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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-40450
Summary Calendar
__________________
ALMA SHERMAN,
Petitioner-Appellant,
versus
TDC DIRECTOR, Texas Department
of Criminal Justice,
Respondent-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:94-CV-704
- - - - - - - - - -
January 8, 1996
Before WIENER, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
Texas prisoner Alma Sherman appeals the dismissal of her
petition for federal habeas corpus relief. Sherman contends that
police failed to administer Miranda warnings to her and violated
the Fourth Amendment by conducting a warrantless search; that her
state-court indictment was defective; that her bail conditions
were excessive; that she received ineffective assistance of
counsel at trial and on appeal; that the prosecutor engaged in
reversible misconduct; that the evidence was insufficient to
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
No. 95-40450
-2-
support her conviction; that her sentence violated equal
protection; and that the state-court judge responded erroneously
to a jury inquiry at sentencing. Additionally, Sherman moves for
reduction of her sentence pursuant to FED. R. CRIM. P. 35(b), for
default judgment against the respondent, and for appointment of
counsel to represent her on appeal.
Sherman raised her contentions regarding Miranda, the Fourth
Amendment, her indictment, and her bail conditions in her
response to the respondent's answer in the district court; the
district court did not consider those contentions. We find no
reversible error on those contentions, however. First, Sherman
does not allege that she made any inculpatory statements before
she actually received her Miranda warnings, requiring exclusion
of any evidence. See United States v. Bengivenga, 845 F.2d 593,
600 (5th Cir.)(en banc), cert. denied, 488 U.S. 924 (1988).
Second, Sherman has not shown that she lacked a full and fair
opportunity to litigate her Fourth Amendment contention in state
court. Davis v. Blackburn, 803 F.2d 1371, 1372 (5th Cir. 1986).
Third, the Texas Court of Criminal Appeals implicitly held that
the state trial court had jurisdiction and that the indictment
was sufficient, precluding this court from examining the
sufficiency of Sherman's indictment. Yohey v. Collins, 985 F.2d
222, 229 (5th Cir. 1993); Alexander v. McCotter, 775 F.2d 595,
598-99 & n.1 (5th Cir. 1985). Fourth, Sherman's excessive bail
contention was mooted by her conviction. Murphy v. Hunt, 455
U.S. 478, 481 (1982).
Sherman has failed to brief several of her ineffective-
No. 95-40450
-3-
assistance contentions for appeal and has abandoned those
contentions. See Grant v. Cuellar, 59 F.3d 523, 525 (5th Cir.
1995). Sherman raises two other ineffective-assistance
contentions for the first time on appeal. Resolution of those
contentions would require us to make factual determinations; we
will not make such determinations. Varnado v. Lynaugh, 920 F.2d
320, 321 (5th Cir. 1991). We have examined the remainder of
Sherman's ineffective-assistance contentions on their merits and
hold that Sherman did not receive ineffective assistance of
counsel at trial or on appeal from any of the three attorneys who
were appointed to represent her.
The prosecutor's remarks at trial did not violate Sherman's
right to a fair trial. Sherman was charged with a drug offense;
the prosecutor could indicate to the jury that he wished the jury
to infer that Sherman was a drug dealer. Foy v. Donnelly, 959
F.2d 1307, 1317-18 (5th Cir. 1992). Additionally, no manifest
injustice will result because we decline to consider Sherman's
contention raised for the first time on appeal that the
prosecutor violated her right to a fair trial by referring to the
prosecution's failure to present evidence of any criminal record;
defense counsel opened the door to the prosecutor's remark.
Varnado, 920 F.2d at 321.
The evidence was sufficient to support Sherman's conviction.
White testified that Sherman sold him crack cocaine. White's
testimony was corroborated by Hall. See Young v. Guste, 849 F.2d
970, 972 (5th Cir. 1988).
Sherman has not shown that her sentence violated the Equal
No. 95-40450
-4-
Protection Clause. Disparate impact alone is insufficient to
show a violation of equal protection. United States v. Galloway,
951 F.2d 64, 65 (5th Cir. 1992). Sherman's allegation that the
disparate sentenced in various drug cases were based on racial
animus is conclusional and is insufficient to raise a
constitutional issue. Ross v. Estelle, 694 F.2d 1008, 1012 (5th
Cir. 1983).
The state-court judge properly instructed the jury about
sentencing options for Sherman. The state court need not have
responded to the jury's request to clarify the difference between
life imprisonment and 99 years' imprisonment.
Regarding Sherman's motions, the Federal Rules of Criminal
Procedure are inapplicable to habeas corpus cases. Sherman's
motion for a reduction of her sentence is DENIED. Additionally,
her motion for a default judgment against the respondent is
DENIED. Finally, the interests of justice do not require
appointment of counsel for Sherman. Schwander v. Blackburn, 750
F.2d 494, 502 (5th Cir. 1985). Her motion for appointment of
counsel is DENIED.
AFFIRMED.
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914 N.E.2d 1143 (2009)
The PEOPLE of the State of Illinois, Plaintiff-Appellant,
v.
Demetrious ARNOLD, Defendant-Appellee.
No. 2-07-0463.
Appellate Court of Illinois, Second District.
August 26, 2009.
*1145 John H. Vogt, Stephenson County State's Attorney, Freeport, Lawrence M. Bauer, Deputy Director, Gregory L. Slovacek, State's Attorneys Appellate Prosecutor, Elgin, for the People.
Thomas A. Lilien, Deputy Defender, Bruce Kirkham, Office of the State Appellate Defender (both Court-appointed), Elgin, for Demetrious S. Arnold.
Justice SCHOSTOK delivered the opinion of the court:
On November 10, 2006, after leaving his car and going into a store, the defendant, Demetrious Arnold, was arrested pursuant to a warrant that was later found to be invalid. Shortly after the arrest, a police officer searched his car and found cocaine and marijuana concealed in the ashtray. The defendant was charged with driving while his driver's license was revoked (625 ILCS 5/6-303(d) (West 2006)) and possession of a controlled substance with intent to deliver (720 ILCS 570/401(d) (West 2006)). The defendant moved to suppress the physical evidence, and the trial court granted the motion. We affirm.
BACKGROUND
At the suppression hearing, police officer Aaron Dykema provided most of the testimony. Officer Dykema testified that he was a patrol officer, that he had worked for the Freeport police department for 7½, and that at the time of the arrest he had been assigned to the street crimes unit for seven or eight months. The street crimes unit investigates narcotics cases and other matters, and Officer Dykema usually worked alone in an unmarked police car.
On the date of the arrest, Officer Dykema was working alone in his unmarked squad car. At about 3 o'clock in the afternoon, he saw someone driving a brown Ford without license plates. He followed the car for three to four blocks, staying *1146 about 20 feet behind the car. At no point did he activate his flashing lights or siren. During that time, the car made sharp turns and accelerated rapidly, which made Officer Dykema think that the driver was trying to get away from him. The car turned left into a "Fast Stop" gas station. As the car was turning, Officer Dykema saw the defendant, who was driving, and recognized him from prior contacts. There were two other people in the car. After parking at a gas pump, the defendant got out of the car and went into the Fast Stop store located at the gas station.
Officer Dykema parked in a regular parking space in the gas station parking lot. At some point, Officer Dykema did not recall when, but probably while he was in the gas station parking lot, he saw a temporary registration sticker properly displayed in the rear window of the defendant's car. Officer Dykema radioed in that he had seen the defendant pull in to the gas station, and he asked the dispatcher to check if there were any warrants outstanding against the defendant. Officer Dykema believed that there might be an arrest warrant for the defendant, because sometime during the previous week, he had checked with the Stephenson County sheriff's office and the police department for outstanding warrants, and one of the two showed a warrant for the defendant. He believed that the warrant was for an ordinance violation for "some type of animal charge, failure to vaccinate an animal."
Officer Dykema entered the store, called the defendant's name, and waited until the defendant finished paying for his items. Officer Dykema then spoke with the defendant and told the defendant that there was a warrant out for his arrest. The defendant told Officer Dykema that he had paid the warrant a few days earlier. While Officer Dykema and the defendant were in the store, and before Officer Dykema received a response from the dispatcher regarding the warrant, Officer Dykema handcuffed the defendant. He testified that he did this because, in his experience, a person would often flee when told there was a warrant for his or her arrest, even if the warrant was not valid. Officer Dykema testified that if the dispatcher had told him that the warrant was no longer valid, he would have released the defendant. Officer Dykema advised the defendant that, after he arrived at the police station, he could call someone to bring in the papers to confirm the payment. He estimated that he and the defendant waited in the store for approximately five minutes before the dispatcher responded.
Officer Dykema also thought it possible that the defendant was driving with a revoked or suspended license, because he knew that the defendant had been arrested for driving without a valid license on five occasions in the last year or two. However, "it had been a while" and Officer Dykema did not know the status of the defendant's driver's license at the time. In testifying, Officer Dykema described the warrant as the reason he detained the defendant in the store.
When the dispatcher responded to Officer Dykema's warrant check, she told him that there was an active warrant for the defendant's arrest and that the defendant's driver's license was revoked. Officer Dykema had called for backup, and police officer Michael Thompson arrived in a marked squad car. Officer Dykema searched the defendant, finding $60 in cash, and then placed the defendant in the backseat of Officer Thompson's squad car to go to the police station. (The defendant could not be transported in an unmarked car such as the one driven by Officer Dykema.)
*1147 After the defendant was transported to the police station, someone approached Officer Dykema and handed him the keys to the defendant's car. Officer Dykema searched the passenger compartment of the defendant's car, but not the trunk. In the ashtray, which was closed, he found a knotted plastic baggie containing a substance eventually identified as cocaine and another "jewelry-type" bag containing material later identified as marijuana. Officer Dykema then moved the car from the gas pump to a location in the gas station parking lot. Officer Dykema testified that he moved the defendant's car and parked it in the gas station lot "at [the defendant's] request and at the consent of the owner of the gas station," meaning that the ultimate location of the car was considered suitable by the defendant and the gas station owner. Officer Dykema did not tell the defendant that he was going to search the car.
Officer Thompson also testified at the suppression hearing. He was notified that the defendant was at the Fast Stop and that there might be a warrant for the defendant's arrest, and he was asked to provide backup. He drove to the Fast Stop and met with Officer Dykema and the defendant. He heard the dispatcher say that there was a warrant for the defendant's arrest and that the defendant's license was suspended or revoked. He drove the defendant to the police station and served the warrant, which was sitting on a file cabinet, on the defendant. He did not conduct his own check of the warrant's validity. When he was asked if the police have access to the files of the clerk of the circuit court of Stephenson County, he stated that they do not.
The trial court took judicial notice that on Wednesday, November 8, 2006, bond was posted on the warrant for the defendant's arrest, which was based on a municipal ordinance violation for failure to properly vaccinate an animal. After that date, the warrant was no longer valid, and thus it was not valid at the time of the arrest two days later.
At the close of the suppression hearing, the trial court stated that it would take the matter under advisement and would be looking at the case law in the meantime. The following day, the hearing resumed, with both parties providing further oral argument. The State argued that there was probable cause to arrest the defendant, based both on the warrant and on the revoked driver's license, and that Officer Dykema's search of the defendant's car was justified as a search incident to arrest. The defendant argued that the evidence showed that Officer Dykema relied solely on the warrant in arresting the defendant; that the arrest lacked probable cause because the warrant was not valid; and that even if the arrest were valid, the search was not within the permissible scope of a search incident to arrest, because the defendant was not near the car at the time of the arrest and was already in the backseat of the squad car when the search took place.
The trial court found that the police officers were credible and that Officer Dykema's testimony established that he had approached and arrested the defendant because of the warrant, and not based on the possibility that the defendant had been driving with a revoked license. The trial court held that, under case law, including People v. Joseph, 128 Ill.App.3d 668, 83 Ill.Dec. 883, 470 N.E.2d 1303 (1984), an invalid arrest warrant does not provide probable cause for arrest. The trial court therefore granted the defendant's motion to suppress the physical evidence. After the State unsuccessfully moved for reconsideration, the State filed a timely appeal. People v. Marker, 233 *1148 Ill.2d 158, 176-77, 330 Ill.Dec. 164, 908 N.E.2d 16 (2009).
ANALYSIS
In reviewing a trial court's grant of a motion to suppress, we defer to the trial court's findings of fact and will reverse them only if they are against the manifest weight of the evidence. People v. Cosby, 231 Ill.2d 262, 271, 325 Ill.Dec. 556, 898 N.E.2d 603 (2008). However, we review de novo the trial court's ruling on the ultimate issue of whether the evidence should be suppressed. Cosby, 231 Ill.2d at 271, 325 Ill.Dec. 556, 898 N.E.2d 603. Here, the facts are undisputed and the parties do not challenge the trial court's assessment of the credibility of the police officers who testified. The sole issue is whether those facts warranted suppression of the physical evidence. Accordingly, our review is de novo.
In this case, the State justified Officer Dykema's search of the defendant's car solely on the basis that it was a search incident to arrest. In order for the State to justify the search on this basis, it must show both that (1) there was a valid arrest (see People v. Turnage, 162 Ill.2d 299, 311, 205 Ill.Dec. 118, 642 N.E.2d 1235 (1994) (if an arrest violates the fourth amendment, evidence discovered through a search incident to arrest is subject to suppression)), and (2) the search was a valid search incident to the arrest (see People v. Stehman, 203 Ill.2d 26, 39, 270 Ill.Dec. 426, 783 N.E.2d 1 (2002) (if a vehicle search exceeds the boundaries of a proper search incident to arrest, evidence found in the search should be suppressed)). We examine each of these contentions in turn.
I. The Arrest
The State argues that the arrest was supported by probable cause for several reasons. It first argues that, under the circumstances of this case, the fact that the warrant had been paid two days before the arrest did not render the arrest improper. Alternately, the State contends that probable cause existed because at the time of the arrest Officer Dykema knew that the defendant had been driving and that his license was revoked. This contention in turn rests on a further argument: that Officer Dykema's detention of the defendant in the store (using handcuffs) should be viewed not as an arrest but merely as an investigatory stop, and that the defendant was not arrested until he was placed in the back of Officer Thompson's squad car and was read his Miranda rights, which occurred after the police officers had already received verification of the warrant and the revoked driver's license. We address each of these arguments separately, taking the second argument first.
A. Nature of the Detention in the Store, or When Did the Arrest Occur?
One contention underlying several of the State's arguments is that the encounter between Officer Dykema and the defendant escalated over time from an investigatory stop to an arrest and was adequately justified at all times. Under the State's view, Officer Dykema had reasonable suspicion to detain the defendant in the store until he could ascertain whether there was an active warrant for the defendant, because he had seen the defendant's name on a warrant list earlier in the week. According to the State, this detention was merely a brief investigatory stop, and the defendant was not actually arrested until he was placed in Officer Thompson's squad car, after Officer Dykema received the response from the dispatcher. At that point, the State argues, Officer Dykema had probable cause to arrest the defendant because the dispatcher had verified the *1149 warrant and also stated that the defendant's driver's license was revoked.
We agree that a brief detention in order to determine whether there is an arrest warrant for the person detained may ordinarily be categorized as an investigatory stop and does not violate the fourth amendment so long as the officer has reason to believe that such a warrant exists. However, Officer Dykema testified that he handcuffed the defendant before the dispatcher responded. The defendant argues that he was arrested when Officer Dykema put the handcuffs on him in the store and that there was no probable cause for the arrest at that point. Our analysis therefore begins with the nature of the defendant's detention inside the store and when the arrest occurred.
In United States v. Smith, 3 F.3d 1088 (7th Cir.1993), the Seventh Circuit summarized the general principles applicable to seizures:
"The Fourth Amendment [(U.S. Const., amend. IV)] guarantees `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' Searches and seizures `"conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well delineated exceptions."' Thompson v. Louisiana, 469 U.S. 17, 19-20[, 105 S.Ct. 409, 410, 83 L.Ed.2d 246, 250] (1984) (per curiam) (quoting Katz v. United States, 389 U.S. 347, 357[, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967)] (footnotes omitted)). Terry v. Ohio[, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),] was one such exception." Smith, 3 F.3d at 1096-97.
Under Terry, a police officer may briefly detain a person, whom the officer reasonably suspects to be recently or currently engaged in criminal activity, in order to verify or dispel those suspicions. Smith, 3 F.3d at 1095. A Terry stop may be performed without a warrant or probable cause to arrest, if this standard of reasonable suspicion is met and if the stop does not exceed the bounds of a brief investigatory detention. Smith, 3 F.3d at 1097. "The purpose of permitting a temporary detention without probable cause * * * is to protect police officers and the general public." Smith, 3 F.3d at 1097, citing Terry, 392 U.S. at 25-26, 88 S.Ct. at 1882, 20 L.Ed.2d at 908.
In this case, Officer Dykema testified to his belief that, in detaining the defendant in the store while he checked to see whether there was a warrant for the defendant's arrest, he was performing a brief investigatory stop under Terry. The defendant argues that, whatever Officer Dykema's intent, his use of handcuffs to restrain the defendant shows that the detention was an arrest. Although the trial court did not address this issue directly, it implicitly rejected the State's argument that the detention in the store was not an arrest when it found that the only reason Officer Dykema arrested the defendant was his belief that there was a warrant. If the trial court had believed that the arrest took place after the dispatcher informed Officer Dykema about the warrant and the fact that the defendant's driver's license was revoked, there would have been a valid basis for the arrest separate from the warrant. In reviewing this determination, we defer to the trial court's finding that Officer Dykema testified credibly regarding his reasons for stopping the defendant, but review de novo its implicit legal conclusion that the defendant was arrested when he was handcuffed. Cosby, 231 Ill.2d at 271, 325 Ill.Dec. 556, 898 N.E.2d 603.
"[T]here is no brightline test for distinguishing between a lawful Terry stop *1150 and an illegal arrest." United States v. Glenna, 878 F.2d 967, 971 (7th Cir.1989). However, the use of handcuffs to restrain the person being detained is an indication that the detention is an arrest rather than a Terry stop. "[H]andcuffs are restraints on freedom of movement normally associated with arrest." (Emphasis in original.) Glenna, 878 F.2d at 972; see also People v. Gabbard, 78 Ill.2d 88, 93, 34 Ill.Dec. 751, 398 N.E.2d 574 (1979) (noting that "the State admits that [the defendant's] handcuffing constituted an arrest, and we agree"). The use of handcuffs substantially heightens the intrusiveness of a temporary detention (Glenna, 878 F.2d at 972), and "is not part of a typical Terry stop" (Washington v. Lambert, 98 F.3d 1181, 1188 (9th Cir.1996)). The Seventh Circuit has called "troubling" the prospect of police officers handcuffing persons whom they have no probable cause to arrest. Glenna, 878 F.2d at 972.
Nevertheless, there are situations in which concerns for the safety of the police officer or the public justify handcuffing the detainee for the brief duration of an investigatory stop. For instance, where police stopped a car containing three suspects in an armed robbery that occurred a few minutes before, it was reasonable to believe that the suspects were armed and dangerous, and concerns for officer safety supported the use of handcuffs during the investigatory stop. People v. Walters, 256 Ill.App.3d 231, 238, 194 Ill.Dec. 638, 627 N.E.2d 1280 (1994). Similarly, the "risks inherent in interdicting drug traffic may warrant the use of handcuffs in investigatory stops" for drug offenses, where the suspect is in a motor vehicle. People v. Nitz, 371 Ill.App.3d 747, 754, 309 Ill.Dec. 185, 863 N.E.2d 817 (2007), citing People v. Waddell, 190 Ill. App.3d 914, 927, 138 Ill.Dec. 13, 546 N.E.2d 1068 (1989). In those circumstances, the use of handcuffs does not by itself convert a Terry stop into an arrest, and the fact that handcuffing takes place before an officer has probable cause to arrest is not an automatic violation of the fourth amendment. Nitz, 371 Ill.App.3d at 754, 309 Ill.Dec. 185, 863 N.E.2d 817; Walters, 256 Ill.App.3d at 237, 194 Ill.Dec. 638, 627 N.E.2d 1280; Smith, 3 F.3d at 1094; Glenna, 878 F.2d at 973. However, "when arrest-like measures (such as handcuffing) are employed, they must be `"reasonable in light of the circumstances that prompted the stop or that developed during its course."'" Nitz, 371 Ill.App.3d at 754, 309 Ill.Dec. 185, 863 N.E.2d 817, quoting 4 W. LaFave, Search & Seizure § 9.2(d), at 304 (4th ed.2004), quoting United States v. Acosta-Colon, 157 F.3d 9, 15 (1st Cir. 1998). If the use of such restraints is not reasonably necessary for safety under the specific facts of the case, their use will indicate that the encounter should be viewed as an arrest. See People v. Calderon, 336 Ill.App.3d 182, 192, 270 Ill.Dec. 322, 782 N.E.2d 881 (2002) (in determining whether a detention was a Terry stop or an arrest, courts must consider the totality of the circumstances, one relevant factor being the use of such restraints).
Here, Officer Dykema testified that he handcuffed the defendant while detaining him inside the store because "other people in the past[,] when they find out they have an arrest warrant and they know they are possibly going to be arrested[,] they try and run." However, in the absence of any evidence that the defendant was actually preparing to flee, Officer Dykema's past experience with arrests pursuant to warrants was insufficient as a basis for handcuffing. The State argues that the handcuffing to prevent flight was also supported by Officer Dykema's belief that, before pulling into the gas station, the defendant had been driving in a manner *1151 suggesting that he was attempting to evade pursuit. We reject this argument because any reliance on the defendant's earlier driving manner as being suggestive of flight was objectively unreasonable in light of subsequent events: the defendant parked at a gas station, entered a store, and remained there for several minutes, even after Officer Dykema entered the store and called his name. These actions clearly suggested that the defendant was not a flight risk, regardless of Officer Dykema's suspicions about his earlier driving. The law is clear that the determination that handcuffs or other forms of restraint were reasonable and necessary must be based on the totality of the circumstances actually confronting the officer, not on generalizations or remote possibilities.
"In looking at the totality of the circumstances, we consider both the intrusiveness of the stop, i.e., the aggressiveness of the police methods and how much the [detainee's] liberty was restricted, [citation], and the justification for the use of such tactics, i.e., whether the officer had sufficient basis to fear for his safety to warrant the intrusiveness of the action taken. [Citation.] In short, we decide whether the police action constitutes a Terry stop or an arrest by evaluating not only how intrusive the stop was, but also whether the methods used were reasonable given the specific circumstances." (Emphasis in original.) Lambert, 98 F.3d at 1185.
See also Acosta-Colon, 157 F.3d at 18-19 ("when the government seeks to prove that an investigatory detention involving the use of handcuffs did not exceed the limits of a Terry stop, it must be able to point to some specific fact or circumstance that could have supported a reasonable belief that the use of such restraints was necessary to carry out the legitimate purposes of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm" (emphasis in original)).
In this case, Officer Dykema did not suggest that, once he was in the store, the defendant made any attempt to resist or evade detention, or posed any risk to public safety. Rather, his testimony suggests that the defendant was compliant and cooperative throughout the encounter. Officer Dykema's testimony also established that he was familiar with the defendant and knew him by name, suggesting that it might not be difficult to re-apprehend him even if he did flee. Moreover, as the defendant points out, Officer Dykema knew that the offense for which the warrant was issued was a minor municipal ordinance violation for failure to inoculate an animal, not a crime of violence or a drug-trafficking offense of the type that we have held sufficient to justify the use of handcuffs during an investigatory stop. See Nitz, 371 Ill.App.3d at 754, 309 Ill.Dec. 185, 863 N.E.2d 817. In short, nothing about the facts of this case demonstrates that the use of handcuffs was reasonably necessary.
As discussed, the use of handcuffs during a detention is a relatively severe restriction on a person's freedom of movement. The State has not identified any specific fact or circumstance that would justify the handcuffing of the defendant in this case for the purposes of an investigatory stop, and we therefore hold that the defendant was arrested at the moment he was handcuffed in the store. We turn to the issue of whether there was probable cause to arrest the defendant at that point, which was before the dispatcher provided Officer Dykema with confirmation of the warrant and information that the defendant's driver's license was revoked.
*1152 B. Probable Cause for Arrest
The State argues that, in this case, the fact that the warrant ultimately proved to be invalid at the time of the arrest should not render the arrest itself invalid for lack of probable cause, because this case is distinguishable from the cases upon which the trial court relied in suppressing the physical evidence. The State contends that where, as here, the warrant was paid only two days[1] before the arrest and there was no evidence that the police themselves were the cause of the incorrect information regarding the warrant, the arrest should not have been quashed. Without resolving this issue, we affirm the trial court's finding that there was no probable cause for a different reason: even if the dispatcher's confirmation of the warrant could be viewed as providing probable cause to arrest the defendant, Officer Dykema did not wait for the confirmation before arresting the defendant, and thus he did not have probable cause at the time the arrest was made.
In Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), the Supreme Court held that a police officer is entitled to rely on information that a warrant exists for a defendant's arrest and to assume that it is valid. Where, however, it is later discovered that the warrant is invalid, any evidence seized pursuant to the illegal arrest is subject to suppression. Whiteley, 401 U.S. at 568-69, 91 S.Ct. at 1037, 28 L.Ed.2d at 313. Illinois courts have applied Whiteley to suppress evidence in a variety of cases in which the warrant was found, after the arrest, to be invalid. See Turnage, 162 Ill.2d at 311, 205 Ill.Dec. 118, 642 N.E.2d 1235; People v. Morgan, 388 Ill.App.3d 252, 260, 327 Ill.Dec. 316, 901 N.E.2d 1049 (2009); People v. Boyer, 305 Ill.App.3d 374, 380-81, 239 Ill.Dec. 124, 713 N.E.2d 655 (1999); People v. Anderson, 304 Ill.App.3d 454, 459, 238 Ill.Dec. 211, 711 N.E.2d 24 (1999); People v. Joseph, 128 Ill.App.3d 668, 673, 83 Ill.Dec. 883, 470 N.E.2d 1303 (1984); People v. Decuir, 84 Ill.App.3d 531, 533, 39 Ill.Dec. 912, 405 N.E.2d 891 (1980). The rationale for suppression is that, where the evidence supports the conclusion that stale information regarding a warrant was within the power of the police to remedy through prompt updating of records, it is not appropriate to allow "law enforcement authorities to rely on an error of their own making." Joseph, 128 Ill.App.3d at 672, 83 Ill.Dec. 883, 470 N.E.2d 1303 (suppressing evidence where arrest warrant had been recalled 11 days earlier).
There is some tension between this rationale for suppression and the good-faith exception to the exclusionary rule. The good-faith exception was outlined in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and it applies when a police officer reasonably relies on a facially valid warrant that is later shown to be invalid: under those circumstances, although a search violates the fourth amendment, the deterrent purposes of the exclusionary rule do not necessarily require suppression of the evidence acquired through the illegal search. Leon, 468 U.S. at 913, 104 S.Ct. at 3415, 82 L.Ed.2d at 692. Leon does not directly control the outcome here, because in Leon the police officer was relying on the warrant itself, whereas in cases such as this *1153 one, the issue is whether a police officer may reasonably rely on information from another police department employee that there is an arrest warrant for the defendant.
In Herring v. United States, 555 U.S. ___, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), the Supreme Court addressed the issue left open in Leon and held that, where a police officer arrests a defendant based upon information that there is an active arrest warrant, but the warrant is later determined to have been invalid or recalled, the good-faith exception to the exclusionary rule may apply. In Herring, a Coffee County, Alabama, investigator saw the defendant (who was known to him from previous encounters) and called the Coffee County warrant clerk to check for any outstanding warrants on the defendant. The clerk found none, and the investigator asked her to check with her counterpart in neighboring Dale County. The Dale County clerk checked her database and found that there was an active arrest warrant for the defendant. Upon hearing this, the Coffee County investigator promptly pulled the defendant over and arrested him. In searching the defendant incident to the arrest, the investigator found methamphetamine in his pocket and a gun in his car. During the brief span of time (10 to 15 minutes) in which the arrest occurred, however, the Dale County warrant clerk discovered that the computer records showing the warrant for the defendant were incorrect and that the warrant had been recalled five months earlier. She immediately telephoned the Coffee County warrant clerk, who notified the investigator that the warrant was not valid. However, the investigator had already arrested the defendant and completed the search. Herring, 555 U.S. at ___, 129 S.Ct. at 698, 172 L.Ed.2d at 502-03. The evidence at the suppression hearing showed that errors in the warrant database were extremely rare; neither warrant clerk could remember a similar mistake occurring in the past. Herring, 555 U.S. at ___, 129 S.Ct. at 704, 172 L.Ed.2d at 508. The Supreme Court held that, under these circumstances, the police were at most negligent, and the deterrent purposes of the exclusionary rule would not be well served by suppressing the evidence found during the search. Herring, 555 U.S. at ___, 129 S.Ct. at 704, 172 L.Ed.2d at 509. The Supreme Court was careful, however, to leave open the possibility that the exclusionary rule could be applied if the actions of the police rose above the level of ordinary negligence, or if the warrant database were found to contain errors on a regular basis or in a manner suggesting systemic disregard for the accuracy of the information. Herring, 555 U.S. at ___, 129 S.Ct. at 703, 172 L.Ed.2d at 508.
Here, the trial court expressly relied on Joseph in granting suppression, but that case predated Herring and, like Anderson, simply dismissed the good-faith exception as inapplicable to arrests based on invalid warrants. Even before Herring was decided, however, Illinois courts had rejected this blanket approach and instead held that the appropriateness of suppression depends on the reason for the invalidity of the warrant in the case before the court. See, e.g., Boyer, 305 Ill.App.3d at 378-79, 239 Ill.Dec. 124, 713 N.E.2d 655. Morgan, 388 Ill.App.3d at 263-67, 327 Ill.Dec. 316, 901 N.E.2d 1049, which was decided after Herring, continued this approach, looking to whether the facts of the case justified suppression. There, the court examined the application of Herring to a case sharing some key factual similarities with this case. As we believe that the analysis in Morgan is applicable here, we present it in some detail.
In Morgan, a sheriff's deputy obtained a Streator police department warrant list *1154 containing Morgan's name and address. Unlike warrant lists the deputy had obtained in the past, the list was not printed out in his presence on the same day he received it. The deputy and a Fairbury police officer met up with another deputy and within about five minutes they arrived at Morgan's residence. When they informed Morgan's father that there was a warrant for Morgan's arrest, he told them that he had bailed Morgan out of jail that morning and had paperwork to prove it. As he was getting the paperwork, the police entered the residence and arrested Morgan. Someone provided the officers with the paperwork showing that the warrant had been paid. One of the deputies called the sheriff's communications center, which confirmed that the warrant was no longer active. The officers uncuffed Morgan, but then searched the bedroom where he was arrested and found some rock cocaine. According to the officers, when they questioned Morgan about it, he said it was his and then voluntarily showed them additional cocaine and drug paraphernalia including a crack pipe and a marijuana pipe. At no point during any of these events did the police give Morgan any Miranda warnings. Morgan was charged with possession of a controlled substance and two counts of possession of drug paraphernalia, and he filed a motion to suppress. The trial court granted the motion on the basis that the warrant was invalid and that therefore suppression of the items discovered after the arrest was required. Morgan, 388 Ill.App.3d at 258, 327 Ill.Dec. 316, 901 N.E.2d 1049.
The appellate court affirmed the suppression, but on a different ground. The appellate court agreed that "evidence obtained as a result of an inactive warrant is subject to suppression" because an arrest made without a warrant or any other source of probable cause to arrest violates the fourth amendment. Morgan, 388 Ill. App.3d at 260, 327 Ill.Dec. 316, 901 N.E.2d 1049. However, the court noted that not every fourth amendment violation requires the suppression of evidence. Under the good-faith exception to the exclusionary rule, evidence need not be suppressed if (1) the actions of the police were objectively reasonable; (2) suppression will not have an appreciable deterrent effect on police misconduct; and (3) the benefits of suppression do not outweigh the costs of excluding the evidence. Morgan, 388 Ill. App.3d at 260-61, 327 Ill.Dec. 316, 901 N.E.2d 1049, citing Leon and Herring. The appellate court held that the trial court therefore erred in suppressing the evidence without considering whether this good-faith exception to the exclusionary rule applied. Morgan, 388 Ill.App.3d at 263, 327 Ill.Dec. 316, 901 N.E.2d 1049.
Nevertheless, the appellate court in Morgan held that suppression was proper under the three-factor test applied in Herring. The first factor, the objective reasonableness of the police action, was not met because the officers knew that their warrant list was up to three days old, and yet they made no attempt to verify that the warrant was active before going to Morgan's home, entering, and arresting him. The court noted that, upon calling the communications center, the deputy was immediately able to find out that the warrant was not active, and the court stated that there was no reason why the officers could not have done so earlier. The court found that the second factor, the deterrent effect of suppression, also weighed in favor of suppression, because suppression would penalize the same persons guilty of the misconductthe officers who knowingly relied on an out-of-date warrant list without verifying that the warrant was still active. Finally, the court determined that the benefits outweighed the costs because exclusion of the evidence would have a *1155 strong deterrent effect. Morgan, 388 Ill. App.3d at 265-66, 327 Ill.Dec. 316, 901 N.E.2d 1049.
The court distinguished the circumstances from those in Herring, because in Herring the arresting officer had no reason to think that the warrant information on which he relied was out of date. By contrast, in Morgan, the officers were aware that their warrant list was not current and yet took no steps prior to the arrest to ensure that the warrant was still valid. "This is the type of `reckless disregard' the Supreme Court noted would justify the exclusion of the evidence." Morgan, 388 Ill.App.3d at 267, 327 Ill.Dec. 316, 901 N.E.2d 1049, citing Herring, 555 U.S. at ___, 129 S.Ct. at 704, 172 L.Ed.2d at 509.
The facts in the case before us are not as egregious as those in Morgan, yet they are similar in one compelling respect: in both cases, the arresting officer was aware that he did not possess current warrant information, and yet he proceeded with the arrest before confirming the validity of the warrant. Officer Dykema conceded that he knew only that he had seen the defendant's name on a warrant list sometime in the past week. That in itself did not provide him with probable cause to arrest. Although Officer Dykema called the dispatcher to verify the status of the warrant before entering the store, he did not wait for the response before deciding to handcuff the defendant. As noted above, Officer Dykema's act of handcuffing the defendant constituted an arrest. Thus, regardless of the accuracy of the information eventually provided to Officer Dykema about the status of the warrant, Officer Dykema lacked probable cause at the time of the arrest.
In proceeding to the second part of the analysiswhether the facts of the fourth amendment violation at issue support suppressionwe conclude that they do. Here, as in Morgan, Officer Dykema's decision to proceed with handcuffing the defendant, despite the lack of confirmation that there was an active arrest warrant for the defendant, went beyond mere negligence and constituted reckless disregard. Such a decision is the type that can be deterred by suppression of evidence. See Morgan, 388 Ill.App.3d at 265, 327 Ill.Dec. 316, 901 N.E.2d 1049 ("the officers' reliance on an up-to-three-day-old warrant list is conduct that can be deterred"). Finally, the benefits of suppression outweigh the costs, in that the need to deter police from handcuffing a citizen without confirming whether there is a valid warrant for his arrest outweighs the costs of hindering the State from prosecuting this particular defendant. Thus, the good-faith exception to the exclusionary rule does not apply here, and the evidence was properly suppressed.
The State also argues that, apart from the warrant, Officer Dykema had probable cause to arrest the defendant for driving while his driver's license was revoked. We must reject this argument in light of our holding that the defendant was arrested before the dispatcher provided Officer Dykema with any information, as Officer Dykema conceded that he did not know the status of the defendant's license at the time he handcuffed the defendant in the store. Accordingly, the defendant's arrest cannot be justified on the basis that the police had probable cause to believe that his license was revoked.
In sum, the police initiated the arrest before obtaining probable cause to believe either that there was a valid warrant for the defendant or that his license was revoked, and under the Herring suppression analysis the evidence gained from the search incident to arrest was properly suppressed. Even if suppression were not justified based on the invalidity of the *1156 arrest, however, we would still affirm the trial court's suppression order because the search performed by Officer Dykema was not a valid search incident to arrest.
II. The Search of the Car
The sole justification offered by the State for the search of the defendant's car was that it was a search incident to arrest. If the search of the defendant's car was beyond the permissible scope of a search of a vehicle pursuant to arrest, then the trial court was correct to suppress the evidence obtained through that search. See Stehman, 203 Ill.2d at 38-39, 270 Ill. Dec. 426, 783 N.E.2d 1. In making this determination, we look to cases interpreting the fourth amendment to the United States Constitution (U.S. Const., amend. IV), both because the parties have not raised any arguments under the corresponding search and seizure provision of the Illinois Constitution (Ill. Const.1970, art. I, § 6), and because Illinois follows federal law on fourth amendment issues in "limited lockstep" (People v. Caballes, 221 Ill.2d 282, 313, 303 Ill.Dec. 128, 851 N.E.2d 26 (2006)).
The permissible scope of a vehicle search incident to arrest has varied over the years. The Supreme Court first held that police may conduct a search incident to arrest of an arrestee's person and the area within his immediate control, in Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685, 694 (1969). Such a search is justified for the purposes of (1) protecting the safety of arresting officers, and (2) preventing the destruction or concealment of evidence related to the offense of arrest. Chimel, 395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694. The scope of the search is limited by these justifications to the area within the arrestee's immediate control, meaning "the area from within which he might gain possession of a weapon or destructible evidence." Chimel, 395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694.
In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Supreme Court applied Chimel to a situation in which the defendant was stopped while traveling in an automobile. Citing the need for a bright-line rule to guide police, the Court held that in such a situation the police could search the automobile's passenger compartment as well as any containers found therein. Belton, 453 U.S. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 775.
The question then arose whether Belton permitted police to search a car even when the arrestee was some distance from the car at the time of arrest. Illinois courts first held that such searches were permitted under Belton (see People v. Bailey, 159 Ill.2d 498, 506, 203 Ill.Dec. 459, 639 N.E.2d 1278 (1994); People v. Kalivas, 207 Ill. App.3d 415, 417-18, 152 Ill.Dec. 356, 565 N.E.2d 1038 (1991)) but then concluded that they were not (see Stehman, 203 Ill.2d at 39, 270 Ill.Dec. 426, 783 N.E.2d 1).
The Supreme Court most recently revisited this area of law in Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). In that case, Gant had gotten out of his vehicle and walked 10 to 12 feet away from it when he was arrested for driving with a suspended license. Once Gant was handcuffed and placed in the back of a squad car, the police searched his car and found a gun and cocaine. The Supreme Court held that the scope of a permissible automobile search could not be divorced from the two rationales for a search enunciated in Chimel: the safety of the arresting officer and the preservation of evidence relating to the crime for which the defendant was arrested. Gant, 556 U.S. at ___, 129 S.Ct. at 1719, 173 L.Ed.2d at 496. Thus, the police may search a vehicle incident to arrest only: (1) where there is a reasonable possibility *1157 that the arrestee could gain access to the vehicle, that is, "when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search"; or (2) when it is "`reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.'" Gant, 556 U.S. at ___, 129 S.Ct. at 1719, 173 L.Ed.2d at 496, quoting Thornton v. United States, 541 U.S. 615, 632, 124 S.Ct. 2127, 2137, 158 L.Ed.2d 905, 920 (2004) (Scalia, J., concurring in the judgment, joined by Ginsburg, J.). The Court specifically rejected the second possibility in the context of arrests for traffic offenses, stating that in such cases, "there will be no reasonable basis to believe the vehicle contains relevant evidence." Gant, 556 U.S. at ___, 129 S.Ct. at 1719, 173 L.Ed.2d at 496. Noting that Gant had been arrested for a traffic violation and that the "police could not reasonably have believed either that Gant could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein," the Court affirmed the reversal of the defendant's conviction. Gant, 556 U.S. at ___, 129 S.Ct. at 1719, 173 L.Ed.2d at 497.
In the case before us, it is undisputed that the defendant left his car several minutes before he was arrested and that he had already been handcuffed and placed in the back of the squad car when Officer Dykema conducted his search of the defendant's car. Thus, he was not within reaching distance of his car at the time of the search. Nor could any evidence relevant to either of the putative bases for the arrestthe warrant for failure to inoculate an animal or the traffic violation of driving while his license was revokedreasonably be expected to be found in the car. In these circumstances, there was no justification for the search of the defendant's car (Gant, 556 U.S. at ___, 129 S.Ct. at 1719, 173 L.Ed.2d at 497), and the physical evidence produced by the illegal search was properly suppressed.
The State raises one last argument through a post-briefing motion, contending that Gant changed the law with respect to vehicle searches incident to arrest and that the good-faith exception to the exclusionary rule applies because Officer Dykema reasonably believed that his search of the defendant's car did not violate the fourth amendment. In support, the State cites United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), in which the Supreme Court held that the exclusionary rule should not be applied to a case in which a new principle of constitutional law is announced, where the new principle is a "clean break" from prior law and the officer relied in good faith on prior law when conducting the search. We reject this argument for two reasons. First, as the Illinois Supreme Court has noted, Peltier was overturned a little over a decade later by Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), in which the Supreme Court held that new constitutional rules should be applied to pending criminal cases. People v. Harris, 123 Ill.2d 113, 130, 122 Ill.Dec. 76, 526 N.E.2d 335 (1988). Indeed, the Supreme Court rejected a similar argument in Gant itself. In his dissent, Justice Alito argued that Gant's holding would unfairly upend the reasonable reliance of police on Belton, noting, "It is likely that, on the very day when this opinion is announced, numerous vehicle searches will be conducted in good faith by police officers who were taught the Belton rule." Gant, 556 U.S. at ___, 129 S.Ct. at 1728, 173 L.Ed.2d at 506 (Alito, J., dissenting, joined by Roberts, C.J., and Kennedy and Breyer, JJ.). The majority rejected this concern, stating, "The fact that the law enforcement community may view the State's version of the Belton rule as an entitlement does not *1158 establish the sort of reliance interest that could outweigh the countervailing interest that all individuals share in having their constitutional rights fully protected." Gant, 556 U.S. at ___, 129 S.Ct. at 1723, 173 L.Ed.2d at 500. The Court then applied the new rule it was announcing in the case before it, affirming the Arizona Supreme Court's reversal of Gant's conviction.
Second, to the extent that Officer Dykema could be characterized as acting in reliance upon pre-Gant law when he searched the defendant's car in November 2006, he should have known that his search was illegal. In 2002, the Illinois Supreme Court foreshadowed the Gant decision when it held that, where a defendant has voluntarily left his vehicle and begun walking away from it when he is arrested, a police search of his vehicle cannot be justified as a search incident to arrest absent concerns about officer safety or the preservation of evidence relating to the offense for which he was arrested. Stehman, 203 Ill.2d at 38, 270 Ill.Dec. 426, 783 N.E.2d 1. Although lower Illinois courts later debated whether the Illinois Supreme Court would overrule Stehman in light of the Supreme Court's 2004 decision in Thornton (see People v. Neff, 369 Ill.App.3d 358, 310 Ill.Dec. 929, 867 N.E.2d 980 (2006); People v. Dieppa, 357 Ill.App.3d 847, 294 Ill.Dec. 458, 830 N.E.2d 870 (2005)), Stehman remained the law of Illinois at the time of the arrest. Thus, even if we could discern a proper legal foundation for the State's requested extension of the good-faith exception, there would be no basis to apply it here.
CONCLUSION
For all of the foregoing reasons, the order of the circuit court of Stephenson County is affirmed.
Affirmed.
McLAREN, J., concurs.
Presiding Justice ZENOFF, specially concurring:
After a detailed and careful analysis of the circumstances surrounding defendant's arrest, the majority concludes that even if suppression of the evidence seized from defendant's vehicle was not justified based on the invalid arrest, it would still affirm the trial court's suppression order because the search performed by Officer Dykema was not a valid search incident to arrest. I concur that under the facts here and pursuant to Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), there was no justification to search defendant's car and thus the trial court properly suppressed the physical evidence recovered. I would accordingly limit our opinion to the analysis of this issue alone.
NOTES
[1] The State asserts that on the date of the arrest, November 10, 2006, government offices were closed in observance of Veterans Day. Although the defendant did not respond to the assertion, the record contains no evidence regarding this factual issue, and we have insufficient independent corroboration of the State's assertion to take judicial notice of it.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 McAdoo v. Elo No. 01-2050
ELECTRONIC CITATION: 2003 FED App. 0339P (6th Cir.)
File Name: 03a0339p.06 Debra M. Gagliardi, OFFICE OF THE ATTORNEY
GENERAL, CORRECTIONS DIVISION, Lansing,
Michigan, Appellee. ON BRIEF: James R. Gerometta,
UNITED STATES COURT OF APPEALS FEDERAL PUBLIC DEFENDERS OFFICE, Detroit,
Michigan, for Appellant. Debra M. Gagliardi, OFFICE OF
FOR THE SIXTH CIRCUIT THE ATTORNEY GENERAL, CORRECTIONS DIVISION,
_________________ Lansing, Michigan, Appellee.
SILAS MCADOO , X _________________
Petitioner-Appellant, -
- OPINION
- No. 01-2050 _________________
v. -
> JULIA SMITH GIBBONS, Circuit Judge. Silas McAdoo
, appeals the district court’s denial of his petition for a writ of
FRANK ELO , Warden -
Respondent-Appellee. - habeas corpus. McAdoo pled guilty in Michigan state court
to one count of second-degree murder and two counts of
N assault with intent to commit murder. Pursuant to a plea
Appeal from the United States District Court agreement, he was sentenced to three life sentences to run
for the Eastern District of Michigan at Detroit. concurrently. McAdoo later claimed that his attorney
No. 98-74705—Paul D. Borman, District Judge. misinformed him about the consequences of a life sentence.
McAdoo raises three issues in this appeal, arguing that (1) his
Argued: February 5, 2003 guilty plea was not knowing and voluntary because he
misunderstood its consequences, (2) his plea was illusory
Decided and Filed: September 23, 2003 based on the effective unavailability of parole for those
serving a statutory life sentence, and (3) his trial counsel was
Before: GILMAN and GIBBONS, Circuit Judges; ineffective for allegedly misinforming McAdoo about his
POLSTER, District Judge.* possible sentence. For the following reasons, we affirm the
district court’s denial of habeas relief.
_________________
I.
COUNSEL
McAdoo was charged in Michigan state court with one
ARGUED: James R. Gerometta, FEDERAL PUBLIC count of first-degree murder and two counts of assault with
DEFENDERS OFFICE, Detroit, Michigan, for Appellant. intent to commit murder. The charges arose from the
stabbing death of McAdoo’s wife, Alicia Kelley, and the
stabbing of two of his daughters. At McAdoo’s preliminary
*
hearing, his ten and fourteen year old daughters testified
The Ho norable Dan Aaron Polster, United States District Judge for
the Northern District of Ohio, sitting by designation.
1
No. 01-2050 McAdoo v. Elo 3 4 McAdoo v. Elo No. 01-2050
about the facts of McAdoo’s offenses, all of which occurred there was confusion when McAdoo entered his plea about
in the family home. what the sentence would be. The prosecutor responded that
there was some confusion at sentencing, “but not at plea
On January 9, 1995, the trial date, McAdoo entered a time.”
guilty plea to the lesser offense of second-degree murder and
two counts of assault with intent to commit murder. The At the resentencing hearing, McAdoo, who was not under
agreement was in exchange for the dismissal of the first- oath, had the following exchange with the state trial court:
degree murder charge that carried a maximum sentence of life
without parole. At the plea proceeding, McAdoo’s attorney THE COURT: Mr. McAdoo, sir, do you wish to say
told the court that the plea agreement indicated three life anything before this Court imposes the correct sentence,
sentences. McAdoo signed the plea form, which stated that which was pursuant to the plea agreement?
the agreement was for three life sentences. McAdoo stated to
the court under oath that no one had promised him anything DEFENDANT McADOO: Yes, Judge Braxton. The
other than what the plea form indicated. day that you accepted my plea, I don’t know if you
remember. I know you have a lot of cases that you have
Sentencing was held on February 1, 1995. At the outset, to do, but when Batchelor first came before you with me,
McAdoo’s attorney stated that McAdoo did not want to and you asked me more than once did I understand, and
withdraw his plea, and McAdoo agreed on the record. The you asked me how did I plead, and I pled not guilty.
court stated that it was ready to “impose a sentence in accord
with the sentence agreement.” It then sentenced McAdoo to Then he took me, and we went into the back chambers
parolable life for the murder conviction and two concurrent or in another room, and he made the statement to me, and
terms of twenty years imprisonment for the assault maybe I am wrong, but I was told that the three life
convictions. The sentencing judge stated “Count one and sentences would be 20, 20, 20 to run concurrently, and
murder two for a term of statutory life which is 20 years.” that my kids would not have to be subjected to the Court.
Although the judge indicated an intent to sentence McAdoo
in accord with the plea agreement, she failed to do so. First, THE COURT: But he did inform you that they were
a statutory life term does not equal twenty years in Michigan. three life sentences. Is that correct?
Second, the plea agreement did not call for twenty-year
sentences for the assault convictions. DEFENDANT McADOO: Yes, Ma’am.
The prosecution then moved to amend the sentence to THE COURT: Which is indicated on this form.
conform to the plea agreement, which had provided for three MR. DEFENDANT: But he, I guess what I am trying to
concurrent life sentences rather than one life sentence and two say is, Judge Braxton, that if I had understood what he
twenty-year sentences. Resentencing occurred on March 24, was telling me which, as I stated to you before, I had no
1995. McAdoo, then represented by his second counsel, knowledge of what was going on whatsoever. I have no
Robert Plumpe, requested the withdrawal of his guilty plea, –
claiming that he did not understand the nature of his plea
agreement and that he was under the influence of medication THE COURT: Now you had some knowledge because
at the time he entered his plea. Defense counsel argued that I spoke to you. But you go ahead.
No. 01-2050 McAdoo v. Elo 5 6 McAdoo v. Elo No. 01-2050
DEFENDANT McADOO: What I am trying to say is McAdoo was then appointed a third counsel, Edward
my lawyer, Batchelor, he never spoke with me about Jabbour, who filed another motion to withdraw McAdoo’s
anything. It was just the first time I ever saw this piece guilty plea, arguing that the plea was not knowing and
of paper here was the day that you took my plea voluntary. The sentencing court held a hearing on this motion
agreement. When I first saw you, and it was more or less on March 7, 1996. Jabbour argued that McAdoo entered his
stated to me accept it or get another attorney. I wrote all plea believing that he would be released after twenty years
this up, and I turned it in to the Grievance Commission. imprisonment and that this alleged misunderstanding nullified
the plea.
But anyway to sum it all up, he told me something that
was different than what you did, and that’s the only thing The court conducted an evidentiary hearing on May 9,
I am arguing, and is the fact that I didn’t understand what 1996, to determine whether McAdoo’s alleged
he was doing. If I would have understood that he was misunderstanding nullified his plea. At the May 9, 1996,
sentencing me to three life sentences to the point, why hearing, Batchelor testified that his understanding was that
not fight the case? the penalty for first-degree murder in Michigan was a
sentence of “natural life” and the penalty for second-degree
I didn’t want my kids to be subjected to it. It was murder was a sentence of “parolable” life. He testified that he
enough that they went through. And then for him to tell was familiar with the “Lifer Law,”2 which would have
me that it would be the three life sentences, I know I governed McAdoo’s possibility of parole. When asked what
need to be punished for what I did. No problem his understanding of the “Lifer Law” was, Batchelor stated,
whatsoever with that. But that’s not what he explained “in terms of what I remember in discussion with Mr. McAdoo
to me. That’s all I am trying to say to the Court. with regards to the Lifer Law, we never discussed it.” When
asked whether he had said anything to McAdoo about what a
The court then conformed the sentence to the written plea sentence of life imprisonment means, Batchelor responded, “I
agreement and stated that it would consider McAdoo’s don’t recall saying anything to him about life imprisonment.”
motion to withdraw the plea if he presented evidence that his
mental state and medication prevented him from knowingly McAdoo presented the testimony of Michael Patrick
entering a guilty plea.1 Martin, prisoner advocate for the Wayne County jail at the
time of McAdoo’s incarceration there, and Mark Carrico of
2
The “Lifer La w,” M.C.L. § 791.233b; M.S.A. § 28.303(3) provides
1
that prisoners convicted of an enumerated offense (such as second-degree
On May 4, 199 5, the court conducted a hearing on that issue. Dr. murder) are not eligible for parole until the prisoner has served the
Ke ith Dlugokinski, a psychologist from the prison where McAdoo was minimum term less available d isciplinary cred its. People v. Lino, 539
incarcerated, testified that McA doo was suffering from major depression N.W.2d 545 , 549 (M ich. Ct. A pp. 1 995 ), overruled on other grounds by
and was being medicated at the time he entered his plea. However, Peo ple v. Carson, 560 N.W.2d 657, 665 (M ich. Ct. App. 1996). In
Dlugokinski also testified that McAd oo’s medications would not have McA doo’s case, the “Lifer Law” would have m eant that he was likely to
significantly impaired his cognitive abilities. Although no order denying be eligible for parole after serving appro ximately fifteen years. Lino, 539
the motio n to withd raw the plea appe ars in the record, it is evident that the N.W.2d at 548-49 (defendant serving parolable life sentence for crime
court denied the mo tion. T he issue of M cAd oo’s p sychological state and committed on or after O ctober 1, 1992 , is subject to the jurisdiction of the
med ications has no t been raised in this app eal. parole board and eligible for parole after fifteen years imprisonment).
