for electric control." Thus, the merchandise in question does not fall within the provisions of Heading 8537.
V
CONCLUSION
For the foregoing reasons, Whirlpool's Motion for Summary Judgment is Denied and the Government's Motion for Summary Judgment is Granted. Accordingly, Customs' classification of Whirlpool part number 2204604 in HTSUS Subheading 9032.89.60 is affirmed.
ORDER AND JUDGMENT
This case having come before the court upon the Motion for Summary Judgment filed by Plaintiff Whirlpool Corporation ("Plaintiff's Motion"), and Defendant's *1367 Motion for Summary Judgment filed by Defendant United States ("Defendant's Motion"); the court having reviewed all papers and pleadings on file herein, having heard oral argument by each party, and after due deliberation, having reached a decision herein; now, in conformity with said decision, it is hereby
ORDERED, ADJUDGED and DECREED that Plaintiffs Motion is DENIED; and it is further
ORDERED, ADJUDGED and DECREED that Defendant's Motion is GRANTED; and it is further
ORDERED, ADJUDGED and DECREED that the imported item at issue in this case is properly classified under Heading 9032, Subheading 9032.89.60 of the Harmonized Tariff Schedule of the United States (1999), at a duty of 1.7% ad valorem; and it is further
ORDERED, ADJUDGED and DECREED that judgment be, and hereby is, entered in favor of Defendant and against Plaintiff; and it is further
ORDERED that all parties shall review the court's Opinion in this matter and notify the court in writing on or before Wednesday, July 25, 2007, whether any information contained in the Opinion is confidential, identify any such information, and request its deletion from the public version of the Opinion to be issued thereafter. The parties shall, suggest alternative language for any portions they wish deleted. If a party determines that no information needs to be deleted, that party shall so notify the court in writing on or before July 25, 2007.
NOTES
[1] This rate represents the Column 1 general rate for HTSUS Subheading 9032.89.60 in effect at the time of entry in 1999.
[2] Plaintiff alleges that the imported merchandise also contained "terminals and connectors," but the Government denies this. This discrepancy is not material to the court's decision, however.
[3] HTSUS Heading 9032 and subheading 9032.89.60 provide for:
9032 Automatic regulating or controlling instruments and apparatus; parts and
accessories thereof:
* * *
9032.89.60 Other .......................................................1.7% Free
(MX)
[4] Protest number XXXX-XX-XXXXXX.
[5] HTSUS Heading 8537 and subheading 8537.10.90 provide for:
8537 Boards, panels, consoles, desks, cabinets and other bases, equipped with two or
more apparatus of heading 8535 or 8536, for electric control or the distribution
of electricity, including those incorporating instruments or apparatus of chapter
90, and numerical control apparatus, other than switching apparatus of
heading 8517:
8537.10 For a voltage not exceeding 1,000 V:
8537.10.90 Other ......................................................Free (MX)
[6] HTSUS Heading 8418 and subheading 8418.99.80 provide for:
8418 Refrigerators, freezers and other refrigerating or freezing equipment, electric
or other; heat pumps, other than the air conditioning machines of heading
8415; parts thereof:
* * *
8418.99.80 Other ...........................................................Free
[7] As part number 2204604 is classifiable using GRI 1, discussion of subsequent GRIs has been omitted.
[8] In Defendant's Memorandum in Support of its Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Summary Judgment ("Defendant's Brief") Defendant also argues that the subject merchandise is classifiable in Heading 9032 by following a GRI 3(b) analysis. Defendant's Brief at 17. Because the merchandise is classifiable under a GRI 1 analysis as the Defendant later argues in its Reply, the GRI 3(b) argument need not be addressed.
[9] HTSUS Chapter 90 Note 3 asserts that "[t]he provisions of note 4 to section XVI apply also to [Chapter 90]." Note 4, Section XVI provides:
Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in [Chapter 90], then the whole falls to be classified in the heading appropriate to that function.
[10] HTSUS Chapter 90 Note 6(a) (after 2002 renumbered as Note 7) limits Heading 9032 to "[i]nstruments and apparatus for ... automatically controlling temperature, whether or not their operation depends on an electrical phenomenon which varies according to the factor to be automatically controlled."
[11] As Defendant notes, the term "machine" as stated in Note 4, and applied by Chapter 90, Note 3, is defined in Section XVI, Note 5 as "any machine, machinery, plant, equipment, apparatus, or appliance cited in the headings of..." Chapter 90.
[12] The thermostat located in part number 2204604 functions by lowering the air temperature in the refrigerator by sending electricity through the wire harness to the compressor, condenser fan motor, and evaporator fan motor, signaling them to run until it senses a pre-determined air temperature. Composite Uncontested Facts ¶ 47. This action qualifies as automatic regulation of temperature and falls within the scope of HTSUS Heading 9032.