No. 01-2050 McAdoo v. Elo 7 8 McAdoo v. Elo No. 01-2050
the Team for Justice, who visited McAdoo after his Upon questioning Mr. Batchelor, he indicated there was,
incarceration. Jabbour asked Martin if McAdoo told him in fact, a plea bargain that was made on the day of trial.
about the sentence agreement contained in the plea He testified further that he, being Mr. Batchelor, was of
agreement. The prosecution objected to this evidence as the opinion that the plea offered the defendant would
hearsay. Jabbour argued that the evidence was “state of give him a better opportunity to put his client in the best
mind” testimony, but the court sustained the objection. possibl[e] posture that he could be in, and he made it
Jabbour attempted to elicit the same information from Carrico know[n] to his client what his options were at the time
that he had from Martin. Carrico stated that, at some ...
unspecified time before McAdoo was transferred to a state
prison to serve his sentence, McAdoo told Carrico he would This Court, after listening to the witnesses and the
“get out in 17 years.” Jabbour then asked the court to rule testimony that was presented in terms of the defendant's
that if McAdoo testified, he could not be questioned about the state of mind, the defendant stated it was his
underlying facts of the offense. The court ruled that McAdoo understanding he would be parolable in 17 years which,
could be questioned about any facts that were relevant to the in fact, is the truth. And this Court, when taking a plea
motion to withdraw the plea. McAdoo did not testify.3 from any defendant as best as I can recall, I’m very
meticulous in terms of whether or not the defendant has
At the close of the hearing, the court denied McAdoo’s an understanding of what it is he's doing. Of course, I
motion to withdraw his guilty plea, concluding: cannot and I do not go behind the scene to ask questions
as to w[he]ther or not--what the defendant's particular
If I look at the testimony and my view of the witnesses understanding is of what a certain word means to a
that testified this afternoon, he stated – Mr. Carrico stated particular defendant. That I do not do. So, based upon the
he met the defendant back in 1994, and that the testimony I've heard, I deny the defendant’s motion.
defendant’s mother called him because he’s a member of
the Team for Justice. He further testified that he visited Following denial of his second motion to withdraw his
weekly with the defendant before he was sent to Jackson guilty plea, McAdoo filed a delayed application for leave to
[prison], and Mr. Carrico also testified he was at the appeal to the Michigan Court of Appeals. This application
sentencing. Mr. Carrico further testified that defendant was denied for lack of merit in the grounds presented.
told him he would be eligible for parole in 17 years. McAdoo then filed a delayed application for leave to appeal
That’[s] what your witness means to the understanding to the Michigan Supreme Court, which was denied.
the defendant had at that time.
McAdoo then filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. On June 18, 2001, the district
court entered an order denying the petition for habeas corpus.
3 McAdoo was granted a certificate of appealability with
McAdoo later stated in an affidavit filed in the district court that
Batchelor had told him that a “life sentence” in M ichigan was the
respect to his claims that his plea was involuntary, that his
equivalent of a twenty-year sentence and that he would be paroled in
app roxim ately seventeen-and -a-half years. Beca use this affidavit was not
part of the record before the state court, we do not consider it in assessing
whether the state court’s decision to deny M cAd oo’s m otion to withdraw
his plea was objec tively unreasonable.
No. 01-2050 McAdoo v. Elo 9 10 McAdoo v. Elo No. 01-2050
plea was illusory, and that his defense counsel was ineffective errors in state procedure and/or evidentiary law do not rise to
in advising him about the consequences of his plea.4 the level of federal constitutional claims warranting relief in
a habeas action unless the error renders the proceeding so
II. fundamentally unfair as to deprive the petitioner of due
process under the Fourteenth Amendment. Estelle v.
The Antiterrorism and Effective Death Penalty Act McGuire, 502 U.S. 62, 69-70 (1991).
(“AEDPA”) governs this case. Under 28 U.S.C. § 2254(d),
a federal court may not grant habeas relief unless the III.
adjudication in the state court proceedings:
A.
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly We apply the standards of AEDPA to McAdoo’s three
established Federal law, as determined by the claims. His first contention is that his guilty plea was not
Supreme Court of the United States; or knowing and voluntary because he was misinformed by his
attorney about the consequences of his plea. Although
(2) resulted in a decision that was based on an McAdoo acknowledges that he was aware that he was
unreasonable determination of the facts in light of receiving a life sentence, he argues that he misunderstood the
the evidence presented in the State court proceeding. implications of a life sentence because of erroneous
statements made to him by his lawyer and that the state court
Under AEDPA, “[a] federal habeas court may not issue the finding otherwise was objectively unreasonable.
writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly The Supreme Court has held that a defendant must have
established federal law erroneously or incorrectly.” Williams “sufficient awareness of the relevant circumstances and likely
v. Taylor, 529 U.S. 362, 411 (2000). Rather, the issue is consequences” of his plea. Brady v. United States, 397 U.S.
whether the state court’s application of clearly established 742, 748 (1970). A guilty plea must be accompanied by “an
federal law was “objectively unreasonable.” Id. at 409. affirmative showing that it was intelligent and voluntary.”
Boykin v. Alabama, 395 U.S. 238, 242 (1969). Such a
A federal court is to apply a presumption of correctness to showing is generally made by the government’s production of
state court findings of fact for habeas corpus purposes unless a transcript of state court proceedings to establish that the plea
clear and convincing evidence is offered to rebut this was made voluntarily. Garcia v. Johnson, 991 F.2d 324, 326
presumption. 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 (6th Cir. 1993).
F.3d 358, 360-61 (6th Cir. 1998). The appeals court gives
complete deference to the federal district court’s and state Prior to entering his plea, McAdoo signed the Pretrial
court’s findings of fact supported by the evidence. Clemmons Settlement and Notice of Acceptance, which indicated that the
v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). Trial court sentence for each of the three offenses would be life
imprisonment. When entering the plea, McAdoo stated under
oath that he understood the terms of the plea agreement and
4
A certificate of appealability was denied on McAdo o’s claim that his that he knowingly and voluntarily entered into the agreement.
attorney was ineffective for failing to pursue a diminished capa city McAdoo also testified that no additional promises, other than
defense.
No. 01-2050 McAdoo v. Elo 11 12 McAdoo v. Elo No. 01-2050
those contained in the plea agreement, had been made to him. immediately qualified that information by adding that the
Shortly before McAdoo entered his plea, his attorney stated maximum period he could serve for the sentence would
to the court that the plea agreement called for three life be 15 years. Nowhere does the record show that Hart was
sentences and that he had discussed the agreement with informed before entering his plea of the true sentence, a
McAdoo. The attorney also stated that he had explained minimum of 30 years and a maximum of 75. He was
McAdoo’s constitutional rights to him and McAdoo had informed by the court of this range at his sentencing
indicated his understanding. hearing, but again at the hearing, the court stated that
under Ohio law he would only serve 15 years of the
McAdoo does not contend that the plea colloquy was sentence. . . . Although this statement occurred after Hart
inadequate. He acknowledges that he knew he was agreeing entered his plea, it is evidence that the trial judge himself
to a life sentence. His argument is rather that there was did not understand the consequences of the plea
confusion about the consequences of a parolable life sentence agreement and, accordingly, did not give Hart correct
in Michigan at the time and that he relied on the alleged out- information on the consequences of his plea.
of-court statements of his attorney. In further support of the
existence of confusion, he cites the statement of the judge at Id. at 258. This case differs from Hart in that McAdoo was
sentencing that he would receive “a term of statutory life aware he was receiving a life sentence. Unlike the court in
which is 20 years” and the attorneys’ silence after that Hart, the state court in this case made its sole misstatement at
statement. 5 the sentencing, only after the plea had been entered and
accepted. Any misstatement by the judge at sentencing could
McAdoo contends that his case is analogous to Hart v. not possibly have affected McAdoo’s understanding at the
Marion Correctional Institution, 927 F.2d 256 (6th Cir. time he entered his plea, the relevant time for our inquiry.
1991). In Hart, the state trial judge and Hart’s attorneys
incorrectly informed him that his maximum period of After an evidentiary hearing about whether McAdoo’s plea
incarceration would be fifteen years if he pled guilty. The was entered knowingly, the state court found that his alleged
maximum was actually seventy-five years. This court stated: misunderstanding did not invalidate the plea. The state court
accepted as true McAdoo’s evidence (in the form of Carrico’s
This record shows that the court informed Hart he could testimony) that he believed he would be paroled in seventeen
be sentenced from 60 to 150 years. The court years. This evidence, however, does not show that his plea
was unknowingly entered, as the state court correctly found.
See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (“We have never
5
McAdoo also attempts to show confusion about the consequences held that the United States Constitution requires the State to
of a parolable life sentence by submitting evidence that the State Bar of furnish a defendant with information about parole eligibility
Michigan addressed the issue of the consequences of a life sentence at an in order for the defendant’s plea of guilty to be voluntary.”);
annual meeting in September 2000, some five and a half years after
McAdoo entered his guilty plea and so me four and a half years after his
James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995) (“The United
state evidentiary hearing. Evidence about this meeting obviously was not States Constitution does not require the State to furnish a
a part of the reco rd co nsidered b y the state court. In any event, statements
at the annual meeting tend to show that there was confusion about the
likelihood of parole for prisoners sentenced to parolab le life, but they do
not indicate that it was reasonable to believe that a life sentence in
Michigan meant anything other than what its name implies.
No. 01-2050 McAdoo v. Elo 13 14 McAdoo v. Elo No. 01-2050
defendant with information about parole eligibility in order did not affect the outcome of the state hearing. The state
for the defendant’s plea of guilty to be voluntary.”). 6 court heard testimony from Carrico that McAdoo believed
that he would be eligible for parole in seventeen and a half
McAdoo’s argument that at the time of his guilty plea there years. It accepted that testimony as truthful and also
was confusion in Michigan about the consequences of a determined that McAdoo’s belief was consistent with his
parolable life sentence is intertwined with an argument that actual date of parole eligibility under Michigan law.
the state court made erroneous evidentiary rulings at the
hearing on his request to withdraw his plea.7 First, McAdoo McAdoo attempts to characterize his misunderstanding
contends that the state court erroneously excluded Martin’s about the consequences of his sentence of parolable life as a
“state of mind” testimony. Second, he contends that the state misunderstanding about more than his parole eligibility date
court’s incorrect ruling that, if McAdoo testified, he could be or the likelihood of parole. He argues that he in fact thought
cross-examined about the underlying facts of the case forced a life sentence meant a twenty-year sentence. Although
him to elect not to testify.8 Whatever the merit of these McAdoo presented no evidence of this belief to the state
evidentiary arguments, the state court’s evidentiary rulings court, at resentencing (in an unsworn statement during his
allocution), he told the state court that Batchelor told him that
“the three life sentences would be 20, 20, 20 to run
6
concurrently.”
As a practical matter, any information given to a defendant about
paro le at the time he pleads guilty is inherently imprecise. Both parole In Ramos v. Rogers, 170 F.3d 560 (6th Cir. 1999), the
eligibility and likelihood are unpredictable. A number of factors, such as
the earning of sentence credits, may affect the time at which a prisoner
defendant attempted to withdraw his guilty plea after
becomes eligible for parole. Furthermore, factors such as the crimes of sentencing. While accepting his plea, the state trial court
conviction, the entire crimina l record, and behavior in prison may impact asked Ramos whether he understood that he was not going to
the likelihood of parole at a particular time after a prisoner becomes receive probation under any circumstances. Id. at 562.
eligible for parole. The likelihood of parole is also affected by changes Ramos responded that he understood. Later, he attempted to
in the law and in the comp osition and attitudes of parole bo ard members.
See James, 56 F.3 d at 666 (noting that changes in L ouisiana’s
withdraw his guilty plea, arguing that his lawyer had actually
commutation procedures made paro le more difficult to attain). As promised him that he would receive “supershock probation.”
McAd oo’s evidence of the 2000 Michigan bar meeting suggests, the fact Id. at 562-63. On appeal, Ramos contended that he was told
that few Michigan prisoners sentenced to parolable life are paroled when only that he was ineligible for probation, but not that he was
they are first eligible is attributable to a “political shift.” An assessment ineligible for supershock probation. Id. at 563. He testified
of the likeliho od that M cAd oo w ill be paroled when he becom es eligible that he did not know the difference between supershock
in 201 0 wo uld have be en speculative in 199 5 whe n he pled guilty and is
speculative today, beca use there is no m eans o f ascertaining future paro le probation and “regular” probation. Id. The court was not
boa rd policy or other relevant factors. persuaded by the argument that the individual defendant’s
misunderstanding of a commonly used term rendered his plea
7
McAdoo d oes not claim that these evidentiary rulings made the void. It held that “such word games cannot be permitted to
proceedings so fund amentally unfair as to dep rive him of due p rocess. vitiate the use of simple words in court.” Id. at 565 n.6.
8
Ramos essentially asked the court to rely on his subjective
McAd oo’s description of the state court ruling is not pre cisely impression of the words used, garnered from his lawyer’s
accurate. W hile certainly the state court left open the possibility of such misstatements, rather than the plain meaning of the statements
cross-examination, it did so only to the extent an underlying fact might be
relevant to the motion to withdraw the plea.
made in court. This court declined to do so:
No. 01-2050 McAdoo v. Elo 15 16 McAdoo v. Elo No. 01-2050
If we were to rely on Ramos’s alleged subjective pleas). McAdoo acknowledged in court under oath that he
impression rather than the record, we would be rendering was agreeing to a life sentence, and the evidence and his
the plea colloquy process meaningless, for any convict unsworn statement presented to the state court failed to show
who alleges that he believed the plea bargain was that he reasonably believed he was actually agreeing to a
different from that outlined in the record could withdraw maximum sentence of only twenty years.
his plea, despite his own statements during the plea
colloquy . . . indicating the opposite. This we will not Therefore, the state court did not err in finding that
do, for the plea colloquy process exists in part to prevent McAdoo understood the consequences of his plea. The state
petitioners such as Ramos from making the precise claim court’s findings are entitled to considerable deference under
that is today before us. Where the court has scrupulously AEDPA. A federal court may grant habeas relief only where
followed the required procedure, the defendant is bound the state court proceeding “resulted in a decision that was
by his statements in response to that court’s inquiry. based on an unreasonable determination of the facts in light
of the evidence presented.” 28 U.S.C. § 2254(d).
170 F.3d at 566 (internal quotation marks omitted). Considering the record here, we cannot say that the state
court’s determination that McAdoo knowingly and
The present case presents a closer question than Ramos. voluntarily entered his plea was unreasonable.
However, as in Ramos, we hold that a term that is
unambiguous on its face and agreed to by the defendant in B.
open court will be enforced. See Hall v. Maggio, 697 F.2d
641, 643 (5th Cir. 1983) (per curiam) (holding that McAdoo next contends that his plea bargain was illusory
defendant’s misunderstanding about life sentence, based on because he obtained no real benefit from entering a guilty
“common knowledge” and attorney’s misadvice, did not plea. The Michigan Parole Board rarely grants parole to
invalidate plea). We note that the term “life sentence” is not prisoners sentenced to parolable life, as explained by the
ambiguous. The United States Constitution does not require Michigan Court of Appeals in People v. Lino:
judges to explain the meaning of “life sentence” and other
unambiguous terms during the plea colloquy in order to The reality is that those who receive nonmandatory life
combat alleged misinformation that is not revealed on the sentences are rarely paroled after ten years, and, in fact,
record. Cf. Boykin, 395 U.S. at 243-44 (requiring explicit the majority of defendants sentenced to life
waiver of certain constitutional rights on the record when imprisonment are never granted parole. . . . [F]rom 1986
court takes guilty plea); United States v. Hanley, 906 F.2d through 1990, only seven prisoners serving parolable life
1116, 1121 (6th Cir. 1990) (holding that defendant was not sentences were paroled. Of the 975 prisoners serving
entitled to relief on his claim of ineffective assistance of such a term in 1990, only two were paroled. In 1991,
counsel where his counsel incorrectly advised him that he only one prisoner serving a parolable life term was
would be eligible for parole in a third of the time he received paroled. In 1992, again only one prisoner serving a
for a sentence because the court informed the defendant of the parolable life term was paroled.
potential range of incarceration for his crime and advised him
that he would be sentenced under the guidelines); see also 539 N.W.2d at 549 (citations omitted). In view of these
Fed. R. Crim. P. 11(b) (setting forth the elements the federal statistics, McAdoo argues that his “promised benefit will not
court must address when considering and accepting guilty materialize.” He argues that he is entitled to a new trial or a
No. 01-2050 McAdoo v. Elo 17 18 McAdoo v. Elo No. 01-2050
second chance to negotiate a plea bargain because he federal court to undertake independent review of state court
“expected he would be released on parole given the decision when state court decides claim without explanation
information he received concerning the workings of parole in of its decision). The independent review is not, however, “a
Michigan.” full, de novo review of the claims, but remains deferential
because the court cannot grant relief unless the state court’s
This argument fails, however, because McAdoo did obtain result is not in keeping with the strictures of the AEDPA.” Id.
his bargained-for benefit, the possibility of parole. Under at 943. Thus, the independent review determines whether the
Michigan law, a defendant convicted of first-degree murder state court decision is contrary to federal law, unreasonably
faces a sentence of mandatory non-parolable life while applies clearly established federal law, or is based on an
second-degree murder carries a sentence of parolable life or unreasonable determination of the facts in light of the
any term of years. Pursuant to his plea agreement, McAdoo evidence presented. Id.
was sentenced to three concurrent terms of parolable life. It
was not necessary for the prosecutors or the court to explain The Supreme Court has adopted a two-pronged test for
the likelihood of parole to McAdoo. Hill, 474 U.S. at 56. A determining whether a defendant received adequate assistance
defendant’s mere expectation about the parole process is of counsel. Strickland v. Washington, 466 U.S. 668, 687
“simply no ground for habeas relief.” James, 56 F.3d at 667. (1984). First, a defendant must show that counsel’s
As the district court stated, “the relative reluctance of the performance was deficient, which “requires a showing that
Michigan Parole Board to grant parole to prisoners sentenced counsel made errors so serious that counsel was not
to life does not render his plea illusory.” We hold that functioning as the ‘counsel’ guaranteed the defendant by the
McAdoo derived a benefit by avoiding a trial on the first- Sixth Amendment.” Id. at 687. The reviewing court should
degree murder charge which was punishable by life without “indulge a strong presumption that counsel’s conduct falls
parole and receiving instead a sentence of life with the within the wide range of reasonable professional assistance.”
possibility of parole. As such, his plea was not illusory. Id. at 689. Second, a defendant must show that counsel’s
deficient performance prejudiced the defendant. Id. at 687.
C. In order to satisfy the “prejudice” requirement in a plea
agreement context, “the defendant must show that there is a
Finally, McAdoo claims that his counsel, Batchelor, was reasonable probability that, but for counsel’s errors, he would
constitutionally ineffective for allegedly misinforming him of not have pleaded guilty and would have insisted on going to
the consequences of his plea. He requests that this issue be trial.” Hill, 474 U.S. at 58-59.
remanded for an evidentiary hearing.
McAdoo’s argument that his counsel was ineffective is
McAdoo presented his ineffective assistance of counsel closely tied to his argument that his guilty plea was not
claim in his application for leave to appeal in both the knowing and voluntary. With respect to the ineffective
Michigan Court of Appeals and Michigan Supreme Court. assistance issue, his brief to this court states that he should
Neither court discussed the merits of the issue, and both receive an evidentiary hearing because the district court
denied leave to appeal in orders of one sentence. When a erroneously relied on the state court’s finding that McAdoo
state court declines to address the merits of a properly raised understood the amount of prison time that he would be
issue, this court conducts an independent review of the issue. required to serve. McAdoo’s reply brief simply states that the
Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000) (requiring district court erred in accepting the findings of the state trial
No. 01-2050 McAdoo v. Elo 19 20 McAdoo v. Elo No. 01-2050
court because McAdoo was denied a full and fair hearing on true, his argument that his counsel’s performance was
the issue. His brief in the district court states that the deficient may have merit.
incorrect advice establishes deficiency of performance, as a
result of which he entered a plea that was not knowing and McAdoo’s ineffective assistance claim fails in any event,
voluntary, and “that fact establishes the prejudice prong.” however, because it would not have been unreasonable for the
state courts to conclude that he had failed to establish
Considerable case law supports a determination that giving prejudice had they included an analysis of the ineffective
erroneous advice about parole may constitute deficient assistance issue in their opinions. The prejudice prong of
performance. Affirmative misstatements about parole Strickland requires McAdoo to show that there is a reasonable
possibilities are more objectively unreasonable than failure to probability that, but for counsel’s errors, he would not have
inform the defendant about the parole possibilities. James, 56 pleaded guilty and would have gone to trial.
F.3d at 667 (noting that “this Court and others have
recognized that affirmatively erroneous advice of counsel as McAdoo’s exchange with the state judge at resentencing is
to parole procedure is much more objectively unreasonable at best ambiguous. While he suggested that he might have
than would be a failure to inform of parole consequences”). fought the case if he had known he would serve a life
When defense counsel grossly misinforms a defendant about sentence, he also said that he did not want his children to be
details of parole and the defendant relies on that subjected to a trial. Prior to this time McAdoo had been
misinformation, the defendant may have been deprived of his present at the preliminary hearing and was aware that the
constitutional right to counsel. See Strader v. Garrison, 611 evidence against him, which included his daughters’
F.2d 61, 65 (4th Cir. 1979). In Meyers v. Gillis, 142 F.3d 664 testimony, was overwhelming, a fact that the state courts were
(3d Cir. 1998), a habeas petitioner argued that his counsel was entitled to take into account in determining whether he would
ineffective for giving him incorrect advice about parole have pled guilty in the absence of any erroneous advice rather
eligibility. The Third Circuit granted habeas relief, stating than going to trial on first degree murder charges. McAdoo
that “Meyers did not realize he was, in all reality, pleading also conceded that Batchelor and the court informed him that
guilty to an offense that did not allow him to receive parole in he would receive three life sentences. He signed the plea
the future.” Id. The court noted that while a defendant does form indicating three life sentences. Moreover, Batchelor
not have a constitutional right to be provided with parole testified that he did not discuss the Lifer Law with McAdoo.
eligibility information prior to entering a plea, any
information that is provided by defense counsel must be Given this record, the state courts were not unreasonable in
accurate. Id. at 667 n.2. McAdoo argues that Batchelor was rejecting McAdoo’s ineffective assistance claim. While they
ineffective because he allegedly gave McAdoo incorrect could have concluded that McAdoo had established a
information regarding the terms of the plea agreement. He reasonable probability that he would not have pled guilty in
claims that Batchelor told him that he would serve at most the absence of erroneous advice, it also would not have been
twenty years in prison.9 Assuming McAdoo’s claim to be unreasonable for them to conclude otherwise. Thus, after
independent review, we conclude that the state court’s
9
At his state evidentiary hearing, McAdoo’s counsel did not
specifically ask Batchelor whether he made this statement to McAdoo. M cAdoo did not discuss the Lifer Law. McAdoo , as previously noted,
Batchelor, however, implicitly denied the statement by saying that he and did not testify.
No. 01-2050 McAdoo v. Elo 21 22 McAdoo v. Elo No. 01-2050
decision was not contrary to federal law, did not unreasonably Section § 2254(e)(2) may or may not preclude remand for
apply federal law and was not based on an unreasonable an evidentiary hearing on the ineffective assistance issue.10
determination of the facts. See Harris, 212 F.3d at 943. We need not reach this issue, however. Even if we could
remand for an evidentiary hearing, doing so would be futile.
McAdoo requests an evidentiary hearing on the ineffective The present record appears to be complete. McAdoo points
assistance of counsel issue and argues that he did not receive to no fact that he could develop on remand that would result
a “full and fair” hearing in state court. Under AEDPA, a in the granting of the writ. His affidavit in the district court
defendant who “failed to develop the factual basis of a claim addresses his claims about erroneous advice, but does not
in State court proceedings” cannot obtain an evidentiary contain anything that relates to the prejudice issue. Nor does
hearing unless he satisfies two statutory exceptions not he identify any such evidence in his briefs; he simply relies
applicable here. 28 U.S.C. § 2254(e)(2). However, when a on his claim of an invalid plea to establish prejudice. Yet the
defendant diligently seeks an evidentiary hearing in the state state court did not unreasonably find his plea to be valid.
courts in the manner prescribed, but the state courts deny him Thus, McAdoo’s claim of prejudice fails.
that opportunity, he can avoid § 2254(e)(2)’s barriers to
obtaining a hearing in federal court. Williams v. Taylor, 529 IV.
U.S. 420, 437 (2000). A defendant fails to develop the factual
basis of a claim only when he is at fault for failing to develop For all the foregoing reasons, we affirm the district court’s
the factual record in state court, as when he or his counsel has denial of McAdoo’s petition for writ of habeas corpus.
not exercised proper diligence, or greater fault, in failing to
develop the record. Id. at 432 ; Moss v. Hofbauer, 286 F.3d
851, 858-59 (6th Cir.), cert. denied, 537 U.S. 1092 (2002).
The test for “failed to develop” is defined as a “lack of
diligence, or some greater fault, attributable to the prisoner or
the prisoner’s counsel” in his or her attempts to discover and
present a claim in the state court. Williams, 529 U.S. at 432;
Thompson v. Bell, 315 F.3d 566, 594 (6th Cir. 2003).
Diligence for purposes of § 2254(e)(2) depends upon
“whether the prisoner made a reasonable attempt, in light of
the information available at the time, to investigate and
pursue claims in the state court.” Williams, 529 U.S. at 435;
Thompson, 315 F.3d at 594. If the petitioner did not fail to
develop the facts in the state court, then the district court may
hold an evidentiary hearing. Williams, 529 U.S. at 433;
Thompson, 315 F.3d at 594; Moss, 286 F.3d at 859.
10
Addressing the effect o f § 22 54(e)(2) on M cAd oo’s request for an
evidentiary hearing would require us to consider the state court’s
evidentiary rulings and M cAdoo ’s decision not to testify at the state court
hearing on his motion to withdraw his plea.
| {
"pile_set_name": "FreeLaw"
} |
412 F.3d 771
UNITED STATES of America, Plaintiff-Appellee,v.Cleo C. ROSS, Defendant-Appellant.
No. 04-2124.
United States Court of Appeals, Seventh Circuit.
Argued May 9, 2005.
Decided June 20, 2005.
Timothy A. Bass (argued), Office of the United States Attorney, Urbana, IL, for Plaintiff-Appellee.
Tiffani D. Johnson (argued), Office of the Federal Public Defender, Urbana, IL, for Defendant-Appellant.
Before POSNER, EASTERBROOK, and EVANS, Circuit Judges.
TERENCE T. EVANS, Circuit Judge.
1
Cases involving felons charged with possessing firearms are generally pretty mundane. In the typical case, a felon, with a gun in his car, is stopped for a traffic violation. If the evidence isn't suppressed, the inevitable conditional guilty plea follows, with the search issue reserved for appellate review. Unlike the typical case, our case today, at least the factual situation from which it springs, is anything but mundane. Here are the facts.
2
Cleo Ross was in jail in the summer of 2000 when he began corresponding with Wynemia Lindsey, a legal secretary in the State's Attorney's office in Champaign County, Illinois. Lindsey was the mother of one of Ross's childhood friends and he got to know her when she hosted neighborhood cookouts back in the late 1980s and early 1990s. Despite their 14-year age gap, romance blossomed. When Ross left jail on parole in February of 2001, he moved in with Lindsey. Sometime that summer, Ross allegedly showed Lindsey a shotgun he had stashed behind the furnace in her basement. He explained that he wanted to keep the firearm with her because, as a convicted felon, he could not possess it himself. Lindsey later moved the shotgun into her bedroom. The June-November romance1 between Ross and Lindsey hit the skids in early 2002.
3
In August of 2002, Lindsey began dating another man, Jesse Ratliffe. Lindsey testified at trial that in the early morning of September 8, 2002, Ross showed up at her home unannounced and armed with a handgun. He found Lindsey in bed with Ratliffe. The two men began to wrestle and a gun went off, wounding Ratliffe in the hand. Both men then fled, apparently in different directions. The police later recovered Ross's shotgun from Lindsey's house but were unable to find the gun used in the shooting. Also, Lindsey's story had a few holes. For one thing, it differed from her original account, where she fingered an imaginary ex-boyfriend as the culprit. And though Ratliffe's testimony corroborated Lindsey's in some respects, he could not identify Ross as the perpetrator. Moreover, Ratliffe said the perpetrator was around 6'0"; Ross, however, is closer to 6'7".
4
Ross filed two motions on the eve of trial. First, he sought to introduce the results of a private polygraph test taken by him 2 weeks earlier. Incredibly, the polygraph report purported to establish that Ross placed the shotgun in Lindsey's home in 1991 and had forgotten it was there. If credited, this report could have torpedoed the government's case. First, it would time-stamp the crime roughly 10 years prior to the time identified by Lindsey; notably, outside the 5-year statute of limitations. And it also would cast doubt on whether Ross was a convicted felon when he possessed the gun. After reviewing the polygraph report in camera, the district court refused to admit it, concluding that its prejudicial impact far outweighed its probative value under Federal Rule of Evidence 403. The court also noted that allowing an expert to vouch for the test results "would be turning over the function of the jury to a polygraph examiner." Ross also filed a motion in limine seeking to preclude the government from impeaching him with his prior convictions for home invasion and armed robbery. The court denied that request as well.
5
Trial commenced in early 2003. The defense's theory was that Lindsey shot Ratliffe and then tried to pin it on Ross. As for the shotgun, which had his fingerprints on it, Ross argued that he possessed it many years ago. The jury found Ross guilty of violating 18 U.S.C. § 922(g)(1). He was sentenced to a term of 115 months.
6
Ross raises three challenges to his conviction. First, he argues that the district court erred in excluding the polygraph results. "A district court's decision on the admissibility of polygraph results deserves considerable deference, and will be reversed only when the district court has abused its discretion." United States v. Lea, 249 F.3d 632, 638 (7th Cir.2001) (citing United States v. Olson, 978 F.2d 1472, 1480 (7th Cir.1992)). In assessing the admissibility of such evidence, a court must balance its probative value and prejudicial effect, and the risk of issue confusion, misleading the jury, and undue delay. Id. The court should therefore "take as its guide Rule 403 of the Federal Rules of Evidence[.]" United States v. Robbins, 197 F.3d 829, 844 (7th Cir.1999).
7
Ross has failed to establish an abuse of discretion. His primary argument is that the district court applied the wrong legal standard, mistakenly relying on Illinois law, which prohibits polygraph evidence all together. But the district court did no such thing. True, Judge McCuskey did say that he was familiar with Illinois's blanket prohibition because he was a former state judge. But he also recognized that there is no similar ban in federal court and then proceeded to analyze the admissibility question under Rule 403 and the expert witness test enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The court therefore applied the correct legal standard.
8
There was no abuse of discretion here because, for one thing, the manner in which the test was administered—privately commissioned, in the eleventh hour, and without notice to the government—was highly suspect. Not surprisingly, Ross fails to identify another case where polygraph evidence was admitted in similar circumstances. Indeed, courts have routinely rejected unilateral and clandestine polygraph examinations like the one taken here, citing concern that a test taken without the government's knowledge is unreliable because it carries no negative consequences, and probably won't see the light of day if a defendant flunks. See United States v. Tucker, 773 F.2d 136, 141 (7th Cir.1985); United States v. Williams, 737 F.2d 594, 611 (7th Cir.1984); United States v. Feldman, 711 F.2d 758, 767 (7th Cir. 1983); United States v. Thomas, 167 F.3d 299, 309 (6th Cir.1999); United States v. Sherlin, 67 F.3d 1208, 1217 (6th Cir.1995); United States v. Beck, 729 F.2d 1329, 1332 (11th Cir.1984).
9
Next, Ross argues that the district court erred by refusing to bar the government from introducing evidence of his prior felony convictions, for impeachment purposes, in the event he testified. But by choosing not to testify during his trial, Ross waived appellate review of this issue. Luce v. United States, 469 U.S. 38, 43, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984); United States v. Fallon, 348 F.3d 248, 254 (7th Cir.2003).
10
Ross raises one other challenge to his conviction, one that is before us in a rather unusual "here today, gone tomorrow" fashion. Unlike his other issues, this one has traction. The indictment charged Ross with being a felon who possessed a firearm "on or about September 8, 2002." The jury was instructed, however, in accordance with the evidence presented at trial—which cast some doubt on the government's claim that Ross possessed a firearm at any time close to the date in the indictment—that it could still convict as long as Ross possessed the weapon "on or after May 22, 1998." The instruction was given to meet a possible statute of limitations defense that if Ross possessed the gun, he did so years earlier than the date charged in the indictment. This change allowed the jury to find Ross guilty if it believed he possessed the shotgun in the summer of 2001 (when he allegedly showed it to Lindsey) as opposed to possessing "a firearm" on or about September 8, 2002, when the Lindsey/Ratliffe tryst was rudely interrupted. Although the evidence, and hence jury instructions, in a criminal trial are permitted to vary somewhat from the allegations of the indictment, in recognition of the inherent uncertainties of the trial process, there are limits to any permitted variance. United States v. Jefferson, 334 F.3d 670, 673 (7th Cir.2003); United States v. Trennell, 290 F.3d 881, 887-88 (7th Cir.2002); United States v. Milstein, 401 F.3d 53, 65 (2nd Cir.2005); United States v. Floresca, 38 F.3d 706, 710-11 (4th Cir.1994) (en banc). Otherwise the Fifth Amendment right of a defendant not to be prosecuted unless a grand jury determines that there is probable cause to prosecute him for the crime for which he is to be tried could be easily circumvented. Stirone v. United States, 361 U.S. 212, 216, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); United States v. Folks, 236 F.3d 384, 390 (7th Cir.2001); United States v. Field, 875 F.2d 130, 133 (7th Cir.1989). Realistically, federal grand juries today provide little protection for criminal suspects whom a U.S. Attorney wishes to indict. Nevertheless, that is not a realism to which judges are permitted to yield.
11
The government tells us that the phrase "on or about" a specified date allows the prosecutor at trial to reach back to the beginning of the statutory period of limitations, which here is 5 years. Although dicta can be quoted to that effect, e.g., Ledbetter v. United States, 170 U.S. 606, 612-13, 18 S.Ct. 774, 42 L.Ed. 1162 (1898); United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir.1988); United States v. Krepper, 159 F.2d 958, 964 (3rd Cir.1946), we've found no cases that hold that a huge discrepancy, like 4 years here, is permissible. The canonical formula is that "when `on or about' language is used in an indictment, proof of the exact date of an offense is not required as long as a date reasonably near that named in the indictment is established." United States v. Ford, 872 F.2d 1231, 1236-37 (6th Cir.1989); see, e.g., United States v. Castillo, 140 F.3d 874, 885 (10th Cir.1998); United States v. Nersesian, 824 F.2d 1294, 1323 (2nd Cir.1987). Four years isn't "reasonably near." United States v. Hinton, 222 F.3d 664, 672-73 (9th Cir.2000), cites two cases, involving 2-year and 7-month discrepancies respectively, to illustrate unreasonable departures from charging language in an indictment.
12
There might, we suppose, be cases where it was obvious to the grand jury that the criminal conduct that it was asked to charge the defendant with began years before the "on or about" date in the indictment, and then it might be argued that the variance, while startling, was not fatal. But this case is at the opposite end of that spectrum. It is clear from the "on or about" date alleged here that the grand jury probably thought it was indicting Ross for possessing a pistol when the Llindsey/Ratliffe tryst was interrupted. The instructions, however, permitted the jury to convict him for possessing a shotgun 4 years earlier. Had the instructions limited the jury's consideration to the later incident, Ross might well have been acquitted.
13
So Ross has a strong argument, one his lawyer argued about in her opening brief. But then, bizarrely, in the opening sentence of her reply brief, the lawyer wrote, without further elaboration: "After reviewing the brief for the Plaintiff-Appellee [i.e., the government], the defendant concedes this issue." Essentially, she threw away a winning argument—"Here today, gone tomorrow." But after oral argument, counsel realized she made a mistake and sent a letter asking to withdraw the concession made in her reply brief. We are unaware of any authority for making such a retraction (she cites none), but then again, the government can't claim prejudice, as defense counsel did not have to make the concession or even file a reply brief. See Fed. R.App. P. 28(c); 16A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3974.3, pp. 525, 530 (3d ed.1999); Jason Vail, "The Pitfalls of Replies," 2 J.App. Prac. & Process 213-14, 216 (2000); compare United States v. Rodriguez, 15 F.3d 408, 415 n. 7 (5th Cir. 1994). Given the situation here, we will allow the retraction and find for Ross on the resurrected issue we just discussed.
14
Accordingly, we VACATE Ross's conviction and sentence and REMAND the case to the district court for a new trial.
Notes:
1
A 14-year age spread is too short to qualify as a traditional May-December romance
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673 F.Supp. 1032 (1987)
Pat ENDSLEY, Plaintiff,
v.
Al NAES, Richard Hurley, Ron Lister, Saline County, and the Saline County Sheriff's Department, Defendants.
No. 83-4112.
United States District Court, D. Kansas.
June 22, 1987.
*1033 *1034 Steven M. Dickson, McCullough, Wareheim & LaBunker, Topeka, Kan., Pantaleon Florez, Jr., Topeka, Kan., for plaintiff.
Benfer & Farrell, George F. Farrell, Jr., Topeka, Kan., for Richard Hurley & Saline County Sheriff's Dept. and Al Naes.
MEMORANDUM AND ORDER
ROGERS, District Judge.
This is an employment discrimination action brought by the plaintiff pursuant to 42 U.S.C. §§ 1983 and 2000e et seq. (Title VII). Plaintiff is also asserting claims directly under the United States Constitution and the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq. The named defendants are Saline County; Saline County Sheriff's Department; Al Naes, sheriff of Saline County; Richard Hurley, a captain in the Saline County Sheriff's Department; and Ron Lister, undersheriff of Saline County. Plaintiff, a white female, contends that she was discriminated against by the defendants because of her sex in the terms and conditions of her employment as a volunteer reserve deputy and as a road patrol deputy. She further contends that the defendants discriminated against her because of her sex when they constructively discharged her from her position as a road patrol deputy on October 1, 1981. Plaintiff also contends that her First Amendment right to association was violated by the defendants. This matter is presently before the court upon defendants' motion for summary judgment. Having carefully reviewed the materials filed by the parties, the court is now prepared to rule.
In considering a motion for summary judgment, the court must examine the evidence in the light most favorable to the opposing party. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). A moving party is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, ___, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). As to materiality, the Supreme Court has stated that "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., supra 106 S.Ct. at 2510. The substantive area of law involved is relevant in determining which facts are material. Id. The mere existence of a scintilla of evidence in support of the nonmoving party's position will not be sufficient; there must be evidence on which a jury could reasonably find for the nonmoving party. Id. There is no express or implied requirement that the moving party support its motion with materials negating the nonmoving party's claim. Celotex Corp. v. Catrett, 477 U.S. 317, ___, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
The facts pertinent to the arguments raised by the defendants are uncontroverted. The court shall provide a broad overview of these facts and then specifically address others as we consider the arguments made by the parties.
Plaintiff is a white female. In April, 1980, plaintiff began working for the Saline County Sheriff's Department (Department) as a reserve deputy. As a reserve deputy, plaintiff had no specific duties and was not paid a salary. She was expected to ride on patrol with a road patrol deputy from the Sheriff's Department at least sixteen hours each month and was expected to complete reserve training school, which consisted of approximately 200 hours of training. The only equipment furnished to reserve deputies by the Department is a manual setting forth the procedures of the Department. No uniforms or guns were issued to any reserve deputies. Occasionally, if the Sheriff's Department had spare uniforms not in use which happened to fit a reserve deputy, the reserve deputy would be allowed to use the uniform. Reserve deputies were not entitled to use firearms until the deputy *1035 had completed the reserve training program. The Department did on occasion allow reserves who had been certified by the Department or other law enforcement agencies to use firearms to carry a gun prior to completing the reserve training program. Most of these individuals had previously been a regularly commissioned law enforcement officer in another Kansas law enforcement agency.
Plaintiff was hired by the Saline County Sheriff's Department as a road patrol deputy on July 6, 1981. Plaintiff was hired on a probationary basis. Following plaintiff's hiring, rumors began to circulate among the law enforcement agencies working with the Department that plaintiff and another female road patrol deputy, Deb Redmond, were homosexuals. On August 11, 1981, there was a disturbance at Ms. Redmond's house when Ms. Redmond's husband accused the plaintiff of being his wife's homosexual lover, and a fight broke out. This disturbance necessitated a call to the Department. Five officers became involved in the incident, four at the scene and the dispatcher, who was monitoring the situation. After this incident, the rumors about the homosexual affair between the plaintiff and Ms. Redmond intensified and grew in frequency. Members of the community and the Department were aware of the rumors. On October 1, 1981, Undersheriff Lister informed the plaintiff that she was not to ride with Ms. Redmond anymore without permission. Prior to that time, plaintiff would frequently ride with Ms. Redmond while Ms. Redmond was on duty and the plaintiff was off duty. The events which occurred after plaintiff was told not to ride with Ms. Redmond any longer are in dispute. The defendants have evidence which indicates that plaintiff voluntarily resigned in a fit of anger after being told that she could no longer ride with Ms. Redmond. Plaintiff has testified that later in the day on October 1, 1981 she was called back to Undersheriff Lister's office and told that she had no choice but to offer her resignation. In evaluating the instant motion, the court shall accept as true the plaintiff's version of what occurred on October 1, 1981.
The defendants contend they are entitled to summary judgment on all of plaintiff's claims. Before we address these matters, we shall address several preliminary matters. First, defendants contend that they are entitled to summary judgment on plaintiff's claim against them brought directly under the United States Constitution. We agree. This court has consistently held that Bivens-type actions are not available against state officials because of the availability of a remedy under 42 U.S.C. § 1983. Lee v. Wyandotte County, 586 F.Supp. 236, 238 (D.Kan.1984); Howard v. Topeka-Shawnee County Metropolitan Planning Commission, 578 F.Supp. 534, 537 (D.Kan.1983). Second, defendant Saline County contends that it is entitled to summary judgment on plaintiff's claim against it for punitive damages. Plaintiff, aware of City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), concedes the correctness of the defendant's argument. Finally, defendant Saline County Sheriff's Department asserts that it should be dismissed from this action because it lacks the capacity to be sued under Kansas law. Again, plaintiff concedes the defendant's argument and admits that the Sheriff's Department should be dismissed as a defendant to the lawsuit.
The court shall now consider plaintiff's claims in this case. The court shall first begin with plaintiff's claims of sex discrimination. Plaintiff has alleged three acts of sex discrimination. First, plaintiff claims she was discriminated against in certain terms and conditions of her employment when she was a reserve deputy. Specifically, she asserts that she was treated differently than male reserve officers because she was not allowed to wear a uniform or carry a gun. Second, plaintiff alleges that she was discriminated against in the terms and conditions of her employment as a road patrol deputy because she was not sent to the Law Enforcement Academy during her three month period of employment with the Department. Finally, plaintiff contends she was discriminated against when she was constructively discharged from her position *1036 as a road patrol deputy with the Sheriff's Department.
The defendants have raised several arguments concerning each of the sex discrimination claims made by the plaintiff. Each of the arguments advanced by the defendants is persuasive. Nevertheless, we shall proceed directly to the defendants' contentions that summary judgment is appropriate on each of these claims because plaintiff has failed to present sufficient evidence from which a factfinder could rationally infer that the plaintiff was the victim of sex discrimination.
In employment discrimination actions brought under Title VII and § 1983, the court generally applies the legal principles enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later refined in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). First, the plaintiff is required to establish a prima facie case of discrimination by a preponderance of the evidence. Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at 253, 101 S.Ct. at 1093. The proof necessary to make such a showing will vary from case to case. McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. Generally, the plaintiff must produce sufficient evidence of actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on illegal discriminatory criterion. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). Once a prima facie case of discrimination has been established, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the actions taken. If the employer is able to do so, then the burden shifts to the plaintiff to prove by a preponderance of the evidence that the legitimate justification offered by the employer is merely a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at 256, 101 S.Ct. at 1095. The three-tiered approach of McDonnell Douglas should not, however, be rigidly applied. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983); Alires v. Amoco Production Co., 774 F.2d 409, 412 (10th Cir.1985). Rather, the purpose of the allocations of burdens in these types of cases is to "sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at 255, 101 S.Ct. at 1094.
Plaintiff has asserted that she was discriminated against because of her sex when she was not allowed to carry a gun until after she completed the reserve training program. The defendants have presented evidence which shows that all reserve officers, both male and female, were not allowed to carry firearms until they completed the reserve training program. Plaintiff responded that she knew of a male reserve officer who was allowed to carry a gun prior to completing the training program. The Department has admitted that a limited exception to the aforementioned policy did exist. This exception allowed reserve officers who had previously been certified to use firearms to carry guns. These reserves had either been previously commissioned in law enforcement or had been certified by the Department. The defendants have shown that the male reserve who was allowed to carry a gun prior to completing the reserve training program had previously been certified to use firearms three times by the Department. He had worked as a reserve officer for over a year prior to the time plaintiff began her service as a reserve officer. These uncontroverted facts fail to reveal the presence of any sex discrimination. The plaintiff has presented a prima facie case, and the defendants responded with a legitimate, non-discriminatory reason for their actions. Plaintiff has failed to demonstrate that the legitimate, non-discriminatory reason offered by the defendants is a pretext for discrimination. Accordingly, the defendants are entitled to summary judgment on this claim.
*1037 Plaintiff has also alleged that she was discriminated against because of her sex when she was not provided with a uniform as were some male reserves. The uncontroverted evidence demonstrates that it was the policy of the Department not to furnish uniforms to any reserves. However, the Department did provide leftover uniforms to reserve deputies if the uniforms fit. Plaintiff has admitted that she did not fit into any of the leftover uniforms but that some of her male counterparts did. This evidence clearly demonstrates that no sex discrimination was present concerning the issuance of uniforms. Thus, we find that the defendants are entitled to summary judgment on both of plaintiff's claims of sex discrimination relating to her service as a reserve deputy.
Plaintiff also asserts that she was discriminated against in the terms and conditions of her employment after she became a road patrol deputy with the Department in July, 1981. She contends that the defendants discriminated against her because of her sex in not sending her to the Law Enforcement Agency during her three month period of employment with the Department. The uncontroverted evidence before the court shows that road patrol deputies were not sent to the Academy until after the completion of their probationary periods. The reason for this requirement was to avoid the expense of sending individuals to the Academy who failed to complete the probationary period. The record here does contain a factual dispute as to whether plaintiff had a three or six month probationary period. However, this dispute is not material to a resolution of this issue. Whether the probation period was three months or six months makes no difference here since plaintiff was still clearly within her probationary period at her termination. Thus, plaintiff was not eligible to attend the Academy under Department practice. Plaintiff presented no evidence which suggests that the reason offered by the defendants was a pretext for sex discrimination. Plaintiff was unable to demonstrate disparate treatment concerning this claim. Accordingly, defendants are entitled to summary judgment on this claim.
The court shall next turn to plaintiff's claim that she was constructively discharged by the defendants because of her sex. As stated previously, for the purposes of this motion, we shall accept the plaintiff's version of the facts. Plaintiff has presented facts demonstrating a prima facie case. However, the defendants have responded with a legitimate, non-discriminatory reason for requesting that plaintiff resign from her position as a road deputy. The defendants have presented evidence that plaintiff was discharged or asked to resign in order to quell rumors in the community that plaintiff was engaged in a homosexual relationship with another female road patrol deputy. At this point, it is incumbent upon the plaintiff to demonstrate that issues of material fact exist as to whether the reason given by the defendants was a pretext for discrimination. In order to show pretext on this claim, plaintiff must show that similarly situated male road deputies were treated differently. Plaintiff has admitted that she has no such evidence. Plaintiff could also show disparate treatment of other females in the Department or other evidence of discrimination against her during her employment. See Mohammed v. Callaway, 698 F.2d 395, 399 (10th Cir.1983). Plaintiff has produced no other evidence. The evidence before the court shows no disparate treatment of females in the Department. Further, plaintiff has been unable to provide any evidence that she had been previously discriminated against by the defendants because of her sex. Under these circumstances, we are forced to conclude that the defendants are entitled to summary judgment on this claim.
In sum, we find that the defendants are entitled to summary judgment on all of plaintiff's claims of sex discrimination. Plaintiff has presented insufficient evidence of discriminatory intent by the defendants and, thus, summary judgment is appropriate. See Clark v. Atchison, Topeka & Santa Fe Railway Co., 731 F.2d 698 (10th Cir.1984). Summary judgment must be entered when there is no genuine issue *1038 of material fact that the legitimate, non-discriminatory reason offered by the defendant is a pretext. Carey v. United States Postal Service, 812 F.2d 621 (10th Cir. 1987).
Finally, we shall consider plaintiff's § 1983 right to association claim. The exact nature of this claim is somewhat vague. From the analysis contained in plaintiff's response to the defendants' motion for summary judgment, we must conclude that she is contending her associational rights were violated because she was discharged for riding with another female road patrol deputy in the Department.
The rights to freedom of speech, assembly and petition are expressly protected by the First Amendment, and there is no doubt that some rights of association are encompassed by these explicit guarantees. NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). However, this right of association is not open-ended; it does not exist in a vacuum and is circumscribed by the specific right involved and the circumstances surrounding the exercise of the right. When the state acts as an employer, it may not without substantial justification, condition employment on the relinquishment of constitutional rights. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). A balancing process must be applied. The court must balance the interests of the employee with the interests of the state, as the employer, in promoting the efficiency of the public services it performs through its employees. Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
The law is well-settled that the state has a significant interest in regulating the conduct of police officers. Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976); Gasparinetti v. Kerr, 568 F.2d 311 (3d Cir.1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2232, 56 L.Ed.2d 401 (1978). Courts have repeatedly recognized the significant state interest in deterring the conduct of police officers which brings a police department in disrepute. Baron v. Meloni, 556 F.Supp. 796 (W.D.N.Y.1983), aff'd without pub. opinion, 779 F.2d 36 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 798, 88 L.Ed.2d 775 (1986); Naragon v. Wharton, 572 F.Supp. 1117 (M.D.La.1983), aff'd, 737 F.2d 1403 (5th Cir.1984); Childers v. Dallas Police Dept., 513 F.Supp. 134 (N.D. Tex.1981); Wilson v. Swing, 463 F.Supp. 555 (M.D.N.C.1978).
The facts, even when viewed in the light most favorable to the plaintiff, do not suggest that plaintiff was discharged for riding with another female road patrol deputy. The facts, viewed in the light most favorable to the plaintiff, show that plaintiff was discharged because of the rumors that existed concerning her relationship with the other female road deputy. The court is convinced that any associational right that plaintiff might have is outweighed by the significant interests of the Department under the circumstances of this case. See, e.g., Rich v. Secretary of the Army, 735 F.2d 1220, 1229 (10th Cir. 1984). The defendants acted to protect the public image of the Department and to maintain close working relationships internally and externally with the community. These are legitimate concerns and they provide sufficient justification for the action taken against the plaintiff. The defendants did not unconstitutionally infringe plaintiff's First Amendment right to association when they discharged plaintiff. Accordingly, the defendants are entitled to summary judgment on this claim also.
Since the court has granted summary judgment against the plaintiff on all of her federal claims, the court shall dismiss the remaining pendent state claim. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Jones v. Intermountain Power Project, 794 F.2d 546, 549 (10th Cir.1986).
IT IS THEREFORE ORDERED that defendants' motion for summary judgment be hereby granted. Judgment shall be entered for all defendants and against the plaintiff.
IT IS SO ORDERED.
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535 F.2d 1039
UNITED STATES of America, Appellee,v.Johnny Leroy BRADIN, Appellant.
No. 75-1806.
United States Court of Appeals,Eighth Circuit.
Submitted Feb. 12, 1976.Decided May 17, 1976.
1
R. Thomas Day, Thomas M. Bradshaw, Asst. Federal Public Defenders, Kansas City, Mo., for appellant.
2
J. Whitfield Moody, Asst. U. S. Atty., Bert C. Hurn, U. S. Atty., and Albert D. Hoppe, Asst. U. S. Atty., Kansas City, Mo., for appellee.
3
Before BRIGHT and HENLEY, Circuit Judges, and REGAN, District Judge.*
4
REGAN, District Judge.
5
Upon his change of plea from not guilty to guilty of the offense of aggravated bank robbery in violation of §§ 2113(a) and (d), 18 U.S.C., defendant was committed to the custody of the Attorney General on July 10, 1975, for a 90-day study pursuant to the provisions of § 4208(b), 18 U.S.C. When he was returned on October 20, 1975, defendant orally requested leave to withdraw his plea of guilty and re-enter a plea of not guilty. The motion was denied, following which defendant was sentenced to a term of 15 years' imprisonment under the provisions of § 4208(a)(2), 18 U.S.C. This appeal followed. We affirm.
6
A preliminary question is whether defendant's motion to withdraw his plea of guilty was made "before sentence (was) imposed" within the meaning of Rule 32(d) of the Federal Rules of Criminal Procedure. If so, the rule to be applied is that a pre-sentence withdrawal motion should be granted whenever such would be "fair and just," whereas a post-sentence withdrawal motion is permitted only to "correct manifest injustice."1 We need not rule this issue, having concluded that under either standard the district court did not err in denying the withdrawal motion.
7
The sole issue presented on appeal is whether there was a factual basis for the guilty plea; that is, whether Rule 11 as it read prior to the effective date of its 1975 amendment was fully complied with. The point is raised for the first time on appeal. It is our duty, however, to review compliance with Rule 11 without regard to whether it was presented to the trial court. United States v. Untiedt, 479 F.2d 1265 (8th Cir. 1973); United States v. Briscoe, 428 F.2d 954 (8th Cir. 1970).
8
To the extent here relevant, Rule 11 then provided that the Court shall not enter a judgment on a plea of guilty unless it is satisfied there is a factual basis for the plea. There is no contention that Rule 11 was not fully complied with in any respect other than the requirement that the Court be satisfied prior to entry of judgment as to the factual basis for the plea. What the defendant argues is that the inquiries by the Court did not suffice to provide a factual basis for his guilty plea prior to the acceptance thereof.
9
However, when interrogated by the Court as to the nature of the offense to which he was pleading guilty, defendant (a high school graduate with two years' college work) stated that it was bank robbery with the use of a deadly weapon. Earlier in the Rule 11 interrogation defendant had volunteered a comment concerning "the injuries I received during this robbery." And counsel for defendant (the same counsel who still represents defendant on this appeal) informed the Court in the presence of defendant that based on the information he had secured from defendant and elsewhere, defendant was in fact guilty of the offense for which he was indicted, counsel adding "(t)hat this was a case in which defendant never denied his involvement in the offense. The only question was his (mental) responsibility at the time of the offense."2
10
Granted that the record made at the time defendant's plea was accepted might well have been expanded, it is our view that it suffices to demonstrate compliance with Rule 11. United States v. Cody, 438 F.2d 287 (8th Cir. 1970), which is relied on by defendant, is inapposite. What was there held was simply that the mere fact of itself that the indictment was read to the defendant at the time his plea was taken "falls far short of demonstrating any factual basis for the defendant's plea."
11
The portion of Rule 11 here involved, namely, that the Court may not enter judgment upon the plea unless it is satisfied there is a factual basis therefor, presupposes a prior, albeit tentative, acceptance of the plea by the Court. It speaks in terms of judgment. In Cody, this Court specifically noted, citing McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), that one method of determining that a factual basis exists for the plea is examining the presentence report. Such reports, of course, are not normally available to the Court prior to acceptance of a plea. Rule 32(c) (1), Federal Rules of Criminal Procedure.
12
The record in the present case discloses that the presentence report was submitted to and examined by the sentencing judge prior to the imposition of sentence. That report, which sets forth both the official and the defendant's version of the offense he committed, adequately provided the Court with a factual basis for the guilty plea before sentence was imposed. We add that in response to a direct question by the Court during the Rule 11 interrogation, defendant expressly admitted that he was in fact guilty of robbery with a deadly weapon.
13
The order appealed from is affirmed.
*
The Honorable John K. Regan, United States District Judge, Eastern District of Missouri, sitting by designation
1
The District of Columbia and Ninth Circuits have held that for purposes of Rule 32(d), a motion filed after a § 4208(b) sentencing but prior to final sentencing is to be judged under the "fair and just" standard. United States v. Barker, 168 U.S.App.D.C. 312, 514 F.2d 208, 218-219, cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975); United States v. Thomas, 415 F.2d 1216, 1218 (9th Cir. 1969); Sherman v. United States, 383 F.2d 837, 840 (9th Cir. 1967)
2
It is clear from defendant's statements at the time of his final sentencing that his oral motion to withdraw the plea of guilty was precipitated not by any question relating to the existence of a factual basis for the plea, but by defendant's belief that the sentence recommended by the Bureau of Prisons following the § 4208(b) study was too severe
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441 S.W.2d 485 (1969)
Frank BROWN, Plaintiff-in-Error,
v.
STATE of Tennessee, Defendant-in-Error.
Court of Criminal Appeals of Tennessee.
April 16, 1969.
Certiorari Denied June 2, 1969.
*486 James G. Nave, Cleveland, for plaintiff in error.
George F. McCanless, Atty. Gen. of Tenn., Lance D. Evans, Asst. Atty. Gen., Nashville, Tom J. Taylor, Dist. Atty. Gen., Cleveland, for defendant in error.
Certiorari Denied by Supreme Court June 2, 1969.
OPINION
OLIVER, Judge.
Frank Brown, the plaintiff in error and defendant below, was convicted in the Criminal Court of Bradley County of assault with intent to commit second degree murder and was sentenced to imprisonment for one year in the State Penitentiary. His motion for a new trial being overruled, the defendant excepted and prayed and was granted and has perfected an appeal in the nature of a writ of error to this Court.
The first two Assignments of Error challenge the sufficiency of the evidence to warrant and sustain the verdict of the jury. In examining this contention, we are bound by the well-established rule, settled by numerous decisions of the Supreme Court of Tennessee, that a verdict of guilt, approved by the trial judge, accredits the testimony of the State's witnesses, resolves all conflicts in the testimony in favor of the State and establishes the State's theory of the case; that under such a verdict the presumption of innocence which the law throws around an accused and which stands as a witness for him in his trial, disappears, and upon appeal that presumption of innocence is replaced by a presumption of guilt; that this Court is not permitted to reverse a conviction upon the facts unless the evidence clearly preponderates against the verdict of the jury and in favor of the innocence of the accused; that we may review the evidence only to determine whether it preponderates against the verdict; and that the defendant has the burden of showing on appeal that the evidence preponderates against the verdict and in favor of his innocence. Turner v. State, 216 Tenn. 714, 394 S.W.2d 635; Chico v. State, 217 Tenn. 19, 394 S.W.2d 648; Johnson v. State, 217 Tenn. 234, 397 S.W.2d 170; Brenner v. State, 217 Tenn. 427, 398 S.W.2d 252; Owens v. State, 217 Tenn. 544, 399 S.W.2d 507; Harris v. State, 217 Tenn. 582, 399 S.W.2d 749; Pryor v. State, 217 Tenn. 695, 400 S.W.2d 700; Monts v. State, 218 Tenn. 31, 400 S. W.2d 722; Patterson v. State, 218 Tenn. 80, 400 S.W.2d 743; Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523; McBee v. State, 213 Tenn. 15, 372 S.W.2d 173; Gulley v. State, 219 Tenn. 114, 407 S.W.2d 186; Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768.
*487 This rule governing appellate review of criminal convictions makes unnecessary and, indeed, inappropriate, any detailed discussion of the evidence pro and con. Hargrove v. State, 199 Tenn. 25, 28, 281 S.W. 2d 692, 694; Morrison v. State, 217 Tenn. 374, 397 S.W.2d 826, 400 S.W.2d 237.
The evidence accredited by the jury may be summarized briefly. Mike Westfield, who was fifteen, was driving his father's car in the late afternoon of September 28, 1966 in Cleveland, Tennessee. With him were his cousin Isbella Westfield and Alvin Porter. The motor stopped on Twentieth Street near the defendant's property. Unable to get it started again immediately, it was maneuvered to the side of the street by letting it roll backwards. Mike was acquainted with this misbehavior of the vehicle and knew that it would start again after letting it cool off. So the three youngsters sat inside the car and talked for about twenty minutes.
The defendant operated a junkyard on the adjacent property, and a roadway which was formerly a street ran through his property. While Mike was outside the car checking it, the defendant and an employee, J.B. Martin, were seen approaching on this roadway. The defendant yelled twice at him to stop. Seeing that the defendant had a shotgun, Mike became frightened and tried to get back into the car. As he was doing so the defendant shot him, shots striking him under his right arm and in the lower portion of his back. After Mike got into the rear seat of the car the defendant fired again, breaking out the rear window and hitting him in the head. The defendant then turned and walked back toward his house. Isbella Westfield then succeeded in getting the car started and took Mike to the hospital.
In his testimony, the defendant maintained that thieves had stolen much of his property from the junkyard; that he had repeatedly complained to the Sheriff's office to no avail; that Mike Westfield and Isbella Westfield were stealing five-gallon buckets of his plumbing fixtures and fittings and were putting them in the car, and that he fired to stop the theft when Mike ignored his demand to stop. His attitude in the whole matter is expressed in his testimony: "I think it is an awful good remedy. It must have got the job done." Mike and Isbella denied that they were stealing or loading any of the defendant's property into the car.
The defendant did not offer J. B. Martin as a witness, whom he had hired to help him protect his property, and was most reluctant to give his namegiving as his reason that Martin did not want to become involved. His failure to produce Martin as a witness, without any showing of an effort to do so, gives rise to a presumption that if he had been presented as a witness his testimony would have been unfavorable to the defendant. Ford v. State, 184 Tenn. 443, 449, 201 S.W.2d 539; Harless v. State, 189 Tenn. 419, 422, 225 S.W.2d 258.
Clearly, the defendant has failed to carry the burden of demonstrating here that the evidence preponderates against the verdict of the jury and in favor of his innocence.
In his third and fourth Assignments of Error, the defendant insists that the trial court erred in not allowing him to testify about his property having been continually stolen over a period of time and that he had been unsuccessful in obtaining the protection of the law from the Sheriff. Notwithstanding that the trial court repeatedly sustained objections by the State to such testimony, defense counsel persisted in pursuing the matter through interrogation of the defendant and thereby effectively presented those contentions before the jury. Moreover, those matters were wholly irrelevant and immaterial and such testimony was incompetent and inadmissible for any purpose, as the trial court correctly held.
*488 The defendant's fifth and sixth Assignments of Error may be considered together. His fifth Assignment is that the trial court erroneously charged the jury:
"Gentlemen, no one has the right to shoot another man for the commission of larceny or the commission of any other crime. The law never allows any man to judge or inflict any punishment upon his fellow man, except by due process of law.
* * * * * *
"A person does not have the right to shoot another or inflict punishment upon another under the guise of making an arrest or under the guise of self defense.
"A person does not have a right to shoot another person merely in the protection of his property, but if a person came to rob the owner and the larceny was directed more toward the person than to the property, a person may shoot in self defense. That is, he may be justified in shooting if in protecting his property he also was protecting his self."
The sixth Assignment relates to the refusal of the trial court to charge the following special request:
"If you find that Mike Westfield was in the actual perpetration of a felony, that is that of larceny, when he was shot, then you should acquit the defendant."
There is no merit in these last two Assignments of Error. They represent some misunderstanding of the applicable law. In 40 C.J.S. Homicide § 93, p. 954 it is said:
"An assault with intent to kill cannot be justified on the ground that it was necessary to prevent a mere trespass on property or to expel an actual trespasser; but a person may lawfully repel force by force in defense of his property against one who manifestly intends, by violence or surprise, to commit a felony against it, and, if in making such defense, he takes or endangers the life of the felonious aggressor, the act is justifiable. Under a statute regarding resistance of an attempt to take property by `force,' an attempted taking need not be by violence to justify forcible resistence.
"The owner may lawfully use such reasonable force as is necessary, under the circumstances, to protect or regain possession of his property, and what is such reasonable force is a question of fact for the jury. The criterion of necessity which justifies the use of force by the property owner in defense of his property is the apparent, and not the actual, necessity, and he will be judged by what a reasonably prudent man in good faith would do under such circumstances."
The subject is treated as follows in 40 Am.Jur.2d, Homicide, § 180, pp. 464-465:
"While the law justifies or excuses the taking of life when necessary to prevent commission of felonies, or in the defense or protection of one's dwelling house or habitation, one cannot defend his property, other than his habitation, to the extent of killing or inflicting serious bodily injury upon the aggressor for the mere purpose of preventing a trespass, where the invasion is made without force. While a person aggrieved by a trespass may repel the intruder by such force as may be reasonably necessary, short of taking human life or inflicting great bodily harm, only in extreme cases can one endanger human life or do great bodily harm in defense of property. Although there is a suggestion in some of the cases that a destruction of property may justify a taking of life, or that the right to take life in defense of property may be a `natural right,' yet its exercise is limited strictly to the prevention of forcible and atrocious crimes.
"In general, it may be said that the law countenances the taking of human life in connection with the defense of property only where an element of danger to the person of the slayer is present or where the slaying is necessary to prevent the *489 commission of a felony. While an owner or lawful occupant of land may resist a forcible trespass upon the land, he cannot justify or excuse his act in killing another to prevent a mere trespass upon his property other than his habitation if the homicide was not necessary to prevent a forcible felony, or to protect his own life from the trespasser, or if the trespass was unaccompanied by any attack on or danger to the person of the slayer."
The law upon this subject is also given in 1 Wharton's Criminal Law and Procedure, Homicide, § 223, pp. 492, 495:
"Except to the extent that one may kill to prevent the commission of a felony by force or surprise, or to apprehend a felon, or in defense of one's habitation or place of business, there is no right, apart from statute, to kill in defense of property. While an owner may lawfully use reasonable force to protect his property, if he kills in order to protect it, he is guilty of felonious homicide.
* * * * * *
"While a man may use as much force as is necessary in the defense of his property, it is generally held that in the absence of the use of force on the part of the intruder, he is not justified in the use of such force as to inflict great bodily harm or to endanger life." (Ibid. p. 495)
This subject is further elaborated in the author's treatment of assault, battery and mayhem in 1 Wharton's Criminal Law and Procedure, § 354, p. 708:
"A person may use as much force as is reasonably necessary in the defense of his property. It is generally held that in the absence of the use of force on the part of the intruder, the owner is not justified in inflicting great bodily harm or endangering life.
"The preservation of human life and limb from grievous harm is of more importance to society than the protection of property. Hence, when a person uses more force in the protection of his property than the circumstances of the attack thereon warrant, he is chargeable criminally for the assault and battery."
The rule is also stated in 1 Warren on Homicide, § 141, p. 614, in the author's treatment of the subject of assault with intent to kill:
"One in possession of land may resist an entry thereon. But an assault with intent to kill can not be justified on the ground of its necessity in defense of property, unless there is a statute making it justifiable. Therefore it is no defense to a prosecution for assault with intent to murder that the one assaulted was a trespasser on the grounds of defendant."
The defendant does not claim that he was being robbed, nor that Mike Westfield was threatening or attempting to assault or inflict upon him any bodily harm, nor that he acted in his own necessary self defense. Clearly, the jury rejected the defendant's contention that Mike Westfield and those with him were stealing and carrying off his property. However, even if they were doing so, the defendant acted unlawfully and became criminally liable when he deliberately shot Mike Westfield with a shotgun as he entered his vehicle and again after he was seated inside. And when the defendant did so, under the facts and circumstances shown in this record, there can be no doubt that he thereby intended to kill the boy then and there.
All Assignments of Error are overruled. The judgment of the trial court is here modified by vacating that portion thereof which erroneously rendered the defendant infamous. T.C.A. § 40-2712. As thus modified, the judgment of the trial court is affirmed.
GALBREATH, J., did not participate in this case.
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25 F.3d 1041NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES of America, Plaintiff-Appellee,v.Wilhelmena Ward ALFORD, Defendant-Appellant.
No. 93-5073.
United States Court of Appeals, Fourth Circuit.
Submitted: May 24, 1994.Decided: June 14, 1994.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Chief District Judge. (CR-92-71-CR-F)
Jack B. Crawley, Jr., Raleigh, NC, for appellant.
Rudolf A. Renfer, Jr., U.S. Atty., J. Douglas McCullough, Asst. U.S. Atty., Raleigh, NC, for appellee.
E.D.N.C.
AFFIRMED.
Before WIDENER, WILKINSON, and NIEMEYER, Circuit Judges.
OPINION
PER CURIAM:
1
Wilhelmena Ward Alford pled guilty to Count One of a superseding indictment charging her with conspiring to possess crack cocaine with intent to distribute from December 1989 to May 20, 1992, 21 U.S.C.A. Sec. 846 (West Supp.1994), and was sentenced to a term of 135 months. She appeals her sentence, alleging error in the district court's determination of the drug amount, as well as its failure to award her a minimal role adjustment, and its failure to depart downward because of the racially disparate impact of the sentencing guidelines for crack cocaine offenses. We affirm.
2
On May 20, 1992, police intercepted an Express Mail package addressed to Alford which contained 340 grams of crack (12.5 ounces). Alford was not home when the package was delivered by a postal inspector posing as a letter carrier. Leslie Townsend accepted the package, and Michael Ervin came to the apartment during the subsequent search.
3
Alford pled guilty after Ervin and Townsend entered guilty pleas to conspiracy. Townsend told authorities that Alford had sold her cocaine about 100 times since 1989. Ervin said he had sent four other packages containing drugs to Alford's apartment, and that those packages contained in all, one ounce of cocaine, five ounces of crack, and seven grams of crack. He said that he had distributed another two ounces to Alford and Townsend in New York on one occasion, and that all of them had contributed toward the purchase of the 340 grams of crack in the package delivered May 20, 1992. At the joint sentencing hearing, both Townsend and Alford denied contributing any money for the 340 grams of crack and the district court did not consider the allegation.
4
Alford admitted selling drugs for Ervin in 1990, and admitted that after she stopped selling drugs she allowed him to use her apartment as an address where he could receive mail. She said she let him into her apartment during her lunch hour on May 20, 1992, and suspected he was to receive a package containing drugs.
5
Alford objected to the recommended base offense level of thirty-six (500 grams to 1.5 kilograms of crack), which took into account the drugs contained in the May 20, 1992, package and the other amounts Ervin described. United States Sentencing Commission, Guidelines Manual, Sec. 2D1.1 (Nov.1993). Alford suggested at sentencing that Ervin was not a credible source of information, and that the 340 grams of crack in the package intercepted on May 20, 1992, was not reasonably foreseeable to her because she and Ervin had dealt in smaller amounts. The district court found that the offense level was properly calculated.
6
Alford renews her arguments on appeal. We review the district court's determination of the drug amount for clear error, United States v. Goff, 907 F.2d 1441, 1444 (4th Cir.1990), and find none. Alford did not seriously challenge any of the information provided by Ervin which the district court considered. Because Alford aided and abetted Ervin's receipt of the May 20, 1992, package by allowing him to use her apartment, the whole amount of crack in the package is attributable to her as relevant conduct, without regard to the issue of reasonable foreseeability. U.S.S.G. Sec. 1B1.3(a)(1), comment (n.2).
7
Alford did not request a minimal role adjustment, U.S.S.G. Sec. 3B1.2, or a departure based on the disparate impact of the crack guidelines. On appeal, however, she contends that the district court erred in not sua sponte granting her the adjustment and a departure. Issues presented for the first time on appeal are reviewed solely for plain error. Fed.R.Crim.P. 52(b). Questions of fact capable of resolution by the district court during sentencing, such as the defendant's role in the offense, cannot constitute plain error. United States v. Lopez, 923 F.2d 47, 50 (5th Cir.), cert. denied, 500 U.S. 924 (1991). This Court has previously held that the disparate impact of the crack guidelines on black defendants is not grounds for a departure because Sec. 841, on which they are based, is racially neutral. United States v. Bynum, 3F.3d 769, 775 (4th Cir.1993), cert. denied, 62 U.S.L.W. 3552 (U.S.1994).
8
We therefore affirm the judgment of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
AFFIRMED
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Case: 12-20034 Document: 00512140008 Page: 1 Date Filed: 02/08/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 8, 2013
No. 12-20034 Lyle W. Cayce
Clerk
TINA MILTON,
Plaintiff - Appellant
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY, PRADO, and HIGGINSON, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Tina Milton, a former Texas Department of Criminal Justice (“TDCJ”)
employee, who is allergic to scented products used in her workplace, appeals the
district court’s summary judgment for TDCJ on her Americans with Disabilities
Act (“ADA”) and Family and Medical Leave Act (“FMLA”) claims.1 For the
following reasons, we AFFIRM the judgment of the district court.
1
Milton also argues that the district court abused its discretion in restricting discovery
in this case. Although the district judge’s management of the case was unusual, additional
discovery would not have raised facts that would have made summary judgment unwarranted.
As such, any abuse of discretion in the management of discovery was harmless.
Case: 12-20034 Document: 00512140008 Page: 2 Date Filed: 02/08/2013
No. 12-20034
I.
Tina Milton was a clerical employee with TDCJ for quite a while: from
November 1990 until April 19, 2007. She was employed at the Wynne Unit in
Huntsville, Texas, where she was responsible for looking for coded gang
messages in inmate mail. She was terminated, administratively, in April 2007
after failing to provide medical documentation verifying her FMLA leave.
Milton’s reaction to the use of scented candles and wall plug-ins around
her work area is the basis of her ADA claim and of this current litigation. She
generally suffers from numerous respiratory issues, including asthma, allergies,
and a severe sensitivity to perfumed or scented products. Exposure to scented
candles, wall plug-ins, and room deodorizers causes her asthma, headaches,
nausea, chest tightness, coughing, rhinitis, and sinusitis. She mitigates these
side effects by self-segregating in public and social settings in an attempt to
avoid exposure to scented products. Her sensitivity, however, usually did not
preclude her from doing her job. On the other side of the ledger is the reason for
scented products at the Wynne Unit: it is located in a century old building and
the dust and musty smells are overwhelming to the large majority of its
employees.
Milton first called to the attention of TDCJ her problem with the use of
scented products in the workplace in 2006, following her return to work from
sinus surgery. She addressed the issue informally with her TDCJ supervisors,
asking that the scented products be removed. Milton was contacted by an
assistant warden, and she asked the assistant warden whether he could remove
the plug-ins and candles because of her allergies, asthma, and breathing
problems.
The informal process, however, did not resolve the situation. So, Milton
filed a formal request for ADA accommodation in December 2006. Her requested
accommodation simply stated, “No plug in or candles. Strong [odors].” TDCJ’s
2
Case: 12-20034 Document: 00512140008 Page: 3 Date Filed: 02/08/2013
No. 12-20034
ADA coordinator, Tracy Bailey, denied the request. Bailey viewed Milton as
being allergic to everything airborne–not just the scented candles and plug-ins
used in Milton’s current workspace. After denying the initial accommodation
request, Bailey allowed Milton 90 days to find another available TDCJ position
that could accommodate her respiratory sensitivity. Milton brought other
positions that were available to Bailey’s attention, such as in inmate records, but
Bailey determined that they equally were unsuitable due to the presence of dust.
Because no suitable alternative was found, TDCJ closed Milton’s ADA file in
March 2007.
The adverse impact on Milton’s health reached its peak when she took
FMLA leave, effective January 3, 2007. Milton stated that her body was worn
down, she was sick, in pain, her face was swollen, and her blood pressure was
elevated. A condition of Milton’s leave, however, was that she submit medical
certification of her continued illness, as provided by the FMLA. Milton provided
this certification in January 2007, and continued to do so until March 2007.
TDCJ never received Milton’s March 2007 certification. TDCJ has no record of
receiving a fax from the medical provider, and the phone records do not show
that the medical provider sent a fax to TDCJ. Milton was not informed of the
missing March certification until April 19, after she had been administratively
terminated. It seems that no one questions that TDCJ never received the March
certification, for whatever reason.
II.
We review the district court’s decision granting summary judgment de
novo, applying the same standards as the trial court. Griffin v. United Parcel
Serv., Inc., 661 F.3d 216, 221 (5th Cir. 2011). “Summary judgment is proper if
the evidence shows that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” Id. Evidence
is construed “in the light most favorable to the non-moving party . . . draw[ing]
3
Case: 12-20034 Document: 00512140008 Page: 4 Date Filed: 02/08/2013
No. 12-20034
all reasonable inferences in that party’s favor.” Id. “[C]onclusory allegations,
unsubstantiated assertions, or only a scintilla of evidence” are insufficient to
create a genuine issue of material fact. Warfield v. Byron, 436 F.3d 551, 557 (5th
Cir. 2006). Summary judgment can be affirmed “on any grounds supported by
the record,” even if we do “not agree with the reasons given by the district court
to support summary judgment.” Lifecare Hosp., Inc. v. Health Plus of La., Inc.,
418 F.3d 436, 439 (5th Cir. 2005).
III.
Under the ADA, “No covered entity shall discriminate against a qualified
individual on the basis of disability in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.” 42 U.S.C.
§ 12112(a). A qualified individual is a person “who, with or without reasonable
accommodation, can perform the essential functions of the employment position
that such individual holds or desires.” § 12111(8). Moreover, disability is
defined as: “(A) a physical or mental impairment that substantially limits one
or more major life activities [of such individual]; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.” § 12102(1).
Thus, in order to make out a prima facie case, Milton must show: “(1) [she]
suffers from a disability; (2) [she] is qualified for the job; (3) [she] was subject to
an adverse employment action; and (4) [she] was replaced by a non-disabled
person or was treated less favorably than non-disabled employees.” Daigle v.
Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995).
“Merely having an ‘impairment’ does not make one disabled for purposes
of the ADA.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002).2
2
Although Williams was overruled by the ADA Amendments Act of 2008, Pub. L. No.
110-325, 122 Stat. 3553 (2008), we held in Agro Distribution that the “changes do not apply
retroactively.” EEOC v. Agro Distribution, LLC, 555 F.3d 462, 469 n.8 (5th Cir. 2009). The
4
Case: 12-20034 Document: 00512140008 Page: 5 Date Filed: 02/08/2013
No. 12-20034
Rather, the impairment must substantially limit the individual. See EEOC v.
Agro Distribution, LLC, 555 F.3d 462, 469 (5th Cir. 2009). “‘Substantially limits’
means a person is ‘[s]ignificantly restricted as to the condition, manner or
duration under which an individual can perform a particular major life activity
as compared to the condition, manner, or duration under which the average
person in the general population can perform that same major life activity.’” Id.
(quoting 29 C.F.R. § 1630.2(j)(1)(ii) (2008)). In Agro Distribution, we restated
that “whether an impairment is substantially limiting ‘is determined in light of
(1) the nature and severity of the impairment; (2) its duration or expected
duration; and (3) its permanent or expected permanent or long-term impact.’”
Id. at 470 (quoting Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir.
1995)). Furthermore, this is “an individualized assessment that considers the
effects of any mitigating measures taken by the individual.” Id.; see also Sutton
v. United Air Lines, Inc., 527 U.S. 471, 482 (1999) (“A ‘disability’ exists only
where an impairment ‘substantially limits’ a major life activity, not where it
‘might,’ ‘could,’ or ‘would’ be substantially limiting if mitigating measures were
not taken.”).
Relying on an individualized assessment of the facts of Milton’s case and
our prior precedent on substantial limitations, we hold that Milton has failed to
demonstrate a genuine issue of material fact as to whether she suffers from a
disability. Although there is ample evidence that Milton’s condition affects her
life activities, we generally have not recognized disabilities based on conditions
that the individual can effectively mitigate. See, e.g., Agro Distribution, 555 F.3d
at 470-71; Hamilton v. S.W. Bell Tel. Co., 136 F.3d 1047, 1050-51 (5th Cir. 1998)
(finding no disability because of the temporary nature of the post-traumatic
stress disorder and its impact on the appellant’s ability to work); see also Muller
events giving rise to Milton’s case all took place before the enactment of 2008 Amendments,
and as such, the amendments do not apply.
5
Case: 12-20034 Document: 00512140008 Page: 6 Date Filed: 02/08/2013
No. 12-20034
v. Costello, 187 F.3d 298, 314 (2d Cir. 1999) (finding no disability because
appellant did not suffer enough difficulty breathing when off the job to find that
his condition substantially limited a major life activity). Moreover, there are
significant differences between Milton’s condition and the arguably analogous
case of Albert v. Smith’s Food & Drug Centers, Inc., where the Tenth Circuit
concluded that the individual had raised a genuine issue of material fact as to
whether she did suffer from a disability. 356 F.3d 1242, 1245 (10th Cir. 2004).
In Albert, “a large variety of materials [could] trigger an asthma attack . . . and
such an episode render[ed] her completely unable to function.” Id. Unlike
Milton, however, the individual in Albert was prescribed medication, which still
did not fully control her breathing problems, and she was “symptomatic most of
the time.” Id. at 1251. In addition, the individual made “frequent trips to the
emergency room” and had been hospitalized multiple times. Id. By contrast,
Milton was able to mitigate her symptoms and was not consistently restricted
in her ability to breathe. Milton’s sensitivity to perfumed odors certainly caused
her discomfort and inconvenience, but this condition was narrowly restricted in
time and place and could be avoided in the larger context outside of the
particular workplace at a particular employer. In any event, her disability could
not, in totality, be called severe and in no case was nearly as severe as that
suffered by the individual in Albert; it simply did not rise to the level of a
substantial impairment of the major life activity—that is, the ability to engage
in productive and compensable work for which she was qualified by virtue of her
experience and training. Thus the district court properly concluded, under the
pre-ADA Amendments law that we apply in this case, that Milton did not raise
a genuine issue of material fact as to whether she was a qualified individual
with a disability within the meaning of the ADA.
6
Case: 12-20034 Document: 00512140008 Page: 7 Date Filed: 02/08/2013
No. 12-20034
IV.
We now turn to her FMLA claim. Under the FMLA, “[a]n eligible
employee of a covered employer has the right to take unpaid leave for a period
of up to 12 workweeks in any 12-month period when the employee has ‘a serious
health condition that makes [him or her] unable to perform the function of [his
or her] position.’” Bocalbos v. Nat’l W. Life Ins. Co., 162 F.3d 379, 383 (5th Cir.
1998) (quoting 29 U.S.C. § 2612(a)(1)(D)). Moreover, “[f]ollowing a qualified
leave period, the employee is entitled to reinstatement to the former position or
an equivalent one with the same benefits and terms.” Id. Employers, however,
can require medical certification for FMLA leave. See 29 C.F.R. § 825.305(b)
(“The employee must provide the requested certification . . . within 15 calendar
days after the employer’s request, unless it is not practicable under the
particular circumstances to do so despite the employee’s diligent, good faith
efforts.”). “A certification that is not returned to the employer is not considered
incomplete or insufficient, but constitutes a failure to provide certification,” and
the regulations do not require employers to advise employees of missing
certifications. Id. § 825.305(c). If the employee fails to provide certification, “the
employer may deny the taking of FMLA leave.” Id. § 825.305(d).
Thus, the only issue the district court needed to consider was whether
Milton submitted the required medical certification before April 12, 2007. There
is no genuine dispute that the certification was not timely received. Although
Milton argues that TDCJ never informed her that she could be discharged for
failing to provide the medical certification, the request for leave states, “Your
failure to submit proper documentation as required by policy may be cause for
disciplinary action or separation from employment.” (Emphasis added.) The
district court thus properly granted summary judgment for TDCJ on the FMLA
claim.
7
Case: 12-20034 Document: 00512140008 Page: 8 Date Filed: 02/08/2013
No. 12-20034
V.
We hold that Milton did not suffer from a disability within the meaning
and coverage of the ADA. Furthermore, there is no dispute that TDCJ did not
receive Milton’s FMLA certification before the deadline. The district court’s
judgment is therefore
AFFIRMED.
8
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Slip Op. 09 - 68
J U D G M E N T
UNITED STATES COURT OF INTERNATIONAL TRADE
Thomas J. Aquilino, Jr., Senior Judge
- - - - - - - - - - - - - - - - - - - -x
FORMER EMPLOYEES OF WARP PROCESSING :
CO., INC.,
:
Plaintiffs,
:
v. Court No. 08-00179
:
UNITED STATES DEPARTMENT OF LABOR,
:
Defendant.
:
- - - - - - - - - - - - - - - - - - - -x
This case pursuant to 19 U.S.C. §2395 and 28 U.S.C.
§1581(d) having been brought by former employees of Warp Processing
Co., Inc. of Exeter, Pennsylvania, seeking judicial review of the
Negative Determinations Regarding Eligibility To Apply for Worker
Adjustment Assistance And Alternative Trade Adjustment Assistance
(Feb. 19, 2008) of the Employment and Training Administration
(“ETA”), U.S. Department of Labor, No. TA-W-62,655, and of its
subsequent Notice of Negative Determination Regarding Application
for Reconsideration (March 18, 2008); and, after joinder of issue,
the defendant having interposed a motion for voluntary remand “to
enable Labor to state with greater clarity and accuracy the bases
for its determination in a way that would facilitate this Court’s
Court No. 08-00179 Page 2
review”; and the court in slip opinion 09-14, 33 CIT (Feb. 20,
2009), having granted said motion and remanded this matter to the
ETA for reconsideration; and the defendant having filed ETA’s
Notice of Revised Determination on Remand (May 1, 2009), certifying
that
All workers of Warp Processing Company, Inc., Exeter,
Pennsylvania, who became totally or partially separated
from employment on or after January 9, 2007, through two
years from this revised determination, are eligible to
apply for Trade Adjustment Assistance under Section 223
of the Trade Act of 1974, and are eligible to apply for
alternative trade adjustment assistance under Section 246
of the Trade Act of 1974[;]
and the plaintiffs having thereafter urged the court to affirm this
certification; Now therefore, after due deliberation, it is
ORDERED, ADJUDGED AND DECREED that ETA’s foregoing
certification, as set forth in its Notice of Revised Determination
on Remand (May 1, 2009), be, and it hereby is, affirmed.
Dated: New York, New York
July 1, 2009
/s/ Thomas J. Aquilino, Jr.
Senior Judge
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03/21/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 17, 2017 Session
CATHY GWEN AGEE SWAFFORD v. DANNY EARL SWAFFORD, SR.
Appeal from the Circuit Court for Bledsoe County
No. 4381 Jeffrey F. Stewart, Chancellor
___________________________________
No. E2017-00095-COA-R3-CV
___________________________________
This is a divorce action involving the classification of the parties’ separate and marital
property and equitable division of the marital assets. Because we are unable to discern
whether the trial court classified the wife’s retirement accounts as marital or separate
property prior to its division of the marital estate and because the trial court failed to
make sufficient findings of fact regarding several items of property prior to the
distribution, we hereby vacate the trial court’s distribution of marital property. We
remand this matter to the trial court for entry of sufficient findings of fact and
conclusions of law regarding the classification, valuation, and ultimate distribution of the
parties’ marital property.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Vacated; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.
Cindy Morgan, Sparta, Tennessee, for the appellant, Danny Earl Swafford, Sr.
Randal R. Boston, Crossville, Tennessee, for the appellee, Cathy Gwen Agee Swafford.
OPINION
I. Factual and Procedural Background
Cathy Gwen Agee Swafford (“Wife”) and Danny Earl Swafford, Sr. (“Husband”)
were married in 2003. The parties initially separated in 2007. Wife filed a complaint for
divorce on August 8, 2007, asserting that the parties owned certain real and personal
property, which she requested that the trial court equitably divide. Wife also sought an
equitable division and allocation of the parties’ substantial debt. Husband filed an answer
on May 2, 2008, averring that the parties had reconciled and had been living together
until mid-April 2008. Husband thereby requested that the complaint be dismissed. On
appeal, the parties agree that they had reconciled for a period of time and eventually
separated in April 2008. Following the final separation, Wife pursued the previously
filed divorce proceedings.
On August 9, 2007, Wife filed a motion seeking a pendente lite order directing
that Husband be solely responsible for the payment of certain marital debts. This motion
was not addressed by the trial court until Wife filed a subsequent motion requesting
similar relief on June 8, 2008. The trial court entered an order dated July 11, 2008,
concerning a June 23, 2008 hearing conducted regarding Wife’s motions. The court
noted that Husband had failed to appear after receiving proper notice regarding the
hearing. The court’s order reflects that Husband had advised his attorney that he was “‘in
the hay field’” and could not be present. In its July 11, 2008 order, the court awarded to
Wife certain personalty that she had owned prior to the marriage. The court also
determined that Husband would be solely responsible for the debts related to the
“farming, logging and sawmill businesses,” including debts owed to Ag Credit, First
National Bank, New Holland Credit/CNH Capital Operations, Discover, and Mastercard.
The trial court reserved all remaining issues for trial.
On October 14, 2008, Husband filed a motion seeking to set aside the trial court’s
previous order, stating that he had not been provided advance notice of the hearing date.
Husband subsequently filed a motion seeking disbursement of certain funds held by
Wife’s employer, Mountain Farm Equipment, which had sold farm equipment for the
parties on consignment.
The trial court conducted a trial on August 1, 2012, and entered a “Decree of
Divorce” on October 15, 2012. The court awarded a divorce to Wife based upon
Husband’s stipulation that grounds existed. The remaining issues were reserved for a
later hearing. On August 19, 2013, the trial court entered an “Order Amending Decree of
Divorce,” which restored Wife’s prior surname of “Agee.”
On May 4, 2015, Husband filed a motion seeking the recusal of Judge Justin
Angel from presiding in the matter. Husband asserted that Judge Angel had recently
practiced with Wife’s former attorney during the pendency of the action. Judge Angel
entered an order of recusal on July 22, 2015. On July 28, 2015, Chancellor Jeffrey
Stewart was appointed to hear the case by interchange. On August 3, 2015, Wife filed a
motion alleging that Husband was in contempt of court for failing to pay the debts
previously allocated to him by the trial court’s pendente lite order. On November 4,
-2-
2015, Wife filed an additional motion, requesting that Husband be held in contempt for
failing to appear at mediation.
The trial court conducted a hearing on October 24, 2016, and subsequently entered
an order on December 19, 2016, wherein the court distributed the parties’ assets and
debts. The court determined that by the time of trial, most of the parties’ assets “were
gone” because the marital residence had been foreclosed upon and many other assets had
been sold after Husband failed to pay the debts he was previously ordered to pay. In its
equitable division of the marital assets, the trial court referred to Trial Exhibit 17, which
was a list of assets and debts prepared for trial. The court ordered that all marital
property marked as “hers” on Exhibit 17 would be awarded to Wife and that the
remaining marital property listed on Exhibit 17 would be sold with the proceeds divided
equally between the parties.
Additionally, the court awarded to Wife as her “sole and separate property” the
entire amount of her retirement accounts and her personal checking account. The court
ordered Husband to repay Wife $25,000.00, representing approximately half of the equity
in the marital home that had been lost by reason of foreclosure. The court also ordered
Husband to repay Wife $14,945.00, representing proceeds from the sale of Wife’s
separate real property that had been used to pay a debt allocated to Husband. Husband
was further ordered to reimburse Wife $6,000.00, which represented Husband’s half of
certain joint debts that were paid by Wife after Husband had failed to pay debts the court
had ordered him to pay. Husband timely appealed.
II. Issue Presented
Husband presents the following issue for our review, which we have restated
slightly:
Whether the trial court erred by failing to equitably divide the parties’
marital property.
III. Standard of Review
In a case involving the proper classification and distribution of assets incident to a
divorce, our Supreme Court has elucidated the applicable standard of appellate review as
follows:
This Court gives great weight to the decisions of the trial court in dividing
marital assets and “we are disinclined to disturb the trial court’s decision
unless the distribution lacks proper evidentiary support or results in some
error of law or misapplication of statutory requirements and procedures.”
-3-
Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996). As such,
when dealing with the trial court’s findings of fact, we review the record de
novo with a presumption of correctness, and we must honor those findings
unless there is evidence which preponderates to the contrary. Tenn. R.
App. P. 13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91
(Tenn. 1993). Because trial courts are in a far better position than this
Court to observe the demeanor of the witnesses, the weight, faith, and
credit to be given witnesses’ testimony lies in the first instance with the
trial court. Roberts v. Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App.
1991). Consequently, where issues of credibility and weight of testimony
are involved, this Court will accord considerable deference to the trial
court’s factual findings. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct.
App. 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co., 984
S.W.2d 912, 915 (Tenn. 1999)). The trial court’s conclusions of law,
however, are accorded no presumption of correctness. Langschmidt v.
Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).
Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007). Questions relating to the classification
of assets as marital or separate are questions of fact. Bilyeu v. Bilyeu, 196 S.W.3d 131,
135 (Tenn. Ct. App. 2005).
Furthermore, as this Court has previously held:
Because Tennessee is a “dual property” state, a trial court must identify all
of the assets possessed by the divorcing parties as either separate property
or marital property before equitably dividing the marital estate. Separate
property is not subject to division. In contrast, Tenn. Code Ann. § 36-4-
121(c) outlines the relevant factors that a court must consider when
equitably dividing the marital property without regard to fault on the part of
either party. An equitable division of marital property is not necessarily an
equal division, and § 36-4-121(a)(1) only requires an equitable division.
McHugh v. McHugh, No. E2009-01391-COA-R3-CV, 2010 WL 1526140, at *3-4 (Tenn.
Ct. App. Apr. 16, 2010) (internal citations omitted). See Manis v. Manis, 49 S.W.3d 295,
306 (Tenn. Ct. App. 2001) (holding that appellate courts reviewing a distribution of
marital property “ordinarily defer to the trial judge’s decision unless it is inconsistent
with the factors in Tenn. Code Ann. § 36-4-121(c) or is not supported by a preponderance
of the evidence.”).
-4-
IV. Marital Property Distribution
Husband contends that the trial court erred by failing to distribute the marital
property in an equitable fashion for several reasons. In support of his argument, Husband
asserts that the trial court “did little to set forth a declaration of separate and/or marital
property.” Upon our thorough review of the trial court’s findings and conclusions, we
determine that the trial court’s final judgment is unclear regarding the court’s
classification of Wife’s retirement accounts.
When equitably distributing the marital property, the trial court should first
identify all property interests at issue in the divorce proceeding. See Keyt, 244 S.W.3d at
328. After identifying the property interests, the trial should then classify the property as
either marital or separate property. Id. It is well settled that a trial court must identify all
assets of the parties in divorce proceedings as either separate or marital property prior to
equitably distributing the marital property. See Keyt, 244 S.W.3d at 328; McHugh, 2010
WL 1526140, at *3-4. The classification of the property “is an important threshold
matter because courts do not have the authority to make a distribution of separate
property.” Summer v. Summer, 296 S.W.3d 57, 60 (Tenn. Ct. App. 2008).
The version of Tennessee Code Annotated § 36-4-121(b)(1) (2005) in effect when
this action was commenced defined marital property as follows:
(A) “Marital property” means all real and personal property, both
tangible and intangible, acquired by either or both spouses during the
course of the marriage up to the date of the final divorce hearing and
owned by either or both spouses as of the date of filing of a
complaint for divorce, except in the case of fraudulent conveyance in
anticipation of filing, and including any property to which a right
was acquired up to the date of the final divorce hearing, and valued
as of a date as near as reasonably possible to the final divorce
hearing date. . . .
(B) “Marital property” includes income from, and any increase in value
during the marriage of, property determined to be separate property
in accordance with subdivision (b)(2) if each party substantially
contributed to its preservation and appreciation, and the value of
vested and unvested pension, vested and unvested stock option
rights, retirement or other fringe benefit rights relating to
employment that accrued during the period of the marriage.
Separate property is statutorily defined as follows:
-5-
(A) All real and personal property owned by a spouse before marriage,
including, but not limited to, assets held in individual retirement
accounts (IRAs) as that term is defined in the Internal Revenue Code
of 1986, as amended;
(B) Property acquired in exchange for property acquired before the
marriage;
(C) Income from and appreciation of property owned by a spouse before
marriage except when characterized as marital property under
subdivision (b)(1);
(D) Property acquired by a spouse at any time by gift, bequest, devise or
descent; . . .
Tenn. Code Ann. § 36-4-121(b)(2) (2017).
We note that the Tennessee Supreme Court has previously determined that the
appreciation of a retirement account funded during the marriage is deferred compensation
and is marital property subject to division during divorce. See Langschmidt v.
Langschmidt, 81 S.W.3d 741, 749 (Tenn. 2002) (“Retirement benefits accrued during the
marriage clearly are marital property under Tennessee law.”). However, our Supreme
Court also held in Langschmidt that “the appreciation of a spouse’s IRA during the
marriage is separate property when funded completely with premarital earnings and
absent substantial contribution by the other spouse to the preservation and appreciation of
the IRA.” Id. at 742. The High Court thereafter clarified its previous holding in
Langschmidt and emphasized that the IRAs at issue in Langschmidt were not a product of
the spouse’s employment, did not involve deferred compensation, and had been funded
entirely by premarital funds. Snodgrass v. Snodgrass, 295 S.W.3d 240, 255 (Tenn.
2009). The Court in Snodgrass further held “that 401(k) accounts held through a
spouse’s employer are ‘retirement or other fringe benefit rights relating to employment.’”
Id.
In the case at bar, it is unclear whether the trial court classified Wife’s retirement
accounts as her separate property or as marital property. In its judgment, the trial court
awarded to Wife the entirety of her retirement accounts “as her sole and separate
property.” According to Wife’s testimony during cross-examination, she owned two
retirement accounts prior to the marriage, totaling approximately $12,937.00. The record
reflects that Wife had two retirement accounts at the time of marriage, one at Mass
Mutual containing $8,135.39 and another at Oppenheimer Funds containing $4,133.08.
By our calculations, these funds actually totaled $12,268.47 near the time of marriage.
The financial statements regarding Wife’s retirement accounts at the time of the final
-6-
divorce hearing were not included in the record, but both parties listed the appreciation in
value of Wife’s retirement accounts during the marriage to be $48,521.41. Although
Wife’s attorney stated in opening statements that Wife maintained a retirement account
that had “some growth to it from her contributions and her employer’s contribution,”
Wife contended that the retirement account was separate property and that “the growth
[was] due to market conditions and investments that she made after the parties’
separation.”1 Husband, however, requested that the court treat the retirement accounts as
marital property. Except for the combined amount of growth of the accounts, neither
party presented evidence regarding whether the appreciation in value was due to
continued contributions, market conditions, or both.
In its judgment distributing the marital property, the trial court ordered that Wife
was to be awarded “all marital property listed as ‘hers’ on Exhibit #17” and that “all other
marital property listed on Exhibit #17 shall be sold and the proceeds divided equally
between the parties.” We note that on Exhibit 17, Wife’s retirement accounts are listed
under the heading, “Marital Assets,” but they are not designated as “hers.” Thus, it
would initially appear that the court intended for Wife’s retirement accounts to be divided
equally. Within the next provision of the trial court’s judgment, however, the court
specifically awarded to Wife “her Retirement account as her sole and separate property.”
The trial court’s initial reference to “all marital property” listed on Exhibit 17, which
included Wife’s retirement accounts, coupled with its subsequent award of the retirement
accounts as Wife’s “sole and separate property,” created an ambiguity concerning
whether the trial court had classified the appreciation in Wife’s retirement accounts as
marital or separate property.
In view of the foregoing, we discern that the trial court’s order can be interpreted
in two ways. First, the trial court may have classified the appreciation in the retirement
accounts as marital property and awarded that appreciation to Wife as part of its equitable
distribution of the marital estate. However, the trial court failed to make sufficient
factual findings or distinguish between the premarital portion of the accounts and the
amount that had appreciated during the marriage. Second, the trial court may have
classified the accounts as Wife’s separate property not subject to division. Following a
thorough review of the record, we conclude that the trial court’s classification of Wife’s
retirement accounts is unclear, which precludes our review of whether the trial court’s
marital property distribution was equitable.
1
Both Wife’s counsel and the trial court referred to Wife’s retirement accounts as a single
account in the record. However, testimony and exhibits admitted at trial established that Wife
had two retirement accounts prior to the marriage. The record, therefore, is unclear as to which
account, or both, Wife’s attorney and the trial court were referring.
-7-
Further complicating this Court’s review of the trial court’s distribution of marital
assets is the absence in its final judgment of findings of fact regarding the values of
certain items of property. As this Court has explained:
The valuation of a marital asset is a question of fact. It is determined by
considering all relevant evidence, and each party bears the burden of
bringing forth competent evidence. See Wallace v. Wallace, 733 S.W.2d
102, 107 (Tenn. Ct. App. 1987). If the evidence of value is conflicting, the
trial judge may assign a value that is within the range of values supported
by the evidence. See Ray v. Ray, 916 S.W.2d 469, 470 (Tenn. Ct. App.
1995); Wallace v. Wallace, 733 S.W.2d at 107.
Kinard v. Kinard, 986 S.W.2d 220, 231 (Tenn. Ct. App. 1998).
In previous cases when the appellate court was unable to perform a review of
whether the distribution of marital property was equitable, due to the absence of
sufficient findings of fact relating to the valuation of marital property in combination
with other deficiencies, this Court has remanded the matter to the trial court for entry of
sufficient findings of fact regarding the value of the parties’ assets. See, e.g., Smith v.
Smith, No. E2017-00515-COA-R3-CV, 2017 WL 6467153, at *5 (Tenn. Ct. App. Dec.
18, 2017) (“Even if the trial court’s findings regarding the retirement benefits were
clarified, we still could not determine whether the distribution of the marital estate was
equitable due to the lack of any findings to review regarding the valuation of the assets
and debts or the statutory factors.”); Irvin v. Irvin, No. M2010-01962-COA-R3-CV, 2011
WL 2436507, at *11 (Tenn. Ct. App. June 15, 2011) (remanding for sufficient findings of
fact where the judgment was ambiguous and failed to provide valuations for the marital
property.).
Although the trial court refers to Exhibit 17 when distributing property, it does not
specifically adopt the values of the assets reflected in the exhibit. Tennessee Court of
Appeals Rule 7 requires that briefs in domestic relations cases contain a tabulation of the
parties’ property and debts with values assigned by each party and the trial court,
including citations to the record identifying where such information may be found. In the
instant action, the parties’ respective tabulations of property reflect their differing
opinions concerning the respective values of several items of property without a
corresponding finding of value by the trial court. In other words, notwithstanding that the
parties assigned differing values for certain assets, the trial court did not assign its value
to those assets. Certain of those assets, such as the farming and logging equipment,
generators, a lawnmower, and an air compressor, could be of significant value or of little
worth.
-8-
Tennessee Rule of Civil Procedure 52.01 requires that following a bench trial, a
trial court shall make appropriate findings of fact and separate conclusions of law. With
reference to Rule 52.01, this Court has explained:
[T]he requirement to make findings of fact and conclusions of law is “not a
mere technicality.” In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL
1362314, at *8 (Tenn. Ct. App. May 15, 2009). Instead, the requirement
serves the important purpose of “facilitat[ing] appellate review and
promot[ing] the just and speedy resolution of appeals.” Id.; White v.
Moody, 171 S.W.3d 187, 191 (Tenn. Ct. App. 2004); Bruce v. Bruce, 801
S.W.2d 102, 104 (Tenn. Ct. App. 1990). “Without such findings and
conclusions, this court is left to wonder on what basis the court reached its
ultimate decision.” In re K.H., 2009 WL 1362314, at *8 (quoting In re
M.E.W. No. M2003-01739-COA-R3-PT, 2004 WL 865840, at *19 (Tenn.
Ct. App. Apr. 21, 2004)). Generally, the appropriate remedy when a trial
court fails to make appropriate findings of fact and conclusions of law is to
“vacate the trial court’s judgment and remand the cause to the trial court for
written findings of fact and conclusions of law,” unless the trial court’s
decision involves only a clear legal issue or the trial court’s decision is
readily ascertainable. Lake v. Haynes, No. W2010-00294-COA-R3-CV,
2011 WL 2361563, at *1 (Tenn. Ct. App. June 9, 2011); Burgess v. Kone,
Inc., No. M2007-02529-COA-R3-CV, 2008 WL 2796409, at *2 (Tenn. Ct.
App. July 18, 2008).
Babcock v. Babcock, No. E2014-01670-COA-R3-CV, 2015 WL 1059003, at *6 (Tenn.
Ct. App. Mar. 9, 2015).
In this case, the issues concerning the classification and subsequent distribution of
the parties’ marital property do not involve a clear legal issue, nor is the basis for the trial
court’s division of the marital estate “readily ascertainable.” See id. The equitable
division of marital property is a fact-intensive inquiry, and in the absence of sufficient
findings of fact and conclusions of law regarding the classification of all property at
issue, we cannot determine whether the overall distribution of marital property, including
the distribution of Wife’s retirement accounts and the marital debts, is equitable. See,
e.g., Morton v. Morton, 182 S.W.3d 821, 834 (Tenn. Ct. App. 2005) (holding that this
Court must determine whether the overall property distribution is equitable rather than
focusing on one asset). Accordingly, we must vacate the trial court’s property
distribution and remand this matter to the trial court for entry of appropriate findings of
fact and conclusions of law supporting its classification, valuation, and ultimate
distribution of the parties’ assets. See Tenn. R. Civ. P. 52.01.
-9-
VI. Conclusion
For the foregoing reasons, we vacate the trial court’s distribution of marital
property and remand this matter to the trial court for the entry of appropriate findings of
fact and conclusions of law supporting its classification, valuation, and ultimate
distribution of marital property. Costs on appeal are taxed one-half to the appellant,
Danny Earl Swafford, Sr., and one-half to the appellee, Cathy Gwen Agee Swafford.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
- 10 -
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692 F.2d 762
Airport Associatesv.Hawaii Air-Gunnery, Inc.
82-4019
UNITED STATES COURT OF APPEALS Ninth Circuit
10/25/82
D.Hawaii
NO ERROR
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Case: 09-30511 Document: 00511454578 Page: 1 Date Filed: 04/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 22, 2011
No. 09-30511
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ZACHARY THOMAS,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 2:08-CR-295-1
Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
Zachary Thomas pleaded guilty to possession with intent to distribute
methamphetamine and possession of firearms in furtherance of a drug
trafficking crime. He was sentenced to, inter alia, a 120-month prison term on
the drug trafficking count and, pursuant to 18 U.S.C. § 924(c)(1)(A)(i), a
consecutive 60-month prison term on the related firearms conviction. Thomas
filed a timely notice of appeal.
*
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: 09-30511 Document: 00511454578 Page: 2 Date Filed: 04/22/2011
No. 09-30511
In his sole issue for review, Thomas argues that the district court erred in
sentencing him to a mandatory five-year minimum sentence under
§ 924(c)(1)(A)(i) when the predicate drug offense carried a greater minimum
sentence. This argument has been rejected by both this court and the United
States Supreme Court. Abbott v. United States, 131 S. Ct. 18, 22-23 (2010);
United States v. London, 568 F.3d 553, 564 (5th Cir. 2009), cert. denied,
131 S. Ct. 631 (2010). Consequently, the judgment of the district court is
AFFIRMED.