[13] During oral argument, counsel for Plaintiff argued that an item is properly classified under the HTSUS by what it is, not by what it does. This assertion fails to take into account the specification in Note 4 to classify components by function.
[14] HTSUS 1999 General Note 12(t), Chapter 85, subheading 121(A) required, in relevant part, that a good qualifying as a NAFTA-originating good must have non-originating materials that have undergone a tariff shift from any other heading during the manufacturing process in the NAFTA country. Plaintiff argues that once the thermostat, the only non-originating material in the subject merchandise, was assembled into the refrigerator control box subassembly, it shifted from heading 9032 to heading 8537 as required. Plaintiff's Brief at 20.
[15] Note 2(a) to Section XVI requires that parts which are goods under Heading 84 or 85 must be classified "in their respective headings." Plaintiff argues that as the subject merchandise is a good under Heading 8537 that classification takes precedence over the part classification in Heading 8418. Plaintiff's Brief at 22.
[16] Defendant argues that Heading 9032 is more specific than Heading 8418, citing Knowles Electronics v. United States, 62 C.C.P.A. 1, 504 F.2d 1403 (1974). Defendant's Brief at 19. Defendant also argues that if the two headings are equally specific it will be classified in Heading 9032 pursuant to GRI 3(c), "under the heading which occurs last in numerical order among those which equally merit consideration." Id. (quoting HTSUS GRI 3(c)).
| {
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} |
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2059
JOHN H. BURTON,
Plaintiff-Appellant,
v.
KOHN LAW FIRM, S.C., et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:16-cv-00594-NJ — Nancy Joseph, Magistrate Judge.
____________________
ARGUED NOVEMBER 29, 2018 — DECIDED AUGUST 9, 2019
____________________
Before FLAUM, RIPPLE, and MANION, Circuit Judges.
RIPPLE, Circuit Judge. The history of this litigation began
in the circuit court for Brown County, Wisconsin. Kohn Law
Firm, S.C. (“Kohn”), acting on behalf of Unifund CCR, LLC
(“Unifund”), a debt collection agency, brought an action
against John H. Burton. Unifund sought to collect from
Mr. Burton a debt incurred on a Citibank, N.A. (“Citibank”),
credit card account. Mr. Burton denied knowledge of, or any
association with, that account.
2 No. 18-2059
While that action was pending in state court, Mr. Burton
filed the present lawsuit against Kohn in the United States
District Court for the Eastern District of Wisconsin. He al-
leged that, with respect to the same debt, Kohn had violated
the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.
§§ 1692–1692p, and the Wisconsin Consumer Act (“WCA”),
Wis. Stat. §§ 421–427, by filing the Wisconsin action against
Mr. Burton without first providing him notice of his right to
cure the default.
The Wisconsin state court later dismissed Kohn’s action
against Mr. Burton on the basis of Mr. Burton’s denial that
he was the individual who had incurred the underlying
debt. Mr. Burton then amended his complaint in this federal
action to add Unifund as a defendant. Following cross-
motions for summary judgment by the parties, the magis-
trate judge, sitting as the district court, entered judgment in
favor of Kohn and Unifund. 1 The district court held that
Mr. Burton could not proceed on his FDCPA or WCA claims
because he had failed to present sufficient evidence that the
debt incurred on the Citibank account was for personal, fam-
ily, or household purposes and therefore a “consumer debt.”
Mr. Burton now challenges that determination.
We agree with the district court. On the record before us,
Mr. Burton has not come forth with sufficient evidence that
the debt in question is a consumer debt. Accordingly, we af-
firm the judgment of the district court. 2
1 The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1367.
2 We have jurisdiction over this appeal under 28 U.S.C. § 1291.
No. 18-2059 3
I
BACKGROUND
On February 17, 2015, Kohn, on behalf of Unifund,
brought a lawsuit against Mr. Burton in the Circuit Court of
Brown County, Wisconsin. Kohn claimed that Mr. Burton
had failed to make payments on a credit agreement with
Citibank. In his answer, Mr. Burton stated, “I have never had
any association with Unifund CCR, LLC in the past and do
not know who you are or what you are talking about, so I
strongly dispute this debt, with emphasis.” 3 He also asserted
counterclaims against Unifund, alleging that he had been
“‘ambushed’ by [Unifund’s] Summons and Complaint” and
that he “did not have any association with Unifund CCR,
LLC in the past, prior to this legal action.” 4 Mr. Burton fur-
ther contended that his “personal information has also been
compromised by the State of WI and 3rd party fraud may
have occurred” on the account in question. 5 He asserted as
affirmative defenses that Unifund had failed to provide him
notice of his right to cure the default prior to filing suit, in
violation of Wisconsin Statutes §§ 425.104 and 425.105, and
that there was a “Lack of Privity” because he “ha[d] never
entered into any contractual or debtor/creditor arrange-
ments” with Unifund. 6 Furthermore, at an evidentiary hear-
ing on July 6, 2015, Mr. Burton testified that he never had
3 R.43-1 at 1.
4 Id. at 2.
5 Id.
6 Id. at 4–5.
4 No. 18-2059
received statements, made payments, or made purchases on
the Citibank account.