2
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321 F.2d 126
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Respondent.
No. 18340.
United States Court of Appeals Ninth Circuit.
July 15, 1963.
Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Hans J. Lehman and Allison Brown, Attys., N. L. R. B., Washington, D. C., for petitioner.
Francis X. Ward, William P. McGowan, Washington, D. C., McCarthy Johnson, Herbert S. Johnson, San Francisco, Cal., for respondent, United Brotherhood of Carpenters and Joiners of America.
Before JERTBERG, Circuit Judge, MADDEN, Judge of the Court of Claims, and DUNIWAY, Circuit Judge.
MADDEN, Judge.
1
Pursuant to Section 10(e) of the National Labor Relations Act, as amended [29 U.S.C. § 160(e)], the National Labor Relations Board has petitioned this Court for enforcement of its Supplemental Decision and Order issued against United Brotherhood of Carpenters and Joiners of America on September 26, 1961, in Case No. 19-CB-530. This Court has jurisdiction since the unfair labor practices which were the basis for said Order occurred at or near Laurel, Montana, within this judicial circuit.
2
The National Labor Relations Board (hereinafter referred to as Board) found that the United Brotherhood of Carpenters and Joiners of America (hereinafter referred to as Union) has maintained an illegal closed shop contract with The Refinery Engineering Company (hereafter referred to as Company) during the six month period prior to the filing of charges in this matter. The Board ordered Union to cease and desist from performing, maintaining or enforcing any agreement or understanding with the Company, or any other employer, which requires union membership as a condition of employment, except as authorized by Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor Management Report and Disclosure Act of 1959; and from in any like or related manner restraining employees in the exercise of their rights guaranteed by Section 7 of said Act. The Order further provided that Union post appropriate notices in all locations where notices to its members are customarily posted, and if Company agrees thereto, in places where Company customarily posts notices to the employees covered by the contract between the Company and Union. Union was also directed to publish the notice once in its publications generally distributed to its membership.
3
Union resists the enforcement of the Board's Order on two asserted grounds: (1) The Board's finding that the Union maintained agreements containing closed shop provisions is not supported by substantial evidence on the record considered as a whole; and (2) In any event, the remedy proposed by the Board is arbitrary, unreasonable, and not appropriate to the unfair labor practice found by it.
4
As to the first of these objections, Section 10(e) of the National Labor Relations Act provides: "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive."
5
From an inspection of the record it appears that there is substantial evidence in the record to support the findings of the Board. On May 5, 1956, Union entered into a written agreement entitled "International Agreement" with Company which contained the following provision:
6
"We, the firm of The Refinery Engineering Company, agree to recognize the jurisdiction claims of the United Brotherhood of Carpenters and Joiners of America, to work the hours, pay the wages and abide by the rules and regulations established or agreed upon by the United Brotherhood of Carpenters and Joiners of America of the locality in which any work of our company is being done, and employ members of the United Brotherhood of Carpenters and Joiners."
7
This agreement between Union and Company was in effect during the six months' period preceding the filing of the instant charge against Union on April 14, 1958, by a worker employed by Company on a construction project at or near Laurel, Montana. At the same time, Billings Local 1172 of the United Brotherhood of Carpenters and Joiners of America (hereinafter referred to as Local 1172) maintained an agreement with Billings Contractors Council, Inc., the local employers' group, which provided:
8
"The party of the first part [Billings Contractors] hereby agrees to employ such members of the party of the second part [Local 1172] who are in good standing with the party of the second part, or who shall signify their intentions to become members and make application for membership. Party of the second part agrees to hold employers harmless against any loss which may accrue to them in any manner through the operation of this paragraph.
9
* * * * * *
10
"ARTICLE IV
11
"There shall be a shop Steward appointed by the party of the second part, and it shall be the duty of the Shop Steward to see that only members of the party of the second part are in good standing and in the case of accident the job Steward shall see that the injured person or persons shall be promptly taken care of, and report any and all violations of this agreement to both parties interested."
12
Article X of the "By-Laws and Trade Rules" of Local 1172 then in effect provided, inter alia, that a non-union man may be permitted on the job if he gives a cash guarantee that he will join the Local Union, in which case he must give the union a wage assignment unless he can pay the Union at least $10.
13
Union has stated in its brief that these provisions of the agreement between Local 1172 and the Billings Contractors Council, Inc., and the By-Laws and Trade Rules of Local 1172 are admittedly discriminatory, but urges that they were not incorporated by reference in the International Agreement with Company. There is no support for this contention. Company has clearly bound itself by the "International Agreement" to "abide by the rules and regulations established or agreed upon by the United Brotherhood of Carpenters and Joiners of America of the locality in which any work of our company is being done, and employ members of the United Brotherhood of Carpenter and Joiners." (Emphasis added). Since Local 1172 was the local representative of Union, the International Agreement incorporated by reference the agreement between Local 1172 and the Billings Contractors Council, Inc. as well as the by-laws and trade rules of Local 1172.
14
The record, therefore, supports the Board's finding that Union by maintaining its closed shop contract with Company during the period in question violated Section 8(b) (1) (A) and 8(b) (2) of the National Labor Relations Act.
15
Union terminated its 1956 International Agreement with Company on or before August, 1958, and entered a new agreement with Company which is presumably in conformity with the requirements of the National Labor Relations Act. However, the fact that Union had ceased its unfair labor practices in connection with the Laurel job did not preclude the issuance and enforcement of an order against such conduct. N. L. R. B. v. Local Union No. 751, United Brotherhood of Carpenters, etc., et al., 285 F.2d 633, 638 (C.A.9); N. L. R. B. v. Local 74, United Brotherhood of Carpenters & Joiners of America, 181 F.2d 126, 132-133 (C.A.6), affirmed 341 U.S. 707, 71 S. Ct. 966, 95 L.Ed. 1309; N. L. R. B. v. United Brotherhood of Carpenters, 184 F.2d 60, 63 (C.A.10), cert. denied 341 U.S. 947, 71 S.Ct. 1011, 95 L.Ed. 1371. Board orders have a preventive as well as remedial function, and the Board is entitled to a decree barring resumption of conduct properly found to have been illegal. N. L. R. B. v. Mexia Textile Mills, 1950, 339 U.S. 563, 567, 70 S.Ct. 826, 828, 94 L.Ed. 1067; N. L. R. B. v. International Association of Machinists, 279 F. 2d 761, 767 (C.A.9), cert. den., 364 U.S. 890, 81 S.Ct. 221, 5 L.Ed.2d 187.
16
Union claims that, even if the Board was correct in its finding that Union maintained agreements containing illegal closed shop provisions, the remedy proposed, particularly by way of publication in its official publications of general circulation among its members, is arbitrary, unreasonable and not appropriate to the unfair practice so found. The Court finds no merit in this objection. Company maintains its home office in Tulsa, Oklahoma, and undertakes construction projects throughout the United States. The "International Agreement" between Union and Company was obviously intended to cover Company's employees wherever they were engaged. The Union is active throughout the United States. It would be futile to require only the posting of this notice in the national headquarters of Union, or even to supplement the posting requirement with an order for publication limited to the State of Montana where the instant unfair practice occurred, for only a small portion of the workers potentially affected would be reached.
17
Union further urges that the order for publication should not be allowed because there was no evidence in the record that any employee had actually been discriminated against under the closed shop contract here involved. But the mere existence of a contract containing illegal union security provisions constitutes a violation of the Act and justifies the issuance of a remedial order by the Board. See N. L. R. B. v. Gottfried Baking Co., 1954, 2 Cir., 210 F.2d 772; N. L. R. B. v. Sightseeing Guides and Lecturers Union, 310 F.2d 40 (C.A.2).
18
The statutory measure of the Board's authority to remedy against an unfair labor practice is found in Section 10(c) of the National Labor Relations Act [29 U.S.C. Sec. 160(c)] which empowers it upon finding that an unfair labor practice has been committed to order the guilty party to "cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement, of employees with or without back pay, as will effectuate the policies of the Act." (Emphasis added). It is clearly the policy of the Act that the closed shop shall be abolished. In fashioning a remedy to effectuate this policy, the Board properly took notice that this was not an isolated instance of this type of misconduct, but that the Union had been found by the Board and the courts to have violated the anticlosed shop provisions of the Act on several occasions; The Marley Co., 117 N.L.R.B. 107; Mechanical Handling Systems, 122 N.L.R.B. 396, enforced sub nom. N. L. R. B. v. Local 60, United Brotherhood of Carpenters, etc., 273 F.2d 699 (C.A.7); Millrights Local 2232, 122 N.L.R.B. 300, enforced sub nom. N. L. R. B. v. Millwrights' Local 2232, 277 F.2d 217 (C.A.5), and that unless adequate notice was given of its order in this matter these activities might well continue or be resumed. The requirement that Union publish a notice of the order at least once in its publications generally distributed to its membership is a reasonable requirement in light of the circumstances here involved.
19
The Board did not abuse its discretion in formulating the order issued against Union, and enforcement of its order is granted.
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467 F.Supp. 357 (1979)
PARADISE HILLS CHURCH, INC., Plaintiff,
v.
INTERNATIONAL CHURCH OF the FOURSQUARE GOSPEL, Defendant.
No. Civ. 78-644 Phx. WPC.
United States District Court, D. Arizona.
March 7, 1979.
*358 *359 Burton M. Bentley of Bentley, Brandes & Brandes, P. C., Phoenix, Ariz., for plaintiff.
Paul G. Ulrich and Judith E. Sirkis of Lewis & Roca, Phoenix, Ariz., Farrand, Malti, Spillane & Cooper, San Francisco, Cal., for defendant.
MEMORANDUM AND ORDER
COPPLE, District Judge.
In this action in which the Court's jurisdiction is based upon diversity of citizenship, plaintiff Paradise Hills Church, Inc. ("Paradise Hills Church") and defendant International Church of the Foursquare Gospel ("International Church") each claim exclusive ownership of property hereinafter referred to as the "Valley View Villas Property" which includes both real and personal property and to which the International Church acquired absolute title in November, 1972, and the "Wilson Property" conveyed by J. B. Wilson and Garnet A. Wilson in fee absolute to the International Church in December, 1976. The present dispute arose after the members of the Paradise Hills Foursquare Church withdrew from that church on April 30, 1978 and formed a new church, the plaintiff herein. The Paradise Hills Foursquare Church, unlike the plaintiff, is associated with the International Church.
Paradise Hills Church alleges several theories upon which to award it relief. In Count One the plaintiff seeks to reform the deeds to the Wilson Property based on mutual mistake. As to both the Wilson Property and the Valley View Villas Property, Paradise Hills Church asks that title be quieted in it and that title be transferred to it based on the law of fraud, constructive trust and resulting trust. The plaintiff additionally seeks an equitable accounting and punitive damages for wilful and malicious conduct. Defendant International Church in its counterclaim against the Paradise Hills Church and others requests the ejectment of the plaintiff, damages for conversion, a quiet title declaration as to the Valley View Villas Property and declarations as to its right to the personal property in dispute and the Wilson Property.
The International Church has sought to eliminate plaintiff's claims of ownership of the Valley View Villas Property by moving for summary judgment on Counts Three, Four, Six, and part of Counts Seven, Eight, Nine and Ten of the plaintiff's amended complaint. Paradise Hills Church has responded by moving to continue consideration of the International Church's motion for summary judgment for ninety days as well as by arguing the merits of the motion. The plaintiff has also moved for summary judgment on Count One of its amended complaint.
Plaintiff Paradise Hills Church states that it has been inundated with discovery material as a result of this Court's order compelling the International Church to produce evidence pursuant to certain requests for production of documents which might show either the absence or presence of fraud practiced by defendant International Church. See Paradise Hills Church, Inc. v. International Church of Foursquare Gospel, No. Civ. 78-644 Phx. (D. Ariz. Jan. 9, 1979). Paradise Hills Church concludes, therefore, that additional time is warranted to pursue every avenue of discovery that might lead to evidence of fraud. However, for there to be fraud, there must be some fraudulent representation made by the defendant to those involved in the transaction to acquire the Valley View Villas Property for the use of a Foursquare church. Paradise Hills Church, however, has identified *360 no particular misrepresentation made by the International Church with regard to the acquisition of the Valley View Villas Property. Absent a statement or a misleading failure to disclose information, there can be no relief for fraudulent misrepresentation or nondisclosure. See generally, Nielson v. Flashberg, 101 Ariz. 335, 338, 419 P.2d 514, 517 (1966); Restatement (Second) Torts §§ 525 et seq. (1977).
An affidavit of Robert M. Brandes, attorney for the plaintiff, states that he spoke with Reverend and Mrs. Jerry Spencer of Sacramento, California, who stated that Mr. Courtney, an officer of the International Church, taught them that if two-thirds of a Foursquare congregation voted to leave the International Church that they could do so and keep their property. Whatever Mr. Courtney told the Spencers, though, is irrelevant to establishing what representations were made to those involved in the purchase of the Valley View Villas Property and the transfer of title to that property to the International Church.
None of the affidavits of Reverend May states she was taught that a local congregation could leave the International Church upon a vote and take the property that had been used by the local Foursquare church congregation. The deposition of Reverend May quoted by Paradise Hills Church in its supplemental memorandum filed in opposition to the defendant's motion for summary judgment indicates Reverend May had not thought about whether the International Church held property for a local congregation regardless of whether it was a Foursquare congregation, suggesting that there was no representation by the International Church which Reverend May can recall which could imply that members of a local Foursquare church could withdraw from the International Church and take with them the property they had used when members of the local Foursquare church. Furthermore, the basis for Reverend May's belief that a local congregation presumably a Foursquare congregation could obtain property used by them upon demand by a certain percentage of the congregation is based on thirty-three years of ministry, not specific statements made by the International Church in its articles of incorporation or bylaws, or through its officers or agents.
The failure to identify any instance of fraudulent misrepresentation or nondisclosure supported by affidavits of those involved in the transactions to acquire the Valley View Villas Property independent of the discovery to date indicates that additional discovery would not be specifically directed but rather more in the nature of a "fishing expedition" that would not produce relevant evidence of fraud given the discovery that has taken place to date. Thus the motion to continue consideration of the International Church's motion for summary judgment is denied.
Defendant International Church contends in its motion for summary judgment that the International Church of the Foursquare Gospel is a hierarchical church and that neutral principles of law apply which require granting its motion as a matter of law. The International Church is entitled to summary judgment only if being a hierarchical church or applying neutral principles of law constitutes a legally sufficient defense and there is no material factual dispute as to the applicability of the defense. See generally, Moore's Federal Practice ¶ 56.17[11] (1976).
The two primary approaches that can constitutionally be used to resolve property disputes between a general, hierarchical church and a local church which is a part of the hierarchical church are identified here as the "deference-to-church-authority" principle and the "neutral principles of law" rule of which the "formal title" doctrine is the primary, if not exclusive, example. Most prior litigation has arisen in the context of title to church property being held by the local church or its agent. The practical effect has been that if civil courts opted for the first approach, property was found to be held for the benefit of the general church or subject to the rules and decisions of the general church. On the other hand, the formal title approach almost *361 always produced the opposite outcome of finding ownership of the property in the local church. See McKeag, "The Problem of Resolving Property Disputes in Hierarchical Churches," 48 Pa.B.A.Q. 281, 286 (1977). See also Comment, "The Supreme Court, 1968 Term," 83 Harv.L.Rev. 7, 129 (1969). In the instant controversy, however, title is in the general church, and under either approach the outcome is the same the plaintiff has alleged no legally cognizable basis upon which to premise its claim of ownership of the Valley View Villas Property.
The deference-to-church-authority approach to resolving church property disputes requires yielding to the ecclesiastical authority which, according to the rules and regulations of the hierarchical church, decides such matters. See The Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709, 96 S.Ct. 2372, 2380, 49 L.Ed.2d 151 (1976) ("[T]he First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them."); Maryland and Virginia Eldership of Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 369, 90 S.Ct. 499, 500, 24 L.Ed.2d 582 (1970) (Brennan, J., concurring) ("[T]he States may . . . enforce the property decisions made . . . within a church of hierarchical polity by the highest authority that has ruled on the dispute at issue."). The deference-to-church-authority approach, in effect, precludes civil courts from reaching the merits of a property controversy and requires enforcement of the decision rendered by the highest ecclesiastical tribunal of the hierarchical church without regard to the principles or rules of law that might otherwise be employed by a civil court to resolve the property dispute.
The typical inquiry under the deference-to-church-authority approach requires determining whether a church has a hierarchical polity, whether the local church is a part of the hierarchical, general church, what the supreme adjudicatory body of the church is, and what the decision of the tribunal is. See Comment, 1977 Utah L.Rev. 138, 147. See also, Comment, "The Supreme Court, 1968 Term," supra, 83 Harv.L.Rev. at 128 ("Under the Watson [v. Jones, 80 U.S. (13 Wall.) 679, 20 L.Ed. 666 (1871)] line of cases, civil court action is necessarily limited to ascertaining the form of church and the appropriate decision making body.").
It is undisputed that the International Church of the Foursquare Gospel is a hierarchical church. It is also not disputed that the Paradise Hills Foursquare Church is a part of the International Church. The bylaws of the International Church show without dispute that the board of directors has the power to dispose of church property and that its authorization concerning the disposition of property of a local church, whether active or inactive, is required. See Articles of Incorporation and Bylaws of the International Church of the Foursquare Gospel, Bylaws Art. X, Sec. B, Subsec. (4); Art. XXI, Sec. B, Subsec. (3)-(4) (1977). The board of directors, therefore, is the ultimate decision-making body concerning the disposition of church property. The board of directors of the International Church has made no express determination about the dispute over the Valley View Villas Property. However, for Paradise Hills Church to obtain legal title to the Valley View Villas Property under the deference-to-church-authority approach, it must establish that the board of directors has decided to transfer title to it, or its agents, or that the board has transferred title to the Paradise Hills Foursquare Church and that it is the successor in interest to the Paradise Hills Foursquare Church. The plaintiff has made no allegation that such a decision has been made by the board, nor does there appear to be any basis for inferring such a decision given the posture of the parties in the instant litigation. Thus, under the deference-to-church-authority approach, Paradise Hills Church has no legal basis for claiming ownership of *362 the Valley View Villas Property and defendant International Church is entitled to summary judgment as a matter of law. See generally, The Serbian Eastern Orthodox Diocese v. Milivojevich, supra; Lowe v. First Presbyterian Church, 56 Ill.2d 404, 308 N.E.2d 801 (1974) (civil courts cannot independently determine questions concerning church property that are properly within the sphere of ecclesiastical bodies and the local church that is part of a hierarchical, general church is ordinarily bound by the decisions of the ecclesiastical adjudicatories); Presbytery of Cimarron v. Westminster Presbyterian Church of Enid, 515 P.2d 211 (Okl.1973) (local church is bound to the national hierarchical church's constitution and its judicatory's decisions without regard to the trust aspects of the situation).
The only other constitutionally-approved rule for resolving hierarchical church property disputes requires application of "neutral principles" of law to decide the controversy. The formal title doctrine appears to be the only recognized example of a neutral principle. It involves simply identifying the title holder of the property. See Presbyterian Church v. Eastern Heights Presbyterian Church, 225 Ga. 259, 167 S.E.2d 658 (1969), cert. denied sub nom. Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 396 U.S. 1041, 90 S.Ct. 680, 24 L.Ed.2d 685 (1970); Merryman v. Price, 147 Ind.App. 295, 259 N.E.2d 883 (1970), cert. denied, 404 U.S. 852, 92 S.Ct. 89, 30 L.Ed.2d 92 (1970). The title holder can be ascertained by determining the grantee on the face of the deed. The equitable beneficiary is presumed to be grantee as "the `formal title' theory does not allow for an inquiry of beneficial use other than that of title holder." McKeag, supra, 48 Pa.B.A.Q. at 287. See also Comment, "The Supreme Court, 1968 Term," supra, 83 Harv.L.Rev. at 129 ("The way in which states are likely to apply `neutral principles' in church property disputes is by determining the location of formal title and awarding the property to the titleholder."). Here the title holder to the Valley View Villas Property is the International Church and as the deed presumably does not provide otherwise, the equitable beneficiary is legally presumed to be the International Church. Thus, the Paradise Hills Church has no legally cognizable claim to the Valley View Villas Property under the formal title doctrine.
A more liberal interpretation of neutral principles permits civil courts to examine not only deeds, but also reverter clauses and state corporation laws. See Maryland and Virginia Eldership of Churches of God v. Church of God at Sharpsburg, Inc., supra (Brennan, J., concurring). Presumably this view permits civil courts to examine the articles of incorporation and bylaws of a hierarchical church as well.
Article XXI, Section B, Subsection (1), paragraph (a) of the Bylaws of the International Church provides that any property or equipment acquired by any Foursquare church by purchase or gift shall be taken and held in the name of the International Church of the Foursquare Gospel, but shall remain in possession of the acquiring church for its use. The acquiring church of the Valley View Villas Property is the Paradise Hills Foursquare Church. As no particular form of words is required to declare a trust, see Restatement (Second) Trusts § 24(2), it can be argued that this is a declaration of trust for the benefit of the Paradise Hills Foursquare Church. However, the bylaws and articles of incorporation of the International Church make clear that the beneficiary of any trust created by Article XXI of the Bylaws is a Foursquare church. Paradise Hills Church is not a Foursquare church and any derivative rights to the use of the Valley View Villas Property which the former members of the Paradise Hills Church had while members of the Paradise Hills Foursquare Church were extinguished upon renunciation of membership in that church. See generally, Church of God in Christ, Inc. v. Cawthon, 507 F.2d 599, 601 (5th Cir. 1975) (the reverend and his followers could withdraw from the national church and form an independent group, but when they did so, they relinquished their rights in and to the local *363 church property); Britton v. Jackson, 31 Ariz. 97, 102, 250 P. 763, 765 (1926) (those who choose to separate from a local church and form an independent church cannot take with them the trust property of the church). Moreover, even if Paradise Hills Church could assert the rights of the Paradise Hills Foursquare Church as equitable beneficiary, any equitable rights to the use of the property are qualified by additional bylaws which govern the administration of any trust created. In order to sell or otherwise dispose of property, the bylaws require not only a two-thirds majority vote of the church membership present at a properly called meeting, but also a written recommendation of the district supervisor and a written approval by the International Church's board of directors. See Articles of Incorporation and Bylaws of the International Church of the Foursquare Gospel, Bylaws Art. XXI, Sec. B, Subsec. (3).
As noted previously, no approval of a disposition of the property as requested by the plaintiff has been alleged by Paradise Hills Church. As such there is no legal basis for Paradise Hills Church to claim ownership of the Valley View Villas Property under a liberal interpretation of the "neutral principles" approach to resolving church property disputes. See generally, Western Pennsylvania Conference of United Methodist Church v. Everson Evangelical Church, 454 Pa. 434, 312 A.2d 35 (1973) (the Book of Discipline of the general, hierarchical church governed the rights to property held by the local congregation).
Under either the deference-to-church-authority or the neutral principles-formal title approach, the plaintiff cannot claim to be the owner in fee of the Valley View Villas Property. Because the Paradise Hills Church has raised no genuine issue of material fact as to the appropriateness of applying either the deference-to-church-authority rule or neutral principles of law-formal title doctrine, such as fraudulent misrepresentation or nondisclosure, the International Church is entitled to summary judgment as a matter of law against the plaintiff on those claims alleging a right to exclusive ownership of the Valley View Villas Property and the personal property located thereon.
Paradise Hills Church has moved for summary judgment on Count One which prays for reformation of the deeds conveying the Wilson Property to the International Church. The basis for reformation is the equitable doctrine of mutual mistake. Generally, a written instrument is reformed only when both parties factually intend something other than that expressed in the instrument, or when one party was mistaken about the instrument's factual content and the other party kept silent, or when one party was mistaken about the instrument's factual content because of the other party's fraudulent conduct. See 6 Powell on Real Property ¶ 903 (1977).
The plaintiff does not allege that the International Church as grantee was mistaken as to whom the Wilsons intended to grant the property in question. Thus, there is no mutual mistake. Whatever mistake Reverend May made is irrelevant as no basis has been alleged to conclude that she had authority to act as an agent of the International Church for purposes of accepting delivery of the deed. The fact that the board of directors which is authorized to accept the deed has not done so is also irrelevant, because acceptance is presumed absent evidence indicating to the contrary. See, e. g., Belli v. Bonavia, 167 Cal.App.2d 275, 334 P.2d 196, 199-200 (1959); 6 Powell on Real Property ¶ 901 (1977).
The plaintiff, further, has not alleged that the defendant knew of any mistake the Wilsons made about conveying the property, or acted fraudulently to bring about the mistake the Wilsons purportedly made. Finally, even if there were a mistake, it would appear to be a mistake of law as to the legal consequences of conveying title to the International Church. Mistakes as to the legal consequences of an action do not justify reformation. See Nussbaumer v. Superior Court, 107 Ariz. 504, 507, 489 P.2d 843, 846 (1971); 6 Powell on Real Property ¶ 903 at 268.08 n.8 (1977). Because there is no mutual mistake of fact alleged, or evidence *364 that the International Church had any knowledge of the mistake that the Wilsons allegedly committed at the time of the conveyance or that the International Church engaged in fraudulent conduct which resulted in the alleged mistake, Paradise Hills Church is not entitled to summary judgment on Count One as a matter of law. Therefore,
IT IS ORDERED:
1. Plaintiff's motion for continuing the hearing of defendant's motion for summary judgment is denied.
2. Defendant's motion for summary judgment against plaintiff on Counts Three, Four, Six and part of Counts Seven, Eight, Nine and Ten as they pertain to the Valley View Villas Property of the plaintiff's amended complaint is granted.
3. Plaintiff's motion for summary judgment against the defendant on Count One of its amended complaint is denied.
4. The order of this Court dated January 9, 1979, scheduling trial of the issue of the parties' claims to possession of the Valley View Villas Property and Wilson Property for March 13, 1979, is vacated.
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549 F.2d 983
Gerald Isaac SASSOON, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 76-1160.
United States Court of Appeals,Fifth Circuit.
March 30, 1977.
Gerald Isaac Sassoon (Pro Se).
Terry C. Sullivan, Atlanta, Ga. (Court-appointed), for petitioner-appellant.
Dorothy T. Beasley, Asst. U. S. Atty., John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before TUTTLE, GOLDBERG and RONEY, Circuit Judges.
TUTTLE, Circuit Judge:
1
On May 31, 1974 appellant tendered a plea of guilty to two separate indictments, charging him with a total of 19 counts of interstate transportation of falsely made and forged bank checks, in violation of 18 U.S.C. § 2314. On June 27, 1974 he was convicted and sentenced, in accordance with a plea agreement, to a total of six years' imprisonment on all counts. Sassoon's effort thereafter to secure postconviction relief ultimately was rejected by the district court, and Sassoon brought this appeal.
2
The district court's decision and the reasoning behind it, were set out in a three-page document, styled as an "Order," dated September 29, 1975. Fed.R.Civ.P. 58, however, requires that "(e)very judgment shall be set forth on a separate document."1
3
Although often referred to as an independent civil proceeding, an action under section 2255 is not automatically subject to Rule 58, both because of its similarity to a habeas corpus action (which is not necessarily governed by the civil rules, see Rule 11 of Rules Governing Section 2254 Cases, 28 U.S.C.A. foll. § 2254 (Supp.Dec.1976) (effective February 1, 1977)) and because it is in a sense a continuation of the original criminal proceeding, see Advisory Committee Note to Rule 1 of Rules Governing Section 2255 Proceedings, 28 U.S.C.A. foll. § 2255 (Supp.Dec.1976) (effective February 1, 1977). The timeliness of appeal in these cases, however, is already determined by Fed.R.App.P. 4(a), see Rubin v. United States, 488 F.2d 87 (5th Cir. 1973); cf. United States v. Hayman, 342 U.S. 205, 209, n. 4, 72 S.Ct. 263, 96 L.Ed. 232 (1952). The time limits of Rule 4(a) run from the entry of the judgment or order appealed from. In the other contexts in which Rule 4(a) applies, Fed.R.Civ.P. 58 ordinarily dictates when a judgment can be considered effective, and the application of Rule 58 to section 2255 cases consequently seems appropriate as well. Cf. Baity v. Ciccone, 507 F.2d 717 (8th Cir. 1974) (applying Rule 58's "separate document" standard in a habeas corpus action); see generally Rules Governing Section 2255 Proceedings, supra, Rule 12.
4
This Court has concluded that "Rule 58 requires a judgment separate and apart from an accompanying opinion." State National Bank v. United States, 488 F.2d 890, 893 (5th Cir. 1974); see Taylor v. Sterrett, 527 F.2d 856, 857 (5th Cir. 1976). No such separate document appears in this record. Unless the failure to comply with Rule 58 can be excused, the court's order cannot be considered a "final decision" within the terms of 28 U.S.C. § 1291, and we are without jurisdiction to hear the appeal. See United States v. Indrelunas, 411 U.S. 216, 216-17, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973) (by implication). The Indrelunas Court, addressing rather different facts, instructed that Rule 58's " 'separate document' provision . . . is, as Professor Moore states, a 'mechanical change' that must be mechanically applied in order to avoid new uncertainties as to the date on which a judgment is entered." 411 U.S. at 221-22, 93 S.Ct. at 1565. Our Court strictly followed Indrelunas in Taylor v. Sterrett, supra, dismissing an appeal because the lower court had not supplied a "separate document" but only "an order including the court's opinion, findings and conclusions." 527 F.2d at 857.
5
Even if, in a proper case, Indrelunas' command can be qualified by the liberal philosophy embodied in Fed.R.Civ.P. 1, see generally Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), Markham v. Holt, 369 F.2d 940 (5th Cir. 1966), this is not the case, for there is a further jurisdictional bar to our considering this appeal on the merits. The district court's order was evidently filed on September 30, Sassoon gave notice of appeal in a document sworn on November 28, but not filed in the clerk's office until December 3, 1975. The normal period for an appeal in a case of this sort would be 60 days following the entry of the order appealed from Fed.R.App.P. 4(a). The 60th day, November 29, 1975, was a Saturday, but Sassoon's notice was late when it was not filed on the following Monday, December 1. See Fed.R.App.P. 26(a). It is entirely possible that this late filing was due to "excusable neglect," which Fed.R.App.P. 4(a) provides, can be the basis for a 30-day extension of the appeal time by the district court. We, however, cannot grant this extension ourselves, and would instead have to remand for consideration of the matter by the court below. See Lashley v. Ford Motor Co., 518 F.2d 749 (5th Cir. 1975) (per curiam); Cramer v. Wise, 494 F.2d 1185 (5th Cir. 1974) (per curiam). If, upon such consideration, the trial court should find excusable neglect, then Sassoon would still not have a final judgment from which to pursue his appeal. Moreover, regardless of the district court's decision on the "excusable neglect" question, Sassoon could obviate the problem of late filing completely if he should upon remand, file a motion for the entry of a judgment in a proper "separate document." Sassoon could then appeal from such judgment within 60 days. See United States v. Indrelunas, supra.
6
We minimize this procedural imbroglio by ourselves dismissing the appeal. Either party, of course, may now seek entry of a judgment complying with Rule 58, and a final appeal may then be taken. Should this appeal be brought, it may be decided by this Court without further briefing or argument, Taylor v. Sterrett, supra, 527 F.2d at 856, although the parties may submit additional briefs if they so desire.
1
"Judgment" is defined by Feb.R.Civ.P. 54(a) to include "a decree and any order from which an appeal lies."
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12 So.3d 1065 (2009)
OFFICE FURNITURE OUTLET, INC., Plaintiff-Appellee
v.
Mark Coleman GRAU and Martin M. Grau, Defendants-Appellants.
No. 44,228-CA.
Court of Appeal of Louisiana, Second Circuit.
May 27, 2009.
*1066 W. Douglas White, for Defendant-Appellant, Martin M. Grau.
Jerald R. Harper, Shreveport, for Plaintiff Appellee, Office Furniture Outlet, Inc.
Jefferson R. Thompson, for Defendant-Appellee, Mark Coleman Grau.
Before WILLIAMS, MOORE and LOLLEY, JJ.
LOLLEY, J.
This appeal by defendant, Mark Grau, arises from a partial final judgment from the First Judicial District, Parish of Caddo, State of Louisiana in favor of plaintiff, Office Furniture Outlet. For the following reasons, we affirm.
FACTS
Office Furniture Outlet ("OFO") is a family business originally formed by defendant, Mark Grau. The business provides office furniture services to customers. Mark's son, Martin, was a salesman in the business. In 2003, Mark and his wife sold 75% of the business to Mark's brother, William Grau. William began to act as CEO while Mark continued to work as vice president. During this time, issues with *1067 commission, salary, and company policy arose. Mark was fired, Martin resigned, and together they created another business, Office Furniture Source, LLC ("OFS").
William, through OFO, brought suit against Mark and Martin, individually, for breach of fiduciary duty while at OFO and unfair trade practices and false and deceptive claims with their work at OFS. This appeal arises out of an ancillary issue on the rule for attorney fees issued by the trial court on June 23, 2008. The underlying actions against Martin and Mark Grau are still pending and are not subject to this appeal. Further, Mark Grau was not cast in the judgment for attorney fees, and, therefore, is not a party on this appeal.
The pretrial activity, including discovery, which gave rise to the hearing for attorney fees involved efforts to discover Martin Grau's activities in acquiring and seeking furniture while still employed with OFO. OFO filed numerous motions to compel and motion for sanctions and attorney fees against Martin to ascertain the information. In March 2008, OFO filed its Motion to Compel for the sixth time and Motion for Sanctions for the fourth time. Based on these motions, the trial court rendered a partial final judgment on June 23, 2008, in favor of OFO and ordered Martin to pay the plaintiff $32,370.00 in attorney fees. This appeal by Martin ensued.
LAW AND DISCUSSION
Martin argues that sanctions and attorney fees were not warranted, and in the alternative, the trial court failed to apply the correct standard in awarding the attorney fees. It is well established that trial courts in Louisiana have broad discretion when regulating pre-trial discovery, which discretion will not be disturbed on appeal absent a clear showing of abuse. Moak v. Illinois Central, XXXX-XXXX (La.01/14/94), 631 So.2d 401.
Appealable Judgment
At the outset we confirm that the trial court's partial judgment is appealable. The trial court stated, and we agree, that it was acting upon one of the sanction provisions under La. C.C.P. art. 863 whose imposition is immediately appealable under La. C.C.P. art. 1915(A)(6).
Sanctions
The discovery articles grant the trial court the power to compel discovery and the discretion to impose various sanctions on a party or his attorney for unjustified failure to comply with the statutory scheme or to obey an order compelling discovery. The granting of relief against a recalcitrant party rests within the trial judge's discretion and will not be disturbed absent a clear abuse of that discretion. Butts v. Cummings, 360 So.2d 534 (La. App. 2d Cir.1978). There is a distinction between the sanctions available for failure to comply with discovery and the sanctions available for disobedience of court ordered discovery. Refusal to comply with court ordered discovery is a serious matter. Horton v. McCary, 1993-2315 (La.04/11/94), 635 So.2d 199.
Here, the record bears out an inordinate amount of time and resources were spent during the pretrial phase to enforce Martin to comply with answering various interrogatories. The trial court clearly afforded Martin every opportunity to fulfill the legitimate discovery and requests for production made by OFO. The trial court even denied OFO's fourth filing for a Motion to Compel and second filing for Motion for Sanctions giving Martin the benefit of the doubt. In fact, Martin admits in his brief that sanctions and attorney fees are in response to the Sixth Motion to *1068 Compel and Fourth Motion for Sanctions. Simply put, the same request was made over six times beginning in April 16, 2007.
While it is evident that this has been an acrimonious lawsuit to say the least, there is nothing in the record that supports Martin's unwillingness to cooperate during the discovery process. OFO complied with every request that Martin had made, including voluminous disclosures of financial documents. Allegations that Martin purposefully altered evidence, used delay tactics, and harassed the opposing party by requesting unnecessary documents are serious, and while there is nothing in the record substantiating these claims, it is not to be taken lightly. See, e.g., MTU of North America, Inc. v. Raven Marine, Inc., 475 So.2d 1063 (La.1985). What is substantiated from the record, however, are the trial court's four direct orders compelling Martin to comply with discovery and Martin's refusal to follow these orders even under threat of incarceration. The trial court must have severe sanctions available to it to deter litigants from scoffing at its discovery orders. Horton, supra. We agree with the trial court in its decision to impose sanctions.
Attorney Fees
In light of our findings that sanctions are appropriate, we find that the trial court did not abuse its discretion in awarding attorney fees. Louisiana C.C.P. art. 1469(4), which provides for motions to compel, states in pertinent part that:
(4) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
While the attorney fees are on the high end, we agree with the trial court that the pretrial phase was drawn out because of Martin's own conduct. OFO submitted an affidavit for the amount expended on attorneys and other expenses for over a year during the pretrial phase totaling $57,785.00. Clearly, the amount the trial court awarded, $32,370.00, is significantly less and it took into consideration only the fees incurred after the Fourth Motion to Compel and Second Motion for Sanctions were denied in October 2007. As such, we find the scope of fees to be appropriate. The trial court tried to avoid such a hefty penalty by having over a dozen hearings to allow Martin time to comply, but after several warnings it was left with no choice.
Other Issues
As an aside, Martin makes much of the need to apply the "concept" of SWAT 24 Shreveport Bossier Inc. v. Bond, 808 So.2d 294 (La.2001) to the case at hand. In SWAT 24, a former employer sought injunctive relief in the enforcement of noncompetition agreement with former employee. We fail to see how SWAT 24 is applicable; however, we pretermit further discussion on its application since the merits of the case are not before us.
We do find, and Martin correctly identified, that the trial court erred in casting judgment on OFS, which is not a party in this lawsuit and specifically not a defendant-in-rule. As such, we amend the judgment, by way of this opinion, to strike any reference to OFS. See La. C.C.P. art. 1951.
CONCLUSION
We amend the judgment to strike any reference to Office Furniture Source, LLC *1069 as they are not a party in this case. We affirm the trial court in all other respects. Costs for this appeal are assessed against Martin Grau.
AMENDED, AND AS AMENDED, AFFIRMED.
WILLIAMS, J., concurs in part and dissents in part. The attorney fees awarded for this "Rule" are excessive and a clear abuse of discretion.
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746 F.2d 1473
U.S.v.Dodson
83-6313
United States Court of Appeals,Fourth Circuit.
10/15/84
1
E.D.Va.
AFFIRMED
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117 F.3d 959
Matthew PRITCHETT, Petitioner-Appellee, Cross-Appellant,v.Terry PITCHER, Respondent-Appellant,Cross-Appellee.
Nos. 96-1098, 96-1107.
United States Court of Appeals,Sixth Circuit.
Argued March 17, 1997.Decided June 27, 1997.
1
Andrew N. Wise (argued and briefed), Federal Public Defenders Office, Detroit, Michigan, Matthew Pritchett, Jackson, MI, pro se for Petitioner-Appellee, Cross-Appellant.
2
Arthur E. D'Hondt (argued and briefed), Lamont M. Walton, Office of the Attorney General, Habeas Corpus Division, Lansing, Michigan, for Respondent-Appellant, Cross-Appellee.
3
Before: MERRITT and BOGGS, Circuit Judges; BECKWITH, District Judge.*
OPINION
4
BECKWITH, District Judge.
5
These cross-appeals arise from the December 15, 1995, decision of the district court granting Petitioner's habeas corpus petition on his claim of prosecutorial misconduct and denying the petition on Petitioner's claim that his confession was involuntary in violation of his right to counsel. We conclude that the district court erred in granting the petition on the basis of prosecutorial misconduct. Accordingly, we reverse, in part.
I.
6
Petitioner was charged with the murder of Melvin Grey and with a felony firearm count. On June 8, 1988, Petitioner surrendered himself to the Detroit Police. He was held overnight at Police headquarters. The following morning, Officer John Magnum, a homicide investigator, interrogated Petitioner. The trial court conducted a hearing prior to trial, under the doctrine of People v. Walker, 374 Mich. 331, 132 N.W.2d 87 (1965), to determine the admissibility of statements made by Petitioner. At that hearing, Petitioner and Officer Magnum offered conflicting versions of what occurred during the interrogation. Petitioner testified that he said he needed an attorney. Officer Magnum testified that Petitioner asked if he needed an attorney and that no substantive questioning took place thereafter. Officer Magnum further testified that he made no threats or promises to Petitioner to induce him to make an inculpatory statement. The trial court admitted Petitioner's statement indicating that he had fired a shotgun intending to scare Lonnie Smith.
7
At trial, Lillie Billington testified that, on March 29, 1988, at approximately 9:00 p.m., she heard a loud noise, went to her window, and saw a man lying on the grass across the street from her Detroit home. She called the police.
8
Emandulay Butler testified that he was a friend of Petitioner. On March 29, 1988, he was at Petitioner's house with Petitioner, Petitioner's mother, and Reggie Pitts. They entered a bedroom to check on a man named Jeff, Petitioner's mother's boyfriend, who had been beaten. At that time, Kenneth Green entered Petitioner's home and wanted to buy marijuana. Green, Butler, Pitts, and Petitioner went out to purchase marijuana. Only Petitioner and Pitts entered the house where marijuana was being sold. Butler and Green waited outside for Petitioner and Pitts to return. Pitts subsequently joined them, but Petitioner remained in the house. A short time later, they heard a shot and the three men ran back to Petitioner's house. Petitioner returned home a few minutes later. Butler asked Petitioner if he had heard the shot. Butler testified that Petitioner responded: "That was me shooting. I think I hit him. I tried to blow that nigger's back off."
9
Pitts testified that he was a friend of Petitioner. He echoed Butler's version of events. Pitts testified that while he was in the marijuana house with Petitioner he heard a man named Cook tell someone to go get Lonnie Smith. Pitts then purchased two marijuana joints for Green. Pitts took the joints and Green's change outside. Pitts saw Cook come out of the house and around the side. Cook told Pitts that Smith was one of "the guys who were responsible for Jeff's beating." Pitts heard a shot and ran off with Green. Later, Petitioner was asked whether he heard the shot. Pitts testified that Petitioner responded, "I shot and I think I shot the guy."
10
Linder Donnell Winbush testified that, on March 29, 1988, she had her husband's pump shotgun at her home, one block north of the site of the shooting. Petitioner was at her home with Pitts. She testified that Pitts came to her house to find out who had beaten Jeff. Pitts told her he believed Lonnie Smith was responsible. She gave Pitts a joint. She testified that the deceased, Melvin Grey, whose photograph she identified, had previously come to her home and was asked by someone on her porch to go get Smith. Grey left, apparently to find Smith. Later, Winbush heard a shot.
11
Lonnie Smith testified that, on the evening of March 29, 1988, Melvin Grey visited his home and told him that Cook wanted to see him. Smith and Grey walked toward the house where Cook was staying (Winbush's house). Smith saw a man make a suspicious turn and turned around to return to his house. After walking a short distance, Smith heard a shot and began to run.
12
Kenneth Green testified that he, Petitioner, Pitts, and Butler walked to Linder Donnell Winbush's house to buy marijuana. Green observed Petitioner enter and exit the house, and then rush to the side of the house. At that time, someone said, "here he comes, yeah, here he comes." Green subsequently heard a loud noise. They all scattered. Later, at Petitioner's home, Green heard Petitioner state that it was "me" in response to a question about the shooting sound.
13
Warren Cook testified that, on March 29, 1988, at 9:00 p.m., Petitioner and Pitts were at Winbush's house. Pitts asked Cook to summon Smith so Petitioner could beat him. Cook refused. Cook also testified that an alley runs directly behind Winbush's house, and that the alley intersects the street on which Petitioner lived.
14
On March 29, 1988, at 9:15 p.m., the Detroit police discovered Melvin Grey's dead body in the alley between Winbush's house and Petitioner's house. Dr. Marilee Frazier, an assistant Wayne County medical examiner, testified that the victim, Melvin Grey, died from a shotgun blast of buckshot to his back. The distance between the entry wounds indicated that the shot was fired from a distance of approximately sixty feet.
15
In closing argument, on the issue of Petitioner's state of mind, the prosecutor argued that the evidence established that Petitioner had the intent to kill Lonnie Smith when he shot and killed Melvin Grey. The prosecutor attempted to explain why Petitioner did not take any further action after firing one shot as follows:
16
Why didn't he continue on, why didn't he go after Lonnie? Why did he just drop the one shot? It's clear he intended to kill but why didn't he close in on Lonnie? Consider all the evidence. After that one shot went off everybody's attention was directed and everybody was taking off. He managed to get up on him, he managed to get out here in the street chasing him down Fernhill without drawing anyone's attention. Every witness told us that they weren't directed to anything until they heard gunfire, but once the gunfire was heard they looked and saw that body and they certainly would have seen him carrying that shotgun and chasing down Lonnie Smith and he's not going to be out there where everyone can see him. He'd save it for some other time; he knew where Lonnie lived, he'd get him some other time.
17
The prosecutor summarized Petitioner's shooting and killing Melvin Grey:
18
He got the gun, went out looking for Lonnie, had the signal that Lonnie was coming. Wouldn't even wait for Lonnie to come,--went out looking for him, went out after him, chased him down. [S]hot at him and inadvertently killed Melvin Grey. It was inadvertent in the sense that he shot the wrong man. He intended to kill but he killed the wrong person.
19
I believe the Court is going to instruct that when a person intends to kill one person and ends up killing another, he is just as liable.
20
During his closing argument, Petitioner's counsel argued that Petitioner did not intend to kill Lonnie Smith because he did not do so in the months after he shot Grey and before he surrendered. In rebuttal, the prosecutor made the following comment:
21
The first argument he makes and he makes it very clear over and over again, is that this man, Matthew Pritchett had ample opportunity to kill Lonnie Smith and if he really wanted to kill him back on March 29th Lonnie Smith wouldn't be here. Now, maybe he gives Mr. Pritchett more credit than he deserves. Maybe he knows something about Mr. Pritchett I don't know but I know what one thing; there's been no evidence whatsoever of that ample opportunity that he had after March 29th. We don't know where Lonnie Smith was after March 29th. We don't have any indication that he had ample opportunity to kill him. All we know about Lonnie Smith is that he came in this courtroom under the guard of this officer; that this officer was in the courtroom the whole time Lonnie Smith was here and that Lonnie Smith was walked out of the courtroom by this officer. So, we know that every time we see Lonnie Smith he's been in the custody of an officer,custody protection, I don't know what you want to call it but we don't know and there's been no evidence to indicate that that man had another opportunity to get him. That's not what this case is all about, it's about the opportunity he had back on March 29th to get him, the opportunity that he used. We can't say he had ample opportunity to get him after March 29th because we don't know where he's been since March 29th; there's been no testimony put forward of that. He could have been in custody since March 29th, we don't know.
22
Petitioner's trial counsel objected to the implication that Lonnie Smith might have been in protective custody. The trial court ruled as follows:
23
I don't--he didn't say that he was, he said that he, that there could be any possibility of there might have been reasons of why he didn't have a chance to do anything else to Mr. Smith and I don't think that that is a basis for a mistrial. I don't think it even merits a cautionary instruction to any context in the manner of which it was said.
24
The court did caution the jury, immediately after the sidebar conference, that what the attorneys say during opening and closing arguments is not evidence. The jury found Petitioner guilty.
25
Petitioner exhausted available state court remedies and initiated this action. On July 13, 1994, a United States magistrate judge issued a report and recommendation pursuant to which he recommended the denial of Petitioner's habeas petition. The Magistrate Judge made the following recommended conclusion concerning Petitioner's claim based upon his statement to Officer John Magnum:
26
The United States Supreme Court has now decided that police officers may continue questioning someone who makes what may be an ambiguous request for legal help. Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).... [R]elief is precluded, as to this ground, by Davis.
27
* * * * * *
28
[The state court of appeals held that]
29
Because the accounts of [Pritchett] and Officer Magnum were conflicting, the trial court had to weigh their respective credibility in determining who to believe when deciding whether any promises of leniency were made to [Pritchett] which he relied upon in making his confession. The trial court apparently believed that [Pritchett's] account of reliance on statements allegedly made by Magnum was not credible, and found that defendant voluntarily spoke with Magnum without being induced to talk by a promise of leniency.
30
The record supports the trial court's decision. We therefore find no error in the admission of [Pritchett's] statement at trial.
31
After giving due deference to state court findings of fact (28 U.S.C. § 2254(d), Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985)), this Court should conclude that Pritchett's admissions, made during interrogation, were voluntary.
32
Report and Recommendation, pp. 2-4, 6.
33
With regard to Petitioner's prosecutorial misconduct claim, the magistrate judge recommended the following conclusion:
34
This court should conclude that the prosecutor properly argued to the jury that Smith was in custody, because this fact, apparently observed by the jury itself, did tend to rebut, at least in part, Pritchett's lawyer's argument that his client could have killed Smith if he wanted to, even in recent days. However, the prosecutor's injection of the word "protection" might indicate to the jury that the authorities had concluded Smith would only be safe [from attacks by Pritchett] if he, Smith, were placed in police custody. To that extent, the argument does inject a needlessly prejudicial comment into the balance. Be that as it may, I agree that this isolated (one word) misconduct does not satisfy the test for habeas relief. Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982); Cook v. Bordenkircher, 602 F.2d 117, 119 (6th Cir.1979), cert. denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979); Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355-56 (6th Cir.1993). In addition, the Court must obey the mandate of the Supreme Court in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), not to grant habeas relief unless it is persuaded that a constitutional violation had a substantial and injurious effect or influence in determining the jury's verdict.
35
Id. at 8.
36
After appointing counsel for Petitioner, the district court conducted a number of hearings and made numerous remarks at those hearings concerning the prosecutor's integrity in implying that he didn't know where Lonnie Smith was after the murder of Melvin Grey. In its December 15, 1995, Memorandum and Order, the district court adopted the Magistrate Judge's Report and Recommendation as it pertained to Petitioner's statement to Officer Magnum. With regard to Petitioner's second claim, the district court stated that "prosecutorial misconduct so tainted petitioner's trial as to make the result fundamentally unfair in that the jury was denied all of the arguably relevant evidence necessary to an informed judgment." Memorandum and Order, p. 6. The district court further stated as follows:
37
Premeditation was the critical issue at trial. Petitioner's access to Smith subsequent to the shooting was made a determinative issue in final argument. The prosecutor grossly mischaracterized Smith's "availability" to petitioner. This made the trial unfair, particularly in light of the presiding judge's failure to take specific curative action and in some fashion dispel any inference from the prosecutor's statement--"all we know," etc.--that the jury should conclude Smith was in custody and that was why petitioner did not go after him. To shift responsibility to petitioner to explain raises the question of adequacy of representation. In light of the Court's determination this question need not be addressed.
38
Memorandum and Order, p. 7. The court granted Petitioner's petition for habeas corpus on that ground.
II.
39
The state court concluded that Petitioner's question to Officer Magnum during interrogation concerning whether he should have counsel was ambiguous and not an unequivocal request for counsel. That court further found that Officer Magnum's testimony that no threats or promises were made to induce Petitioner's statement was credible. Giving due deference to the state court's finding, Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), the district court rejected Petitioner's claim that his statement was involuntary.
40
Petitioner argues that the district court erred in giving deference to the state court's findings of fact. The version of 28 U.S.C. § 2254(d) in effect at the time Petitioner's case was decided by the district court required the federal courts in habeas corpus proceedings to afford a presumption of correctness to state court determinations of factual issues. The habeas corpus petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. See Sumner v. Mata, 449 U.S. 539, 551, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981).
41
The state court's determination, based upon Officer Magnum's testimony and that court's assessment of the relative credibility of Officer Magnum and Petitioner, is entitled to the presumption of correctness. Petitioner has not identified clear and convincing evidence that would suffice to rebut the presumption that the state court's determination was correct. Accordingly, Petitioner's claim based upon the alleged denial of his right to counsel was properly denied.
III.
42
The district court granted the petition on the basis of Petitioner's second claim, the claim that prosecutorial misconduct had deprived him of a fair trial. On habeas review, the standard to be applied to claims of prosecutorial misconduct is whether the conduct was "so egregious so as to render the entire trial fundamentally unfair." Cook v. Bordenkircher, 602 F.2d 117, 119 (6th Cir.), cert. denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979). This court must decide whether the prosecutor's statement likely had a bearing on the outcome of the trial in light of the strength of the competent proof of guilt. Angel v. Overberg, 682 F.2d 605, 608 (6th Cir.1982).
43
In deciding whether prosecutorial misconduct mandates that habeas relief be granted, the Court must apply the harmless error standard. Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir.1979). The Court must examine "the fairness of the trial, not the culpability of the prosecutor." Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355 (6th Cir.1993)(quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947 (1982)), cert. denied, 510 U.S. 1201, 114 S.Ct. 1317, 127 L.Ed.2d 666 (1994).
44
The Sixth Circuit in Serra identified factors for consideration in weighing the extent of prosecutorial misconduct:
45
In every case, we consider the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury, and the strength of the competent proof to establish the guilt of the accused.
46
Id. at 1355-56 (quoting Angel, 682 F.2d at 608)(internal quotation omitted). In order to constitute the denial of a fair trial, prosecutorial misconduct must be " 'so pronounced and persistent that it permeates the entire atmosphere of the trial,' " United States v. Thomas, 728 F.2d 313, 320 (6th Cir.1984)(quoting United States v. Lichenstein, 610 F.2d 1272, 1281 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 856 (1980)), or " 'so gross as probably to prejudice the defendant.' " United States v. Ashworth, 836 F.2d 260, 267 (6th Cir.1988)(quoting United States v. Flake, 746 F.2d 535, 542 (9th Cir.1984), cert. denied, 469 U.S. 1225, 105 S.Ct. 1220, 84 L.Ed.2d 360 (1985)).
47
In this case, the prosecutor's remarks had little potential for misleading the jury. Everything that the prosecutor said was true and was observed by the jury. Petitioner was indeed in custody and that fact was evident to the jury. Moreover, the defense had not presented evidence concerning Petitioner's ability to pursue Lonnie Smith during the time between his surrender and the trial. The jury was aware that no such evidence had been presented.
48
The prosecutor did not place before the jury any prejudicial and misleading remarks. Moreover, the competent proof of Petitioner's guilt was abundant. Applying the harmless error standard in this case, we conclude that the prosecutor's statement during closing argument was not "so egregious so as to render the entire trial fundamentally unfair." Cook v. Bordenkircher, 602 F.2d at 119.
IV.
49
For the foregoing reasons, we REVERSE the decision granting Petitioner's habeas corpus relief on his claim of prosecutorial misconduct and AFFIRM the decision denying the petition on the claim of denial of the right to counsel.
*
The Honorable Sandra S. Beckwith, United States District Judge for the Southern District of Ohio, sitting by designation
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134 F.3d 385
U.S.v.Bonilla-Torres*
NO. 96-5412
United States Court of Appeals,Eleventh Circuit.
Dec 24, 1997
Appeal From: S.D.Fla. ,No.9600620CRNCR
1
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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Court of Appeals
of the State of Georgia
ATLANTA, March 10, 2017
The Court of Appeals hereby passes the following order
A17A0974. GEORGIA DEPARTMENT OF TRANSPORTATION v. BEVERLY
ROBERSON AS SURVIVING SPOUSE OF JOSEPH ROBERSON, DECEASED et
al..
Upon consideration of the APPELLANT'S motion FOR PERMISSION TO WITHDRAW
THE APPEAL in the above styled case, it is ordered that the motion is hereby GRANTED.
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, March 10, 2017.
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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479 F.Supp. 84 (1979)
John Cary SIMS and Sidney M. Wolfe, M.D., Plaintiffs,
v.
CENTRAL INTELLIGENCE AGENCY, Defendant.
Civ. A. No. 78-2251.
United States District Court, District of Columbia.
August 7, 1979.
As Amended August 13, 1979.
Paul Alan Levy, David C. Vladeck, Washington, D. C., for plaintiff.
John Oliver Birch, Asst. U. S. Atty., Washington, D. C., for defendant.
OBERDORFER, District Judge.
MEMORANDUM
I.
Plaintiffs are pressing a Freedom of Information Act ("FOIA") request for disclosure of (1) the names of universities and other institutions that received funding from the defendant for the so-called MK-ULTRA program, as well as the names of the principal researchers at each institution; and (2) the grant proposals and contracts awarded under the MK-ULTRA program.[1]*85 That program involved behavioral modification research, primarily with human subjects. Through such research, the CIA hoped to better understand "brainwashing" techniques purportedly used by foreign governments. The CIA also sponsored the research in the hope that it might discover means of obtaining information from foreign agents. See generally Affidavit of CIA Director Stansfield Turner (May 13, 1979) (copy attached as appendix to this Memorandum).
Defendant voluntarily has responded to plaintiffs' FOIA request by releasing approximately two-thirds of the names of the institutions that were involved.[2] It is reluctant to disclose the names of the remainder of the cooperating institutions, claiming that they are "intelligence sources" within the meaning of 50 U.S.C. § 403(d)(3) and therefore exempt from disclosure by 5 U.S.C. § 552(b)(3). The defendant also declines to disclose the names of researchers, urging that they also are exempt "intelligence sources." Defendant finally claims that release of the individual names would invade the privacy of the individual researchers in contravention of 5 U.S.C. § 552(b)(6). Plaintiffs counter by alleging that the CIA's withholding of the names of the institutions and researchers is not warranted by FOIA exemptions. The parties have filed cross-motions for summary judgment that support their divergent views.
On April 12, 1979, this Court requested the parties to submit supplemental briefs addressing, inter alia, the question whether a CIA promise of confidentiality to institutions and/or researchers participating in the MK-ULTRA program might create a contractual right of non-disclosure. The Court further requested the CIA to prepare a draft of a form letter to be sent to each institution and to each researcher whose name remained undisclosed, inquiring whether the addressee relied on any CIA commitment of anonymity in agreeing to participate in the MK-ULTRA program and whether the addressee still wished to remain anonymous.
In an accompanying Memorandum, the Court ruled that defendant had failed to establish that either the institutions or the individual researchers were "intelligence sources" as that term is used in 50 U.S.C. § 403(d)(3) for purposes of exemption under 5 U.S.C. § 552(b)(3). The Court hypothesized that the institutions and researchers might nevertheless have a common law or constitutional right to protection of their anonymity and that enforcement of such a right might have a side-effect beneficial to the public interest: protection of CIA anonymity commitments to persons with whom it established intelligence-related relationships.
The parties responded to these suggestions by briefs and, in the case of the defendant, with an extensive affidavit by CIA Director Stansfield Turner. Neither brief embraces the theory that there is any contract or constitutional right of the institutions or researchers that would bar disclosure of their names, if disclosure were required by FOIA. Indeed, defendant made no showing that the researchers and institutions in this case were given promises of confidentiality. See note 6, infra. Instead, defendant's brief and Director Turner's affidavit renew the contention that the institutions and individual researchers participating in the project are intelligence sources and that the Director is required by the National Security Act to protect them from disclosure. See 50 U.S.C. § 403(d)(3).
II.
Our Court of Appeals ruled, prior to 1976, that 50 U.S.C. § 403(d)(3), authorizing the Director to "protect . . . intelligence *86 sources and methods," is "precisely the type of statute comprehended by [FOIA's] exemption (b)(3)." Weissman v. CIA, 184 U.S. App.D.C. 117, 120, 565 F.2d 692, 694 (1977). In 1976, however, Congress amended (b)(3) to narrow the class of statutes that qualify under the (b)(3) exemption. Congress was concerned that the Supreme Court's interpretation of the exemption in FAA Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975), permitted agencies too much discretion in deciding the information that was subject to FOIA disclosure. Accordingly, Congress amended (b)(3) to permit the withholding of information that was exempted under certain statutes, but only if the protecting statute:
(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.
The (b)(3) amendment, as explained in Ray v. Turner, 190 U.S.App.D.C. 290, 308, 587 F.2d 1191, 1219 (1978) (Wright, C. J., concurring), "removed the Robertson loophole by insuring that no agency could rely on an `exempting' statute unless the statute contained clear guidelines upon which a court could rely in reviewing the agency's refusal to disclose requested information."
Despite the 1976 stiffening of (b)(3), our Court of Appeals recently has ruled that the amendment was not intended by Congress "to upset the well-established Exemption 3 status" of 50 U.S.C. § 403(d)(3). Goland v. CIA, 197 U.S.App.D.C. 25, at 36, 607 F.2d 339 at 350 (D.C.Cir. 1978). In that case the Court of Appeals affirmed the withholding of certain classified portions of a 1948 statement by the then CIA Director. The Court emphasized that the passages in question were described in a "non-conclusory and detailed affidavit" that described, among other things, "`intelligence collection and operational devices . . . still utilized' and . . . `basic concepts of intelligence methodology' of which `the essential elements remain viable.'"
Despite Goland's identification of 50 U.S.C. § 403(d)(3) as a statute that qualifies for incorporation under the strict rules of FOIA's newly amended (b)(3) exemption, our Court of Appeals has warned on other occasions that § 403(d)(3)'s qualification under (b)(3) is not automatic. In Ray v. Turner, supra, for example, Chief Judge Wright noted that even though § 403(d)(3) falls under the (b)(3) exemption because it "refers to particular types of matters to be withheld,"[3] § 403(d)(3)'s language regarding protection of "intelligence sources and methods" is "potentially quite expansive." Id. 190 U.S.App.D.C. at 321, 587 F.2d at 1220. He concluded that in order to fulfill Congress' intent to close the Robertson loophole, "courts must be particularly careful when scrutinizing claims of exemptions based on such expansive terms." Id.
Chief Judge Wright's concerns with the potential expansiveness of § 403(d)(3) recently were echoed by our Court of Appeals in a related context. In The Founding Church of Scientology v. National Security Agency, 197 U.S.App.D.C. ___, 610 F.2d 824 (1979), the Court evaluated the National Security Agency's claim that Section 6 of Public Law No. 86-36[4] authorizes the withholding of certain documents under (b)(3). That statute permits the Agency to withhold, inter alia, "information with respect to the activities [of the National Security Agency]." (emphasis added). The Court found that the provision generally satisfies the strictures of (b)(3) because it "refers to particular types of matters to be withheld." See 5 U.S.C. § 552(b)(3)(B). The Court declined, however, to withhold the information in question until defendant filed detailed affidavits describing the documents in question. The Court requested supplemental affidavits in order to be certain that the information sought to be withheld concerns only those "activities" of the NSA that obviously *87 qualify for nondisclosure under Section 6 and (b)(3). It warned that Section 6 had a "potential for unduly broad construction" that might run at cross purposes with FOIA's "overwhelming emphasis on disclosure." 197 U.S.App.D.C. at ___, 610 F.2d at 828. As the Court noted: "a term so elastic as `activities' should be construed with sensitivity to the `hazard[s] that Congress foresaw.'" At ___, 610 F.2d at 829.
Applying the learning of Goland, Ray, and The Church of Scientology to the case here, the Court first reaffirms that § 403(d)(3) generally qualifies for incorporation under the (b)(3) exemption because it "refers to particular types of matters to be withheld," viz. "intelligence sources and methods." The Court also finds, however, that in the peculiar circumstances of this case, § 403(d)(3) does not "refe[r] to particular types of matters to be withheld" with sufficient precision to qualify for FOIA's (b)(3)(B) exemption. Defendant has failed to demonstrate to the Court either by detailed affidavits or by clear guidelines that its decision to treat the MK-ULTRA institutions and researchers as "intelligence sources" under § 403(d)(3) is not an overbroad application of the term, too susceptible to administrative discretion to pass muster under (b)(3). Accordingly, the Court denies defendant's motion for summary judgment, and grants summary judgment in favor of plaintiffs on this issue.
Three reasons compel this result. First, unlike the courts in Goland and Scientology, this Court cannot look to detailed agency affidavits that describe MK-ULTRA activities and thereby assure itself that the MK-ULTRA projects involved intelligence-related work and that the institutions and researchers can be recognized as "intelligence sources." The MK-ULTRA records were destroyed by the CIA in 1973 and therefore are apparently not susceptible to detailed description.
Second, because details were not available either to the incumbent Director or to the Court, both have been required to rely on generalized observations to determine whether the term "intelligence sources" may be applied to institutions or researchers in the present case. It is apparent from the face of the Director's affidavit that his definition of the institutions and researchers as intelligence sources is not well tied to particular facts and is "potentially quite expansive." See Ray v. Turner, 190 U.S. App.D.C. at 321, supra, 587 F.2d at 1220. Nor does the affidavit offer "clear guidelines" from which the Court can conclude that his decision to treat the institutions and researchers as "intelligence sources" is not discretionary or overbroad. Instead, the Director has characterized an intelligence source as any "contributor . . . to the intelligence process." This definition is susceptible to discretionary application and overbroad interpretation.[5]
Third, the question whether the MK-ULTRA institutions and researchers are "intelligence sources" qualifying for a (b)(3) exemption is a case at the margin. The Court would not hesitate to apply the (b)(3) exemption to most of the sources of information identified by the Director's affidavit as "intelligence sources," e. g., CIA operatives, couriers who transport secret materials, etc. The present situation, however, involves behavioral research that was carried on, for the most part, at American universities, with the witting or unwitting participation of American students, for a purpose which may be collateral to the main business of intelligence, and to an uncertain result. In a context such as this, the Court cannot validate the Director's determination that the institutions and researchers involved were "intelligence sources" without a strong and detailed showing of the work done under the auspices of MK-ULTRA or, *88 if that does not make it obvious that intelligence sources are involved, by the identification of clear, non-discretionary guidelines to test whether an intelligence source is involved in a particular case. The Director has failed to meet this burden.
In reaching this decision, the Court has given careful consideration to the Director's expressed concern that disclosure of the names might impair his ability to carry out his statutory duty of protecting the defendant's intelligence sources. Performance of this duty requires him to be able to strictly honor commitments of anonymity made to such sources by and on behalf of the defendant. In fact, it was in recognition of these concerns that the Court suggested earlier that the institutions and researchers participating in the project in reliance on such commitments might have a contract right to anonymity.[6]
The Court also notes that the policy objectives which concern the Director might very well be accommodated by classifying the lists of names of institutions and researchers pursuant to Executive Order 12065, so that the lists would be exempt from disclosure by 5 U.S.C. § 552(b)(1).[7] In fact, the lists were once so classified, but the defendant has since elected to declassify them so that they are not now exempt under (b)(1). Nothing in the Court's ruling that (b)(3) is inapplicable to the lists here at issue is intended to foreclose (or approve) new classification of the lists and resort to section (b)(1) in order to protect any commitment to anonymity made by defendants to any institution or researchers. The effective date of the accompanying order has been set forward to October 1, 1979 in order to permit the defendant to reexamine and act on the possibility of classifying the names of institutions and researchers which would otherwise be disclosable and to amend the motion and opposition to invoke (b)(1), if it should elect to do so.
III.
Defendant also urges the Court to withhold the names of the individual researchers involved in the MK-ULTRA projects on the ground that the names are exempt from disclosure under 5 U.S.C. § 552(b)(6). That FOIA provision authorizes the withholding of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
Application of the (b)(6) exemption requires the Court to determine whether "personnel and medical files and similar files" are involved, and then to balance the privacy interest against the public interest in disclosure of the materials. See generally Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). Applying these standards here, the names of the MK-ULTRA researchers may be exempt from FOIA disclosure.
First, the CIA records in question have many characteristics of "personnel and medical files and similar files." They are financial in nature, detailing MK-ULTRA funding. They identify both the institutions receiving money under the project, and the principal researchers. The files thus contain "personal data"the names of principal researchers. The inclusion of the names of the researchers in the context of CIA-funded research may implicate personal privacy concerns resembling those at stake in the specific personal data maintained by the Department of Health, Education and Welfare. See id. at 375, 96 S.Ct. 1592. Such a claim would be particularly strong in cases where researchers participated in reliance on actual or implied commitments *89 that they could do so anonymously. The files thus have functional characteristics in common with and therefore are "similar" to classic personnel or medical files.
Second, disclosure of the names of the researchers may constitute a "clearly unwarranted invasion of privacy." The public interest served by further exposing the MK-ULTRA project and the possible role of universities and colleges must be weighed against concern that publicity about individual researchers' associations with the projects may seriously affect their careers and other personal relationships, causing both embarrassment and possible harassment. See generally Wine Hobby, U.S.A., Inc. v. IRS, 502 F.2d 133, 135-37 (3d Cir. 1974); Rural Housing Alliance v. Dept. of Agriculture, 162 U.S.App.D.C. 122, 498 F.2d 73, 76-77 (1974). This risk of embarrassment is aggravated in the case of any researchers who were unwitting participants in CIA research.
Evaluation of the applicability of the (b)(6) exemption to the researchers requires additional information as to whether any researcher had any reasonable expectation that his or her participation would be anonymous, as to whether any researcher has any other privacy interests which might be compromised by disclosure of participation in the project or whether any researcher has any other objection or reason for objection to disclosure of his or her name. To this end, the Court is affording the defendant additional time in which to communicate with former researchers about the foregoing, using the form of letter suggested to the Court, or any other process which the defendant believes will elicit the information needed for resolution of this issue.
If the defendant elects to pursue the (b)(6) exemption, it should submit, on or before October 1, 1979, in camera, a list of the names of the researchers with whom defendant has communicated and an indication as to what objection, if any, the researcher may have to disclosure of his or her name, and the reason. Any affidavit filed, in camera, shall be accompanied by an affidavit to be filed publicly containing the same information, except for the researchers' names. If the defendant elects not to file these affidavits or otherwise move, on or before October 1, 1979, it will be deemed to have abandoned its (b)(6) exemption claim.
APPENDIX
AFFIDAVIT
STANSFIELD TURNER does depose and say as follows:
1. I am the Director of Central Intelligence. I have served in that office since 9 March 1977.
2. As Director of Central Intelligence, I am the executive head of the Central Intelligence Agency (CIA). The CIA was established by the National Security Act of 1947, 50 U.S.C. § 403, et seq., as was the position of Director of Central Intelligence. Section 102(d)(3) of the Act, 50 U.S.C. § 403(d)(3), provides in part: "That the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure."
3. I have read the Complaint in this action, and I am generally familiar with this litigation. Specifically, I have read the Court's Memorandum and Order in this case, dated 12 April 1979, and note that the Court has stated in its Memorandum that it finds that the institutions and individual researchers who participated in Project MKULTRA "are not intelligence sources." Given the dictionary definition of "source" and given the generally perceived meaning of that word, I can, of course, understand the basis for the Court's belief. The purpose of this affidavit is, therefore, to familiarize the Court with some of the techniques employed and problems encountered by the CIA in the performance of its statutory duties as the central agency within the United States Government with the primary responsibility for conducting intelligence activities for the United States. It is my judgment that the institutes and individual researchers who participated in Project MKULTRA are intelligence sources *90 and that, therefore, it is my responsibility under the National Security Act to protect them from disclosure to the extent that I determine that such protection is in the interest of national security and is necessary to enable the CIA to perform its statutory functions effectively.
4. The term "intelligence sources" is a phrase of art, encompassing a variety of entities. By that I do not mean that it is so vague or imprecise as to shroud whatever the CIA may wish to conceal. But certainly, it includes more than simply those individuals directly involved in collecting and reporting foreign intelligence information. To accomplish its intelligence collection responsibilities, the CIA must engage in a variety of related activities. Executive Order 12036, issued by President Carter on January 24, 1978, sets forth the duties and responsibilities of the CIA. It provides in part:
1-8. The Central Intelligence Agency. All duties and responsibilities of the CIA shall be related to the intelligence functions set out below. As authorized by the National Security Act of 1947, as amended, the CIA Act of 1949, as amended, and other laws, regulations and directives, the CIA under the direction of the NSC, shall:
1-801. Collect foreign intelligence, including information not otherwise obtainable, and develop, conduct or provide support for technical and other programs which collect national foreign intelligence . . .
* * * * * *
1-804. Conduct counterintelligence activities outside the United States and coordinate counterintelligence activities conducted outside the United States by other agencies within the Intelligence Community;
* * * * * *
1-806. Produce and disseminate counterintelligence studies and reports;
* * * * * *
1-810. Carry out or contract for research, development and procurement of technical systems and devices relating to authorized functions.
5. To further illustrate, the classic figure of the secret agent reporting from abroad on the intentions of a hostile foreign power is easily understood even by those unversed in the craft of modern intelligence. But there are other less obvious, but equally important, contributors to the intelligence process who are considered intelligence sources. There is the safehouse keeper who must provide a safe haven and secure meeting place. There is the courier whose function is to securely transport material even though the contents may be unknown to him. An access agent's function is to provide entree to another individual who in turn may be recruited or used unwittingly as an intelligence source. A cut-out is an individual who serves as a facade, concealing the fact that the ultimate recipient of information is American intelligence. Rather than collecting information, a source may be used as a channel for disseminating misinformation, to confuse and mislead a hostile foreign government. So too, the individual who conceived the idea of a particular high altitude photographic platform utilizing previously untried technology and who offered his idea to the CIA was an intelligence source. Had his association with the CIA or the Agency's interest in his concept been revealed in an untimely fashion, the intelligence benefits which resulted from the development of the U-2 reconnaissance aircraft might never have been realized.
6. This iteration of examples of intelligence sources could be continued, but it is not without limits. The problem in formulating a definition of intelligence sources is to insure that it is neither overly broad nor excessively restrictive. I can assure the Court that the CIA is not seeking a definition so broad as to include the local electric power company, the supplier of pencils and the public transportation company, as plaintiffs have suggested. Charter legislation concerning U.S. intelligence agencies is currently pending in the Congress. In November 1978, the Special Coordination Committee *91 of the National Security Council and the President approved and provided to the Senate Select Committee on Intelligence the following definition as part of proposed intelligence charter legislation to be incorporated in Senate Bill S. 2525 of the 95th Congress:
The term `intelligence source' means a person, organization, foreign government, material or technical or other means from which foreign intelligence, counterintelligence or counterterrorism intelligence is being, has been or may be derived.
It should be noted that this definition does not represent any attempt to expand the responsibility of the Director of Central Intelligence to protect intelligence sources and methods as set forth in the National Security Act of 1947, supra. Rather, the intent is to capture, yet clarify and amplify, that responsibility as it has been traditionally understood within the intelligence community.
7. It is unnecessary to recount at length the details of the origin, duration and demise of the Project known as MKULTRA. Its purpose and history have been publicly discussed with significant candor. Briefly, the Project was concerned with learning the state of the art of behavioral modification at a time when the U.S. Government was concerned about inexplicable behavior of persons behind the "iron curtain" and American prisoners of war who had been subjected to so-called "brainwashing." The purpose was to support research directed at discovering whether certain substances might be capable of influencing human behavior. Institutions involved in the research were reputable and prominent in their particular fields of interest. Many of the researchers were highly respected, even eminent scientists. Initially, the thrust of the Project was defensive. In the case of some few subprojects, however, this defensive counterintelligence orientation became secondary as the possibilities for the use of such techniques to obtain information from enemy agents became apparent. However, insofar as we have been able to determine from available documentation and inquiries directed toward identifying experimental subjects, the institutions and researchers whose identities are at issue in this lawsuit were not involved in that phase of the Project. Throughout the course of the Project, CIA involvement or association with the research was concealed in order to avoid stimulating the interest of hostile countries in the same research areas.
8. It should be recognized that the Project originated in response to a perceived threat to national security. Information was developed for possible exploitation for intelligence or counterintelligence purposes. Extensive measures were taken to insure that CIA interest in the institutions and researchers involved was concealed. Substantive knowledge derived from the Project and the identities of the participating institutions and researchers were considered classified as matters of national security.
9. In 1973 records believed at the time to comprise all the MKULTRA files were destroyed. During the summer of 1977, some previously undiscovered financial documents pertaining to the Project were located. Upon careful review of these records, it was determined that most of the substantive information concerning the results of MKULTRA research, to the extent that such information was contained in these records, did not require continued protection and could be declassified and released. This decision, however, did not by any means affect my continuing responsibility to protect as intelligence sources those institutions or individuals who participated, wittingly or unwittingly, in the MKULTRA research. Such disclosure of previously classified information, while continuing to protect the identities of intelligence sources, is not without precedent. In fact, it is a frequent practice. For instance, during the Cuban missile crisis, President Kennedy decided to release a great deal of sensitive intelligence information concerning Soviet missile installations in Cuba. It was clear, at that time, that the Soviets had to be told publicly that the United States Government had precise information on the extent of the Soviet threat in order to justify *92 the strong countermeasures then taken by our Government. Nevertheless, the identities of intelligence sources who contributed to our intelligence efforts continued to be protected from disclosure. Similarly, the technical details of the U-2s which contributed to our knowledge at that time were not revealed.
10. If the Government were a party to a contract in which confidentiality were a condition, expressed or implied, the Government could not cavalierly disregard the conditions of the contract. Of greater concern, however, is the pledge of confidentiality which pervades the relationship between the CIA and its intelligence sources. This pledge, expressed or implied, rises above the nature of a contract. It transcends any single Agency-source relationship and is inherently a matter of national security. The ability and willingness of the CIA to protect the identity of intelligence sources is the linchpin that enables the Agency to collect human source intelligence. Project MKULTRA and the sources involved in that Project do not exist in a vacuum. They cannot neatly be set aside and said to bear no relationship to the other ongoing intelligence collection efforts in which the Agency is involved now, or in which it may be involved in the future. Indeed, the willingness to protect old confidences is viewed as a positive indication of the attitude toward continuing acceptance of the responsibility to protect current and future sources.
11. The individuals, organizations and governments with which the Agency must deal are legitimately concerned with and acutely attuned to any signal that the Director of Central Intelligence is unable or unwilling to discharge the responsibility to protect intelligence sources from unauthorized disclosure. Even unwitting sources must be protected not just because disclosure will probably result in the loss of intelligence available from that source, but because any disclosure is perceived by tentatively cooperative sources as an erosion or abnegation of the Director's responsibility. Source protection is an absolute. The concept that it is discretionary, that the Director of Central Intelligence will waive his responsibility as he sees fit, cannot be allowed to flourish. Too many events over the past several years have planted seeds of doubt around the world about the Agency's ability to maintain a confidence. External assaults upon the CIA by those who would deliberately destroy the Agency's effectiveness can be understood by individuals who might be persuaded to cooperate with American intelligence. It can also be understood that in unusual situations, as in the case of MKULTRA, institutions might be revealed as formerly cooperative sources where there is mutual agreement that authorized disclosure be made.[1] But a unilateral breach of confidentiality and trust by the United States Government will be viewed as an arrogant disregard for the lives or safety or reputations of those who have contributed to our intelligence activities. In the alternative, such a breach will be seen as a sign of weakness, of inability to honor commitments. Either way, the result will assuredly be the same. The ability to recruit human intelligence sources will be impaired, if not destroyed. The willingness of those individuals who can contribute positively to the development of enhanced collection techniques, human or technical, will be diminished. The simple facts of any one situation cannot be viewed in a single dimension. In full perspective, what must be appreciated is that the perception of the CIA by active or potential sources is a determinative factor which must always be taken into account.
12. I have attempted in this affidavit to demonstrate why the researchers and the institutions which were involved in the MKULTRA research were intelligence sources. If this is accepted, then certain conclusions must inexorably follow. These conclusions are not altered by the release of the names of certain of the institutions nor by the declassification and release of substantive *93 information concerning the Project. Those releases reflected a decision by the CIA that the public interest would be served by public disclosure, but that decision was predicated upon a condition precedent that the consent of the institutions would be first obtained. But those releases do not bear upon the continuing responsibility to protect the identities of the remaining sources. Neither the nature of the Project nor the curiosity of the public can override the obligation of the Director of Central Intelligence to abide by the Congressional mandate to protect intelligence sources which arises from the very nature of the craft of intelligence.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 13th day of May 1979.
/s/ STANSFIELD TURNER
NOTES
[1] The grant proposals and contracts have been disclosed by the CIA pursuant to previous FOIA requests. Plaintiffs had complained that restrictive CIA "reading room" hours had denied them access to the documents. The Court disposed of that claim by Order of April 12, 1979.
[2] The CIA released only the names of the institutions that did not object to the release. The names released include Cornell University, the University of Michigan, Stanford University School of Medicine, Princeton University, Harvard University and the Massachusetts Institute of Technology.
[3] See 5 U.S.C. § 552(b)(3)(B).
[4] 73 Stat. 64 (1959); 50 U.S.C. § 402 note (1976).
[5] For a more complete definition of intelligence sources, the affidavit refers to Executive Order 12036, issued by President Carter on January 24, 1978, and to a definition approved by the Special Coordination Committee of the National Security Council and by the President, and provided to the Senate Select Committee on Intelligence for inclusion in Senate Bill 2525 of the 95th Congress. These other definitions offered by the Director in his affidavit are equally susceptible to discretionary application and overbroad interpretation.
[6] The Director's affidavit conspicuously does not represent that the institutions or researchers in this case received expressed or implied commitments of anonymity. Cf. Affidavit of Stansfield Turner ¶ 10 (May 13, 1979).
[7] 5 U.S.C. § 552(b)(1) states that FOIA disclosure requirements do not apply to matters that are: "(A) specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and (b) are in fact properly classified pursuant to such Executive Order." Executive Order 12065 describes classification standards of sensitive materials. See, e. g., Kanter v. Department of State, 479 F.Supp. 921 (D.D.C.1979).
[1] I solicited such agreements from institutions involved in MKULTRA only because I am firmly committed to a course of action which may lead to the identification of any unwitting experimental subjects.
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321 F.2d 544
OTTER TAIL POWER CO.v.Han JENSEN, etc.
No. 17378.
United States Court of Appeals Eighth Circuit.
August 8, 1963.
Appeal from the United States District Court for the District of South Dakota.
Carleton R. Hoy, Sioux City, S. D., for appellant.
Dale E. Bradshaw, Watertown, S. D., for appellee.
PER CURIAM.
1
Appeal from District Court dismissed on merits without costs to either party on stipulation of parties.
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58 Cal.App.2d 851 (1943)
J. HENRY WOOD et al., Plaintiffs and Respondents,
v.
WILLIAM J. EMIG, as Sheriff of the County of Santa Clara, etc., et al., Appellants; DOROTHY M. ROSS et al., Respondents.
Civ. No. 12309.
California Court of Appeals. First Dist., Div. One.
May 28, 1943.
A. L. Crawford and Ralph Bancroft for Appellants.
Chester E. Ross for Respondents.
WARD, J.
This is an appeal by defendants and cross-complainants from that part of the judgment rendered in this action by which Dorothy M. Ross is decreed to be the owner of the parcel of land involved herein, free and clear of the lien of a judgment obtained by certain of the defendants and which they sought to execute upon said real property.
J. Henry Wood and Margaret Wood, his wife, plaintiffs, acquired title to the property involved in 1925; they made it their home and, except for periods spent in Santa Cruz County and at a mining location in Siskiyou County, lived there continuously until April 1, 1940. During such periods as they were absent from the home, located in Palo Alto, their household furnishings remained there. While in Siskiyou County they lived in a cabin on their mining location, having taken with them only such personal effects as were necessary to their temporary stay. All of the time from June, 1938, until April 1, 1940, they lived in the home in Palo Alto. In the meantime, in September of 1938, Mr. Wood suffered a stroke of paralysis and from that time was unable to perform any work. On June 29, 1939, they filed a declaration of homestead on the property. In April of 1940, their financial condition having become such that they felt obliged to rent their home in order to "have something to live on," they moved to a small apartment in Santa Cruz for two months, and from there moved to the cabin in Siskiyou County. There is testimony that in September, 1940, Mrs. Wood delivered *854 to her daughter, Dorothy M. Ross, a deed to the Palo Alto property, in which the latter and a son of plaintiffs were named as grantees, the son later conveying his interest to his sister. The deed was not recorded until December 19, 1940. In the meantime the Sheriff of Santa Clara County, who is the one of the defendants herein, levied a writ of execution on the Palo Alto property, including the income therefrom, in execution of a judgment obtained in Siskiyou County, and recorded in Santa Clara County on October 24, 1940.
There is evidence that the deed to plaintiff's children had been made in 1936. Plaintiffs testified in that regard that at the time of its execution, they were doing a great deal of dangerous mountain driving and "we wanted that deed written in case anything would happen to us, they would find that deed among our papers, that property would go to our two children." It had, however remained in the possession of plaintiffs, Mrs. Wood testifying that "wherever we [she and her husband] were, the papers were."
Shortly after the service of the writ of execution on the tenant of the Palo Alto property by which the rental due was attached, and on a local bank for a small amount on deposit in plaintiffs' names, plaintiffs served on the sheriff an "Affidavit on Claim of Exemption, and Demand for Release of Exempt Property," claiming all rentals from the homesteaded property to be exempt (Civ. Code, sec. 1265) and demanding the release of the moneys levied upon. Thereafter the plaintiffs in the Siskiyou County action served upon plaintiffs and upon the sheriff a "Counter Affidavit to Claim of Exemption by Defendants ... in Opposition to Demand for Release of Property claimed exempt," claiming therein that the declaration of homestead was false, fraudulent and untrue in that plaintiffs did not reside upon the premises in question at the time of the declaration.
This action was brought against the sheriff and the creditors who had obtained the judgment against plaintiffs, the prayer of the complaint being to quiet plaintiffs' title to the real property and to enjoin the defendants from asserting any claim thereto by reason of their judgment. A general demurrer to the complaint was sustained. Thereafter an amended complaint for declaratory relief was filed, the object of which was to determine the rights of plaintiffs under the declaration of homestead and also to quiet title to the real property. The defendants answered, asserting a first lien upon *855 the property; they also alleged by special defense that the issue of a valid homestead thereon had been previously determined in the Siskiyou County case, wherein the claim of exemption had been heard and denied, and that the issue was thus res judicata. At the same time they filed a cross-complaint in which they joined the son and daughter of plaintiffs herein, alleging that they claimed some interest in the property by virtue of the deed from plaintiffs. They prayed that the homestead be declared invalid and that the judgment in the Siskiyou County case be declared a first lien on said real estate. Cross-defendant Henry Carroll Wood, plaintiffs' son, defaulted. Cross-defendant Dorothy M. Ross, their daughter, joined with plaintiffs in the answer to the cross-complaint, concluding with the prayer: "Wherefore, these plaintiffs, including said Dorothy M. Ross, pray that the defendants take nothing by said cross-complaint, and that the plaintiffs have judgment as set forth in their amended complaint on file herein, saving and excepting that said Dorothy M. Ross be permitted to join with said plaintiffs therein, to the extent of establishing her sole ownership therein, as shown by the records of the title thereto as the same exists at the present time." Judgment was rendered in favor of cross-defendant Dorothy M. Ross, decreeing that she was the owner of the real estate and enjoining the defendants, now appellants, from in any manner asserting any claim thereto.
The deed to the children of plaintiffs executed in 1936 could have no effect until its delivery; it could have been destroyed at any time, and the declaration of homestead in 1939 is further evidence that the parties still considered the property theirs, so that the declaration of homestead was lawful in case all other requirements were met. The judgment was given in the Siskiyou County case January 29, 1940, about six months after the declaration of homestead (June 29, 1939); it was recorded in Santa Clara County October 24, 1940, over a year after the declaration of homestead, but prior to the recordation of the deed to the daughter, although she claimed delivery thereof in September of 1940 and the court so found.
The main questions on appeal are (1) when the homestead was removed by deed to the daughter, recorded December 19, 1940, was the judgment recorded in the meantime a lien on the property, (2) was abandonment of the homestead proven, *856 and (3) is the doctrine of res judicata applicable to the facts.
[1] The denial of the above mentioned claim of exemption by the superior court in Siskiyou County purported to determine that J. Henry Wood and Margaret Wood had no valid homestead rights to the property in Palo Alto. Although the original issue in Siskiyou County was a claim to money, the ultimate issue was the validity of the homestead, and whether a judgment against plaintiffs could be satisfied therefrom. The latter issue is involved in the present appeal. In both instances if the homestead is valid, the property is not subject to execution. [2] The particular question in this regard is whether a court other than that of the county wherein the homestead is located has the power to hear and determine the question of its validity. All actions for the enforcement of liens upon real property shall be commenced in the county wherein such property is situated. (Cal.Const., art. VI, sec. 5; Code Civ. Proc., sec. 392.) The effect of filing a declaration of homestead is a question for the county in which the property is located. It is of local importance whether or not spouses who hold property inviolate against claims of creditors seeking to remove an exemption thereon, should be entitled to a hearing in the county of their residence, which county may be forced to assume their care in the event the homestead is declared invalid.
[3a] Appellants contend that the matter before the Siskiyou court was transitory and not local. This contention is primarily based upon the following language in Arighi v. Rule & Sons, Inc., 41 Cal.App.2d 852, 855 [107 P.2d 970]: "... the homestead right is not an estate in the land, but a mere privilege of exemption from execution of such estate as the holder occupies." The court there was simply stating the general rule that "a fee simple in the land is not necessary for the establishment of a homestead," a matter foreign to the problem presented in the present case.
[4] The distinction between a local and a transitory action is not always easily ascertainable. The character of the action and judgment generally determine its classification. (Eckstrand v. Wilshusen, 217 Cal. 380 [18 P.2d 931].) Transitory actions are generally tried in the county where the defendant resides. (Code Civ. Proc., sec. 395.) [3b] In the Siskiyou County case the proceeding was in enforcement of a judgment by execution, in effect the satisfaction of a lien against homestead real estate in another county. Subject to the rules *857 of change of venue, actions to quiet title, for recovery of an interest in real estate, for the foreclosure of a lien, or for the determination of any such right or interest, must be commenced where the land is situated. (Cal. Const., art. VI, sec. 5; Maguire v. Cunningham, 64 Cal.App. 536 [222 P. 838]; Coley v. Hecker, 206 Cal. 22 [272 P. 1045]; Urton v. Woolsey, 87 Cal. 38 [25 P. 154]; Murphy v. Superior Court, 138 Cal. 69 [70 P. 1070]; Bartley v. Fraser, 16 Cal.App. 560 [117 P. 683]; Morrissey v. Morrissey, 191 Cal. 782 [218 P. 396]; Eckstrand v. Wilshusen, supra.) In Cohen v. Hellman Commercial T. & S. Bk., 133 Cal.App. 758 [24 P.2d 960], an action for an accounting and for the termination of a trust and the reconveyance of real property, a transitory and local action could well be heard in a county other than where the property was situated in the absence of a motion for change of venue. In that case "no lien was sought to be enforced."
[5] The determination of the rights of homesteaders should be heard in the county where the homestead is situated. (Estate of James, 23 Cal. 415; Votypka v. Valentine, 41 Cal.App. 74 [182 P. 76]; Rogers v. Cady, 104 Cal. 288 [38 P. 81, 43 Am.St.Rep. 100].) "When it appears that the court has no jurisdiction, it has no power to proceed in any manner, but should dismiss the action." (Estate of Palmieri, 120 Cal.App. 698, 700 [8 P.2d 152].) The question of jurisdiction may be raised at any period before final disposition of the litigation. The order of the Superior Court of Siskiyou County was without legal effect. (People v. Davis, 143 Cal. 673 [377 P. 651]; Peters v. Anderson, 113 Cal.App. 158 [298 P. 76].) It may be assumed that such court had jurisdiction to render the money judgment and, by following the usual procedure, make it effective in another county, but it did not have jurisdiction to determine homestead rights to real estate located in another county. (Votypka v. Valentine, supra.) "... when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction." (Rodman v. Superior Court, 13 Cal.2d 262, 269 [89 P.2d 109].) In Abelleira v. District Court of Appeal, 17 Cal.2d 280, 291 [109 P.2d 942, 132 A.L.R. 715], the court said: "Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or *858 rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction."
[6] In addition to the above it should be noted that at the date of the hearing in Siskiyou County of defendants' (plaintiffs herein) motion for claim of exemption, Dorothy M. Ross was the owner of the property. She was not a party to the action, nor was she represented at such hearing; hence the determination of the homestead rights of her father and mother was not binding upon her. This conclusion eliminates the necessity of considering appellants' claim of res judicata.
[7] The court found "That said real property is now, and at all of the times herein mentioned was, improved with a family style dwelling house, situated in the residential area of said City of Palo Alto; that said dwelling house was the family home of plaintiffs and their family from 1925 until about the year 1935; that for a period of approximately two years the plaintiffs resided in Siskiyou County and in Santa Cruz County; that beginning on or about the 20th day of June, 1938, and continuously thereafter until the 30th day of March, 1940, the plaintiffs lived in the residence upon said real property; that during said last mentioned period they occupied said residence and made their home here, and that during said period said real property was their only place of domicile; that said residence thereon was actual, bona fide, and continuous; that while said plaintiffs were residing upon said premises as aforesaid, and on or about the 26th day of June, 1939, they executed a Declaration of Homestead, which was in due and proper form, and which was duly recorded on June 29th 1939 in Volume 933 of Official Records, at page 565, in the office of the Recorder of said County of San Benito [Santa Clara], wherein said real property was claimed as a Homestead by said plaintiffs; that said plaintiffs at the time of making said Declaration of Homestead had no other Homestead upon any other property." While there is some conflicting evidence, particularly as to the voting registration of the parties, there is ample evidence to sustain the findings.
Considerable attention is given to the date of the delivery by the parents of the deed to the daughter Dorothy M. Ross. Margaret Wood, referring to the deed, testified: "Q. Can you state when it was delivered to someone other than yourself and to whom it was delivered? A. It was delivered to my daughter in September. Q. Of what year? I am trying to think of that year. September of 1940." Mrs. Dorothy *859 M. Ross testified: "Q. Was it delivered to you personally? A. To me personally, yes. ... Q. Are you able to state the approximate time or date of the delivery of this deed to you? A. Yes, I would say it was the first week in September. Q. Of what year? A. 1940."
[8] Appellants contend that the deed to Dorothy Ross and her brother effected an abandonment of the homestead. (Civ. Code, secs. 1039, 1053, 1243.) In support thereof certain allegations in the pleadings are emphasized, particularly that the deed was delivered a few days before its recordation and subsequent to the recordation of the Siskiyou County judgment in Santa Clara County. Upon this basis appellants attempt to maintain the contention that they should have had judgment on the pleadings. A court is not bound to find in accordance with the pleadings alleging an approximate date of delivery if the evidence shows the true date to be otherwise. The difference in the pleading and the finding is not prejudicial to appellants in view of the holding in Palen v. Palen, 28 Cal.App.2d 602 [83 P.2d 36], which will be referred to later.
[9] If there had been an abandonment of the homestead, any judgment lien in appellant's favor would attach only in the event the judgment debtors were still the owners of the property. By transferring the property to their children, plaintiffs put defendants in no different position than before the transfer took place. While the property was homesteaded in plaintiffs' favor, the defendants could not reach it for the satisfaction of their judgment--so it is immaterial to the creditors whether or not the debtors retained or transferred the property. In Palen v. Palen, supra, 605, 607, the court said: "Considerable emphasis is placed by applicant upon the contention that the homestead was abandoned by the execution of the deed to Edmonston, which the court found created a constructive trust. Section 1243 of the Civil Code provides that a homestead may be abandoned only by a declaration of abandonment or by a grant thereof, and section 1053 of the Civil Code declares that a grant is a transfer in writing and that a transfer (sec. 1039, Civ. Code) is an act by which the title to property is conveyed by one living person to another. It is conceded there was no abandonment of homestead filed, so appellant must rely upon the conveyance to Edmonston to establish such abandonment. The question then is, was the deed referred to a grant, and did it operate *860 to transfer the title to the property from the grantors to the grantee? We are convinced that it did not convey such an interest as to create such abandonment." "Having in mind the tendency in California is to protect the homestead, the power of a creditor to attack the homestead by forced sale must be strictly limited to the instances specified in the law, in order that the humane objects which the legislature intended by its enactment shall be effected." The Palen case quotes with approval 13 Ruling Case Law, section 118, page 660, as follows: "The reasons usually given for negativing the liability of the homestead which has been fraudulently conveyed are substantially as follows: A homestead is not liable to seizure under execution, and therefore a conveyance of it is a question in which the creditor has no interest. It is not liable before conveyance to the claim he asserts; and the conveyance though fraudulent, puts the creditor in no better condition than he was in before. If the conveyance is set aside as fraudulent this leaves the homestead as if no attempt had been made to convey it, so far as any claim can be asserted by the creditor. It is void as to him to all intents and purposes. He cannot be heard to say in one and the same breath that the conveyance is void in its attempt to divest title out of the debtor, but is valid in destroying the homestead right. He cannot claim both under and against the conveyance; under it as a valid parting with the homestead right; against it as an abortive effort to pass title out of the debtor. It must stand, as to him, as if no conveyance had been attempted.'" In view of the above, appellants were not prejudiced by failure to make a direct finding on abandonment.
[10] The claim that the court erred prejudicially in refusing appellants the right to introduce testimony of Mr. Wood taken in the Siskiyou County proceedings is without merit. The effect of such testimony would be, not to establish the date of delivery, but merely a matter of impeachment. The testimony would be of little avail in view of the holding in Palen v. Palen, supra.
Appellants cite Johnston v. Ota, 43 Cal.App.2d 94 [110 P.2d 507], to the effect that the genuineness and due execution of a judgment are established if a copy thereof is attached to the answer and no affidavit is filed under Code of Civil Procedure, section 448. That case does not substantiate appellants' contention that such rule fixes a right to judgment *861 on the pleadings. At page 98, the court said: "The fact that the judgment was attached as an exhibit to the answer, merely establishes its genuineness and due execution. (Code Civ. Proc., sec. 448.) It does not prove the matters adjudicated by the judgment of dismissal."
The other contentions of appellants connected directly or indirectly with the foregoing claims of error are without merit. Further discussion would unduly lengthen this opinion without benefit to appellants.
The judgment is affirmed.
Peters, P. J., and Knight, J., concurred.
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917 F.2d 561
Reissv.O.W.C.P.*
NO. 90-4129
United States Court of Appeals,Fifth Circuit.
OCT 04, 1990
1
Appeal From: D.La.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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199 Ga. App. 246 (1991)
404 S.E.2d 598
LEE
v.
THE STATE.
A90A2042.
Court of Appeals of Georgia.
Decided March 4, 1991.
Rehearing Denied March 25, 1991.
*248 Michael E. Bergin, for appellant.
Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.
BANKE, Presiding Judge.
The appellant was found guilty of misdemeanor theft by taking and was sentenced to six months' incarceration. She brings this direct appeal from her conviction and sentence. Held:
1. The appellant contends that the evidence was insufficient to support the conviction because the state's case was based on the uncorroborated testimony of an alleged accomplice. However, "`[i]n numerous decisions our courts have held that corroboration of an accomplice is not necessary to sustain a misdemeanor conviction. (Cits.)' [Cit.]" Dabney v. State, 154 Ga. App. 355 (2) (268 SE2d 408) (1980). Consequently, this enumeration is without merit.
2. The appellant received a harsher sentence than did her accomplice, who had pled guilty to felony theft by taking; and during the sentencing, the trial court explained this discrepancy as follows: "[T]his defendant [referring to the appellant] was offered probation yesterday if she took the first step and admitted her guilt. She's not taken that step. Her co-defendant has admitted her guilt...." The appellant contends that these comments demonstrate an intention to penalize her for exercising her right to jury trial, in violation of Uniform Superior Court Rule 33.6 (B), which provides as follows: "The judge should not impose upon a defendant any sentence in excess of that which would be justified by any of the rehabilitative, protective, deterrent or other purposes of the criminal law merely because the defendant has chosen to require the prosecution to prove his guilt at trial rather than to enter a plea of guilty or nolo contendere." The appellant's argument, however, ignores Section A of the rule, which provides in pertinent part, that "[i]t is proper for the judge to grant charge and sentence leniency to defendants who enter pleas of guilty or nolo contendere when the interests of the public in the effective administration of criminal justice are thereby served. Among the considerations which are appropriate in determining this question are: ... (2) that the defendant has acknowledged guilt and shown a willingness to assume responsibility for conduct...." As we interpret the judge's remarks, they reflect a permissible extension of leniency towards the co-defendant for taking a "first step toward rehabilitation," rather than an impermissible increase in the appellant's sentence for exercising her right to trial. Accord Thompson v. State, 154 Ga. App. 704 (5) (269 SE2d 474) (1980); Sparks v. State, 176 Ga. App. 8, 12 (3) (335 SE2d 298) (1985).
*247 3. The appellant contends on appeal that she did not receive effective assistance of counsel during the trial. The appellant's trial counsel filed a notice of appeal on February 27, 1990, the same day the conviction and sentence were entered; and the appellant's current counsel did not begin representing her until approximately four months later. Under these circumstances, the appellant cannot be deemed to have waived this ground of appeal. See generally Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115) (1989).
To establish ineffective assistance of counsel, "`(t)he defendant must show both that counsel's performance was deficient and that this deficiency prejudiced the defense.' [Cits.]" Williams v. State, 257 Ga. 311, 312 (2) (357 SE2d 578) (1987). The appellant argues that her trial counsel was ineffective both because he failed to conduct a "substantial investigation of alternative lines of defense" and because, by presenting a defense, he gave the state an "opportunity to rehabilitate its case via a rebuttal witness." The first of these somewhat contradictory assertions fails to establish ineffectiveness of counsel because the appellant has not suggested what alternative line of defense was available to her, and the second clearly has to do with a matter of trial tactics or strategy. "Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant's original representation was inadequate." Hosch v. State, 185 Ga. App. 71 (2), 72 (363 SE2d 258) (1987).
The appellant further complains that counsel failed to impeach the state's rebuttal witness through the use of a certified copy of the transcript of a prior hearing at which the witness had testified. However, the appellant has not suggested how the witness could have been impeached by this transcript. The appellant's final contention is that her trial counsel was ineffective due to his failure to present character witnesses on her behalf. We find that this contention, alone among those advanced by the appellant in support of this enumeration of error, cannot be rejected summarily. Accordingly, we remand the case to the trial court for an evidentiary hearing on this issue, following which, if the trial court determines that ineffectiveness of counsel has been demonstrated, the appellant shall be entitled to file another appeal directed to that issue and that issue alone.
Judgment affirmed with direction. Birdsong, P. J., and Cooper, J., concur.
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Winthrop v Rosenthal & Rosenthal, Inc. (2016 NY Slip Op 00582)
Winthrop v Rosenthal & Rosenthal, Inc.
2016 NY Slip Op 00582
Decided on January 28, 2016
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on January 28, 2016
Mazzarelli, J.P., Acosta, Andrias, Richter, JJ.
36 651142/14
[*1] Marc Winthrop, Plaintiff-Respondent,
vRosenthal & Rosenthal, Inc., Defendant-Appellant.
Platzer, Swergold, Levine, Goldberg, Katz & Jaslow, LLP, New York (Stan L. Goldberg of counsel), for appellant.
Troutman Sanders LLP, New York (Joshua A. Berman of counsel), for respondent.
Order, Supreme Court, New York County (Ellen M. Coin, J.), entered April 30, 2015, which, to the extent appealed from, denied defendant's motion to dismiss plaintiff's cause of action for unjust enrichment, unanimously affirmed, with costs.
This is an action to recover a success or finder's fee allegedly due plaintiff from the proceeds of the sale of certain assets belonging to nonparty Interasian Resources Group, LLC (Interasian), which plaintiff contends was misappropriated by defendant. It is uncontested that the finder's fee allegedly owed plaintiff was a matter of contract between him and Interasian, and that plaintiff and defendant Rosenthal were not parties to a written agreement.
Plaintiff's unjust enrichment claim is not, as defendant contends, barred by the statute of frauds (General Obligations Law § 5-701[a][10]). An unjust enrichment claim is founded on a "quasi-contract theory of recovery . . . imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned" (Georgia Malone & Co., Inc. v Reider, 86 AD3d 406, 408 [1st Dept 2011], affd 19 NY3d 511 [2012])). The Court of Appeals in Georgia Malone upheld an unjust enrichment claim, in the absence of a writing between the relevant parties, under nearly identical facts (id.). The statute of frauds is inapplicable and irrelevant to analyzing an unjust enrichment claim.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2016
CLERK
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294 B.R. 388 (2003)
In re Terri L. STEFFEN, Debtor.
No. 01-09988-8P1.
United States Bankruptcy Court, M.D. Florida, Tampa Division.
April 18, 2003.
*389 *390 Harley E. Riedel, II, Stichter, Riedel, Blain & Prosser, Tampa, FL, for debtor.
Mary Apostolakos Hervey, Washington, DC, for creditor.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION
ALEXANDER L. PASKAY, Chief Judge.
This is a yet to be confirmed Chapter 11 case of Terri L. Steffen (Debtor). In the Debtor's Chapter 11 case, the United States of America (Government) filed a proof of claim, Claim No. 6, in the total amount of $5,856,721.11.[1] (Claim No. 6/Db. Ex. 1). The Claim by the Government is based on adjustments following an examination of the Debtor's joint tax returns, together with her spouse, Paul A. Bilzerian (Bilzerian), for the years 1985, 1986, 1991, 1992, and 1993. On February 6, 2002, the Debtor filed "Objection to Claim filed by the Internal Revenue Service" (Doc. No. 40), where she stated that she was not indebted to the Internal Revenue Service (IRS), or at least not in the amounts claimed. She also contended that there was: (1) the disallowance of a deduction by the Debtor and Bilzerian of loss of value of their stocks, which according to them became worthless in the year 1989 and (2) an erroneous determination that the Debtor understated her capital gain from the disposition of South Bay Fashion Center (South Bay) during the year 1992. This Objection was originally an objection to Claim No. 3, and by Order of this Court (Doc. No. 80), the Objection stood over to the amended claim of the Government, Claim No. 6. On March 14, 2002, the Debtor filed "Pretrial Memorandum for Preliminary Hearing" (Doc. No. 54), which outlined eleven additional specific objections to Claim No. 6, which the parties agreed would be treated as an "amended objection."
Prior to the scheduled final evidentiary hearing, the parties agreed that the issues would be bifurcated and the first two issues should be tried first. Accordingly, the two issues, which were scheduled for final evidentiary hearing, are the following:
(1) Whether the Debtor is entitled to claim a loss of the value of the stock *391 in excess of $23,366.705 in Bicoastal Corporation (Bicoastal).
(a) How much did the Debtor and Bilzerian invest in Bicoastal?
(b) What year did their investment become worthless?
(2) What is the basis of the Debtor's and Bilzerian's interest in South Bay for purposes of determining the amount of any capital gain realized upon foreclosure of the property in 1992.
At the trial, this Court heard testimony of witnesses considered the documents offered and introduced into evidence, and now makes the following findings of fact and conclusions of law.