On May 19, 2016, while the Wisconsin action was still
pending, Mr. Burton began this litigation in the district
court. He alleged that, “[t]o the extent that Burton entered
into a credit agreement with Citibank, NA, such agreement
was entered into for personal, family or household purpos-
es.” 7 He claimed that, by failing to provide written notice of
his right to cure the default on the Citibank agreement be-
fore bringing the state court action, Kohn had violated the
FDCPA, 15 U.S.C. §§ 1692d and 1692e, and the WCA, Wis.
Stat. § 427.104(1)(h) and (1)(j).
On September 8, 2016, the state court conducted a hear-
ing on a motion by Unifund to dismiss Mr. Burton’s coun-
terclaims. In response to a question from the court,
Mr. Burton’s counsel confirmed that his “client ha[d] testi-
fied under oath that he’s not the John H. Burton that they are
claiming had this account.” 8 Based on this information, the
state court immediately dismissed Unifund’s claims and
Mr. Burton’s counterclaims without prejudice. Mr. Burton
then amended his federal complaint, adding Unifund as a
defendant in this action. Kohn, Unifund, and Mr. Burton
then filed cross-motions for summary judgment.
On April 13, 2018, the district court decided the parties’
cross-motions. First, the court denied Mr. Burton’s motion
for summary judgment. Noting that “the FDCPA does not
protect all obligations, but only those involving ‘consumer’
7 R.24 ¶ 20.
8 R.53 at 23.
No. 18-2059 5
debt,” the court held that Mr. Burton had not established
that the underlying debt was a consumer debt. 9 The court
observed that, under the FDCPA, a consumer debt arises out
of a transaction that is “primarily for personal, family, or
household purposes.” 10 Similarly, the WCA only protects
“customers,” defined as persons “who seek[] or acquire[] re-
al or personal property, services, money or credit for per-
sonal, family, or household purposes.” 11
While continuing to maintain that he did not know any-
thing about the debt in question, Mr. Burton attempted to
demonstrate that the Citibank debt was incurred for “per-
sonal, family, or household purposes.” In this respect, he
submitted evidence that: (1) Kohn and Unifund described
themselves as debt collectors; (2) the billing statements
showed that the charges on the credit card were for person-
al, family, and household use; (3) the billing statements were
addressed to Mr. Burton personally at his residence; and (4)
in an email, a Citibank employee described the underlying
account as a “consumer account.” 12 The district court never-
theless determined that this evidence was insufficient to es-
tablish that the underlying debt was a consumer debt. The
court observed that the defendants’ status as debt collectors
did not establish that the particular debt in question here
necessarily was consumer debt. Nor did the fact that the de-
9 R.75 at 4 (citing Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111
F.3d 1322, 1325 (7th Cir. 1997)).
10 Id. (quoting 15 U.S.C. § 1692a(5)).
11 Id. at 6 (quoting Wis. Stat. § 421.301(17)).
12 R.42-3.
6 No. 18-2059
fendants sued Mr. Burton personally or that they repeatedly
included FDCPA disclaimers in their communications to
him establish that the debt was a consumer debt. The billing
statements sent to Mr. Burton’s residence also did not estab-
lish that the debts were consumer debts because individuals
often conduct business transactions at their home. Finally,
the court noted that Mr. Burton admitted that he had testi-
fied that he had not applied for and had no knowledge of
the transactions on the Citibank account. Viewing the evi-
dence in the light most favorable to the nonmoving party,
the court held that Mr. Burton was not entitled to judgment
as a matter of law.
The district court then granted Kohn and Unifund’s mo-
tions for summary judgment. At the outset of its analysis,
the court made clear that Mr. Burton had the burden of es-
tablishing that the underlying transactions were consumer
transactions. The court noted again that Mr. Burton had dis-
avowed, in sworn testimony, any knowledge of the underly-
ing credit card transactions. Turning to the email from the
Citibank employee describing the account as a “consumer
account,” 13 the court ruled that the email statement was in-
admissible hearsay and that none of the exceptions to the
rule against hearsay applied. The court also determined that
the billing statements did “not facially show that the charges
were made for personal use.” 14 Finally, the court considered
Mr. Burton’s repeated assertions that he had no knowledge
of, or association with, the Citibank account. Acknowledging
13 Id.
14 R.75 at 11.
No. 18-2059 7
that evidence of identity theft can be relevant to establishing
the existence of consumer debt, the court nevertheless con-
cluded that Mr. Burton had presented no such evidence in
this case. Therefore, the court held that Mr. Burton had “not
put forth any admissible evidence that show[ed] a genuine
factual dispute regarding whether the debt incurred was for
personal, family, or household use.” 15 The court accordingly
entered judgment for the defendants. Mr. Burton filed a
timely notice of appeal.
II
DISCUSSION
In this appeal, Mr. Burton focuses only on the district
court’s grant of summary judgment for the defendants. We
review de novo a district court’s decision to grant summary
judgment. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 702
(7th Cir. 2009). Summary judgment is proper “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “Thus, to survive summary judgment,
the nonmoving party must present evidence sufficient to es-
tablish a triable issue of fact on all essential elements of [his]
case.” Lewis, 561 F.3d at 702. “If there is no triable issue of
fact on even one essential element of the nonmoving party’s
case, summary judgment is appropriate.” Id.
Here, we examine the record in the light most favorable
to Mr. Burton and grant him the benefit of all reasonable in-
ferences that may be drawn from the evidence. We will re-
15 Id. at 13.
8 No. 18-2059
verse the judgment only if we find a genuine issue concern-
ing any fact that might affect the outcome of the case. We
must remember, however, that “[o]nce a party has made a
properly-supported motion for summary judgment, the
nonmoving party may not simply rest upon the pleadings
but must instead submit evidentiary materials that set forth
specific facts showing that there is a genuine issue for trial.”
Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (inter-
nal quotation marks omitted). “The nonmoving party must
do more than simply show that there is some metaphysical
doubt as to the material facts.” Id. Further, “[t]he mere exist-
ence of a scintilla of evidence in support of the plaintiff’s po-
sition will be insufficient to show a genuine issue of material
fact.” Liu v. T & H Mach., Inc., 191 F.3d 790, 796 (7th Cir.
1999). “Rather, a genuine issue of material fact does not exist
unless there is sufficient evidence favoring the non-moving
party for a jury to return a verdict for that party.” Id.
We have clarified that “[t]he burden on the non-movant
is not onerous.” Id. “The nonmovant need not depose h[is]
own witnesses or produce evidence in a form that would be
admissible at trial, but []he must go beyond the pleadings
(e.g., produce affidavits, depositions, answers to interrogato-
ries, or admissions on file) to demonstrate that there is evi-
dence upon which a jury could properly proceed to find a
verdict in h[is] favor.” Modrowski v. Pigatto, 712 F.3d 1166,
1168–69 (7th Cir. 2013) (citation omitted) (internal quotation
marks omitted). “Moreover, the non-movant need not match
the movant witness for witness, nor persuade the court that
his case is convincing; he need only come forward with ap-
propriate evidence demonstrating that there is a pending
dispute of material fact.” Liu, 191 F.3d at 796–97. “[A] party
will be successful in opposing summary judgment only
No. 18-2059 9
when they present definite, competent evidence to rebut the
motion.” EEOC. v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th
Cir. 2000) (quoting Smith v. Severn, 129 F.3d 419, 427 (7th Cir.
1997)).
Both the FDCPA and the WCA were enacted to protect
personal borrowers from abusive debt collection practices.16
It follows that, to state a claim under either statute, a plain-
tiff, who has the burden of proof on each element of the
cause of action, must demonstrate that the debt in question
arises out of a transaction incurred for personal, family, or
household purposes. The FDCPA defines a “debt” as “any
obligation or alleged obligation of a consumer to pay money
arising out of a transaction in which the money, property,
insurance, or services which are the subject of the transaction
are primarily for personal, family, or household purposes.” 15
U.S.C. § 1692a(5) (emphasis added). Similarly, the WCA pro-
tects transactions involving a “customer,” Wis. Stat.
§ 421.301(13), and defines a “customer” as “a person … who
seeks or acquires real or personal property, services, money
or credit for personal, family or household purposes,” id.
§ 421.301(17) (emphasis added). Expenses incurred for a
business purpose, by contrast, are outside the scope of both
16 See Suesz v. Med-1 Sols., LLC, 757 F.3d 636, 639 (7th Cir. 2014) (en banc)
(“The FDCPA is designed to protect consumer debtors against unscrupu-
lous methods of consumer debt collection.”); Kett v. Cmty. Credit Plan,
Inc., 596 N.W.2d 786, 794 (Wis. 1999) (observing that the WCA “is in-
tended to protect customers from ‘unfair, deceptive, false, misleading
and unconscionable practices by merchants,’ Wis. Stat. § 421.102(2)(b),
and ‘to permit and encourage the development of fair and economically
sound consumer practices in consumer transactions,’ Wis. Stat.