Brief Background of Facts
In 1987, Bilzerian formed Bilzerian Partners Limited Partnership-1 (BPLP-1), a Florida limited partnership. At that time, Singer Company[2] (Singer) was a publicly traded company. During 1987, BPLP-1, through Bilzerian and Bicoastal Acquisition Corporation (Bicoastal Acquisition), began to acquire shares of Singer in the open market, and ultimately acquired approximately two million shares at a cost of approximately $87 million. Following these purchases, BPLP-1 made a formal tender offer to purchase the remaining common stock of Singer for $50 per share. BPLP-1 was comprised of two general partners: Bilzerian and Bicoastal Acquisition, as well as five limited partners. According to the testimony of Bilzerian, the Debtor and Bilzerian directly or indirectly owned approximately 30.6% of BPLP-1.
The leveraged buyout was financed by a consortium of banks, Shearson, Lehman Brothers Holdings, Inc. (Shearson), and Mesa Holding Limited Partnership (Mesa). Both Shearson and Mesa received stock of Singer (Shearson received Class B common stock and Mesa received both Junior Preferred and Class C common stock). At the end of the leveraged buyout (in the year 1987), the equity structure of Singer was as follows: $3.50 Senior Preferred (publicly held); Junior Preferred (Mesa); Class A common (BPLP-1); Class B common (Shearson); and Class C common (Mesa).
During the relevant times, Singer created Link Flight Simulation Corporation (Link Fight) as its wholly owned subsidiary. Link Flight was the successor-in-interest to the Singer-Link Flight Simulation Division of Singer. Link Flight was in the defense contract business, providing electronics and training systems to the Government pursuant to several large defense contracts with the Government. Link Flight was involved in providing products that supported certain military aircraft programs including the Cobra, Apache, and Blackhawk helicopters; F-16 fighters; B-52 bombers; and other aircrafts.
Following the leveraged buyout, in or around September of 1988, Singer exercised its right to trigger the valuation of the stock of Bicoastal between BPLP-1, Mesa and Shearson. Ultimately, in 1989, Singer now called Bicoastal, as a result of the name change, purchased the remaining stock of Mesa and Shearson and issued promissory notes to them for the purchase prices of their Class B and Class C common stock.
In the year 1989, the Government brought a complaint against Bicoastal and its subsidiaries under the False Claims Act, and sought damages in the amount of $231 million, together with civil penalties. In this action, the Government claimed that Bicoastal engaged in a scheme to defraud the Government in that the defendants *392 falsely represented cost estimates (Urda litigation). (Db.Ex. 9). Several other lawsuits ensued and ultimately, as described below, Bicoastal filed for Chapter 11 protection under the Bankruptcy Code. This was the beginning of the business demise of Bicoastal.
Determination of Year that Debtor Can Claim Worthless Stock Deduction
a. Summary of Each Parties' Position
Bilzerian and the Debtor (together, Taxpayers), as noted earlier, are husband and wife. They filed joint income tax returns, as amended for the years at issue: 1985, 1986, 1991, 1992, and 1993. (Db. Exs. 26, 27, 30, 31, 32, 33, 34, 35 and IRS Exs. 12-18). On or about June 20, 1991, the Taxpayers filed an amended income tax return for the year 1989. (Db.Ex. 30). In the amended return, the Taxpayers asserted that their investment in Bicoastal had become worthless in the year 1989, resulting in a loss of $23,366.705. Accordingly, the Debtor asserts that she is entitled to claim a capital loss from the worthlessness of her Bicoastal stock in the tax year 1989, and in the amount of $23,366.705.
In support of this proposition, the Taxpayers identified several events in the year 1989, which they claim demonstrate that the stock in Bicoastal had no realistic prospect of value and that Bicoastal was insolvent. Through the testimony of David L. Redmond, the former CFO and President of Bicoastal, as well as a member of its Board of Directors, the Taxpayers identified at least eight adverse events, which in their opinion, demonstrate that the common stock of Bicoastal became worthless in 1989. These events include the following: (1) arbitration of a claim of General Instrument Corporation for damages in the amount of $34 million; (2) filing of an action by CAE for damages in excess of $100 million; (3) granting by a Connecticut court of class certification in certain retiree benefit litigation; (4) filing of an action by HSSM seeking $42 million; (5) filing of an action by Bankers Trust of suit to compel Bicoastal to post additional collateral; (6) "delivery" to Bicoastal of a claim by the Defense Logistics Agency for more than $100 million; (7) entry of injunction in the Urda litigation, which prohibited Bicoastal from making payments to Mesa and Shearson, which then caused a default in Bicoastal's obligation to Mesa and Shearson; and (8) filing of a Voluntary Petition seeking Chapter 11 relief on November 11, 1989.
In opposition, the Government asserts that the Debtor can only claim a loss in the year in which the loss is sustained and the loss was not sustained until the tax year 1993, when the litigation involving Bicoastal and Semi-Tech MicroElectronics (Far East), Ltd. (Semi-Tech) was finally resolved. In these regards, the Government asserts that Bilzerian, himself, estimated that the royalty agreement at issue was valued at $500 million, an amount that would have been more than sufficient to allow for a distribution to not only all creditors but also to the holders of the common stock. Moreover, during the Chapter 11 case, Bicoastal continued to operate and Bilzerian acted in a manner, which supported his contention that the Semi-Tech litigation would result in a distribution to shareholders. Therefore, according to the Government, the stock did not become worthless until the year 1993, when this Court approved the compromise of the Semi-Tech litigation for $94 million, or significantly less than the estimated $500 million. These are the facts relevant to the first issue, i.e., the year to claim the loss of value of the Bicoastal stock.
b. Legal Analysis and Findings
It is well established that the taxpayer bears the burden of proving the *393 right to and the amount of any claimed deduction. New Colonial Ice v. Helvering, 292 U.S. 435, 54 S.Ct. 788, 78 L.Ed. 1348 (1934). Because the taxpayer is the person who holds the information and is required to produce it, the burden of proof never shifts to the United States. INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84, 112 S.Ct. 1039, 117 L.Ed.2d 226 (1992). A deficiency determination issued by the Government is presumptively correct. Welch v. Helvering, 290 U.S. 111, 54 S.Ct. 8, 78 L.Ed. 212 (1933).
Section 165(g) of the Internal Revenue Code (IRC) authorizes a deduction for a loss from a worthless security, including stock in a corporation. 26 U.S.C. § 165(g)(2)(A). A taxpayer may deduct a Section 165(g) loss "only for the taxable year in which the loss is sustained." Treas. Reg. § 1.165-1(d)(1). The Supreme Court has ruled that "the question of whether a particular corporate stock did or did not become worthless during a given taxable year is purely a question of fact" to be determined by the court. Boehm v. Commissioner, 326 U.S. 287, 293, 66 S.Ct. 120, 90 L.Ed. 78 (1945). See Delk v. Commissioner, 113 F.3d 984 (9th Cir.1997); Favia v. Commissioner, T.C.M.2002-154, 2002 WL 1332810 (U.S.Tax Ct.)(2002).
In order to support a deduction, the claimed loss must be evidenced by "closed and completed transactions" and fixed by "identifiable events," all of which actually occurred during the taxable year. Treas. Reg. § 1.165-1(b). The former Board of Tax Appeals formulated a two-prong test for determining whether a security has become worthless. First, the stock must have no current liquidating value; and second, it must have no potential future value. Sterling Morton v. Commissioner, 38 B.T.A. 1270, 1278-1279, 1938 WL 165 (1938), aff'd, 112 F.2d 320 (7th Cir.1940). The taxpayer must demonstrate this loss of value by a preponderance of the evidence. Id. See Cole v. Commissioner, 871 F.2d 64 (7th Cir.1989); Estate of Mann, 731 F.2d 267 (5th Cir.1984).
As long as the stock has any value whatsoever, either present or potential, a taxpayer may not claim a deduction. Miami Beach Bay Shore v. Commissioner, 136 F.2d 408, 409 (5th Cir.1943). A corporate stock is not worthless until the last vestige of value has disappeared. However, a "mere hope," or a "remote hope" that there may be some recovery will not preclude its deduction as worthless. Halliburton Co. v. Commissioner, 946 F.2d 395 (5th Cir.1991); United States v. S.S. White Dental Mfg. Co., 274 U.S. 398, 399-400, 47 S.Ct. 598, 71 L.Ed. 1120 (1927). A mere shrinkage in the value of stock owned by the taxpayer, even though extensive, does not give rise to a deduction under Section 165 if the stock has any recognizable value on the date claimed as the date of loss. Treas. Reg. § 1.165-4(a).
An "identifiable event" includes such decisions as to liquidate or terminate a business to sustain a worthless stock deduction. Genecov v. United States, 412 F.2d 556 (5th Cir.1969); Gowen v. Commissioner, 65 F.2d 923 (6th Cir.1933). However, the mere fact that a company has filed bankruptcy, became insolvent, or was placed in receivership is not enough to establish a total loss of the value of the stock. Genecov, supra; Brimberry v. Commissioner, 588 F.2d 975 (5th Cir.1979). But see Steadman v. Commissioner, 50 T.C. 369, 376-77, 1968 WL 1558 (1968), aff'd, 424 F.2d 1 (6th Cir.), cert. denied, 400 U.S. 869, 91 S.Ct. 103, 27 L.Ed.2d 109 (1970) (holding that identifiable events include bankruptcy filing, cessation *394 of business, and liquidation of corporation).
Based on this record, this Court is satisfied that the taxpayer must to establish by a preponderance of the evidence that the two-prong test was met to claim the worthlessness of the stock of Bicoastal in the year 1989. Specifically that there is no current liquidating value and that there is no potential future value in a given year for the claimed worthlessness (emphasis supplied). This Court is equally satisfied that the record supports the finding that the only issue in this case is whether or not there was "potential future value" in the stock of Bicoastal and that the Debtor has satisfied the first prong.
There are a number of ways in which a taxpayer may demonstrate that the stock has no potential value. First, the taxpayer may provide the Court with "identifiable events," such as the conclusion of a lawsuit, where the taxpayer prevailed but the defendant is judgment proof and the judgment cannot be collected. Next, the taxpayer can provide the Court with events such as the entry of adverse judgments from courts of competent jurisdictions. Finally, regardless of any recovery of a lawsuit in favor of the taxpayer, the taxpayer can establish that there is a total loss of the potential value of the stock because the liabilities of a corporation so greatly exceed its assets that there is no "reasonable hope" or expectation that the business will continue in order to result in any recovery to its stockholders.
In the case at hand, the Debtor principally relies on certain identifiable events that occurred in the year 1989, as the evidence that the stock of Bicoastal became worthless in that year. Upon review and analysis of the adverse events relied on by the Taxpayers, this Court is satisfied that not all of the events were "closed and completed transactions . . . all actually sustained during the taxable year," as set forth in Treas. Reg. § 1.165-1(b). In the Urda litigation, the district court entered an injunction precluding Bicoastal from disposing of assets out of the ordinary course of its business; prohibiting Bicoastal from paying dividends or other amounts to shareholders; and enjoining Bicoastal from making any debt payments to Mesa and Shearson. (Db.Ex. 10).
The Debtor heavily relies on this Memorandum Opinion as support that Bicoastal's liabilities "far exceeded" its assets, that Bicoastal was insolvent, and that there was not even remote hope that the shareholders of Bicoastal would receive any distribution on their stock. However, the district court also pointed out that the injunction merely precluded Bicoastal from disposing of its assets at that time because unless the injunction was granted, the Government would be irreparably injured. Moreover, the district court, in response to Bicoastal's assertions that the injunction was detrimental to its business, aptly stated that "the assets [of Bicoastal] will still be available for sale to another purchaser, if Singer remains solvent at the conclusion of this litigation." (Db.Ex. 10, p. 9-10).
The other adverse events relied on by the Taxpayers were the number of lawsuits filed against Bicoastal. However, at the time relevant, none of these had been adversely resolved with finality against Bicoastal. This Court is satisfied that the mere filing of a lawsuit is not a "closed and complete transaction." Although Redmond testified that the cumulative effect of these suits were in excess of $500 million, these were only claims which may or may not be ultimately recognized. It is a well-known fact that plaintiffs generally seek greater recoveries than what is actually awarded. Moreover, the filing of the Chapter 11 by Bicoastal stayed the continuation of the civil suits against Bicoastal *395 and the claims asserted against the debtor would have had to be resolved in the bankruptcy court without intervention of a jury. It is common knowledge that jurors are generally more generous than awards made by the bench in cases tried without a jury.
The Taxpayers also rely on the fact that this Court entered an Order in the bankruptcy case of Bicoastal on November 21, 1989, which initially denied Mesa's request to designate a majority of the Board of Directors. (Db.Ex. 15). This Court put Bicoastal on such a short string that it ultimately became impossible for Bicoastal to achieve reorganization. In addition, the Debtor relies on this Court's Order of December 11, 1989, where this Court initially denied a motion to dismiss the bankruptcy case of Bicoastal, filed by CAE Industries, Ltd., one of Bicoastal's largest creditors. As indicated, this Court denied both the initial requests of Mesa and CAE. This Court is satisfied that the entry of these orders were not an adjudication that Bicoastal was insolvent but merely held as a matter of law, that Bicoastal was entitled to attempt to reorganize or liquidate its assets under Chapter 11. The entry of the Orders were not identifiable events demonstrating that Bicoastal stock had no present or potential value, or that it had insufficient assets to satisfy, at least in part, equity interests. Moreover, although this Court made reference to Bicoastal's "dire financial condition," there was no adjudication that Bicoastal stock had no potential future value, after all, the Semi-Tech litigation was not yet concluded.
In opposition to the "identifiable events," the Government advances its case that the Semi-Tech lawsuit, in which Bilzerian himself testified was worth $500 million, was not "completed" until the year 1993, when this Court approved the compromise of the claim of Bicoastal against Semi-Tech. Therefore, there was potential value for the Bicoastal stock until that year. Moreover, the Government asserts that certain acts of the Taxpayers, as more fully described below, supports of the Government's position that the Bicoastal stock did not become worthless until the year 1993.
The record demonstrates that after 1990, the Taxpayers did in fact act in a manner that supports the Government's position. First, in 1990, Bilzerian transferred three separate "partial interests" in Bicoastal Limited Partnership (BLP), which owned 25% of BPLP-1, whose assets was the common stock of Bicoastal, in full satisfaction of certain debts owed by Bilzerian to John T. Roth, Trustee, James L. Forgason, and Forgason, Inc. in the approximate amount of $7.5 million. (IRS Exs. 34, 35, and 36). Second, in June of 1991, Bilzerian borrowed approximately 13 million dollars from John Oxley, granting as collateral for the loan a first priority security interest in Bicoastal Financials' the interest of BLP. (IRS Ex. 44). Third, Bilzerian represented to the Chapter 7 Trustee, during his own Chapter 7 bankruptcy case, that BPLP-1 had significant value. (IRS Ex. 45). Fourth, in 1993 and prior to the resolution of the Semi-Tech litigation, the Taxpayers entered into a settlement agreement with Bilzerian's Chapter 7 Trustee and agreed to transfer 25% interest in BPLP-1 to the Trustee. (IRS Ex. 40). It is true, however, that this agreement never came to fruition. Fifth, both Bilzerian and James Orr, the trustee, objected to the settlement with Semi-Tech (IRS Exs. 37 and 38), stating that the proceeds from the Semi-Tech litigation were the only assets of Bicoastal and that the proposed settlement amount was substantially less than the actual value of the future royalties yet to be earned by Semi-Tech using Singer's name. Finally, the Debtor, as president of Loving Spirit *396 Foundation, reported on Loving Spirit's 1993 tax return an interest in BPLP-1 as an asset in the amount of $595,830. (IRS Ex. 55).
In opposition, the Debtor points to the testimony of Bilzerian, where he stated that he did not believe that the stock in Bicoastal had any value or else he would not have signed the 1989 amended tax return in the year 1991. In the same testimony, however, Bilzerian failed to recall specific events and amounts when cross-examined by the Government's counsel. This Court is satisfied that the actual acts of the Taxpayers from 1989 through 1993, as evidenced by the Government's exhibits, cannot be discounted by either of their testimonies some ten years later. Although the Taxpayers argue that the mental state or subjective opinions of the Taxpayers are not controlling, citing Boehm, supra, this Court is satisfied that in this instance, one could assume that there was potential value in the common stock of Bicoastal by the conduct of the Taxpayers. Moreover, in or around October of 1994, Bilzerian himself discussed the worthlessness issue with one of the Government's agent, stating that the stock became worthless in either the year 1989, when Bicoastal filed for Chapter 11 relief or 1993, when the Semi-Tech litigation concluded. (Transcript, p. 271, lines 12-15).
Based upon the foregoing legal principles and the facts as adduced at trial, this Court is satisfied that the Taxpayers failed to establish by the requisite degree of proof that the two-prong test was satisfied for the claim of a total loss of value of the stock of Bicoastal in the year 1989. This Court is satisfied that the cumulative events in the year 1989 did not leave Bicoastal stock without any potential value. Bicoastal was no doubt in dire financial conditions, but it is without dispute that its claimed asset in the Semi-Tech litigation, together with a possible reorganization, could have resulted in some value and distribution to the holders of the common shares of Bicoastal. This Court is satisfied that the Taxpayers cannot claim the worthless stock loss deduction until the year 1993.
Determination of Debtor's Adjusted Basis in Bicoastal Stock
a. Summary of Parties' Position
The Debtor claims that she is entitled to an adjusted basis in Bicoastal stock of $23,366,705, as set forth on the Taxpayers' tax return for the year 1989. At the trial, the Debtor claimed that her initial investment in Bicoastal exceeded $30,000,000; however, this was reduced after Peat Marwick determined that approximately $7,000,000 had been "borrowed monies." The Taxpayers contend that their investment in BPLP-1 is 30.60%, which equates to $23,366,705. In support of this assertion, the Debtor relies on the testimony of Bilzerian and Redmond, a number of checks and bank statements. (Db.Ex. 8).
The Government, on the other hand, argues that the Taxpayers have presented no competent evidence that they are entitled to any basis in Bicoastal stock. The Government bases its argument on its assertion that the evidence submitted at trial was not competent, that the Taxpayers had no income in the prior years sufficient to support a $30 million dollar investment in Bicoastal or BPLP-1 of their own money, and that the Taxpayers have no records, books of accounts, or other documents to support their adjusted basis of $23 million. In the alternative, the Government asserts that if this Court sustains the $23 million adjusted basis, this amount must be further reduced as a result of several loans, from Oxley, Forgason, Forgason, Inc. and Roth, as well as a reduction as a result of Bicoastal Holding Company's *397 1.6 million dollar write-off as bad debt. According to the Government, there should be a reduction of at least $18.6 million, resulting in an adjusted basis of approximately $4.4 million.
b. Legal Analysis and Findings
Section 165(b) of the IRC provides that the "basis for determining the amount of the deduction for any loss shall be the adjusted basis provided in section 1011 for determining the loss from the sale or other disposition of property." 26 U.S.C. § 165(b). Section 1011 of the IRC provides that "the adjusted basis for determining the gain or loss from the sale or other disposition of property, whenever acquired, shall be the basis (determined under section 1012 or other applicable sections of this subchapter. . . ." Finally, Section 1012 of the IRC provides that the basis of property shall be the cost of such property, except as otherwise provided in this subchapter and subchapters. . . ." Therefore, the taxpayer must substantiate the cost of such property; in this case, the Debtor must demonstrate how much she invested in BPLP-1, and in turn indirectly in Bicoastal, in order to claim the worthless stock loss deduction.
At the trial, both the Debtor and the Government disagreed as to the initial cost basis in the Bicoastal stock. This Court is satisfied that neither arguments asserted are persuasive and that the Government, through the testimony of Mr. O'Neill, the revenue agent, never questioned the $23,366,705 cost basis figure from the beginning of their investigation of the Taxpayers, as far back as 1993, and therefore, the initial cost basis should be the amount of $23,366,705.
This leaves for consideration whether or not there should be any additional reductions to the initial basis as a result of the various loans made to Bilzerian and his related entities, pursuant to 26 U.S.C. § 108(b)(2), as a result of debt forgiveness. In these regards, the Government argues that the Taxpayers had insufficient assets to have been able to fund the purchase of $23 million for the Bicoastal stock. (IRS Ex. 60). Therefore, these loans must have been for the purchase of the stock. Also, during the relevant period, the Taxpayers were in the process of building their home, valued in excess of $6 million, and bought other real estate throughout the United States. Thus, the Government contends that the facts do not support the proposition that the Taxpayers had hard assets, which they could have liquidated to generate funds for both their real estate purchases and stock acquisition.
In opposition, the Debtor states that the Government failed to substantiate that any of the loans were for the purchase of the stock, that Bilzerian stated that the same were not necessarily for the purchase of the stock, that the basis should not be reduced at all, or if so, the original starting point for the basis should be $30 million, with the appropriate reductions.
This Court has considered the record, as well as the testimony of the witnesses, and concludes that the $23 million basis must be reduced by the loans described above. This Court is satisfied that the record supports the conclusion that the Taxpayers had insufficient hard assets to which they could have liquidated over a period of time, in order to raise $23 million to buy the stock, or as the Debtor claims, $30 million. Moreover, Bilzerian, although he was somewhat unclear, ultimately conceded that the monies loaned to him were for the purchase of the stock. Also, the Government's witness stated that the basis must be reduced pursuant to Sections 108 and 1017 of the IRC and then discussed the various loans based upon his audit and conversations with the Taxpayers. Accordingly, *398 this Court is satisfied that the $23 million basis must be reduced by $18.6 million ($7.4 million from Forgason, his related entities, and Roth; $9.5 million from Oxley; and $1.6 million from Bicoastal Holding Company). Therefore, the adjusted basis in the Bicoastal stock is $4,766,705.
Determination of the Capital Gain from the South Bay Fashion Center Foreclosure Action
The last issue presented at trial was a request for a determination of the basis of the Taxpayers' interest in South Bay for purposes of determining the amount of any capital gain realized by the Taxpayers upon foreclosure of the property in the year 1992. In these regards, the Debtor conceded that she is subject to capital gain income resulting from the foreclosure of the Debtor's interest in South Bay, a shopping center. (IRS Exs. 22-27). Pursuant to applicable law, the gain is the difference between the amount of the debt and the taxpayer's basis in the property. Commissioner v. Tufts, 461 U.S. 300, 103 S.Ct. 1826, 75 L.Ed.2d 863 (1983); Treas. Reg. § 1.1001-2.
It is undisputed that the amount of debt forgiven is $5,420,160.31, as evidenced by the Final Judgment rendered in the state court foreclosure action. (IRS Ex. 25). In the Final Judgment, the state court judge rendered a judgment in the amount of $5,969,438.94; however, this figure included interest and other costs. Accordingly, both parties agree that the debt forgiveness is the principal amount, which is $5,420,160.31.
The only dispute centers around the basis in the subject property. The Government agrees with the Debtor's counsel's initial calculation of the basis at $2,416,075; however, the Government asserts that additional adjustments must be made. (IRS Ex. 74). These adjustments include a reduction of $19,130 for rental income from some tenants (IRS Ex. 73), and two additional reductions from a $250,000 deposit and certain depreciation in 1990 of $309,680.
The Debtor asserts, in opposition, that the Government's calculation of basis contains several errors: first, there was no increase in the Debtor's basis by $600,000, as a result of the Debtor's purchase of David Tallant's interest in the strip center; second, there was an improper reduction in basis regarding a $250,000 deposit; and third, there was an improper reduction for alleged rental income. The Debtor supports her calculation of the basis through Bilzerian's testimony. (Db.Ex. 36).
Based upon the testimony at trial and the exhibits introduced regarding the South Bay issue, this Court is satisfied that the starting point for basis in the subject property should begin with the agreed upon amount of $2,416,075. This Court is equally satisfied that both parties agreed to the following amounts as an addition to the basis: $22,500, purchase from Grusky; $200,000, purchase from Southbay One; and $736,141, passive activity suspended losses, for a total addition of $958,641. Concerning the proposed reductions to the basis, this Court is satisfied that the basis should be reduced by $19,130, for the additional rental income realized by Bilzerian and by $309,680, for the 1990 depreciation. Bilzerian, in this testimony, indicated that the 1990 depreciation was taken on his tax returns; therefore, it is without dispute that this amount is a proper reduction. Equally, however, this Court is satisfied that none of the additional reductions are warranted and neither is the $600,000 increase as urged by the Debtor. Accordingly, this Court is satisfied that the result of the additions and reductions to the basis, the basis in *399 the property is $3,045,906 and therefore, the gain is $2,374,254.31.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the parties shall submit a joint statement based upon the foregoing, calculating the precise amount of the Government's allowable claim.
NOTES
[1] Claim No. 6 amends Claim No. 3 of the Internal Revenue Service. Claim No. 6 is essentially identical to Claim No. 3 except that the IRS asserted that its claim was "secured by any claims Debtor may have against the U.S."
[2] In 1989, Singer changed its name to Bicoastal.
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March 11, 2014
JUDGMENT
The Fourteenth Court of Appeals
DANIEL GLASS, Appellant
NO. 14-12-01039-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.
We further order appellant pay all costs expended in the appeal.
We further order this decision certified below for observance.
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420 F.Supp. 588 (1976)
Gerald TURNBOUGH, Petitioner,
v.
Donald WYRICK, Warden, Missouri State Penitentiary, Respondent.
No. 76-239C(2).
United States District Court, E. D. Missouri, E. D.
August 5, 1976.
*589 Gerald Turnbough, pro se.
Atty. Gen. John C. Danforth, Jefferson City, Mo., for respondent.
MEMORANDUM OPINION
REGAN, District Judge.
Petitioner, serving a sentence of twenty-five years imprisonment following his 1972 conviction in the Circuit Court of the City of St. Louis, seeks habeas corpus relief. A jury found petitioner guilty of the offense of assault with intent to kill with malice.[1]*590 Sentence was imposed under the Second Offender Act of Missouri (Section 556.280, R.S.Mo.). The conviction was affirmed in State v. Turnbough, 497 S.W.2d 856 (Mo. App.1973). A motion to vacate judgment and sentence was denied. See Turnbough v. State, 533 S.W.2d 609 (Mo.App.1975).
Petitioner urges that his prior conviction, upon the basis of which the Second Offender Act was utilized, was invalid, thereby vitiating his present conviction and sentence. It appears that on November 21, 1962, petitioner entered a plea of guilty in Greene County, Missouri, to a charge of burglary. On December 21, 1962, the trial court placed petitioner on probation. Thereafter on August 28, 1964, the sentencing court revoked probation, and then after granting allocution, imposed a sentence of three years' imprisonment. The record does not show that an attorney for petitioner was present at the 1964 proceedings.
Petitioner first attacked the validity of the Greene County conviction by a petition for a writ of error coram nobis in 1975, long after he had served his three year sentence and during the pendency of his appeal from the denial of his motion to vacate his 1972 conviction. In that proceeding the Circuit Court of Greene County held that the 1962 conviction was valid but set aside the 1964 sentencing on the ground that petitioner had not then been represented by counsel. The Court then (with petitioner's consent and in the presence of his counsel) reimposed the same sentence and immediately ordered petitioner discharged for the time already served.
It is now settled that the time of sentencing is a critical stage in a criminal case, and that counsel's presence at that stage is necessary to ensure that the defendant's rights are fully protected. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). On the premise that the right to counsel at sentencing must "be treated like the right to counsel at other stages of adjudication," the decision in Mempa is to be applied retroactively. McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968). And, of course, if the 1964 Greene County sentence is invalid, it could not be retroactively validated in 1975 for the purpose of supporting the imposition of an enhanced punishment mandatorily required by a state's Habitual Criminal Act. Losieau v. Sigler, 406 F.2d 795, 799 (8 Cir. 1969) which, unlike the instant case, involved a statute mandating enhanced punishment for a subsequent offense.
The Missouri Second Offender Act, as it now reads (and as it read at the time of petitioner's trial) makes no provision either for enhancing punishment or for a mandatorily prescribed term of imprisonment upon proof of a prior conviction. It merely provides that a hearing shall be held outside the presence of the jury (prior to submission of the case) on the basis of which the trial judge shall determine whether the defendant has been convicted of the prior offense, and if so, the punishment shall be assessed by the court instead of by the jury. Under the former version of the law (then known as the Habitual Criminal Act), evidence of the prior conviction was submitted to the jury. The Missouri courts hold that the real purpose and intent of the revised law is to keep the matter of prior convictions away from the jury.[2]State v. Maxwell, 376 S.W.2d 170 (Mo.1964); State v. Morton, 338 S.W.2d 858 (Mo.1960).
In light of the foregoing, we now consider whether petitioner's 1972 conviction is invalidated by reason of the fact that he was not represented by counsel at his 1964 *591 sentencing, although he had been represented when his guilty plea was taken in 1962.
Petitioner's guilt of both offenses as well as the fact of a valid prior conviction is unquestioned (at least insofar as this point is concerned). The situation in this case is wholly unlike that in Irby v. State of Missouri, 502 F.2d 1096 (8 Cir. 1974), Garrett v. Swenson, 459 F.2d 464 (8 Cir. 1972), and other similar cases. There, the contention was that the trial judge had taken an invalid conviction into consideration in fixing (and enhancing) punishment. In each of those cases, the prior conviction was invalid because the defendant had not been represented by counsel at the time his guilty plea was entered, whereas in the present case petitioner was then represented. The validity of the prior conviction is not here in issue. This is a crucial factual difference.
This case is also unlike United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), relied on by petitioner. In that case the Supreme Court held that where the trial judge in imposing sentence gave explicit consideration to previous convictions of the defendant which were constitutionally invalid, the judge should be required to reconsider the sentence. The theory of the Court was that inasmuch as the trial judge had imposed sentence on the basis of materially untrue assumptions concerning the defendant's criminal record, it was possible that a different, less severe, sentence would have been imposed had the trial judge known that the prior convictions had been unconstitutionally obtained.
And unlike the situation in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, this is not a case in which, at the the instance of the state, a prior conviction which was constitutionally invalid because the defendant had not been represented by counsel, was admitted into evidence (for purposes of enhancing punishment) and thus was inherently prejudicial.
We have been cited to Missouri cases, e. g. State v. Crate, 493 S.W.2d 1 (Mo.App.1973) which appear to hold that a defendant is not convicted until final judgment has been entered after imposition of sentence. What such cases really hold, however, is simply that there is no prior conviction which might be used for purposes of the Second Offender Act until after sentence is imposed. The language of the Act is explicit: "If any person convicted of any offense . . . shall be sentenced . . . and is charged with having thereafter committed a felony, he shall be tried and if convicted punished as follows." It is thus apparent that sentence follows conviction, but that until the defendant has been sentenced, the conviction does not come within the purview of the Second Offender Act. See discussion of the term "conviction" in United States v. Rosenstengel, 323 F.Supp. 499 (D.C.Mo.1971).
We have been cited to no case involving comparable facts. In our judgment, petitioner suffered no prejudice in his 1972 conviction and sentencing by reason of the absence of counsel at his 1964 sentencing following his valid conviction. The only effect of utilizing the Second Offender Act was to permit the determination of punishment by the court rather than by the jury which determined guilt. There is, of course, no federal constitutional right to an assessment of punishment by a jury. Payne v. Nash, 327 F.2d 197 (8 Cir. 1964); James v. Twomey, 466 F.2d 718 (7 Cir. 1972).
As noted supra, the Missouri law mandates that the trial court determine the fact of a prior conviction before the case is submitted to the jury. If the finding is adverse to the fact of such prior conviction, then the jury fixes the punishment. In this case, petitioner did not object to the admission of the Greene County conviction nor to the finding of the court. And as appears supra in footnote 2, petitioner himself, in a tactical move, testified to the fact of the 1962 conviction. If it was error under Missouri law to admit the conviction for the purpose of authorizing the trial judge to assess petitioner's punishment, such error was waived by petitioner's failure to object thereto or to complain thereof on appeal, as in Crate, supra. Any possible error which *592 may have been committed by the state court in this respect did not rise to federal constitutional proportions, but rather was of a state law procedural nature which could have been, but was not, raised on petitioner's direct appeal. Petitioner has wholly failed to demonstrate any violation of a federally protected right.
Petitioner further contends that he was denied equal protection of the laws and otherwise deprived of constitutional rights, in that he was arbitrarily charged and convicted under Section 559.180 R.S.Mo. instead of being charged with attempted murder under Section 556.150 R.S.Mo., the maximum punishment for which, if that statute governed, would be ten years imprisonment. Section 559.180, specifically applicable to the offense charged, provides that "(e)very person who shall, on purpose and of malice aforethought . . . assault . . . another with a deadly weapon . . . with intent to kill . . such person . . . shall be punished by imprisonment in the penitentiary not less than two years." On the other hand, Section 556.150 is a general statute respecting an unsuccessful attempt to commit any offense. However, by its express language, it is applicable only "in cases where no provision is made by law for the punishment of such attempt." State v. Robinson, 345 Mo. 897, 136 S.W.2d 1008; State v. Ross, 25 Mo. 426. And see State v. Fielder, 210 Mo. 188, 109 S.W. 580. As was held by the Missouri Court of Appeals, St. Louis District, the crime charged in this case is complete in itself, and does not come within the purview of the attempt statute. Turnbough v. State, 533 S.W.2d 609, 613. The obvious purpose of the attempt statute is simply to fill in gaps in the law where such gaps exist. It does not permit prosecutors to pick and choose between the statutes for purposes of prosecuting a particular individual. The point is wholly lacking in merit.
Petitioner's final ground for relief is that he was denied his Sixth Amendment right to confront and cross-examine the victim of the crime. This contention is based on the fact that the State did not call the victim to testify. However, it is now well settled that the Confrontation Clause does not come into play where a potential witness neither testifies nor provides evidence at the trial.[3]Houser v. United States, 508 F.2d 509, 518 (8 Cir. 1974). As said in United States v. Polisi, 2 Cir., 416 F.2d 573, 579, "The Sixth Amendment safeguards the right of cross-examination, but it does not require the calling of any particular witness."
It follows from the foregoing that petitioner is not entitled to a writ of habeas corpus. An order denying the writ will be entered.
NOTES
[1] The state's evidence showed that petitioner acted jointly with his co-defendant in the deliberate shotgun shooting of the victim which resulted in the amputation of the victim's leg. There has been no contention, either in the state courts or in this Court, that the assessed punishment was excessive, if Section 559.180 R.S.Mo. applied to the crime. The statute contains no maximum sentence for the offense, so that a life sentence was authorized.
[2] We note from the transcript of the 1972 trial that the only reference before the jury to petitioner's prior conviction was on his own direct examination as follows:
"Q. Mr. Turnbough, I believe that you have also had one prior conviction in your lifetime?
A. Yes, sir.
Q. And how long was that ago?
A. Well, I got convicted in 1962, and I revoked my parole and they sent me to Algoa in /64, and I."
[3] The primary object of the Confrontation Clause was to prevent depositions or ex parte statements being used against the accused in lieu of the witness' personal appearance with the concomitant right of the defendant to cross-examine the witness in the presence of the jury which is to weigh his credibility. Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). And cf. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Petitioner wholly fails to indicate wherein and in what respect he was legally prejudiced by the failure of the victim to testify.
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655 So.2d 964 (1995)
Ernest MORRISON and Keats Morrison
v.
Keith FRANKLIN.
1931511.
Supreme Court of Alabama.
February 3, 1995.
*965 Ernest Morrison and Keats Morrison, pro se.
A. Richard Maples, Jr. of Dauphin Law Center, Mobile, for appellee.
RICHARD L. JONES, Retired Justice.
This appeal presents two procedural issues and one substantive issue. The procedural issues: 1) whether the trial court erred in striking the plaintiffs' amendment to their complaint on the ground that the amendment was untimely filed, and 2) whether the appeal is due to be dismissed on the ground that the notice of appeal was untimely filed. The substantive issue: whether the trial court erred in granting the defendant's motion to strike the plaintiffs' amended complaint, thereby dismissing the plaintiffs' action against the defendant.[1]
Ernest Morrison and Keats Morrison hired the defendant, Keith Franklin, an Alabama lawyer, to represent them in a lawsuit against their former employers. The lawsuit was transferred to a federal district court in Texas, without objection from the plaintiffs. The Morrisons, as plaintiffs in this malpractice action, claim that once the case began to proceed in Texas, Franklin failed in every way to properly represent them and that, as a result, they suffered damage.
On January 28, 1994, the Morrisons filed this legal malpractice action against Franklin, who accepted service of the summons and complaint on February 1, 1994.
On March 3, 1994, the defendant filed a Rule 12(b)(6), Ala.R.Civ.P., motion to dismiss.
On March 9, 1994, the trial court granted the motion and made the following entry: "Granted for lack of allegations of proximately caused damage. 21 days to amend."
On March 21, 1994, the plaintiffs, acting pro se, moved to vacate the trial court's March 9 order of dismissal, stating that their original complaint did contain an allegation of proximately caused damage. They quoted the following portion of the original complaint as proof of that statement:
"(29) Each and all of the above and foregoing acts and omissions constituted negligence, gross negligence, professional negligence, breach of warranty and breach of contract, and each was a proximate cause of actual damages to Plaintiffs."
On March 30, 1994, the parties were notified that the trial court had set a hearing on the plaintiffs' motion to vacate. The hearing was held on April 15, 1994, attended by the plaintiffs and by counsel for the defendant.
The case action summary sheet reflects the following action taken on April 15, 1994, following the hearing: "Plaintiffs' motion to vacate order of dismissal is GRANTED, solely on ground of lack of notice. Court proceeds to hear motion to dismiss, with plaintiffs present and properly notified of motion. Motion to dismiss is GRANTED. Plaintiffs have 21 days to amend."
Immediately following that April 15 order, the plaintiffs petitioned this Court for a writ of mandamus, which this Court denied on May 23, 1994.
On June 7, 1994, the plaintiffs amended their complaint to read as follows with respect to their allegations of damage:
"I. Plaintiffs' case [in Texas] was dismissed as a proximate consequence of the Defendant's professional negligence.
"J. Plaintiffs were caused to suffer physical and emotional pain as a consequence of the Defendant's negligence."
On June 16, 1994, the defendant moved to strike the plaintiffs' amended complaint, based solely on the ground that the amended complaint had been filed more than 42 days after the date of the trial court's order allowing the plaintiffs 21 days to file an amended complaint. The defendant stated in his motion that the trial court "no longer has jurisdiction to allow the filing of an amended complaint."
On June 23, 1994, the trial court granted the defendant's motion to strike the amended *966 complaint, thus effectively dismissing the plaintiffs' action against the defendant, the original complaint having been dismissed on April 15, 1994. On July 27, 1994, the plaintiffs appealed from the final judgment, i.e., the trial court's order of June 23, 1994.
The first procedural issue (whether the amendment filed on June 7 violated the April 15, 1994, "21 days to amend" order) is resolved in favor of the plaintiffs, because, under the doctrine of equitable tolling, the time consumed in the appellate review (the petition for writ of mandamus) is not chargeable against the time allowed to amend. The plaintiffs' promptness in filing the amendment following this Court's denial of their mandamus petition invokes the application of equitable principles to avoid an otherwise unjust result. As analogy, see Roden v. Wright, 611 So.2d 333 (Ala.1992); Ex parte Youngblood, 413 So.2d 1146 (Ala.1981); and Jones v. Lee County Commission, 394 So.2d 928 (Ala.1981). See, also, Comment, Ala. Code 1975, § 8-6-19.
The second procedural issue (the timeliness of the notice of appeal) is resolved against the defendant, because the July 27, 1994, appeal from the final judgment of June 23, 1994, entitles the appellants, for purposes of appellate review, to raise issues based on any previous adverse rulings. Rule 3(c), Ala. R.Civ.P.; see Gollotte v. Peterbilt of Mobile, Inc., 582 So.2d 459 (Ala.1991). Thus, the defendant's motion to strike the notice of appeal is denied.
The issue on the merits (the propriety of the trial court's dismissal of the plaintiffs' claim for the lack of an allegation of proximately caused damages) requires closer scrutiny. In an ordinary claim based on negligence, the allegations of the plaintiffs' original complaint would meet the "notice pleading" requirements of the Alabama Rules of Civil Procedure, but the question remains whether these allegations are sufficient to meet the requirement of a "proximate cause" allegation in a complaint alleging legal malpractice.
In answering this question, we first observe that, if the trial court's judgment of dismissal is correct for any reason, we must affirm, even if the trial court gave the wrong reason or if it gave no reason at all. We can only speculate as to the trial court's reason for the dismissaland our speculation suggests one possibility.
Because a claimant in a legal malpractice action must prove that, except for the alleged malpractice, he or she would have prevailed in the underlying action, the trial court may have tested the plaintiffs' allegations by the strict standard by which it would test the proof of the elements of their claim. Testing the allegations by that standard, the trial court could have concluded that the plaintiffs' statement of their claim, absent a specific allegation that, but for the lawyer's malpractice, they would have prevailed in the first action, failed to allege this requisite element of proximate causation.
We further observe that the plaintiffs' allegations specify in detail each of the defendant's acts and omissions they claim constituted malpractice. Thus, we restate the question: Does the "dual burden" test require that the pleading of proximate cause contain the magical phrase "but for the defendant's malpractice, the plaintiffs would have prevailed in the underlying cause" or words to that effect? We think not.
We hold that the allegations of malpractice, coupled with the general allegation of proximate cause, implicitly place upon the plaintiffs the dual burden of proving, subject to appropriate jury instructions, the underlying claim and the instant malpractice claim, and are sufficient to state the plaintiffs' malpractice claim.
In so holding, we do not overrule this Court's holding in Mylar v. Wilkinson, 435 So.2d 1237 (Ala.1983). Rather, we modify Mylar's holding by drawing a distinction between the requisite allegations of the pleadings and the requisite proof of those allegations, where the allegations are tested in a "motion to dismiss" context, and where the allegations in the malpractice complaint are sufficient, if proved, to make out a prima facie case of legal malpractice. This distinction accommodates the "notice pleading" concept, and, at the same time, does not lessen the plaintiffs' dual burden of proving both *967 the underlying claim and the instant malpractice claim. For cases dealing exclusively with the requisite burden of proof in legal malpractice cases, see Herring v. Parkman, 631 So.2d 996 (Ala.1994); Pickard v. Turner, 592 So.2d 1016 (Ala.1992); Lightfoot v. McDonald, 587 So.2d 936 (Ala.1991); and Hall v. Thomas, 456 So.2d 67 (Ala.1984).
Moreover, it is worthy of note that the defendant's brief does not address this "notice pleading" issue, but relies exclusively on the "timeliness" of the plaintiffs' June 7, 1994, amendment and their July 27, 1994, notice of appeal.
The judgment appealed from is reversed and the cause is remanded.
This opinion was prepared by retired Justice RICHARD L. JONES, sitting as a Justice of this Court pursuant to § 12-18-10(e), Ala.Code 1975.
MOTION TO STRIKE NOTICE OF APPEAL DENIED; REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON and INGRAM, JJ., concur.
NOTES
[1] Although we have characterized the third issue as "substantive," we note that this issue, strictly speaking, is also procedural in nature, in that it involves the application of notice pleading under the Alabama Rules of Civil Procedure. Yet, this issue is substantive in the sense that it relates to the merits of the appeal.
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421 U.S. 993
95 S.Ct. 2000
44 L.Ed.2d 483
Frank C. RIDENS et al.v.State of ILLINOIS et al.
No. 74-1003.
Supreme Court of the United States
May 27, 1975
On petition for writ of certiorari to the Supreme Court of Illinois.
The petition for a writ of certiorari is denied.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
1
Petitioners were convicted of selling allegedly obscene publications in violation of the Illinois Obscenity Statute, Ill.Rev.Stat.1969, c. 38, ¶11-20, and the obscenity ordinance of the city of Moline, Illinois. The Illinois Supreme Court affirmed their convictions. 51 Ill.2d 410, 282 N.E.2d 691 (1972). We granted the petition for certiorari and remanded the case for further consideration in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). 413 U.S. 912, 93 S.Ct. 3046, 37 L.Ed.2d 1030 (1973). On remand, the Illinois Supreme Court again affirmed the convictions.
2
For the reasons stated in my dissent from the remand of this case, 413 U.S. 912, 93 S.Ct. 3046, 37 L.Ed.2d 1030, and because the present judgment was rendered after Miller, I would grant the petition and reverse.*
3
Mr. Justice DOUGLAS, being of the view that any state or federal ban on, or regulation of, obscenity is prohibited by the Constitution, Roth v. United States, 354 U.S. 476, 508-514, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Miller v. California, 413 U.S. 15, 42-47, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 70-73, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), would grant certiorari and summarily reverse.
*
Although four of us would grant and reverse, the Justices who join this opinion do not insist that the case be decided on the merits.
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503 F.2d 65
UNITED STATES of America, Appellee,v.Clifton WOOTEN, Jr., Appellant.
No. 73-2508.
United States Court of Appeals, Fourth Circuit.
Submitted Aug. 20, 1974.Decided Oct. 1, 1974.
Trawick H. Stubbs, Jr., New Bern, N.C., on brief for appellant.
Thomas P. McNamara, U.S. Atty., and Malcolm J. Howard, Asst. U.S. Atty., on brief for appellee.
Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit judges.
PER CURIAM:
1
Tried by the court without a jury, after waiver of jury trial, Clifton Wooten, Jr., was convicted of violating 18 U.S.C.App. 1202(a) which provides criminal penalties for any person who has been convicted by a court of the United States or of a state or any political subdivision thereof of a felony and who receives, possesses or transports in commerce or affecting commerce any firearm. Wooten was sentenced to imprisonment for a term of two years.
2
On appeal Wooten contends that (1) the district court erred in denying his motion for judgment of acquittal under Rule 29(a) of the Fed.R.Crim.P.; (2) the evidence presented fails to establish that the defendant had been convicted of a prior felony within the meaning of 18 U.S.C.App. 1202(a)(1); and (3) the sentence imposed by the court constituted cruel and inhuman punishment. Points (1) and (2) will be considered together.
3
At the close of the Government's evidence the defendant moved for judgment of acquittal, announced that the defense would offer no evidence, and thereupon renewed his motion.
4
The defendant was arrested on July 17, 1973. The arresting officer's uncontradicted evidence at trial disclosed that he observed Wooten take from the driver the keys to the car in which he and four others were sitting, open the glove compartment of the car, remove a gun from underneath his sweater, place it in the glove compartment and then lock the compartment; that Wooten returned one key to the driver and put the other in his pocket; that upon arresting the defendant and finding a key in his pocket the officer used that key to open the glove compartment and there found the gun. There was ample evidence from testimony and records introduced before the court that this particular firearm had been transported in interstate commerce.
5
Defendant contends that since he was arrested at night and there was no light on inside the car the officer, from his position at the rear of the car, could not have seen the defendant who was sitting in the front seat next to the door on the right. However, at the time of the occurrence, the bright headlights and the beam from a spotlight of the officer's patrol car were focused on the car in which the defendant was sitting.
6
The court undertook to review the evidence and made findings based thereon. It found that the lighting was sufficient to enable the arresting officer to observe the defendant's actions with respect to removing the handgun in question from his person, placing it in the glove compartment of the car, and locking the compartment door; that the key found by the officer in defendant's possession unlocked the compartment door and that this evidence was sufficient to sustain the charge that the defendant possessed the gun.
7
From the evidence the court further found that the defendant had earlier been convicted of possession of heroin in a state court of North Carolina and sentenced to a term of five years in prison. The court rejected the argument that since a timely appeal from that conviction had not at that time been determined and since the state court conviction was not affirmed in the North Carolina Court of Appeals until December 12, 1973, the defendant did not at that time stand 'convicted by a court of the United States or of a state or any political subdivision thereof of a felony.' The court denied the defendant's motion for judgment of acquittal and found the defendant guilty of the crime charged in the indictment.
8
On appeal the defendant presents the same arguments as those presented to the trial court although it would appear that the thrust of his argument is directed to the sufficiency of the evidence to sustain the charge of possession of the firearm. However that may be, on the motion for judgment of acquittal the question is whether the evidence, viewed in the light most favorable to the prosecution, is such that the finder of fact might find the defendant guilty beyond a reasonable doubt. United States v. Pardee, 368 F.2d 368, 373 (4 Cir. 1966); United States v. Sawyer, 294 F.2d 24, 31 (4 Cir. 1961), cert. denied 368 U.S. 916, 82 S.Ct. 196, 7 L.Ed.2d 132 (1961). The uncontradicted testimony of the arresting officer concerning the possession of the firearm by the defendant, and the evidence that the firearm had been transported in interstate commerce, all of which was accepted as true by the trier of fact, could sustain a finding of guilt on that issue.
9
The defendant again urges that since his conviction on the charge of possession of heroin was pending on appeal in North Carolina Court of Appeals at the time of his trial below that he did not at the time of his arrest, indictment and trial in the instant case stand 'convicted by a court of the United States or of a state or any political subdivision thereof of a felony.' We reject this argument. There is no reason to believe that when Congress used the word 'convicted' it meant anything other than exactly that. Congress could have made section 1202(a)(1) applicable only to one who had been convicted and whose conviction had already been affirmed on appeal but it did not do so. See United States v. Williams, 484 F.2d 428 (8 Cir. 1973); United States v. Liles, 432 F.2d 18 (9 Cir. 1970); DePugh v. United States, 393 F.2d 367 (8 Cir. 1968).
10
Challenging the prior conviction Wooten relies upon United States v. Lufman, 457 F.2d 165 (7 Cir. 1972), but we find it of no relevance here. In Lufman the defendant was convicted of a violation of 1202(a) and the conviction was reversed on appeal because a prior conviction on a plea of quilty by Lufman, who was not represented by counsel, was used by the prosecution as proof of Lufman's status as a convicted felon contrary to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which held that such a conviction cannot be used against a defendant in a later proceeding. In the instant case Wooten's prior conviction has been affirmed on appeal, State v. Wooten, 20 N.C.App. 139, 20 S.E.2d 89 (1973), and was not, as in Lufman, constitutionally void ab initio.
11
Appellant's contention (3) that the sentence to a term of confinement for the maximum statutory period, two years, constituted cruel and unusual punishment, is without merit. It has been decided by this court that interference with a sentence which is within the limitation provided by the statute is not, in the absence of extraordinary and special circumstances, within the appellate court's province. United States v. Martell, 335 F.2d 764 (4 Cir. 1964).
12
We conclude that the evidence, viewed in the light most favorable to the prosecution, United States v. Sherman, 421 F.2d 198 (4 Cir.), cert. denied, 398 U.S. 914, 90 S.Ct. 1717, 26 L.Ed.2d 78 (1970), was sufficient to sustain Wooten's conviction. Finding no error we dispense with oral argument and affirm the judgment of conviction and sentence.
13
Affirmed.
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556 P.2d 105 (1976)
276 Or. 631
Mary Lee DUNCAN, Appellant,
v.
Amy DUBIN, Respondent.
Supreme Court of Oregon, Department 2.
Argued and Submitted October 7, 1976.
Decided November 12, 1976.
Douglas S. Green, Portland, argued the cause for appellant. On the brief were Gerald C. Doblie, and Bailey, Doblie & Bruun, Portland.
Samuel G. Wilson, of Thwing, Atherly & Butler, Eugene, argued the cause and filed the brief for respondent.
Before DENECKE, C.J., and McALLISTER, O'CONNELL and SLOPER, JJ.
SLOPER, Judge Pro Tem.
This is an action to recover damages for personal injuries and property damage sustained by the plaintiff in an automobile accident. Plaintiff appeals from the trial court's orders granting defendant's motions to quash and set aside service of summons *106 on the defendant and for partial summary judgment against plaintiff on the ground that plaintiff's action for personal injuries is barred by the applicable statute of limitations. The plaintiff also appeals from the trial court's denial of her motion for a partial summary judgment based on the contention that the statute of limitations had been "tolled" by an advance payment to plaintiff made by defendant's insurance company for property damage to plaintiff's automobile. We will first consider the plaintiff's contention that the trial court erred in granting defendant's motion for partial summary judgment and in denying plaintiff's motion for the same relief. The trial court's orders were predicated upon the belief that the statute of limitations had run against the plaintiff.
On February 17, 1975, the plaintiff filed her complaint alleging that she was injured and her vehicle damaged by the negligence of the defendant on May 23, 1973. After the complaint was filed, the Lane County sheriff attempted service of summons upon defendant at a local address given by defendant at the time of the accident. The sheriff was unable to effect service and advised that the defendant was unknown at that address for the past year. Defendant's forwarding address in Newport Beach, California, was obtained from the United States Postal Service. Complaint and summons were then mailed to the Orange County, California, sheriff with instructions to personally serve the defendant. Service was again not obtained because the defendant was living and going to school in the state of Washington. Plaintiff then obtained from the court an order allowing service by publication under ORS 15.120, and publication of notice in a local Eugene newspaper was accomplished in accordance with the provisions of that statute. A copy of the complaint and summons was mailed to the defendant at the California address according to the provisions of ORS 15.140. The complaint and summons were received at that address as indicated by a certified mail receipt signed by an individual bearing the same surname as the defendant. On May 30, 1975, plaintiff served copies of complaint and summons upon the administrator of the Motor Vehicles Division of the State of Oregon.
The record shows that five months after the automobile accident a payment of $306.75 was made to an automobile repair shop for repairs to plaintiff's automobile by the defendant's insurer. This payment was described by the insurer as an advance payment for damage to personal property claimed by the plaintiff as a result of the accident. Written notice of the date of expiration of the period of limitation for the commencement of an action for damage to property or for personal injury was not given to the plaintiff at any time. Plaintiff was examined by several doctors with respect to injuries she sustained in the accident between the time of the accident and October, 1974. During this period of time she was contacted several times by defendant's insurer to discuss her injuries. In October, 1974, plaintiff retained counsel to represent her in an action for damages arising from the accident.