§ 421.102(2)(c)”).
10 No. 18-2059
statutes. See, e.g., Miller v. McCalla, Raymer, Padrick, Cobb,
Nichols, & Clark, L.L.C., 214 F.3d 872, 875 (7th Cir. 2000) (in-
terpreting the FDCPA); Seeger v. AFNI, Inc., No. 05-C-714,
2007 WL 1598618, at *7 (E.D. Wis. June 1, 2007) (un-
published) (interpreting the WCA).
We also recognized recently that where, as here, a plain-
tiff maintains that the underlying debt was not his, he can
nonetheless claim FDCPA protection by showing that the
debt collector treated him as a “consumer” allegedly owing a
consumer debt. Loja v. Main St. Acquisition Corp., 906 F.3d
680, 684 (7th Cir. 2018) (holding “that the definition of ‘con-
sumer’ under the FDCPA includes consumers who have
been alleged by debt collectors to owe debts that the con-
sumers themselves contend they do not owe”). However, a
plaintiff proceeding under this theory still must offer evi-
dence to establish that the debt was a consumer debt: in other
words, that the debt was incurred for personal, family, or
household purposes.
This appeal therefore turns on the question whether
Mr. Burton submitted sufficient evidence to create a triable
issue of fact that the debt incurred on the Citibank account
was for personal, family, or household purposes. 17 Deter-
mining the purposes for which a debt was incurred is neces-
sarily a fact-based, case-specific inquiry. Mr. Burton submits
there are five pieces of evidence establishing that the debt
incurred on the Citibank account was consumer debt: (1) his
17 Because “[c]ourts construe the WCA in accordance with the policies of
the FDCPA,” we consider Mr. Burton’s FDCPA and WCA claims togeth-
er. Myers v. Americollect Inc., 194 F. Supp. 3d 839, 846 (E.D. Wis. 2016).
No. 18-2059 11
statements that, to the extent he was liable for the debt, it
was a consumer debt; (2) the defendants’ treatment of the
debt as a consumer debt by including FDCPA disclaimers on
the collection letters, suing Mr. Burton in his personal capac-
ity, and sending communications to his personal address; (3)
Kohn and Unifund’s description of their consumer debt col-
lection services on their websites; (4) a Citibank employee’s
email description of the underlying account as a “consumer
account”; 18 and (5) the billing statements listing purchases
made on the credit card for personal, family, or household
purposes. We consider each submission in turn.
Mr. Burton contends that his own statements suffice to
show that this was a consumer debt. 19 We cannot accept this
submission. Throughout the state court action, he represent-
ed that he had never applied for, had no knowledge of, and
made no purchases on or payments toward the Citibank ac-
count. 20 In his federal complaint, by contrast, he alleged that,
18 R.42-3.
19 Mr. Burton further contends that the district court should have con-
sidered evidence that his “identity was potentially stolen” in support of
his position that the debt was a consumer debt. Appellant’s Br. 36. Be-
cause Mr. Burton never raised an identity-theft argument before the dis-
trict court, cf. R.24; R.40; R.70, it is not properly before us in this appeal.
20 See R.43-1 at 1 (answering the complaint and stating, “I have never had
any association with Unifund CCR, LLC in the past and do not know
who you are or what you are talking about, so I strongly dispute this
debt, with emphasis”); id. at 2 (asserting a counterclaim that he was
“‘ambushed’ by [Unifund’s] Summons and Complaint,” and that he “did
not have any association with Unifund CCR, LLC in the past, prior to
this legal action”); id. at 5 (asserting as an affirmative defense “Lack of
Privity,” alleging that he had “never entered into any contractual or
(continued … )
12 No. 18-2059
“[t]o the extent that Burton entered into a credit agreement
with Citibank, NA, such agreement was entered into for per-
sonal, family or household purposes.” 21 This latter allegation
cannot be reconciled with his total disavowals in the state
court action. Nor has Mr. Burton submitted an affidavit or
any other sworn testimony in this litigation to support his
position in opposition to summary judgment. Without more,
the bald assertion in his complaint is hardly affirmative evi-
dence that the debt was a consumer debt. See, e.g., Martin v.
Allied Interstate, LLC, 192 F. Supp. 3d 1296, 1307 (S.D. Fla.
2016) (granting summary judgment for defendants where
plaintiff stated the eBay account was not hers, but offered no
evidence showing the account or debt was “consumer in na-
ture”). 22
( … continued)
debtor/creditor arrangements with” Unifund); R.46-3 at 6 (Mr. Burton
“denie[d] applying for the alleged account with alleged original creditor,
using or making payments on the alleged credit card.”); R.46-4 at 2
(notes of small claims court commissioner indicating that Mr. Burton had
testified under oath that he did not receive statements, make payments,
or make purchases on the Citibank account); R.49-5 at 2 (counsel con-
firming Mr. Burton had “testified under oath that he’s not the John H.
Burton that they are claiming had this account”).
21 R.24 ¶ 20.
22 See also Boosahda v. Providence Dane LLC, 462 F. App’x 331, 335 (4th Cir.
2012) (unpublished) (per curiam) (holding that plaintiff’s declaration
stating that he never used credit cards for any business purpose, which
conflicted with answers he provided in state court deposition and trial
testimony that he did not recall obtaining the credit cards and did not
remember making any purchases with the cards, was insufficient to cre-
ate a genuine issue of material fact); El-Bakara v. Weltman, Weinberg &
Reis Co., LPA, No. 2:17-cv-05138-MMB, 2019 WL 1258830, at *3 (E.D. Pa.
(continued … )
No. 18-2059 13
Mr. Burton next submits that Kohn and Unifund’s treat-
ment of the debt as a consumer debt is evidence that the debt
was, in fact, a consumer debt. In support, he notes that the
defendants included FDCPA disclaimers in their collection
letters, sued Mr. Burton personally in the state court action,
and sent communications to his home address. However,
courts have held repeatedly that merely including FDCPA
disclaimers on debt collection letters is insufficient evidence
that the debt was a consumer debt because debt collectors
may be exercising caution and including disclaimers on all
communications with debtors simply to avoid any FDCPA
liability. See, e.g., Gburek v. Litton Loan Serv. LP, 614 F.3d 380,
386 n.3 (7th Cir. 2010) (noting that evidence that letter in-
cluded disclaimer identifying it as attempt to collect a debt
“does not automatically trigger the protections of the
( … continued)
Mar. 19, 2019) (unpublished) (finding plaintiff failed to plead sufficient
facts to demonstrate the underlying debt was a consumer debt where he
did not “disclose any specific details about the underlying debt,” other
than that he believed it was owed by his son and that any alleged debts
“arose out of a transaction which was primarily for personal, family, or
household purposes” (internal quotation marks omitted)); Horton v.
Trans Union, LLC, No. 12-2072, 2015 WL 1055776, at *6 (E.D. Pa. Mar. 10,
2015) (unpublished) (holding plaintiff’s statements that she had no
knowledge of purchases, transactions, or payments made on credit card
accounts and that she was the victim of identity theft failed to demon-
strate the accounts involved consumer debts); Garcia v. LVNV Funding
LLC, No. A-08-CA-514-LY, 2009 WL 3079962, at *4–5 (W.D. Tex. Sept. 18,
2009) (unpublished) (holding plaintiff failed to meet his burden to prove
that collection activity arose out of consumer debt where plaintiff denied
debt was his and failed to produce any evidence regarding purpose for
which debt was incurred).
14 No. 18-2059
FDCPA”). 23 Nor is it helpful that the defendants brought the
state court action against Mr. Burton in his personal capaci-
ty; an individual can be sued in a personal capacity for a
business debt. 24 Further, it bears little on our inquiry that the
defendants sent communications to Mr. Kohn at his personal
address; an individual can carry on business activities from
his residence. 25
23 See also Evenson v. Palisades Collection, LLC, No. 2:13-cv-1226, 2015 WL
3466936, at *5 (S.D. Ohio June 1, 2015) (unpublished) (observing that,
even if defendants included validation information in collection commu-
nications, “the debt collector’s treatment of an obligation as one under
the FDCPA [was] irrelevant to … the nature of the obligation itself”);
Horton, 2015 WL 1055776, at *7 (same).
24 See, e.g., Matin v. Fulton, Friedman & Gullace LLP, 826 F. Supp. 2d 808,
812 (E.D. Pa. 2011) (finding that defendants’ attempt to collect from
plaintiff personally was irrelevant to the nature of the debt); see also
Boosahda, 462 F. App’x at 335 (holding that “the fact that the state court
action was initiated against [plaintiff] in his personal capacity” was “not
dispositive”); In re Pasley, 596 B.R. 577, 585 (Bankr. W.D. Ky. 2019) (hold-
ing that the fact that defendants sued plaintiff personally, rather than his
corporate identities, did not turn commercial debts into consumer debts).