Plaintiff completed her attempt at service of summons by publication on May 8, 1975, and finally served the administrator of the Motor Vehicles Division pursuant to ORS 15.190(2) on May 30, 1975. Thus, if substituted service upon the director of the Department of Motor Vehicles is required, that service was not effected until seven days after the two-year statute of limitations for personal injury had expired. ORS 12.110(1).
Plaintiff relies on the statutory provisions of ORS 41.950 et seq. authorizing advance payment and on ORS 12.155 which suspends the limitation period when an advance payment is made without written notice of the expiration date of the applicable statute of limitation. ORS 41.950 et seq. provides:
"As used in ORS 12.155, 18.510, 41.950 to 41.980, `advance payment' means compensation for the injury or death of a *107 person or the injury or destruction of property prior to the determination of legal liability therefor."
ORS 41.960:
"(1) Advance payment made for damages arising from the death or injury of a person is not an admission of liability for the death or injury by the person making the payment unless the parties to the payment agree to the contrary in writing.
"(2) For the purpose of subsection (1) of this section, advance payment is made when payment is made with or to:
"(a) The injured person;
"(b) A person acting on behalf of the injured person with the consent of the injured person; or
"(c) Any other person entitled to recover damages on account of the injury or death of the injured or deceased person."
ORS 41.970:
"Any advance payment made for damages arising from injury or destruction of property is not an admission of liability for the injury or destruction by the person making the payment unless the parties to the payment agree to the contrary in writing."
ORS 12.155 provides:
"(1) If the person who makes an advance payment referred to in ORS 41.960 or 41.970 gives to each person entitled to recover damages for the death, injury or destruction, not later than 30 days after the date the first of such advance payments was made, written notice of the date of expiration of the period of limitation for the commencement of an action for damages set by the applicable statute of limitations, then the making of any such advance payment does not suspend the running of such period of limitation. The notice required by this subsection shall be in such form as the Insurance Commissioner prescribes.
"(2) If the notice required by subsection (1) of this section is not given, the time between the date the first advance payment was made and the date a notice is actually given of the date of expiration of the period of limitation for the commencement of an action for damages set by the applicable statute of limitations is not part of the period limited for commencement of the action by the statute of limitations."
Plaintiff contends that ORS 12.155(2) operates to suspend the statute of limitations applicable to a personal injury action where, as here, advance payment for property damage is made without giving the statutory notice of the expiration date for a personal injury claim arising out of the same accident. To the contrary, defendant argues that an advance payment for property damage without any notice of any statute of limitation suspends only the statute of limitation applicable to an action for property damage.
We believe that the statute is reasonably susceptible to either interpretation. When such an ambiguity exists it is necessary for us to use whatever aids to construction are available to ascertain the intention of the legislature and to then construe the statute so that the legislative object can be achieved. See Johnson v. Star Machinery Co., 270 Or. 694, 530 P.2d 53 (1974); Curly's Dairy v. Dept. of Agriculture, 244 Or. 15, 415 P.2d 740 (1966); Berry Transport, Inc. v. Heltzel, 202 Or. 161, 272 P.2d 965 (1954). See also ORS 174.020.
A review of the legislative history and an examination of the language of ORS 12.155 and 41.950 reveals that the legislation had a two-fold purpose. One was to allow an insurer to make advance payments without admitting liability for a claim and to encourage such payments by eliminating any apprehension on the part of the insurer that evidence of advance payments could be admissible in court to *108 prove liability. The other objective, which is clearly discernible, was to protect an injured party from being misled into believing that a limitation period upon his claim is no longer applicable because the insurer has, in effect, acknowledged that its insured is liable for the claim. See Hearings on House Bill 1299 before the Subcommittee on Financial Affairs of the House State and Federal Affairs Committee, February 24, 1971. Insurance Commissioner Bateson testified before the Senate Judiciary Committee on May 10, 1971, as follows:
"Section 5 deals with a problem inherent in a complicated and extensive personal injury case where the insurance company makes advance disability payments. In that situation it would be entirely possible for the statute to run and then the company could say, `That's too bad; you didn't file suit and the statute of limitations has expired.' House Bill 1299 therefore required that within 30 days after advance payment is made, there must be a notification to the payee that the statute may be running and the making of the advance payment does not suspend it. If there is no such notice, the statute is tolled between the time of the first payment and the time the first notice is actually given."
The final bill passed by the legislature and codified ORS 12.155 provides that an advance payment for personal injury, death, or property damages tolls the applicable statute of limitation when written notice of the expiration date of the statute is not given by the insurer within 30 days after the payment is made. Thus, it is clear that the legislature intended to protect a person from being "lulled" into falsely believing there is no limitation on when he can commence an action for property damage or that a limitation period is no longer a factor because an advance payment for property damage has been made. However, whether the legislature intended that an advance payment for property damage operates to suspend the statute of limitations applicable to an action for personal injury under the circumstances presented in this case cannot be ascertained with certainty from the legislative history of ORS 12.155 or 41.950 or from any additional aids in statutory construction.
It is very likely that the legislature did not anticipate the problem presented in this case. We are of the opinion that the legislative objective of protecting injured parties who receive advance payments from being misled into not timely pressing a claim until the statute of limitations period has expired equally applies to an injured party receiving an advance payment for property damage while a claim for personal injury is pending against the same party as a result of the same accident. Had the legislature anticipated this problem, we believe it would have required that notice of both periods of limitation be given under the circumstances here presented. A contrary holding would be at odds with the legislative intent that advance payment not mislead an injured party into believing that he need not diligently press his claim.
We hold, then, in the narrow confines of this case, where the defendant's insurer made an advance payment on plaintiff's property damage claim and engaged in settlement negotiations with the plaintiff, on her personal injury claim, for an extended period of time, that the making of an advance payment referred to in ORS 41.950 without proper or any notice of the expiration date of any period of limitation applicable to any claim for damages demanded of the person making the advance payment suspends the statute of limitations for any such claim under ORS 12.155. Since the plaintiff in this case did not receive written notice of the expiration date of the period of limitation applicable to an action for either personal injury or property damage, the statute of limitations was suspended and thus does not bar plaintiff's action.
Having resolved this issue in the plaintiff's favor, it is unnecessary for us to decide in this case the question presented *109 concerning the necessity of substituted service on the Director of the Department of Motor Vehicles pursuant to ORS 15.120, 15.190(2) and 15.080(6).
The trial court was in error in granting defendant's motion for a partial summary judgment and in denying plaintiff's motion for a partial summary judgment.
Reversed and remanded.
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[Cite as Linville v. Kratochvill, 2014-Ohio-1153.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
CHRIS LINVILLE, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-G-3161
- vs - :
PAUL KRATOCHVILL, :
Defendant-Appellant. :
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 13 M
000044.
Judgment: Reversed and remanded.
Jon L. Lindberg, Warren and Young PLL, 134 West 46th Street, P.O. Box 2300
Ashtabula, OH 44005 (For Plaintiff-Appellee).
Glenn E. Forbes, Cooper & Forbes, 166 Main Street, Painesville, OH 44077 (For
Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Paul Kratochvill, appeals from the Order of the
Geauga County Court of Common Pleas, granting default judgment in favor of plaintiff-
apellee, Chris Linville. The issue to be determined in this case is whether default
judgment is properly entered when a defendant requests leave to file his answer a week
after the deadline for filing. For the following reasons, we reverse the decision of the
lower court and remand for further proceedings consistent with this opinion.
{¶2} On January 17, 2013, Linville filed a Complaint, alleging that Kratochvill
failed to pay the outstanding balance due on a Promissory Note and requesting
damages in the amount of $20,000.
{¶3} Service by certified mail was requested on the same date, but a Notice of
Failure of Service was filed by the clerk on February 21, 2013.
{¶4} Residential service was requested by Linville on March 4, 2013. A Notice
of Failure of Service was filed by the clerk on March 18, 2013, stating that service by the
sheriff failed, and that Kratochvill’s mother claimed he no longer resided at the address,
since he was in the military.
{¶5} On April 9, 2013, Linville filed a Written Request for Ordinary Mail Service,
asserting that Kratochvill had “attempted to dodge receipt of the complaint and
summons.” He alleged that Kratochvill was lying about being in the military. On April
30, 2013, a Notice of Failure of Service was filed by the clerk, noting that delivery by
ordinary mail had been refused.
{¶6} Linville filed an Affidavit for Service by Publication on May 31, 2013. Proof
of publication for a period of six weeks was filed on June 27, 2013, explaining that
notice had been published “on the same day of each week,” beginning on May 23,
2013, with the last date of publication occurring on June 27, 2013.
{¶7} A Motion for Default Judgment was filed by Linville on July 31, 2013.
Linville argued that several attempts had been made to serve Kratochvill and that
service was ultimately perfected through publication. The Motion noted that it had been
more than 28 days since service was perfected and Kratochvill had not responded to
the Complaint.
2
{¶8} On August 2, 2013, Kratochvill filed a Motion for Leave to File Answer and
Counterclaim Instanter.
{¶9} Linville filed a Response in Opposition on August 6, 2013, arguing that
Kratochvill avoided service and that he was only responding now because of the Motion
for Default Judgment. Kratochvill filed a Reply, arguing that it is in the interest of justice
to allow him leave to file an answer.
{¶10} A Judgment Entry was filed on August 21, 2013, denying Kratochvill’s
Motion for Leave to File. On the same date, the court issued an Order granting
Linville’s Motion for Default Judgment and entering judgment in the amount of $20,000.
{¶11} Kratochvill timely appeals and raises the following assignments of error:
{¶12} “[1.] The trial court committed prejudicial error in granting Plaintiff-
Appellee’s Motion for Default Judgment and denying Defendant-Appellant’s Motion for
Leave to File Answer and Counterclaim, Instanter.
{¶13} “[2.] The trial court committed prejudicial error in failing to conduct a
default judgment hearing pursuant to Civil Rule 55 and to determine whether or not the
Defendant was a ‘bad actor’ and therefore not entitled to file his Answer and Counter-
Claim, Instanter.
{¶14} “[3.] The trial court erred to the prejudice of Defendant-Appellant by
granting Plaintiff’s Default Motion and failing to hold a hearing on damages.”
{¶15} In his first assignment of error, Kratochvill argues that, since he was only
seven days late in filing his Answer and Counterclaim, the trial court committed error in
granting default judgment and denying his request for leave to file an answer, especially
given that the law favors deciding cases on their merits.
3
{¶16} Linville asserts that, given the circumstances in this case, including
Kratochvill’s attempts to avoid service, the trial court did not abuse its discretion in
granting default judgment.
{¶17} “The granting of a default judgment, analogous to the granting of a
dismissal, is a harsh remedy which should only be imposed when ‘the actions of the
defaulting party create a presumption of willfulness or bad faith.’” (Citation omitted.)
Domadia v. Briggs, 11th Dist. Geauga No. 2008-G-2847, 2009-Ohio-6510, ¶ 19. “[I]t is
a fundamental tenet of judicial review in Ohio that courts should decide cases on the
merits. * * * Judicial discretion must be carefully -- and cautiously -- exercised before
this court will uphold an outright dismissal of a case on purely procedural grounds.”
(Citation omitted.) DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189, 192, 431 N.E.2d
644 (1982). “A trial court’s decision to grant or deny a motion for default judgment is
reviewed under an abuse of discretion standard.” Hale v. Steri-Tec Servs., Inc., 11th
Dist. Geauga No. 2008-G-2876, 2009-Ohio-3935, ¶ 25, citing Huffer v. Cicero, 107
Ohio App.3d 65, 74, 667 N.E.2d 1031 (4th Dist.1995).
{¶18} “To militate against the harshness of a default judgment, Civ.R. 6(B)
permits a court to grant a moving party additional time to file a pleading or response,
provided the requirements set forth in the rule are met.” Hillman v. Edwards, 10th Dist.
Franklin Nos. 08AP-1063 and 08AP-1064, 2009-Ohio-5087, ¶ 7. When a defendant
fails to file his answer within twenty-eight days after service of the summons and
complaint, as required by Civ.R. 12(A)(1), “the court for cause shown may at any time in
its discretion * * * upon motion made after the expiration of the specified period permit
the act to be done where the failure to act was the result of excusable neglect.” Civ.R.
4
6(B)(2). “A trial court’s Civ.R. 6(B)(2) determination is addressed to the sound
discretion of the trial court and will not be disturbed on appeal absent a showing of an
abuse of discretion.” State ex rel. Lindenschmidt v. Bd. of Commrs. of Butler Cty., 72
Ohio St.3d 464, 465, 650 N.E.2d 1343 (1995).
{¶19} “The determination of whether neglect is excusable or inexcusable must
take into consideration all the surrounding facts and circumstances, and courts must be
mindful of the admonition that cases should be decided on their merits, where possible,
rather than procedural grounds.” Id. at 466.
{¶20} In the present case, the trial court abused its discretion in determining that
Kratochvill should not be granted leave to file his answer and by granting default
judgment. Pursuant to Civ.R. 4.4(A)(1), service by publication is complete as of the
date of the last publication, which, in the present case, occurred on June 27, 2013.
Kratochvill had 28 days from that date to file his answer. He filed his Motion for Leave
to File on August 2, 2013, only a week after his answer was due. Upon filing his
request, he maintained that counsel had just been retained and that no prejudice would
result in granting leave to file.
{¶21} This is not a case where there was a significant delay, such that neglect or
unresponsiveness is manifested, which would support a trial court’s conclusion that
leave should not be granted. See Colley v. Bazell, 64 Ohio St.2d 243, 248, 416 N.E.2d
605 (1980). Such a short delay in filing an answer does not warrant granting default
judgment and disregards the mandate that cases should be resolved on their merits.
Maggard v. Ohio Dept. of Commerce, 11th Dist. Lake No. 2002-L-042, 2003-Ohio-4098,
5
¶ 18 (“courts must be mindful of the admonition that cases should be decided on their
merits when possible, instead of on procedural grounds”).
{¶22} Moreover, Linville fails to adequately demonstrate the existence of any
prejudice that resulted from Kratochvill requesting leave to file his answer seven days
after the filing deadline. We fail to see how a one week delay caused any harm to
Linville’s interests, given that he will still be able to recover the same damages, as well
as any interest that accrues. In contrast, the granting of default judgment was harmful
to Kratochvill, who was unable to defend his case or assert his counterclaims, which is
again an important right that should be protected when possible. Thus, under the
circumstances of the present case, we hold that there was no basis for granting the
motion for default judgment. See Faith Elec. Co. v. Kirk, 10th Dist. Franklin No. 00AP-
1186, 2001 Ohio App. LEXIS 2068, 7-8 (May 10, 2001) (the trial court abused its
discretion in failing to allow a defendant to file a late answer and in granting default
judgment when the period of default was only four days, the defendant mistakenly
believed her answer was not yet due, and there was no evidence of prejudice).
{¶23} While Linville argues that default judgment was proper due to Kratochvill’s
alleged attempts to avoid his service, we cannot find that this provided a basis for such
a judgment. Linville cites to no authority for the proposition that failing to accept service
justifies default judgment. Further, the fact that Linville was unable to perfect service is
not proof that Kratochvill purposely avoided service. The only “proof” asserted by
Linville that Kratochvill avoided service were his contentions that Kratochvill’s mother
lied about him being in the military, an action that cannot be attributed to Kratochvill
himself. Thus, even if the avoidance of service were to be considered in determining
6
whether default judgment is proper, it cannot be said that Kratochvill was shown to have
avoided service in this case.
{¶24} While Linville cites Five Star Fin. Corp. v. Merchants Bank & Trust Co., 1st
Dist. Hamilton No. C-120814, 2013-Ohio-3097, ¶ 11-12, in support of his assertion that
Kratochvill’s bad acts justified default judgment, that case involved a direct violation of a
court order and evidence of the party’s dilatory conduct, which is not present in this
case.
{¶25} Finally, the date that Kratochvill was required to file his answer did not
commence as of the dates when Linville attempted to unsuccessfully perfect service,
but as of the date when he actually achieved service. Once service was perfected, and
only a few days after the request for default judgment, Kratochvill explained the reasons
for his delay and responded to further filings by Linville.
{¶26} The first assignment of error is with merit.
{¶27} Since the trial court erred in entering default judgment, Kratochvill’s
remaining assignments of error regarding whether he was entitled to a hearing on the
issues of default and damages are moot.
{¶28} Based on the foregoing, the Order of the Geauga County Court of
Common Pleas, granting default judgment in favor of Linville, is reversed and remanded
for further proceedings consistent with this opinion. Costs to be taxed against appellee.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.,
concur.
7
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107 Cal.App.2d 313 (1951)
JEANNETTE GLOGAU, Respondent,
v.
EVERT L. HAGAN, Individually and as Administrator, etc., Appellant.
Civ. No. 18386.
California Court of Appeals. Second Dist., Div. Two.
Nov. 7, 1951.
Jesse A. Hamilton for Appellant.
Norman Newmark and Abraham Gottfried for Respondent.
MOORE, P. J.
This appeal is on the judgment roll. [1] Having no evidence for review on the merits, all presumptions and intendments favor the correctness of the judgment. (Rounds v. Dippolito, 94 Cal.App.2d 412, 417 [210 P.2d 893].) [2] By including in the record numerous documents *316 not pertinent to the narrow issues thus presented, the scope of the appeal is not thereby widened. (Hunt v. Plavsa, 103 Cal.App.2d 222, 224 [229 P.2d 482].)
Plaintiff as assignee of Abraham Gottfried sued for $15,000 on account of legal services alleged to have been rendered to appellants. Judgment was ultimately entered for the sum of $4,100 against J. A. Hagan and Evert L. Hagan. Since the filing of this appeal, J. A. Hagan deceased and Evert as the administrator of the estate of his brother was duly substituted as a party appellant. Inasmuch as the claims were reassigned to Gottfried, he is the actual respondent. The denial of recovery on some claims and awarding judgment on others and the reasons therefor have no place in this discussion. The appeal is based upon asserted technical denials of alleged lawful rights in the course of the litigation. Only the merits of such claims can be of interest now.
No Error In Denying a Jury Trial
The first assignment is that the court erred in denying J. A. Hagan a jury trial. In support thereof they cite the state Constitution (art. I, 7); Platt v. Havens, 119 Cal. 244 [51 P. 342]; Parker v. James Granger, Inc., 4 Cal.2d 668, 679 [52 P.2d 226]. They argue that neither a "Memorandum for Setting" nor a "Notice of Setting" was served upon J. A. Hagan as required by section 631, Code of Civil Procedure, subdivision 4, and rule 1 of the Rules of the Judicial Council.
The answer thereto is fourfold. [3] (1) The order denying the motion requesting a jury trial is not reviewable since no exception was taken to the ruling. Where no exception is taken to the ruling in limine denying a jury trial as provided by section 646 of the Code of Civil Procedure it cannot be reversed on appeal. (Snidow v. Hill, 100 Cal.App.2d 31, 36 [222 P.2d 958].) Since no exception was noted at the time of the ruling or taken later, the order denying J. A. Hagan's motion cannot be disturbed. [4] (2) After such denial of a jury trial, the motion was not renewed before the trial judge. Such failure to renew foreclosed J. A. Hagan of thereafter urging a reversal of the order of denial. (Ferrea v. Chabot, 121 Cal. 233, 236 [53 P. 689, 1092].) [5] If a party goes to a trial without apprising the court of his demand for a jury trial he is deemed to have waived such right. (City of Los Angeles v. Zeller, 176 Cal. 194, 199 [167 P. 849].) [6] (3) Since the record discloses no actual request for a jury at the opening of the trial, J. A. Hagan is presumed to have waived his claim for a jury. On this collateral attack *317 of the judgment and the order denying a jury trial, every condition of facts consistent with their validity, not affirmatively contradicted by the judgment roll is presumed to have existed. (Phelan v. Superior Court, 35 Cal.2d 363, 373 [217 P.2d 951].) [7] (4) That J. A. Hagan was served with "Memorandum for Setting" or a "Notice of Setting" card cannot be denied. At the time of service Evert Hagan was counsel of record for his brother as well as for himself. [fn. 1] Since Evert as attorney was served with the notice of setting and did not demand a jury within five days after receipt of such notice he thereby waived a jury trial for both defendants. Service on Evert was service on his client. (Code Civ. Proc., 1011.) On June 15, 1948, Attorney Peck was substituted as counsel for J. A. Hagan. Nine days later Mr. Peck filed a "Notice of Motion for Jury Trial." No mention was made in connection with such notice that J. A. Hagan had not been served with the "Memorandum for Setting" or the "Notice of Setting" card, but in his affidavit Peck declared that his client "had not demanded a trial by jury within the time prescribed by section 631 of the Code of Civil Procedure." Eight months thereafter both appellants admitted they had been served with notice of trial but did not request a jury, and contended that they were entitled to delay their demand until served with Notice of Trial.
Since J. A. Hagan had actual notice of the setting and failed to appear and demand a jury as required by the statute (Code Civ. Proc., 631) and since he failed at the commencement of the trial to renew his demand (City of Los Angeles v. Zeller, supra) appellants fail to establish a right to reversal.
No Abuse of Discretion
Having failed to obtain a jury trial by virtue of their own inaction, appellants point to several "further" motions they made to obtain a jury trial and assert that with reference to them the trial court abused its discretion. Those motions and their filing dates are as follows: (1) October 18, 1948, "Notice of Motion to Reconsider Motion for Jury Trial," (2) February 28, 1949, "Notice of Motion to Transfer Cause for Jury Trial Calendar," (3) February 28, 1949, "Demand for Jury Trial."
As to motion (1): In fact it antedated a similar motion which was denied November 4, 1948. It was denied without prejudice *318 and on October 29, 1948, appellants filed anew the same identical motion and then stipulated that it might be denied.
As to "further" motions (2 and 3), no such fact was presented in support of either as would compel a court to throw discretion to the winds and grant the motions. All three motions appealed to the discretion of the court. The Constitution vested the Legislature with power to determine such acts or omissions as shall deprive a litigant in a civil action of a jury trial. This was done by the enactment of the statute. (Code Civ. Proc., 631; Harmon v. Hopkins, 116 Cal.App. 184, 186 [2 P.2d 540].) That section, subdivision 4, provides that a jury may be waived by failing to assert a demand therefor when "the cause is first set upon the trial calendar if it be set upon notice or stipulation or within five days after notice of setting if it be set without notice or stipulation."
[8] While section 631 (4), Code of Civil Procedure, authorizes the court "in its discretion" to allow a trial by jury, even though there has been a waiver of such trial, such provision does not compel a court to do so. In considering such a motion the court has to regard not only the rights of the litigants but also the likelihood that the shifting of a trial from a nonjury calendar to a jury calendar will affect the public interest. (Mathews v. Hornbeck, 80 Cal.App. 704, 708 [252 P. 667].)
Where a party litigant has notice of the setting and does not announce his demand for a jury trial but relies upon a written notice filed with the clerk prior to the setting day, to comply with such writing and grant a jury trial "would revive the uncertainty as to what constitutes a waiver of jury trial" which existed prior to the statute and it would hamper the courts in their efforts to expedite the administration of justice. (Stern v. Hillman, 115 Cal.App. 156, 159 [300 P. 972].)
[9] The court below having in the exercise of its discretion denied the several motions of appellants to be relieved of their neglect, no relief can be obtained on appeal unless it is established that appellants made timely application to be relieved from neglect and the trial court grossly abused its discretion. (Keller v. Keller, 91 Cal.App.2d 39, 41 [204 P.2d 361]; Harmon v. Hopkins, supra, 188; Stern v. Hillman, supra; Ferrea v. Chabot, supra; Bennett v. Hillman, 37 Cal.App. 586, 589 [174 P. 362].) This they have not done.
[10] Furthermore, prejudice cannot be presumed from the fact that appellants did not try their case to a jury. On the *319 contrary, it is presumed that they enjoyed the benefits of a fair and impartial trial as contemplated by the Constitution and the statutes. (Harmon v. Hopkins, supra, p. 188.)
Other Assignments
Appellants contend that they were prejudiced by the court's refusal to allow J. A. Hagan to file a cross-complaint. The action herein was filed November 13, 1947. June 29, 1948, J. A. Hagan sued respondent in a separate action, alleging the latter's negligence in handling three specified lawsuits, the prosecution of which constituted the basis of respondent's recovery in the instant action. Respondent's demurrer to J. A. Hagan's complaint was sustained and the judgment of dismissal became final. Appellants answered respondent's suit in January, 1948. In the following March, Evert filed his proposed cross-complaint herein alleging the negligence of respondent in his handling of five actions of appellants against five separate defendants. Respondent's demurrer to Evert's cross- complaint was sustained. Nothing daunted, Evert returned in propria persona with his first amended cross-complaint with its eight causes of action based upon respondent's alleged negligence in handling the same five cases for J. A. Hagan and alleging their transfer to Evert. Respondent's demurrers to Evert's amended cross-complaint and to his second amended cross-complaint were both sustained without leave to amend. Simultaneously with Evert's last filing, J. A. Hagan filed his "second amended cross complaint" without leave. Respondent's motion to strike it was granted.
After respondent's demurrer had been sustained to J. A. Hagan's independent action he amended and a demurrer to his amended pleading was sustained without leave to amend. The judgment of dismissal became final September 29, 1948.
Six months after his second amended cross-complaint had been stricken, J. A. Hagan on November 3, 1948, moved the court for leave to file a cross- complaint herein for malpractice, based upon respondent's alleged negligence in his handling of two specified actions. The motion was denied December 7, 1948, and the trial was continued to March 21, 1949. There is no showing that the court's denial of J. A. Hagan's motion was error.
On March 17, 1949, J. A. Hagan moved for leave to file an amended answer and counterclaim for the sum of $35,000. That motion was ordered off calendar.
When the trial was called on March 21, J. A. Hagan did not appear and his motion was never presented; neither was *320 Evert's motion to file his amended answer ever made. At the conclusion of the trial the court found that "J. A. Hagan is the alter ego of Evert Hagan." [11] From the record it is clear that the demand or motion of J. A. Hagan for leave to file his proposed amended answer and counterclaim was never presented and action upon it could therefore not be cause for reversing the judgment herein.
[12] The contention that J. A. Hagan was wrongfully denied the right to file a cross-complaint cannot be sustained for the additional reason that he did not take exception to the ruling of the court. (Estate of Magerl, 201 Cal. 162, 167 [256 P. 204].) Exception must be taken at the time a decision is made rejecting a proposed cross-complaint. Such rejection is not one of the matters deemed to have been excepted to under section 647, Code of Civil Procedure.
[13a] In any case, there was no abuse of discretion in the court's refusal to allow J. A. Hagan to file his cross-complaint. [14] A defendant may file a cross-complaint at the time of answering. But if he seeks to file it at a later time he may do so only by permission of the court. (Gallo v. Boyle Manufacturing Co., Inc., 30 Cal.App.2d 653, 655 [86 P.2d 1067].) The rule as to filing a counterclaim is substantially the same. (Estate of Walters, 89 Cal.App.2d 797, 799 [202 P.2d 89]; Anderson v. Perminter, 78 Cal.App.2d 378, 380 [177 P.2d 818].) To defeat the court's ruling in either instance it must be shown that the court abused its discretion. (Bank of America v. Goldstein, 25 Cal.App.2d 37, 46 [76 P.2d 545]; Manha v. Union Fertilizer Co., 151 Cal. 581 [91 P. 393]; Scholle v. Finnell, 167 Cal. 90, 102 [138 P. 746].)
[13b] That the court's discretion was wisely exercised is disclosed by the facts. (1) When the motion was made the answers had been on file 11 months. Such dereliction of defendants was sufficient cause for denying the motion. (Davies v. Symmes, 49 Cal.App.2d 433, 439 [122 P.2d 102].) (2) The cross-complaint was demurrable. This was ample ground for rejecting it. (Pollard v. Forest Lawn Memorial Park Assn., 15 Cal.App.2d 77, 82 [59 P.2d 203].) (3) A prior action based upon the causes alleged in the cross-complaint was still pending. The pendency of a suit involving the same matters alleged in a proposed cross-complaint is justification for rejecting the latter. (Hilton v. Reed, 46 Cal.App.2d 449, 454 [116 P.2d 98].) (4) When J. A. Hagan presented his cross-complaint the causes therein alleged had been assigned to *321 Evert and he was then the owner thereof. (Staley v. McClurken, 35 Cal.App.2d 622, 625 [96 P.2d 805].)
[15a] The contention is made that the court erred in denying appellants' motion to preclude evidence concerning respondent's accounts after the latter had "failed to furnish a proper bill of particulars." Such a motion is addressed to the discretion of the court. (McCarthy v. Mt. Tecarte etc. Co., 110 Cal. 687, 692 [43 P. 391]; Silva v. Bair, 141 Cal. 599, 602 [75 P. 162].) [16] The determination of whether a bill of particulars furnished by an adversary is a compliance with the statute rests in the sound discretion of the court. (Code Civ. Proc., 454.) The requirement is that within 10 days after a demand by the adverse party for the "items of an account" the pleader must deliver a "copy of the account." [15b] By reason of appellants' failure to obtain an order prior to the trial precluding the introduction of evidence by respondent, the court properly denied the motion at the trial. (McCarthy v. Mt. Tecarte etc. Co., supra.) [17a] Not only was appellants' motion to exclude addressed to the sound discretion of the court, but since there is no record before this court it is presumed that no objection was made to the evidence and for that reason it is not reviewable. (Parker v. Shell Oil Co., 29 Cal.2d 503, 513 [175 P.2d 838].)
[18] Appellants urge that the court below erred "when it received into evidence, over objection, alleged summaries of purported time sheets. How can such assignment be reviewed in the absence of a reporter's transcript? There is nothing to show here that the summaries are not the original time sheets or that they are inconsistent with testimony at the trial. [17b] Assuming the record to be complete (rule 52, Rules on Appeal) this court must presume that objections were not made to the introduction of the summaries. (Phelan v. Superior Court, 35 Cal.2d 363, 373 [217 P.2d 951].)"
The judgment is affirmed.
McComb, J., concurred.
NOTES
[fn. 1] 1. The record shows that Evert Hagan was substituted as attorney for his brother on February 3, 1948, and that he was served with the "Memorandum for Setting" on the same day.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN THE MATTER OF THE SEARCH OF
INFORMATION ASSOCIATED WITH
[REDACTED]@MAC.COM Magistrate Case. No. 14-228 (JMF)
THAT IS STORED AT PREMISES
CONTROLLED BY APPLE, INC.
SECOND MEMORANDUM OPINION AND ORDER
Pending before the Court is a Renewed Application for a search and seizure warrant
pursuant to Rule 41 of the Federal Rules of Criminal Procedure and 18 U.S.C. § 2703(a), (b) and
(c) to disclose certain records and contents of electronic communications relating to an Apple e-
mail address. 1 See Affidavit in Support of an Application for a Search Warrant [#5-1] (sealed) at
1 (hereinafter Affidavit). In a previous Memorandum Opinion and Order, 2 this Court denied the
government’s original application for a search and seizure warrant for the same e-mail address
without prejudice both because it failed to clearly specify which e-mails it sought to seize and
because it sought authorization to seize e-mails for which it had not established probable cause to
seize. In re Search of Apple E-mail, 2014 WL 945563, at *3, *5. The government’s Renewed
Application does not address these concerns and ignores the substance of this Court’s previous
rulings. The government persists in its attempt to seize an entire e-mail account and search
through all of it. For the reasons stated below, the government’s Renewed Application for a
search and seizure warrant will, therefore, be denied.
1
All references to the United States Code are to the electronic versions that appear in Westlaw or Lexis.
2
See In the Matter of the Search of Information Associated with [redacted] @mac.com that is Stored at Premises
Controlled by Apple, Inc., Mag. Case No. 14-228, 2014 WL 945563 (D.D.C. Mar. 7, 2014) (hereinafter In re Search
of Apple E-mail).
I. Background
This is the government’s second attempt to obtain a search and seizure warrant for a
specific Apple e-mail address as part of its investigation of a possible violation of 41 U.S.C.
§ 8702 (Solicitation and Receipt of Kickbacks) and 18 U.S.C. § 371 (Conspiracy) involving a
defense contractor. Affidavit at 10. For purposes of this opinion, the details of the
investigation—which remain under seal on the Court’s docket—are irrelevant. 3
In response to this Court’s previous opinion in In re Search of Apple E-mail, the
government has deviated from the standard format used to search e-mail accounts that is found in
the Department of Justice’s manual Searching and Seizing Computers and Obtaining Electronic
Evidence in Criminal Investigations, Department of Justice Criminal Division Computer Crimes
and Intellectual Property Section, 255-262. 4 See In re Search of Apple E-mail, 2014 WL 945563,
at *7 (“To be clear: the government must stop blindly relying on the language provided by the
Department of Justice's Searching and Seizing Computers and Obtaining Electronic Evidence in
Criminal Investigations manual. By doing so, it is only submitting unconstitutional warrant
applications.”). In an “Attachment A,” titled “Place to Be Searched,” the government specifies
the location of Apple, Inc. and indicates that the “warrant applies to information associated with
the e-mail account [redacted]@mac.com dating from [January], 2014, to the present.” 5 Affidavit
at 12. An “Attachment B,” titled “Particular things to be seized by the government,” is as
follows:
3
This opinion addresses an investigatory tool related to an ongoing investigation, and the underlying documents
must remain sealed for the time being. However, this opinion is intended to be—and shall be—made public, as it
discusses the investigation in a sufficiently vague manner such as to avoid compromising the ongoing criminal
investigation.
4
Available at http://www.justice.gov/criminal/cybercrime/docs/ssmanual2009.pdf (last visited Mar. 29, 2014).
5
The government’s original application sought e-mails and records from December, 2013, until the present. See In
re Search of Apple E-mail, 2014 WL 945563, at *1.
2
ATTACHMENT B
Particular things to be seized by the government
All emails, including email content, attachments, source and destination
addresses, and time and date information, that constitute evidence and
instrumentalities of violations of 41 U.S.C. § 8702 (Solicitation and Receipt of
Kickbacks) and 18 U.S.C. § 371 (Conspiracy), dated between [January], 2014, to
the present, including emails referring or relating to a government investigation
involving any or all of the following: [Redacted list of names of companies and
individuals in the form of “John Smith, John Smith, Inc., any current or former
John Smith employees, etc.”].
Id. at 13.
Finally, the government has included an “Attachment C,” titled “Procedures to facilitate
execution of the warrant”:
ATTACHMENT C
Procedures to facilitate execution of the warrant
I. Information to be disclosed by Apple (the “Provider”)
To the extent that the information described in Attachment A is within the
possession, custody, or control of the Provider, including any emails that have
been deleted but are still available to the Provider, or have been preserved
pursuant to a request made under 18 U.S.C. § 2703(f) [in January], 2014, the
Provider is required to disclose the following information to the government for
the account listed in Attachment A: all emails, including attachments, associated
with the account, dating from [January], 2014, to the present, and including stored
or preserved copies of emails sent to and from the account, draft emails, the
source and destination addresses associated with each email, the date and time at
which each email was sent, and the size and length of each email.
Apple shall deliver the information set forth above via United States mail,
courier, or email to: [The Department of Justice].
II. Government procedures for warrant execution
The United States government will conduct a search of the emails
produced by the Provider and determine which are within the scope of the
information to be seized specified in Attachment B. Those that are within the
scope of Attachment B may be copied and retained by the United States.
Law enforcement personnel will then seal any information from Apple
that does not fall within the scope of Attachment B and will not further review the
information absent an order of the Court.
3
Affidavit at 14-15. Thus, the government requests that Apple provide all e-mails from a certain
date in January, 2014, so that the government may search them for evidence of specific crimes
and keep any non-relevant e-mails under seal until further order of a court.
II. Analysis
This is the third Memorandum Opinion from this Court regarding overbroad search and
seizure warrants for data held by a third party provider of an electronic communications service.
In September, the Court substantially modified a search warrant for the Facebook account of
Navy Yard shooter Aaron Alexis to narrow its scope and prevent the government from retaining
information that was irrelevant to its investigation. See In the Matter of the Search of
Information Associated with the Facebook Account Identified by the Username Aaron. Alexis
That Is Stored at Premises Controlled by Facebook, Inc., 2013 WL 7856600, at *8 (D.D.C. Nov.
26, 2013) (Facciola, M.J.) (hereinafter Facebook Opinion). In that Opinion, the Court implored
the government to “seriously consider how to minimize the amount of information that its search
warrant applications seek to be disclosed” because, as it stood, the government was requesting
authorization to seize data for which it had not established probable cause. Id. at *8. In so doing,
this Court recommended, inter alia, “[a]sking the electronic communications service provider to
provide specific limited information such as emails or faxes containing certain key words or
emails sent to/from certain recipients.” Id. (citing In re Applications for Search Warrants for
Case Nos. 12–MJ–8119–DJW and Information Associated with 12–MJ–9191–DJW Target
Email Address, Nos. 12–MJ–8119, 12–MJ–8191, 2012 WL 4383917, at *10 (D.Ks. 2012)
(hereinafter In re Search of Target Email Address)); see also Facebook Opinion at 2013 WL
7856600, at *8 (listing five measures the government could take to bring its warrant applications
4
in line with the requirements of the Fourth Amendment). Unfortunately, over the following four
months, the government did not take any steps to modify their search warrant applications.
This Court’s previous Memorandum Opinion in this matter was driven by two principal
concerns. 6 First, the government’s original application sought to seize an entire e-mail account
even though it had only established probable cause for some of the e-mails. See In re Search of
Apple E-mail, 2014 WL 945563, at *5. By doing so, the government asked this Court to issue a
“general warrant that would allow a ‘general, exploratory rummaging in a person's
belongings’—in this case an individual's e-mail account.” Id. (citing Coolidge v. N.H., 403 U.S.
443, 467 (1971)). Second, the government failed to explain what would occur with data that
were seized but were outside the scope of the warrant application (and for which there was
necessarily no probable cause to seize in the first place). In re Search of Apple E-mail, 2014 WL
945563, at *6. As a result, this Court was explicit that, “in light of the government’s repeated
submission of overly broad warrants that violate the Fourth Amendment, this Court can see no
reasonable alternative other than to require the provider of an electronic communications service
to perform the searches.” Id.
The government’s modifications in its Renewed Application fail to address the Court’s
concerns. In fact, the government has ignored the substance of the Court’s warnings that its e-
mail search warrant applications violate the Fourth Amendment. Although there are some
cosmetic differences between the original application and the Renewed Application, the bottom
line is that the government still gets all e-mails—regardless of their relevance to its
investigation—and keeps them indefinitely. See Affidavit at 14-15. This is no different than what
the government originally requested, and this Court still will not grant it.
6
There were also serious drafting errors that raised questions about what the government actually intended to seize.
These have now been corrected in the revised Attachment B. See In re Search of Apple E-mail, 2014 WL 945563, at
*2-3.
5
A. The Government Still Seeks an Unconstitutional General Warrant
1. The Fourth Amendment Prohibits the Type of Warrant the Government
Seeks
The Supreme Court has recognized two constitutional protections served by the warrant
requirement of the Fourth Amendment. “First, the magistrate's scrutiny is intended to eliminate
altogether searches not based on probable cause. The premise here is that any intrusion in the
way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior
determination of necessity.” Coolidge, 403 U.S. at 467. Thus, it is this Court's duty to reject any
applications for search warrants where the standard of probable cause has not been met. Second,
“those searches deemed necessary should be as limited as possible. Here, the specific evil is the
‘general warrant’ abhorred by the colonists, and the problem is not that of intrusion per se, but of
a general, exploratory rummaging in a person's belongings.” Id. To follow the dictates of the
Fourth Amendment and to avoid issuing a general warrant, a court must be careful to ensure that
probable cause exists to seize each item specified in the warrant application.
As this Court has previously noted, any e-mails that are turned over to the government
are unquestionably “seized” within the meaning of the Fourth Amendment. See In re Search of
Apple E-mail, 2014 WL 945563, at *5 (citing Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989)
(noting that a “seizure” occurs when there is “an intentional acquisition of physical control”).
Although the Supreme Court has never specifically defined what constitutes a seizure in the
electronic world, it has stated that, with regard to physical items, a “‘seizure’ of property only
occurs when there is some meaningful interference with an individual’s possessory interests in
that property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). In this Court’s view, a
seizure of property occurs when e-mails are copied and taken by the government without the
owner’s consent because an individual’s “possessory interest [in the e-mails] extends to both the
6
original and any copies made from it.” Orin Kerr, Fourth Amendment Seizures of Computer
Data, 119 Yale L.J. 700, 703 (2010). After all, when a copy is made, “the person loses exclusive
rights to the data,” id., and it is at that time that the owner’s property interest in the e-mail is
affected. This reality has been assumed, if not stated outright, in the numerous cases that
acknowledge that e-mails turned over to the government by an electronic communications
service provider are “seized.” See, e.g., In re Search of Target Email Address, 2012 WL
4383917, at *9; United States v. Taylor, 764 F. Supp. 2d 230, 237 (D.Me. 2011); United States v.
Bickle, No. 10–CR–00565, 2011 WL 3798225, at *22 (D.Nev. July 21, 2011); United States v.
Bowen, 689 F. Supp. 2d 675, 684 (S.D.N.Y. 2010). 7
To conclude otherwise would yield unsatisfactory results. 8 First, if copying were not
considered “seizing,” that would suggest the irrelevance of the Fourth Amendment to that act:
If copying data is not a seizure, then copying cannot logically be regarded as a
search and it does not violate an expectation of privacy. It is possible to copy files
without examining the files. Therefore, if copying is not a seizure, it is outside the
scope of the Fourth Amendment's reasonableness requirements and is an activity
which can be conducted at will, requiring neither the justification of a warrant nor
an exception to the warrant requirement. This is not a satisfactory result. Copying
has an effect upon the “ownership” rights of the party whose information is
copied.
Susan Brenner and Barbara Frederiksen, Computer Searches and Seizures: Some Unresolved
Issues, 8 Mich. Telecomm. & Tech. L. Rev. 39, 113 (2002). Thus, this Court would have to
believe that, if the act of copying e-mail is not a seizure, then the Fourth Amendment is
powerless to prevent the wholesale copying of every single e-mail ever sent, a result that no
court could ever reasonably embrace. It would also render hollow the Sixth Circuit’s holding in
7
On the other hand, one court has held that copying e-mail does not meaningfully interfere with a possessory
interest “due to the nature of electronic information, which can be accessed from multiple locations, by multiple
people, simultaneously.” In re Application of the United States of America for a Search Warrant for Contents of
Electronic Mail and for an Order Directing a Provider of Electronic Communication Services to not Disclose the
Existence of the Search Warrant, 665 F. Supp. 2d. 1210, 1222 (D.Or. 2009).
8
For a discussion of the relevant cases, which do not suggest a consistent approach, see Fourth Amendment
Seizures of Computer Data, 119 Yale L.J. at 706-09.
7
United States v. Warshak, 631 F.3d 266, 285-88 (2010), that there is a reasonable expectation of
privacy with respect to one’s e-mails—even though those e-mails were copied by an electronic
communications service provider and given to the government. Id. at 283.
Second, that approach suggests that a seizure could only occur if the actual hard drive
that contains the target e-mail account, which is presumably in a server farm operated by Apple,
is physically taken by the government. This ignores the reality that “[h]ardware is increasingly
fungible” and that what really matters—and what the owner of the e-mails actually has a
possessory interest in—“is the data.” Fourth Amendment Seizures of Computer Data, 119 Yale
L.J. at 712. A focus on hardware instead of data, in determining when a seizure occurs, would
therefore miss the mark and ignore fundamental realities about how computers are actually used.
See In re Southeastern Equipment Co. Search Warrant, 746 F. Supp. 1563, 1576 (S.D.Ga. 1990)
(“As the LeClair Court pointed out, it is the information itself, not the paper and ink or tape
recorder or other copying utensil, that is actually seized.”) (citing LeClair v. Hart, 800 F.2d 692,
696 n.5 (7th Cir. 1986)).
Furthermore, the government itself characterizes the act of copying e-mails as a seizure
by noting that it will “seize” some of the copied e-mails after the search is complete. See
Affidavit at 13-15. It is, after all, seeking a “search and seizure warrant.” See Fed. R. Crim. P.
41. Thus, even though the e-mails are only being copied by Apple (with other copies remaining
on Apple’s servers), a seizure is occurring. Because there is no principled distinction that
suggests that copying data once is not a seizure but copying data twice is a seizure, it follows that
the e-mails are seized the first time they are copied by Apple and given to the government. Any
other position is unsatisfactory because the property interest in e-mails certainly suffers
8
“meaningful interference” when a third party has unauthorized access to those e-mails. 9 Thus, e-
mails are seized when Apple gives them to the government just as surely as a physical letter is if
it is taken by the postal service and given to the government. See Fourth Amendment Seizures of
Computer Data, 119 Yale L.J. at 722-23.
The problem with the government’s Renewed Application is not that it fails to specify
with particularity what it intends to seize—and not that it suggests a seizure will not occur—but
that it will actually seize large quantities of e-mails for which it has not established probable
cause and which are outside the scope of Attachment B. The government asks Apple “to disclose
the following information to the government for the account listed in Attachment A: all emails,
including attachments, associated with the account, dating from [January], 2014, to the present . .
.” Affidavit at 14. This Court has an affirmative obligation to “prevent[] the seizure of one thing
under a warrant describing another.” See Andresen v. Maryland, 427 U.S. 463, 479 (1976)
(citing Stanford v. Texas, 379 U.S. 476, 485 (1965)). Here, the warrant describes only certain e-
mails that are to be seized—and the government has only established probable cause for those e-
mails. Yet it seeks to seize all e-mails by having them “disclosed” by Apple. This is
unconstitutional because “[t]he government simply has not shown probable cause to search the
contents of all emails ever sent to or from the account.” See In re Search of Target Email
Address, 2012 WL 4383917, at *9. As Judge David J. Waxse wisely analogized, if this were the
physical world, it would be akin to “a warrant asking the post office to provide copies of all mail
ever sent by or delivered to a certain address so that the government can open and read all the
9
One other absurd result bears mentioning: if copying e-mails did not interfere with the owner’s possessory
interests, then a cause of action for trespass to chattels would never accrue if e-mails were copied, again suggesting
that private communications would be left essentially unprotected by the law. However, a cause of action for
trespass to chattels arises when data is copied without authorization. See Oyster Software, Inc. v. Forms Processing,
Inc., 2001 WL 1736382, at *13 (N.D.Ca. 2001) (holding that “copying . . . metatags” gives rise to a cause of action
for trespass).
9
mail to find out whether it constitutes fruits, evidence or instrumentality of a crime. The Fourth
Amendment would not allow such a warrant.” Id. This Court agrees.
2. The Two-Step Procedure Is a Narrow Exception Due to Practical
Considerations That Is Inapplicable Here
Nevertheless, there is a narrow exception that authorizes an otherwise unconstitutionally
broad seizure if the only practical way to perform a search is to seize an entire repository, such as
a file cabinet or computer, and take it offsite for a later search. 10 This is, in essence, the
procedure outlined in United States v. Tamura, 694 F.2d 591, 595 (9th Cir. 1982), where the
Ninth Circuit deemed it acceptable to take a large quantity of documents offsite if the
government explained that need to the magistrate. This two-step procedure—seize a large
quantity of data and perform the specific search later at an offsite location—was later codified in
Rule 41. See Fed. R. Crim. P. 41(e)(2)(B).
There is no question that the two-step procedure is constitutional under certain
circumstances. See Facebook Opinion, 2013 WL 7856600, at *6 (citing cases holding that the
two-step process under Rule 41 does not violate the Fourth Amendment). In fact, this Court has
recently approved use of the two-step procedure in a series of opinions addressing the search of
cell phones and hard drives—but only if the government provides an adequate search protocol
explaining how it will perform the search and ensure that it is only searching sectors or blocks of
the drives that are most likely to contain the data for which there is probable cause. 11 In those
instances, the search protocol must “explain how [the government] is going to conduct this
10
The question of what must happen with data that is seized and not within the scope of the warrant is discussed
infra.
11
See In the Matter of the Search of Apple iPhone, IMEI 013888003738427, Mag. Case No. 14-278, 2014 WL
1239702, at *6-7 (D.D.C. Mar. 26, 2014) (Facciola, M.J.) (hereinafter In re Apple iPhone); In the Matter of the
Search of Odys Loox Plus Tablet, Serial Number 4707213703415, In Custody of United States Postal Inspection
Service, 1400 New York Ave NW, Washington, DC, Mag. Case No. 14–265, 2014 WL 1063996, at *5-6 (D.D.C.
Mar. 20, 2014) (Facciola, M.J.); In the Matter of the Search of Black iPhone 4, S/N Not Available, Mag. Case No.
14–235, 2014 WL 1045812, at *4 (D.D.C. Mar. 11, 2014) (Facciola, M.J.) (hereinafter In re Search of Black
iPhone).
10
search to minimize the risk that files outside the scope of the warrant will be discovered.” See In
re Apple iPhone, 2014 WL 1239702, at *7.
The problem here, as previously pointed out by this Court, is that the government is
“abusing the two-step procedure under Rule 41” by requiring Apple to disclose the entire
contents of an e-mail account. See In re Search of Apple E-mail, 2014 WL 945563, at *5. A
seizure unquestionably occurs once data is turned over from Apple to the government. See supra.
The government cannot pretend that the seizure only occurs after it has searched and separated
the relevant e-mails from the irrelevant ones. And the two-step Rule 41 process, which has
essentially created a narrow exception to the general prohibition against seizing data for which
there is no probable cause, is permissible only because there is no alternative that would allow
the government to access the data for which it does have probable cause. See In re Search of
Black iPhone, 2014 WL 1045812, at *4. The Court must emphasize that the two-step procedure
is a narrow exception that requires an affirmative showing of need in the warrant application.
The Renewed Application, however, fails to provide any explanation for why the two-step
procedure is necessary.
3. By Requiring Apple to Perform the Search, the Court Avoids Issuing a
General Warrant
Unlike a search of a hard drive or cell phone, there is an alternative that, in accordance
with the Fourth Amendment, prevents the government from seizing large quantities of data for
which it has not established probable cause: the electronic communication service provider, in
this case Apple, can perform the search at the government’s request and turn over any relevant
data that it discovers. Otherwise, if the Court were to grant the Renewed Application as it is, the
government would immediately seize a vast quantity of e-mails to which it is not entitled; in so
doing, this Court would issue a general warrant, which it cannot do.
11
The Court fully understands that, in requiring a third party electronic communications
service provider to perform the search that the government would otherwise perform, it is going
a step further than—to its knowledge—any other court has. See Taylor, 764 F. Supp. 2d at 237
(the “Fourth Amendment does not require the government to delegate a prescreening function to
the internet service provider or to ascertain which e-mails are relevant before copies are obtained
from the internet service provider for subsequent searching.”); accord Bickle, 2011 WL
3798225, at *20 (but noting that “a filter process was mandated by Judge Foley to sort or filter
privileged emails from non-privileged emails.”); Bowen, 689 F. Supp. 2d at 682. But this Court
reaches this conclusion out of exasperation that the government has, despite repeated warnings,
refused to determine an alternative that does not involve the wholesale seizure of vast amounts of
e-mails and other data protected by the Fourth Amendment to which it has no right. Unless the
government can suggest an appropriate alternative, the Court can only conclude that the Fourth
Amendment does require that the provider perform the search because nothing else will
eliminate the present certainty that the government will unconstitutionally seize data for which it
has not established probable cause to seize.
Cases involving searches and seizures of evidence held by third parties, such as Zurcher
v. Stanford Daily, 436 U.S. 547, 559 (1978), do not suggest that this Court must take a different
approach. In Zurcher, the Supreme Court held that a search and seizure warrant was the
appropriate vehicle by which to obtain photographs held by a student newspaper that was itself
not suspected of any wrongdoing. Id. at 551-52. That case addressed whether property held by a
third party (not a suspect) could be searched and seized if it was nevertheless fruits,
instrumentalities, or evidence of a crime. Id. at 559. 12 This Court does not disagree, and there is
12
As the D.C. Circuit has held, “the tacit basis of the [Zurcher] decision” was that “the First Amendment offers no
procedural or substantive protections against good faith criminal investigative activity beyond that afforded by the
12
no question that Apple, as the entity holding the target e-mails, may be served with a search and
seizure warrant to turn over relevant e-mails.
Instead, there is a different question before this Court: can this Court order Apple to turn
over e-mails that are necessarily outside the scope of the warrant and thus irrelevant? The answer
is no. To hold otherwise would suggest that the Zurcher Court would have approved a search and
seizure whereby the government entered the newspaper’s office, copied every photograph, took
them back to the station, and then searched through them to determine which ones were relevant
to the investigation (and, as written, the Renewed Application would then have the police keep
the non-relevant photographs indefinitely). Such a procedure would never be sanctioned because
it would be precisely the type of “general, exploratory rummaging in a person’s belongings” that
the Fourth Amendment prohibits. Coolidge, 403 U.S. at 467. Given that third parties are
permitted to assist in the execution of search warrants, see In re Search Warrant, 71 A.3d 1158,
1180 (Vt. 2012) (citing cases), it is certainly appropriate to have Apple perform the search when
Apple’s involvement is necessary to prevent a violation of the Fourth Amendment and limit the
e-mails seized by the government.
B. The Government Has Failed to Even Suggest an Alternative to Having the E-
mail Provider Perform the Search
Nothing in the Renewed Application even attempts to address the Court’s rulings in In re
Search of Apple E-mail, and the government makes no effort whatsoever to take advantage of
Apple’s technical expertise to perform the search in a way that will protect the target’s Fourth
Amendment rights. Instead, all the government has done is simply move the request that Apple
“disclose . . . all emails, including attachments, associated with the account” from Attachment B
Fourth and Fifth Amendments.” Reporters Comm. For Freedom of the Press v. American Tel. & Tel. Co., 593 F.2d
1030, 1055 (D.C. Cir. 1978). By contrast, the Court’s ruling in this matter is based solely on the requirement of the
Fourth Amendment that probable cause must exist to seize the materials specified in a warrant application.