25 See, e.g., Matin, 826 F. Supp. 2d at 812 (concluding that credit card ac-
count statement addressed to plaintiff at home address was insufficient
evidence of consumer debt); Holman v. W. Valley Collection Servs., Inc., 60
F. Supp. 2d 935, 936–37 (D. Minn. 1999) (finding that evidence that de-
fendants sent collection letters to plaintiff’s home did not convert com-
mercial debt into consumer debt); see also Evenson, 2015 WL 3466936, at *4
(finding evidence that defendants listed an individual, rather than a
business, as the account holder and listed a residential address for the
account were insufficient to show the debt was a consumer debt); Ander-
son v. AFNI, Inc., No. 10-4064, 2011 WL 1808779, at *14 (E.D. Pa. May 11,
2011) (unpublished) (concluding that evidence that debt was associated
(continued … )
No. 18-2059 15
Mr. Burton also invites our attention to evidence that
Kohn and Unifund advertised their services collecting con-
sumer debt on their websites. However, the defendants’
marketing materials generally describing their debt collec-
tion services do not establish that the debt they attempted to
collect in this case was a consumer debt.
Next, Mr. Burton seeks to rely on the email of a Citibank
employee, Cathrine Reinecke, stating that the account in de-
fault “was a consumer account.” 26 Reinecke sent this mes-
sage in response to an email from Mr. Burton’s counsel in-
quiring, “Is there any way of knowing whether this was a
business or consumer account? Does Citi mark the file in one
way or another?” 27 Characterizing the email as “a statement
made by someone other than the declarant to prove the truth
of the matter asserted (that the debt was consumer debt),”
the district court excluded this email as inadmissible hear-
say. 28 Mr. Burton submits the Reinecke email is not hearsay
but instead a statement of an opposing party under Federal
Rule of Evidence 801(d)(2)(C). In the alternative, he con-
tends, even if the email is hearsay, it is admissible under the
residual exception to the hearsay rule, Rule 807. We review
the district court’s evidentiary ruling for an abuse of discre-
( … continued)
with an individual and a residential address was insufficient to establish
debt was a consumer debt).
26 R.42-3.
27 Id.
28 R.75 at 10.
16 No. 18-2059
tion. United States v. Thornton, 197 F.3d 241, 250 (7th Cir.
1999).
A statement made out of court and offered to prove the
truth of the matter asserted is hearsay and is not admissible
into evidence. Fed. R. Evid. 801(c), 802. Here, Mr. Burton
sought to introduce Reinecke’s email to establish that “Citi
itself stated that the account was a consumer account.”29
Thus, the district court correctly characterized the statement
as hearsay.
The Rules of Evidence exclude from the definition of
hearsay a statement “offered against an opposing party” that
“was made by a person whom the party authorized to make
a statement on the subject.” Fed. R. Evid. 801(d)(2). The
Reinecke email does not satisfy this exception. Reinecke is an
employee of Citibank, which is not a party to this lawsuit.
Her statement therefore cannot be attributed to Kohn or to
Unifund, the opposing parties here. 30 Moreover, Mr. Burton
offers no evidence that Kohn or Unifund authorized
Reinecke to speak on behalf of either company on any sub-
ject, let alone about the account in default here. Consequent-
ly, her email is not a statement by an opposing party as con-
templated by Rule 801(d)(2)(C). See, e.g., Carlisle v. Deere &
Co., 576 F.3d 649, 656 (7th Cir. 2009) (concluding Rule
29 R.40 at 6.
30See, e.g., Linder & Assocs., Inc. v. Aetna Cas. & Sur. Co., 166 F.3d 547,
551–52 (3d Cir. 1999) (holding that a statement in a policy guide pro-
duced by another insurance company in another lawsuit was not an ad-
mission by Aetna).
No. 18-2059 17
801(d)(2)(C) did not apply to statements made by a company
with no authority to speak on Deere’s behalf).
Nor does the Reinecke email fall within the residual ex-
ception to the hearsay rule. Rule 807 provides that a state-
ment not otherwise subject to a hearsay exception “is not ex-
cluded by the rule against hearsay” if:
(1) the statement has equivalent circumstantial
guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which
it is offered than any other evidence that the
proponent can obtain through reasonable ef-
forts; and
(4) admitting it will best serve the purposes of
these rules and the interests of justice.
Fed. R. Evid. 807(a). In applying this rule, we have heeded
congressional guidance to construe “these conditions nar-
rowly” so that the residual exception does not swallow the
rule against hearsay. United States v. Sinclair, 74 F.3d 753, 759
(7th Cir. 1996) (interpreting predecessor to Rule 807).
The Reinecke email does not satisfy any of the conditions
of Rule 807. First, none of the usual “circumstantial guaran-
tees of trustworthiness” are present here. Fed. R. Evid.
807(a)(1). The statement in this email was not made under
oath or subject to cross-examination. Nor has Mr. Burton of-
fered any evidence as to Reinecke’s character for truthful-
ness or as to whether her statement was based on personal
knowledge. Second, Mr. Burton did not offer the email as
“evidence of a material fact.” Fed. R. Evid. 807(a)(2). Rather,
18 No. 18-2059
Mr. Burton sought to introduce the email to show that “Citi
itself stated that the account was a consumer account.” 31 As
the district court correctly noted, whether the account was a
consumer account did “not provide a factual dispute of
whether” the debt was a consumer debt. 32 Third, through
“reasonable efforts,” Mr. Burton could have obtained the
sworn deposition or in-court testimony of Reinecke or an-
other Citibank representative. Fed. R. Evid. 807(a)(3). Such
evidence would have been equally as probative, if not more
probative, than the email because such testimony would
have been subject to cross-examination about the nature of
the debt. 33 Fourth, Mr. Burton has not demonstrated that
admitting the Reinecke email will “serve the purposes of
these rules and the interests of justice.” Fed. R. Evid.
807(a)(4). Therefore, the district court did not abuse its dis-
cretion in excluding the Reinecke email as inadmissible
hearsay. We do not consider her out-of-court statement in
support of Mr. Burton’s contention that this was a consumer
debt.
31 R.40 at 6.
32 R.75 at 11. See, e.g., Toroussian v. Asset Acceptance, LLC, No. CV
12-03519 DDP (AGRx), 2013 WL 5524831, at *6 (C.D. Cal. Oct. 4, 2013)
(unpublished) (concluding that evidence that credit card was opened at a
retail bridal shop was insufficient to create triable issue of fact that debt
incurred on credit card was consumer debt).
33 Before the district court, counsel for Mr. Burton asserted that the de-
fendants “at every occasion attempted to interfere with [plaintiff’s] tak-
ing a deposition of Citi.” R.55-1 at 3. However, Kohn submitted that
counsel for Mr. Burton “failed to timely depose a Citibank representative
due solely to his failure to schedule” the deposition. R.58 at 2.
No. 18-2059 19
Finally, Mr. Burton contends that the billing statements
on the Citibank account demonstrate that the debt in ques-
tion was consumer debt. Evidence of the types of purchases
made on the credit card may be relevant to the question
whether those purchases were made primarily for personal,
family, or household purposes. 34 Here, Mr. Burton intro-
duced billing statements showing that most of the charges
on the Citibank account were purchases of low dollar
amounts, under fifty dollars per transaction. The credit card
was used primarily at gas stations and convenience stores in
and around Green Bay, Wisconsin. There were also a few
charges placed at office supply and auto parts stores, a local
pizza establishment, and the local school district. None of
these transactions, based on either the amount charged or
the vendor, obviously signal that these were purchases made
for a business purpose.
At the same time, however, the billing statements shed
no light on why these charges were incurred. Given that
Mr. Burton is unable to explain whether these transactions
were for a consumer as opposed to a business purpose, the
billing statements do not provide enough information for a
trier of fact to conclude these purchases were made for per-
sonal, family, or household purposes. Cf. Matin v. Fulton,
Friedman & Gullace LLP, 826 F. Supp. 2d 808, 812 (E.D. Pa.
2011) (finding the court “lack[ed] sufficient information to
determine whether the purchases were made for primarily
34 See, e.g., Garcia, 2009 WL 3079962, at *4 (acknowledging that “what the
credit card was used for … could perhaps create a fact issue on whether
that use was primarily for personal, family, or household purposes”
(emphasis in original)).
20 No. 18-2059
personal, family, or household purposes” based on account
statement where plaintiff was “unable to recall what pur-
chases she made on her credit card and the purpose for those
purchases”). 35
On this record, therefore, we hold that the district court
properly determined that Mr. Burton has failed to put for-
ward sufficient evidence to create a triable issue of material
fact that the debt incurred on the Citibank account was con-
sumer debt. The district court properly granted summary
judgment in favor of the defendants on Mr. Burton’s FDCPA
and WCA claims.
Conclusion
Because Mr. Burton failed to present sufficient evidence
that the debt on the Citibank account was incurred for per-
sonal, family, or household purposes, we affirm the judg-
ment of the district court.
AFFIRMED
35 See also Boosahda, 462 F. App’x at 335 (deferring to the district court’s
finding, based on the billing statements, “that any or all of the purchases
could have been business expenses”).
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956 F.2d 268
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Donald J. BESAW, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
No. 91-1323.
United States Court of Appeals, Sixth Circuit.
Feb. 25, 1992.
1
Published in Full at 966 F.2d 1028.
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"pile_set_name": "FreeLaw"
} |
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