13
to Attachment C. See Affidavit at 3. This obviously accomplishes nothing, and it indicates that
the government is unwilling—for whatever reason—to give up its policy of seizing large
quantities of e-mails and other Fourth Amendment protected data even after this Court has
repeatedly warned it against doing so.
There may be circumstances in which it is not possible for the service provider to do the
search. In such instances, in accordance with the principle of Tamura, practical considerations
would necessitate that the government perform the search even if it means seizing—on a
temporary basis—data for which it has not established probable cause. But that has not occurred
here. Mere convenience does not allow the government to violate the Fourth Amendment and
seize data wholesale. 13
Here, the government has not even hinted that Apple cannot perform the search, let alone
provided the Court with the evidence and sworn statements necessary to justify a wholesale
seizure of the target Apple e-mail account. Instead, this Court has been presented with the same
defective and unconstitutional request for a search and seizure warrant. This Court cannot issue
it.
C. The Government Cannot Keep Data it Knows Is Outside the Scope of the
Warrant
In its Renewed Application, the government first asks this Court to order Apple to turn
over data for which the government knows it has not established probable cause; after it
performs a search, it then wants to “seal any information from Apple that does not fall within the
scope of Attachment B and [] not further review the information absent an order of the Court.”
13
Even if the government were to identify practical considerations that make a search by a service provider
impossible, it would still need to provide this Court with an adequate search protocol so that the Court can be
assured that the government is “limit[ing] the possibility that locations containing data outside the scope of the
warrant will be searched” in line with the particularity requirement of the Fourth Amendment. In re Apple iPhone,
2014 WL 1239702, at *6. The Renewed Application provides no search protocol whatsoever.
14
Affidavit at 15. Such a request is inconceivable—and unacceptable—given the Court’s repeated
statements on this specific issue. In September and December 2013, 14 the Court modified
approximately twenty warrants to specify that any data not within the scope of the warrant would
be returned or, if copies, destroyed within a reasonable period of time. See Memorandum
Opinion, 2014 WL 945563 at *3, *7. Moreover, through no less than five separate published
opinions—four of them in the past month—this Court has made clear that any position short of
“[a]ny information discovered on the Device to be seized which falls outside of the scope of this
warrant will be returned or, if copied, destroyed within a reasonably prompt amount of time after
the information is identified” is unacceptable. See In re Search of Apple iPhone, 2014 WL
1239702, at *5.
The government’s apparent source for suggesting that it will “seal” the irrelevant e-mails
until this Court orders otherwise is Tamura, where the Ninth Circuit said that “[g]overnment and
law enforcement officials generally can avoid violating fourth amendment rights by sealing and
holding the documents pending approval by a magistrate of a further search . . .” 694 F.2d at 595.
Taken out of context, this quote appears to authorize the government’s suggestion in its Renewed
Application—but it does not. Tamura authorized the sealing pending further court order only
“[i]n the comparatively rare instances where documents are so intermingled that they cannot
feasibly be sorted on site.” Id. That is not the issue here. Tamura does, however, serve as a useful
reminder that it is illegal for the government to “refus[e] to return the seized documents not
described in the warrant . . .” Id. at 596.
Here, the government implies that it will keep data indefinitely that it knows is outside
the scope of the warrant. To return to the example from Zurcher, the government’s position is
akin to indefinitely keeping all copies of a newspaper’s photographs merely because one or two
14
This Court has a monthly criminal rotation once every three months.
15
may show evidence of a crime. For the sixth time, this Court must be clear: if the government
seizes data it knows is outside the scope of the warrant, it must either destroy the data or return
it. It cannot simply keep it. 15
III. Conclusion
The government did not appeal the Court’s ruling in In re Search of Apple E-mail, but it
has all but ignored that ruling and merely engaged in cosmetic modifications by moving some
unconstitutional language from Attachment B to Attachment C. The end result is, of course, no
different. The government wants to seize the target’s entire e-mail account, search through it for
relevant data, and then keep indefinitely the irrelevant data that is outside the scope of the
warrant. There is no question that the Renewed Application violates the Fourth Amendment, and
this Court cannot issue it.
It is, therefore, hereby ORDERED that the government’s Application is DENIED.
SO ORDERED.
15
The exception to this admonishment is for evidence that falls within the plain view exception of the Fourth
Amendment. See Horton v. California, 496 U.S. 128, 133-34 (1990). The potential for abuse of the plain view
exception with respect to electronic data is great and has generated a great deal of discussion. For at least the last
nine years, Professor Orin Kerr has advocated abolishing the plain view exception for digital searches. See Orin
Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 582-83 (2005). Judge Alex Kozinski has
suggested that magistrate judges should “insist that the government waive reliance upon the plain view doctrine in
digital evidence cases.” United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1180 (9th Cir. 2010)
(Kozinski, J., concurring). However, the Vermont Supreme Court, in one of the few appellate opinions to carefully
address the issue of ex ante warrant restrictions, has held that a magistrate has no authority to “alter what legal
principles will or will not apply in a particular case.” In re Search Warrant, 71 A.3d at 1174. There is another
problem with relying on a waiver of the plain view doctrine to cure a problem of overseizure: the government will
still have the data and, even if it does not directly use it as evidence for a criminal prosecution, it may use it for other
purposes. In other words, this creates the problem that the data may be put into a larger database that would be ripe
for abuse. Even if outright abuse does not occur, there is always the risk of troubling uses such as “parallel
construction,” where illegal or secret criminal investigations are recreated in a manner that is seemingly consistent
with the Constitution without informing the accused or the court. See Hanni Fakhoury, DEA and NSA Team Up to
Share Intelligence, Leading to Secret Use of Surveillance in Ordinary Investigations, Electronic Frontier
Foundation, available at https://www.eff.org/deeplinks/2013/08/dea-and-nsa-team-intelligence-laundering (last
visited Mar. 30, 2014). In light of this, the more prudent course of action is to require the government to destroy any
data that it knows is outside the scope of the warrant.
16
Digitally signed by John M.
Facciola
DN: c=US,
[email protected]
scourts.gov, o=United States
District Court for the District of
Columbia, cn=John M. Facciola
Date: 2014.04.07 08:48:05
-04'00'
___________________________________
JOHN M. FACCIOLA
UNITED STATES MAGISTRATE JUDGE
17
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STATE OF MICHIGAN
COURT OF APPEALS
JANE M. CLARK, UNPUBLISHED
June 8, 2017
Plaintiff/Counter Defendant-
Appellee,
v No. 332172
Livingston Circuit Court
Family Division
MARK J. KRAWCZYK, LC No. 12-005401-DO
Defendant/Counter Plaintiff-
Appellant.
Before: SWARTZLE, P.J., and SAAD and O’CONNELL, JJ.
PER CURIAM.
Defendant Mark Krawczyk appeals by right from a trial court order granting plaintiff
Jane Clark’s motion for relief from judgment under MCR 2.612. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Clark and Krawczyk married in 2003. Clark filed for divorce in 2012, the case proceeded
to trial, and the trial court entered a judgment of divorce on May 23, 2013. Significantly, the
trial court determined that the home Clark lived in on Whitmore Lake was Clark’s separate
property. Additionally, the trial court determined that the business, Monarch Quilts, LLC, was a
marital asset with $352,429.54 in outstanding liabilities. The trial court gave Clark one year to
make the business profitable, but ordered the parties to liquidate the business and equally share
any remaining debt if she failed.
Krawczyk filed a claim of appeal in June 2013. See Clark v Krawczyk, unpublished
opinion per curiam of the Court of Appeals, issued September 11, 2014 (Docket No. 316633).
Clark lost the home in foreclosure in September 2013. In September 2014, this Court affirmed
the judgment of divorce in part, reversed in part, and remanded, Id., explaining:
[W]e reverse the trial court’s determination that the Whitmore Lake property was
[Clark’s] separate property and vacate the portion of the trial court’s judgment
deferring the valuation and disposition of Monarch Quilts for a year’s time. On
remand, the trial court is to perform an evaluation of Monarch Quilts as of the
date of the divorce and, while considering its prior disposition of the other marital
-1-
property, dispose of the Whitmore Lake home and Monarch Quilts as it equitably
sees fit. . . . . [O]ur ruling does not preclude the trial court from reevaluating
these and other aspects that are necessary for it to determine Monarch Quilts’s
value. [Id. at 7.]
On remand, the trial court entered an amended judgment of divorce. The trial court
determined that the home had $105,000 in equity at the time of trial and awarded Clark the home
“as her sole and separate property.” The trial court valued the business at -$224,713, ordered
Clark to liquidate the business, ordered Clark to use the proceeds from liquidation to pay for the
costs of litigation, the business debts, and the business taxes, and ordered that Clark was
responsible for any remaining business debts.
Clark moved for relief from judgment pursuant to MCR 2.612(C)(1)(a), (b), (e), and (f).
She argued that the amended judgment was unjust because it shifted all of the business debt to
her without awarding her an existing asset, in light of the home’s foreclosure.
The trial court granted Clark relief under MCR 2.612(C)(1)(a), (b), and (e). Additionally,
the trial court found that the business had a -$254,704 value, correcting a prior clerical error
pursuant to MCR 2.612(A)(1).
II. RELIEF PURSUANT TO MCR 2.612
Krawczyk argues that the trial court abused its discretion when it granted Clark’s motion
for relief from judgment because Clark did not present any appropriate ground for relief under
MCR 2.612. Because we conclude that MCR 2.612(C)(1)(b) and (e) provide grounds for relief,
we disagree.1
We review a trial court’s decision to grant relief from a prior judgment for an abuse of
discretion. Heugel v Heugel, 237 Mich App 471, 478; 603 NW2d 121 (1999). A trial court
abuses its discretion when it selects an outcome that lies outside the range of reasonable and
principled outcomes. Mich AFSCME Council 25 v Woodhaven-Brownstown Sch Dist, 293 Mich
App 143, 146; 809 NW2d 444 (2011).
A. MCR 2.612(C)(1)(B)
MCR 2.612(C)(1)(b) states that a trial court may relieve a party from a final judgment
“[o]n motion and on just term” due to “[n]ewly discovered evidence which by due diligence
could not have been discovered in time to move for a new trial under MCR 2.611(B).”
(Emphasis added.) Accordingly, to receive relief, a party must show that the evidence (1) is
newly discovered, (2) is not cumulative, (3) is likely to change the result, and (4) could not have
1
We note that the trial court abused its discretion in granting Clark relief pursuant to MCR
2.612(C)(1)(a) because the subsection is designed to remedy “substantial injustice[s],” not a trial
court’s change of heart in hindsight. See State Farm Mut Auto Ins Co v Galen, 199 Mich App
274, 277-278; 500 NW2d 769 (1993).
-2-
been produced by the moving party using reasonable diligence. South Macomb Disposal Auth v
American Ins Co, 243 Mich App 647, 655; 625 NW2d 49 (2000).
We conclude that the foreclosure can be considered “newly discovered” evidence. The
parties’ closing arguments at trial did not discuss foreclosure. The house was in arrears when the
trial court entered the original judgment of divorce. The original judgment of divorce does not
envision the prospect of foreclosure. On appeal, this Court instructed the trial court to “equitably
distribute any associated value/debts of the home at the time of the divorce between the parties.”
Clark, unpub op at 6 (emphasis added). Therefore, the trial court should not have considered
evidence of foreclosure when entering its amended judgment of divorce. Thus, Clark correctly
referenced and asked the trial court to consider evidence of foreclosure in her motion for relief
from judgment. Hence, the trial court did not abuse its discretion in relying on MCR
2.612(C)(1)(b) to grant Clark’s motion.
B. MCR 2.612(C)(1)(E)
MCR 2.612(C)(1)(e) states that a trial court may, significantly, relieve a party from a
final judgment “[o]n motion and on just term” if “it is no longer equitable that the judgment
should have prospective application.” “The goal in distributing material assets in a divorce
proceeding is to reach an equitable distribution of property in light of all the circumstances.”
Berger v Berger, 277 Mich App 700, 716-717; 747 NW2d 336 (2008).
Again, this Court’s prior opinion remanded the case to the trial court and directed the trial
court to “equitably distribute any associated value/debts of the home at the time of the divorce.”
Clark, unpub op at 6. This directive left no room for the trial court to consider the foreclosure.
Yet, the foreclosure undermined the goal of reaching an equitable division of assets in light of all
the circumstances. See Berger, 277 Mich App at 716-717. In such a circumstance, MCR
2.612(C)(1)(e) provides an effective means to address the inequities of the property division
post-foreclosure. Therefore, the trial court did not abuse its discretion in relying on MCR
2.612(C)(1)(e) to grant Clark’s motion for relief from judgment.
We reject Krawczyk’s argument that MCR 2.612(C)(1)(e) only applies to relief from
injunctive or declaratory relief in light of Marshall v Marshall, 135 Mich App 702; 355 NW2d
661 (1984). The plain language of MCR 2.612(C)(1)(e) contains no such limitation. Marshall is
nonbinding. See MCR 7.215(J)(1). We are not persuaded that Marshall should control because
the Marshall Court gave no explanation for its conclusion that MCR 2.612(C)(1)(e) only applies
to injunctive or declaratory relief. See 135 Mich App at 712.
III. VALUING MONARCH QUILTS
Krawczyk also argues that the trial court violated the law-of-the-case doctrine when it
ordered a certified public accountant (CPA) to value Monarch Quilts on remand. We disagree.
We review de novo whether the law-of-the-case doctrine applies. Kasben v Hoffman,
278 Mich App 466, 470; 751 NW2d 520 (2008).
-3-
“[U]nder the law-of-the-case doctrine, a circuit court may not take action on remand that
is inconsistent with the judgment or order of an appellate court.” Flint City Council v Michigan,
253 Mich App 378, 389; 655 NW2d 604 (2002).
In resolving Krawczyk’s initial appeal, this Court directed the trial court “to perform an
evaluation of Monarch Quilts as of the date of the divorce,” directed the trial court to “dispose of
. . . Monarch Quilts as it equitably sees fit” “while considering its prior disposition of the other
marital property,” “concluded that the trial court did not clearly err in finding that Monarch
Quilts’s debts included the $35,000 from Viking Sewing and $285,000 as a loan from” Clark,
and clarified that its “ruling does not preclude the trial court from reevaluating these and other
aspects that are necessary for it to determine Monarch Quilts’s value.” Clark, unpub op at 7. In
granting Clark’s motion for relief from the amended judgment, the trial court determined that the
parties should “equally be responsible for the debts and taxes owed by the business of Monarch
Quilts, including Viking, at the time of the end of the trial” and ordered Clark’s attorney “to
prepare an Order re: the CPA having authority to find the exact figures to the assets and debts,
including taxes owed, at the end of the trial so the parties will have the exact numbers to be
divided.” The trial court’s order is not inconsistent with this Court’s prior judgment. Therefore,
the trial court did not violate the law-of-the-case doctrine.
We affirm.
/s/ Brock A. Swartzle
/s/ Henry William Saad
/s/ Peter D. O’Connell
-4-
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-1297
GEORGE HENSON, JR.,
Plaintiff - Appellant,
versus
COMMISSIONER OF THE SOCIAL SECURITY
ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District Judge.
(CA-99-524)
Submitted: May 29, 2003 Decided: June 3, 2003
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George Henson, Jr., Appellant Pro Se. Debra Jean Prillaman,
Assistant United States Attorney, Joan Elizabeth Evans, Assistant
United States Attorney, Richmond, Virginia; Eileen Alice Farmer,
SOCIAL SECURITY ADMINISTRATION, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
George Henson, Jr., appeals the district court’s order
accepting the recommendation of the magistrate judge affirming the
Social Security Commissioner’s denial of disability benefits for a
period from 1993 to 1998. We have reviewed the record and find no
reversible error. Accordingly, we affirm on the reasoning of the
district court. See Henson v. Commissioner of the Social Sec.
Admin., No. CA-99-524 (E.D. Va. Jan. 9, 2003). 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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Case: 10-15035 Date Filed: 09/28/2012 Page: 1 of 24
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-15035
________________________
D.C. Docket No. 1:09-cr-20295-PAS-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,
versus
RAUL S. RAMIREZ,
llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 28, 2012)
Before TJOFLAT, PRYOR and RIPPLE,* Circuit Judges.
PER CURIAM:
Raul Ramirez appeals his convictions and sentences for one count of
*
Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit, sitting
by designation.
Case: 10-15035 Date Filed: 09/28/2012 Page: 2 of 24
conspiracy to commit health care fraud, 18 U.S.C. § 1349; twelve counts of health
care fraud, id. § 1347; and three counts of money laundering, id. § 1957. Ramirez
argues that the district court erred when it refused to dismiss his indictment, failed
to conduct competency hearings sua sponte, and made several evidentiary rulings
at trial. Ramirez also argues that the district court erred when it sentenced him.
All of Ramirez’s arguments lack merit. We affirm.
I. BACKGROUND
Ramirez owned R.A. Medical Center, a medical clinic in Miami, Florida,
and served as its executive director. From February 2004 to April 2005, R.A.
Medical paid Medicare beneficiaries to visit the clinic and billed Medicare for
infusion and injection treatments for HIV. Dr. Joseph Barata worked at R.A.
Medical and his Medicare provider number was used to submit claims to
Medicare.
In 2005, the government filed a civil forfeiture action against Ramirez and
alleged that he had billed Medicare for medically unnecessary and unperformed
procedures. In February 2006, while the civil forfeiture case was pending,
Ramirez was injured in a car accident. According to Ramirez, he sustained six
herniated disks, four of which protruded into his spinal cord; an injury to his head;
pain, numbness, tremors, and headaches; and a loss of physical strength and
mental acumen. Ramirez settled the civil case with the government.
Case: 10-15035 Date Filed: 09/28/2012 Page: 3 of 24
Ramirez was indicted on April 2, 2009, and the charges at issue in this
appeal involve the same conduct that was at issue in the civil forfeiture
proceeding. Before trial, Ramirez filed a letter labeled “Secured Party Creditor”
with the district court in which he moved the court to dismiss the indictment. The
district court held a hearing on the motion, during which Ramirez stated that he
was “a secured party creator [sic] and sovereign.” He also stated that, because he
was an independent sovereign, the district court lacked jurisdiction over him, and
he moved the district court to dismiss the indictment. The district court denied the
motion and ordered a magistrate judge to hold a competency hearing. The
magistrate judge ruled that Ramirez was competent to stand trial.
At trial, the government produced evidence that Ramirez had manipulated
blood samples of his patients as part of a scheme and artifice to defraud Medicare.
R.A. Medical sent blood samples of its patients to Mercy Laboratory for testing.
Two lab technicians who tested blood samples from R.A. Medical at Mercy
Laboratory, Marisol Prendes and James Vaden, testified that, in their opinion, R.A.
Medical manipulated some of the blood samples in a centrifuge. The government
argued that R.A. Medical manipulated the blood because it wanted the blood tests
of the patients to show a decreased blood platelet count so that R.A. Medical could
justify billing Medicare for expensive medications.
Case: 10-15035 Date Filed: 09/28/2012 Page: 4 of 24
Dr. Michael Wohlfeiler, a Miami physician who specializes in the treatment
of HIV/AIDS, corroborated this theory with expert testimony. Dr. Wohlfeiler
examined the medical records of patients who received treatment from both a
primary care physician and R.A. Medical. He testified that the results of blood
tests conducted at R.A. Medical were inconsistent with the results of blood tests
conducted at other locations. For example, a sample from a patient collected at
Cedar Springs Medical established that the patient had a platelet count of 198,000,
a normal level, but seven days later, the results from a sample collected by R.A.
Medical from the same patient showed that the platelet count was 47,000.
Dr. Wohlfeiler explained that there was no legitimate medical explanation for
those types of drops in platelet levels within ten days. He also explained that a
critical value platelet count is rare for HIV patients. In addition to testifying about
discrepancies in the blood samples, Dr. Wohlfeiler testified that many of the
treatments provided to patients at R.A. Medical did not make medical sense. The
jury convicted Ramirez of each charge in the indictment.
At the sentencing hearing, Ramirez called Dr. Jorge Betancourt, a
psychiatrist who began treating Ramirez in November 2007. Dr. Bentancourt
testified that Ramirez had been referred to him due to the concerns of another
physician about Ramirez’s cognitive deterioration. Dr. Betancourt saw Ramirez
six times and diagnosed him with post-traumatic stress disorder.
Case: 10-15035 Date Filed: 09/28/2012 Page: 5 of 24
The district court applied a two-level enhancement because the offense
involved the conscious or reckless risk of death or serious bodily injury. Dr.
Wohlfeiler testified that patients treated at R.A. Medical were put at great risk by
the practices of the clinic. Dr. Wohlfeiler also testified that files of R.A. Medical
that he reviewed did not establish that patients at R.A. Medical received
appropriate monitoring and treatment.
The district court also applied a two-level obstruction of justice
enhancement. In applying the enhancement, the district court relied on testimony
that Ramirez gave during a September 12, 2006, deposition in the related
forfeiture case. During the deposition, Ramirez testified that Dr. Barata treated a
patient on May 25, 2004, but the testimony at trial established that Dr. Barata was
in Spain on that date. At the sentencing, Ramirez argued that he had not
intentionally lied under oath because he had physical and mental difficulties
during the deposition as a result of his car accident. But the district court found
that Ramirez had lied under oath during his deposition.
After applying the two enhancements, Ramirez’s total adjusted offense level
was 36 with a criminal history category I, and Ramirez’s advisory guideline range
was 188 to 235 months of imprisonment. The district court sentenced Ramirez to
120 months of imprisonment for the conspiracy to commit health care fraud and
5
Case: 10-15035 Date Filed: 09/28/2012 Page: 6 of 24
the substantive health care fraud counts and a consecutive term of 90 months for
the money laundering counts.
II. STANDARDS OF REVIEW
Several standards of review govern this appeal. We review the denial of a
motion to dismiss an indictment for an abuse of discretion. United States v.
Clarke, 312 F.3d 1343, 1345 n.1 (11th Cir. 2002). We review the finding that a
defendant is competent to stand trial for clear error. United States v. Izquierdo,
448 F.3d 1269, 1276 (11th Cir. 2006). We review for abuse of discretion the
failure of a district court to conduct a competency hearing sua sponte. United
States v. Williams, 468 F.2d 819, 820 (5th Cir. 1972). We review evidentiary
rulings for abuse of discretion. United States v. Frazier, 387 F.3d 1244, 1258
(11th Cir. 2004) (en banc). If an error was not preserved, we review for plain
error. United States v. Langford, 647 F.3d 1309, 1325 n.11 (11th Cir. 2011). We
review for clear error the factual findings underlying a sentencing enhancement,
and we accord great deference to the credibility determinations of the district
court. United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002). We review the
application of law to those facts de novo. Id. We review the reasonableness of a
sentence for abuse of discretion. United States v. Livesay, 587 F.3d 1274, 1278
(11th Cir. 2009).
6
Case: 10-15035 Date Filed: 09/28/2012 Page: 7 of 24
III. DISCUSSION
We divide our discussion into four parts. First, we address whether the
district court abused its discretion when it refused to dismiss the indictment.
Second, we address whether the district court abused its discretion when it did not
conduct a competency hearing sua sponte. Third, we address whether the
evidentiary rulings of the district court require reversal. Fourth, we address
whether the district court erred when it sentenced Ramirez.
A. The District Court Did Not Abuse Its Discretion When It Refused to Dismiss
the Indictment.
Ramirez argues that his due process rights were violated when the
government delayed bringing an indictment against him for four years. The
government responds that any delay in bringing the indictment was reasonable due
to the complex nature of Medicare fraud prosecutions. Ramirez’s argument fails.
The statute of limitations is the primary safeguard against the government
bringing stale criminal charges, United States v. Marion, 404 U.S. 307, 322, 92 S.
Ct. 455, 464 (1971), but when a defendant establishes substantial prejudice, due
process may require the dismissal of an otherwise timely indictment if the delay
was the product of a deliberate act by the government to gain a tactical advantage,
United States v. Foxman, 87 F.3d 1220, 1222 (11th Cir. 1996). Because Ramirez
7
Case: 10-15035 Date Filed: 09/28/2012 Page: 8 of 24
does not argue that the applicable statutes of limitations barred his prosecution, he
shoulders the burden of “show[ing] that pre-indictment delay was deliberate for
the purpose of tactical advantage.” United States v. Thomas, 62 F.3d 1332, 1339
(11th Cir. 1995). To meet this burden, Ramirez must establish either that the
government acted in “bad faith” by intentionally delaying the prosecution to cause
Ramirez prejudice or that “the government ma[de] a judgment about how it
[could] best proceed with litigation to gain an advantage over the defendant and,
as a result of that judgment, [the] indictment [was] delayed.” Foxman, 87 F.3d at
1223 n.2.
Even if we assume that Ramirez suffered substantial prejudice from the
failure of the government to indict him earlier, Ramirez failed to establish that the
delay was the product of bad faith or a deliberate design by the government to gain
a tactical advantage. In his opening brief, Ramirez makes the conclusory assertion
that “[t]he government deliberately delayed the indictment for four years, even
though it was aware of substantially the same witnesses and documents which
were available in 2005 and 2009,” but he fails to identify facts that would tend to
prove that the government acted in bad faith or made a deliberate decision to gain
a tactical advantage over him that led to the delay. In his reply brief, Ramirez
argues that the representation of the government that the delay was due to the
8
Case: 10-15035 Date Filed: 09/28/2012 Page: 9 of 24
complexity of the case “does not truly explain the delay,” but the government does
not bear the burden of explaining the reason for the delay. As the district court
explained, Ramirez’s “claim of any Government intent to obtain a tactical
advantage is speculation.” The district court did not abuse its discretion when it
refused to dismiss the indictment for preindictment delay.
B. Ramirez Was Competent to Stand Trial.
Ramirez argues that the magistrate judge erred when he found that Ramirez
was competent to stand trial, but Ramirez does not dispute that he failed to object
to this pretrial ruling as required by Federal Rule of Criminal Procedure 59(a).
Accordingly, we lack jurisdiction to address this argument. See United States v.
Schultz, 565 F.3d 1353, 1359–62 (11th Cir. 2009).
Ramirez argues too that the district court should have conducted an inquiry
into his competency sua sponte both during trial and before sentencing. A
defendant has a due process right not to be tried or convicted while incompetent.
Drope v. Missouri, 420 U.S. 162, 171–72, 95 S. Ct. 896, 903–04 (1975). For a
defendant to be competent to stand trial, he must have “sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding . . .
[and] ha[ve] a rational as well as factual understanding of the proceedings against
him.” United States v. Rahim, 431 F.3d 753, 759 (11th Cir. 2005) (alterations in
9
Case: 10-15035 Date Filed: 09/28/2012 Page: 10 of 24
original) (quoting Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995)).
The district court must conduct a hearing sua sponte to determine whether a
defendant is competent “if there is reasonable cause to believe that the defendant
may presently be suffering from a mental disease or defect rendering him mentally
incompetent to the extent that he is unable to understand the nature and
consequences of the proceedings against him or to assist properly in his defense.”
18 U.S.C. § 4241(a).
A district court must conduct a competency hearing sua sponte when the
information known to the district court is “sufficient to raise a bona fide doubt
regarding the defendant’s competence.” Tiller v. Esposito, 911 F.2d 575, 576
(11th Cir. 1990). We consider three factors in deciding whether the district court
violated the due process rights of the defendant by failing to hold a competency
hearing sua sponte: “(1) evidence of the defendant’s irrational behavior; (2) the
defendant’s demeanor at trial; and (3) prior medical opinion regarding the
defendant’s competence to stand trial.” Id. It is clear from the record that the
district court did not abuse its discretion by failing to conduct a competency
hearing sua sponte.
Ramirez argues that his statements to the the district court that he was an
“independent sovereignty” free from the jurisdiction of the federal courts and that
10
Case: 10-15035 Date Filed: 09/28/2012 Page: 11 of 24
as a “secured party creditor” he was protected from prosecution is evidence of
irrational behavior and incompetence, but at least two of our sister circuits have
rejected similar arguments. See, e.g., United States v. Brown, 669 F.3d 10, 18–19
(1st Cir. 2012); United States v. James, 328 F.3d 953, 955 (7th Cir. 2003). As
Judge Easterbrook explained in James, the assertion of a ludicrous legal argument
by a defendant does not evince mental incompetence sufficient to preclude the
government from prosecuting the defendant:
Many litigants articulate beliefs that have no legal support—think of tax
protesters who insist that wages are not income, that taxes are voluntary,
or that only foreigners must pay taxes; or think of homeowners who
contend that because their property can be traced to a land grant signed
by President Fillmore their mortgages can’t be foreclosed. Sometimes
these beliefs are sincerely held, sometimes they are advanced only to
annoy the other side, but in neither event do they imply mental
instability or concrete intellect so deficient that trial is impossible.
328 F.3d at 955 (citation omitted). Ramirez’s desire not to be prosecuted by the
United States does not establish his incompetence.
Ramirez also argues that his demeanor during the court proceedings
suggests that he was incompetent to stand trial, but this argument lacks merit.
Before the defense presented its case, the district court placed Ramirez under oath
and asked him whether he understood his right to testify on his own behalf or not
to do so. The district court questioned Ramirez about his interactions with his
11
Case: 10-15035 Date Filed: 09/28/2012 Page: 12 of 24
lawyer. Ramirez responded to each of these inquiries with rational answers, and
he informed the district court both that he understood the rights he was waiving
and that he knew that he would not be able to complain about his decision to do so
if he were convicted. And Ramirez did not hesitate to bring to the attention of the
district court issues that were important to him. Ramirez advised the district court
that he allegedly had not received the kosher meals that he requested. He also
notified the district court that he did not believe that he was being treated well by
the United States marshals while in their custody. In the light of Ramirez’s
rational responses to the questions of the district court and his ability and
willingness to bring to the attention of the district court several personal issues, we
cannot conclude that Ramirez’s demeanor during the court proceedings gave the
district court any reason to think that Ramirez was not competent to stand trial.
Expert testimony established that Ramirez was competent to stand trial and
that he was likely malingering to make himself look mentally unstable. Dr. Miller
testified during the competency hearing that, when she evaluated Ramirez, he was
able to engage in complex conversation with clear and coherent thinking. Dr.
Miller testified that Ramirez scored in the competent range on the Georgia Court
Competency Test. Dr. Miller also testified that the testing results and her
observations established that Ramirez was malingering. Although Ramirez
12
Case: 10-15035 Date Filed: 09/28/2012 Page: 13 of 24
presented the testimony of an attorney who had represented him in an earlier civil
proceeding that Ramirez had memory problems and was unable to organize his
thoughts, the testimony of a lawyer is not medical opinion. The magistrate judge
acknowledged the testimony of Ramirez’s civil lawyer, but credited Dr. Miller’s
testimony.
Ramirez also argues that the district court erred when it did not inquire sua
sponte into whether he was physically competent to stand trial. Ramirez argues
that his need to “be excused from trial [for one day] to attend a preoperative
surgical consult” about his colon cancer and the fact that he had surgery two
weeks after he was convicted “should have given the court pause as to whether
Ramirez was able to effectively assist counsel during trial.” We have explained
that “a defendant who is ‘mentally competent’ within the meaning of 18 U.S.C. §
4244 et seq. may yet be ‘physically incompetent’–unable, by virtue (for example)
of a painful physical condition or the temporary effects of narcotics, to participate
effectively in his own defense,” United States v. Schaffer, 433 F.2d 928, 930 (5th
Cir. 1970), but as the district court observed, at “no time did [Ramirez] mention
that his cancer diagnosis was an issue in either the continued progress of the trial
or his ability to take the stand.” There is no evidence that Ramirez’s physical
condition impaired his ability to consult with his attorney or to understand the
13
Case: 10-15035 Date Filed: 09/28/2012 Page: 14 of 24
charges against him. The district court did not abuse its discretion by not
conducting a hearing sua sponte into whether Ramirez was physically competent
to stand trial.
C. The Evidentiary Rulings of the District Court Do Not Require Us to Reverse
Ramirez’s Convictions.
We divide our discussion of Ramirez’s arguments about evidentiary rulings
into four parts. First, we address Ramirez's argument that the district court abused
its discretion when it admitted evidence of lab reports over Ramirez's objection.
Second, we address Ramirez's argument that the district court improperly admitted
the expert testimony of four witnesses. Third, we address Ramirez's argument that
the district court abused its discretion when it admitted summary charts of
evidence. Fourth, we address Ramirez's argument that we should apply the
cumulative error doctrine.
1. The District Court Did Not Abuse Its Discretion When It Admitted Evidence of
the Lab Reports.
Ramirez argues that the district court abused its discretion when it admitted
lab results from Mercy Laboratory because there was “a total breakdown in the
chain of custody” relative to the vials of blood underlying the lab results. The
government argues that the district court did not abuse its discretion because chain
of custody objections go to the weight rather than the admissibility of evidence.
14
Case: 10-15035 Date Filed: 09/28/2012 Page: 15 of 24
We agree with the government.
Ramirez’s argument that the lab reports were not authenticated because
there were gaps in the chain of custody fails. Federal Rule of Evidence 901
provides that evidence is properly authenticated when there is “evidence sufficient
to support a finding that the item in question is what the proponent claims it is.”
Fed. R. Evid. 901(a). After a party has presented sufficient evidence to make out a
prima facie case that the proffered evidence is what it purports to be, the evidence
should be admitted and the trier of fact is permitted to determine whether the
proffered evidence is what it purports to be. United States v. Caldwell, 776 F.2d
989, 1001–02 (11th Cir. 1985). “[G]aps in the chain of custody affect only the
weight of the evidence and not its admissibility.” United States v. Roberson, 897
F.2d 1092, 1096 (11th Cir. 1990). The district court did not abuse its discretion
when it admitted evidence of the lab reports over Ramirez’s objection that there
were problems with the chain of custody.
2. Although the District Court Erroneously Admitted Expert Opinion Evidence,
the Error Was Harmless.
Ramirez makes four arguments about the admission of expert testimony
against him. First, Ramirez argues that the district court erred when it allowed
Prendes to offer expert opinion about the manipulation of blood samples by R.A.
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Medical. Second, Ramirez argues that the district court erred when it allowed
Vaden to offer expert opinion about the blood samples. Third, Ramirez argues
that the district court erred when it allowed Vicki Nelson, a registered nurse, to
offer medical opinion about the treatment of patients by R.A. Medical. Fourth,
Ramirez argues that the district court erred when it allowed Ellen Lapp, an agent
with the Federal Bureau of Investigation, to offer medical opinion about the
treatment of patients by R.A. Medical.
a. Prendes’s Testimony Was Inadmissible as Lay Opinion, but the Admission of
This Testimony Was Harmless Error.
Ramirez argues that Prendes’s testimony about the lab reports was improper
lay opinion testimony because it was not rationally based upon her perception; it
was not helpful; and it was based on scientific, technical, or other specialized
knowledge within the scope of Rule 702. The government responds that Prendes’s
testimony was admissible lay opinion testimony because “Prendes . . . drew upon
past experiences to explain the different results and help the jury understand
them.”
Prendes’s opinion that Ramirez manipulated blood in a centrifuge was
inadmissible as lay opinion testimony. Federal Rule of Evidence 701 provides
that “[i]f the witness is not testifying as an expert, the witness’ testimony in the
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form of opinions or inferences is limited to those opinions or inferences which are
(a) rationally based on the perception of the witness; (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.” Fed. R. Evid. 701. Prendes testified that the blood results
from the lavender and yellow-topped vials showed significantly different values
for blood from the same person. Prendes then testified that, in her opinion, this
type of manipulation could be carried out by putting blood into a centrifuge.
Prendes testified that, in her opinion, the lavender-topped vials had been spun
inside the centrifuge to cause the red blood cells to fall to the bottom. The
explanation of a medical lab technician that the white blood cell count of blood
can be manipulated by separating the blood into different layers in a centrifuge
constitutes “scientific, technical, or other specialized knowledge.” Id. 701(c). The
district court abused its discretion by admitting this evidence under an incorrect
legal standard.
The government argues that the admission of Prendes’s testimony was a
harmless error because there was “other evidence that the blood was manipulated,”
and we agree. As the government argues, Dr. Wohlfeiler, “testified at length about
the different blood results when he compared blood tests from other hospitals and
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laboratories with the [R.A. Medical] results and concluded the [R.A. Medical]
results were not ‘legitimate’ and had to have been ‘tampered with to give a certain
result.’” Dr. Wohlfelier was a highly creditentialed expert who had published
numerous works about HIV, including an article in the New England Journal of
Medicine, and he provided overwhelming evidence that Ramirez had
“manipulate[d] blood samples of Medicare beneficiaries before sending them for
laboratory testing” as part of his scheme and artifice to defraud Medicare.
b. Vaden’s Testimony Was Inadmissible as Lay Opinion Testimony, but Ramirez
Fails to Meet His Burden Under Plain Error Review.
Ramirez argues that Vaden’s testimony about the lab reports was improper
lay opinion testimony because it was not rationally based upon his perception; it
was not helpful; and it was based on scientific, technical, or other specialized
knowledge within the scope of Rule 702. The government responds that Vaden’s
testimony was admissible lay opinion testimony because “Vaden drew upon past
experiences to explain the different results and help the jury understand them.”
Because Ramirez did not object to Vaden’s testimony, we review for plain error.
No plain error occurred. Like Prendes, Vaden testified that the lavender and
yellow-topped tubes contained different platelet values and that, in his opinion,
this difference could have resulted from the lavender-topped vials being placed
18
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into a centrifuge. Vaden’s testimony constituted expert opinion, and the district
court abused its discretion by admitting it under Rule 701. But Ramirez offers no
argument that the error affected his substantial rights.
c. Nelson’s Testimony Was Inadmissible as Lay Opinion Testimony, but the
Admission of This Testimony Was Harmless.
Ramirez argues that the district court erred when it allowed Vicki Nelson, a
registered nurse, to offer “medical opinion about the treatment [that R.A. Medical]
provided to its patients.” Ramirez argues that, “[b]ecause Nelson [was a] fact
witness[], and because [she] gave medical opinions beyond any demonstrated area
of expertise, [Nelson’s] testimony was improper.”
The district court erred when it admitted Nelson’s testimony, but the
admission of Nelson’s medical opinion about Ramirez’s treatment of patients at
R.A. Medical was harmless. As the government argues, “Dr. Wohlfeiler
. . . testified that the dosage of certain medications should be changed as a
patient’s weight changed which was not done at” R.A. Medical.
“Dr. Wohlfeiler. . . testified that [HIV medication] was given without medical
justification.” In the light of Dr. Wohlfeiler’s testimony, the admission of
Nelson’s medical testimony was harmless.
d. The District Court Did Not Err When It Admitted Agent Lapp’s Testimony.
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Ramirez argues that the district court erred when it allowed Ellen Lapp, an
FBI agent, to offer “medical opinion about the treatment [that R.A. Medical]
provided to its patients.” The government responds that Agent Lapp did not offer
expert opinion testimony. Ramirez did not object to Agent Lapp’s testimony on
the ground that she offered impermissible expert testimony, so we review for plain
error. Langford, 647 F.3d at 1326 n.11.
No plain error occurred. In his brief, Ramirez does not identify any portion
of Agent Lapp’s testimony in which Agent Lapp offered opinion testimony.
Ramirez cites to the first two pages of Agent Lapp’s testimony, in which Agent
Lapp described her background in law enforcement and her participation in the
investigation of R.A. Medical. When asked at oral argument to identify Lapp’s
expert testimony, Ramirez’s lawyer stated that the “extent” of this testimony was a
single statement by Lapp that “the Mercy lab reports had discrepancies.”
3. The District Court Did Not Abuse Its Discretion When It Admitted Summary
Evidence.
Ramirez argues that the “government . . . violated [his] rights when it
admitted several inflammatory charts and another summary exhibit into evidence,
rather than limiting these items to demonstrative evidence,” but we disagree.
Federal Rule of Evidence 1006 permits parties to use charts or other exhibits to
20
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summarize voluminous materials if a summary would be helpful to the jury. Fed.
R. Evid. 1006. Whether to permit the use of summary evidence lies within the
discretion of the district court. United States v. Richardson, 233 F.3d 1285, 1293
(11th Cir. 2000). Although Ramirez states that the charts that the government
introduced into evidence were “misleading,” he fails to explain how the district
court abused its discretion when it admitted the charts. Ramirez does not dispute
that all of the data underlying the charts was admitted into evidence and that he
had an opportunity to cross-examine the witnesses who testified about the charts.
No abuse of discretion occurred.
4. The Cumulative Error Doctrine Does Not Apply.
Ramirez argues that we should apply the cumulative error doctrine to
reverse his convictions because the district court “made many grave errors . . .
[that in] combination substantially prejudiced Ramirez during his trial,” but we
again disagree. Under the cumulative error doctrine, even if individual judicial
errors would not be sufficient to warrant reversal, the defendant may have been
denied a fair trial when the effect of all the errors is evaluated cumulatively.
United States v. Lopez, 590 F.3d 1238, 1258 (11th Cir. 2009). “In addressing a
claim of cumulative error, we must examine the trial as a whole to determine
whether the appellant was afforded a fundamentally fair trial.” Id. (quotation
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omitted). Although the district court erred when it admitted the opinion testimony
of Prendes, Vaden, and Nelson, the opinion testimony of those witnesses was
cumulative of Dr. Wohfeiler’s opinion testimony that reports produced by R.A.
Medical regarding blood samples were illegitimate and that R.A. Medical
improperly treated patients. Dr. Wohfeiler was a recognized expert in the field of
HIV; Prendes, Vaden, and Nelson were not. Ramirez was not deprived of a
fundamentally fair trial.
D. The District Court Did Not Err When It Sentenced Ramirez.
Ramirez presents three different arguments about his sentence. He
challenges two enhancements applied by the district court, and he argues that his
sentence is unreasonable.
Ramirez argues that the district court clearly erred when it applied a
two-level enhancement for obstruction of justice, U.S. Sentencing Guidelines
Manual § 3C1.1, but the record establishes otherwise. Section 3C1.1 provides that
“[i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the investigation, prosecution,
or sentencing of the instant offense of conviction, and (2) the obstructive conduct
related to (A) the defendant’s offense of conviction and any relevant conduct; or
(B) a closely related offense, increase the offense level by 2 levels.” Id. Ramirez
22
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argues that his deposition testimony from the civil forfeiture proceeding should
not have been used to support the enhancement under section 3C1.1 because he
was experiencing physical and mental problems during the deposition due to the
2006 car accident. The only evidence presented at the sentencing hearing about
Ramirez’s mental state during the deposition in the forfeiture case was the
testimony of Dr. Betancourt, and he found that Ramirez’s impairment of memory
was minor.
Ramirez also challenges the two-level enhancement based on the finding
that his offense involved a “conscious or reckless risk of death or serious bodily
injury,” id. § 2B1.1(b)(14)(A), but this argument fails. Ramirez argues that the
application of the enhancement was improper because “[t]here was no testimony
that any patient was actually harmed” by the infusions that he gave to patients, but
we rejected an identical argument in United States v. Mateos, 623 F.3d 1350, 1371
(11th Cir. 2010). As we explained in Mateos, “[e]ven though there was no
evidence that any patient was actually harmed from the treatments, the
enhancement was nevertheless appropriate because the Guidelines provision
focuses on the defendant’s disregard of risk rather than on the result.” Id. at 1371.
Ramirez argues too that the his sentence is “procedurally and substantively
unreasonable,” but we disagree. The district court considered the relevant
23
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sentencing factors and adequately explained the reasons for imposing the sentence,
and Ramirez’s 210-month sentence is substantively reasonable. Contrary to
Ramirez’s representations to the Court, the district court explicitly stated that it
had considered Ramirez’s diagnosis with cancer, the statements of Ramirez’s wife,
and Ramirez’s contributions to the community in reaching its sentence, but the
district court reasonably ruled that the serious nature of Ramirez’s offense,
Ramirez’s disregard for the safety of his patients, and the need to provide adequate
deterrence and protect the public outweighed these mitigating circumstances. The
district court did not abuse its discretion when it sentenced Ramirez to 210 months
of imprisonment, which was in the middle of the guidelines range of 188–235
months.
IV. CONCLUSION
We AFFIRM Ramirez’s convictions and sentence.
24
| {
"pile_set_name": "FreeLaw"
} |
243 Minn. 11 (1954)
STATE EX REL. SCHOOL DISTRICT NO. 56, TRAVERSE COUNTY, AND OTHERS
v.
HOWARD SCHMIESING AND OTHERS.
STATE EX REL. SCHOOL DISTRICT NO. 56, TRAVERSE COUNTY, AND OTHERS
v.
CORA WERNER AND OTHERS.[1]
Nos. 36,328, 36,348.
Supreme Court of Minnesota.
August 6, 1954.
*12 Johanson, Winter & Lundquist, for appellants.
Field, Arvesen & Donoho, for respondents.
NELSON, JUSTICE.
This is a proceeding in quo warranto originally commenced in the district court for the county of Traverse with the consent of the attorney general to determine whether Independent Consolidated Joint School District No. 61 of Traverse county and No. 86 of Wilkin county is a lawfully constituted consolidated school district; *13 whether it has authority to function as a duly organized school district; and further whether the respondent individuals named are authorized to act as school board members of said district. The trial court made findings in favor of respondents, and relators moved in the alternative for amended findings or for a new trial. Relators appeal from an order denying this motion.
Relators in this proceeding raise the question whether Independent Consolidated Joint School District No. 61 of Traverse county and No. 86, Wilkin county, is a public corporation, legally organized and existing under the laws of this state. They raise no question as to the validity of the election of the members of the school board.
A school survey committee of nine members was created pursuant to M.S.A. 122.40 to 122.57 of the reorganization act. This committee was regularly elected. After compliance with all statutory requirements governing school reorganizations, an election was held January 8, 1952, at which the recommendations made in the report of the school survey committee were defeated. Thereafter the school survey committee revised its former final reorganization proposal and recommendations by deleting a district and parts of two others from the proposed plat and adding the remainder of district No. 10 in Wilkin county, a portion of which had been included in the final plan prior to this revision. The school survey committee later held a meeting in the added area on December 22, 1952, 30 days before any further election, as required by the act, §§ 122.47 and 122.52, since no previous meeting under § 122.52 had been held in this added area. Public meetings provided for under § 122.52 had been held in every school district included in the final report of the school survey committee, as originally filed, between the year 1948 and the January 8, 1952, election. We think this appears without dispute.
1. Relators contend that the changes made and recommended by the school survey committee required it to hold additional meetings or second hearings in every district or portion thereof included in the later revised final report. The statute makes no provision for any additional hearings either as originally enacted in 1947 or after *14 amendments of 1949, 1951, and 1953. Section 122.52, subd. 3, which provides for calling another election when reorganization has failed in a prior election, makes no reference to any additional hearings.
The revised final report was approved by the state advisory commission in due time before the last hearing required by the act held on December 22, 1952. Whatever additional public meetings were thereafter held in 1953 before the next election are unimportant since the only additional hearing required was held on the revised final report of the school survey committee on December 22, 1952. If the citizens and voters in the proposed district as revised chose to meet additionally for discussions, they were free to do so under the general right of public assembly, even though the school survey committee had on January 29, 1953, set the next election date for February 20, 1953.
In State ex rel. Klitzke v. Independent Consol. School Dist. No. 88, 240 Minn. 335, 346, 61 N.W. (2d) 410, 417, this court said:
"Neither the survey committee nor the state advisory commission have any authority to establish legal rights. They have the power to study and consider reorganizations of school districts for purposes of recommending the adoption of a plan to be submitted to the voters, but neither has the power to create a school district. The survey committee has the power of approval upon the call of another election and the county superintendent then proceeds with the election call, § 122.52(1,2,3), but no legal rights are or can be established until the legal voters in the area have adopted the plan of reorganization by a majority vote and the county superintendent has issued proper orders to give effect to the vote. § 122.52(4). Whatever legal rights are established are established by the legal voters in a free and open election. State ex rel. Huntley School Dist. v. Schweickhard, 232 Minn. 342, 45 N.W. (2d) 657."
2. Notice of the 1953 election was duly and properly posted by the county superintendent of schools pursuant to statute. The county superintendent determines the date with the approval of the survey committee. The call had the approval of the school survey committee based upon its report in its revised form. Although the *15 survey committee in issuing its approval indicated that the superintendent was directed to publish the election notice, this was not necessary in order to comply with the required statutory notice, since § 122.21, as incorporated in § 122.52, requires publication of notice only when a newspaper is published within the proposed consolidated district, and there was no newspaper published within the territory involved. Therefore the order for publication by the survey committee was immaterial to the validity of the election.
3. The school election of February 20, 1953, was held for the purpose of putting to a vote the reorganization into a new district of districts 14, 27, 36, 41, 44, 56, 60, 17 less section 15, 28 less sections 29 and 32 of Traverse county, and district No. 35 and district No. 10 less sections 9 and 10 of Wilkin county. At this election the proposal for reorganization carried, the vote in the rural areas being 94 in favor of reorganization and 70 opposed, and in the urban area, 82 in favor of reorganization and five opposed. No election was held in three of the rural districts due to a severe snowstorm, inclement weather, and highway conditions in these three districts. Thereafter and on March 2, 1953, the superintendent issued an order reorganizing the territory into one school district to be known as Independent Consolidated Joint School District No. 61 of Traverse county and No. 86, Wilkin county. On April 13, 1953, the individual respondents in this proceeding were duly elected members of the school board of the new school district and thereafter duly qualified.
Relators contend that the election of February 20, 1953, was invalid and void. When the Traverse county school survey committee was established at a meeting held on November 7, 1947, five rural and four urban members were elected as required by statute. The membership continued in this proportion only until the spring of 1952 when Fred Lichtsinn, an original rural member, moved his place of residence to the village of Wheaton, an urban district. Relators contend that the calling of the 1953 election was void because at that time the survey committee was not properly constituted. It must be pointed out, however, that until the spring of 1952 the committee consisted of five rural and four urban members *16 as provided by statute and that prior to this date the committee had completed its main duties. As of that time the original final report had been prepared and filed, all pursuant to statute, and one election had already been held. The only action taken after one of the original rural members moved into an urban area was the revision of the report by altering to the extent heretofore explained the area to be included in the reorganization, the holding of a hearing in the new area added by the revision, and the calling of the second election for February 20, 1953. As this court said in State ex rel. Klitzke v. Independent Consol. School Dist. No. 88, 240 Minn. 335, 347, 61 N.W. (2d) 410, 418:
"* * * A revision or amendment of the reorganization recommendations is not a jurisdictional requirement to an election, providing substantial compliance has been had generally with the statutory provisions. In re Order of Superintendent of Schools, Nobles County, 239 Minn. 233; 58 N.W. (2d) 465; State ex rel. Grozbach v. Common School Dist. No. 65, 237 Minn. 150, 54 N.W. (2d) 130."
In that case this court held that, although one member of a county survey committee was disqualified by statute, the work of the committee was not invalid since no important work was done by the committee during the time the disqualified member remained on the committee. Here, the report was revised and another election called after the balance between urban and rural members had been upset, but since this court has held that a revision or amendment does not in and of itself constitute a jurisdictional requirement to an election (State ex rel. Klitzke v. Independent Consol. School Dist. No. 88, supra), there is no ground for any contention that all action taken by the committee subsequent to the spring of 1952 was invalid. An election will not be struck down as invalid if there is substantial compliance with all the procedural steps required by statute. State ex rel. Klitzke v. Independent Consol. School Dist. No. 88, supra; State ex rel. Grozbach v. Common School Dist. No. 65, 237 Minn. 150, 54 N.W. (2d) 130.
*17 4. Relators also contend that the following irregularities are sufficient to render the election invalid, viz.: Holding the election in unlawful polling places; irregularities in the appointment of election officials; and violating the statute or the notice of election as to the hours the polls were to be kept open.
Section 122.52, subd. 2, provides:
"* * * Wherever possible the election shall be held in the school building of the school districts included in the proposal."
The wording of the statute indicates that an element of discretion in designating the voting place was given to the school survey committee and the county superintendent. There is nothing in the evidence to indicate an abuse of discretion in the choice of the polling places. The evidence discloses that one schoolhouse had been closed for several years and that in prior years homes had been designated and used as polling places. It is well established that an irregularity of this nature, should it be considered such, will not render an election invalid when the change is made in good faith and no one is misled. See, 18 Am. Jur., Elections, § 114. In the absence of convincing evidence to the contrary, which is lacking here, the presumption of regularity of official acts applies. In re Common School Dists. Lyon and Yellow Medicine Counties, 231 Minn. 40, 42 N.W. (2d) 393.
5. In the absence of two other appointed judges, the clerk of the school board in district No. 27 appointed two other persons to act as judges in their stead, and the three then kept the polls open for the required period. Six votes were cast in district No. 27, and these were received, tabulated, and returned, which were the votes of all persons who voted in that district.
Relators contend that the mere absence of the officers appointed in the notice of election is an irregularity sufficient to invalidate the election. Nothing appears in the evidence to even remotely indicate that the conduct of those who became the final judges of the election was not fair and honest.
It has been held by this court that, if the election board was completed by the selection of others under color of authority, who *18 might be officers de facto, the election is then valid. See, Hankey v. Bowman, 82 Minn. 328, 84 N.W. 1002. The important question is whether the election has been honestly and fairly conducted, and if it has, the failure to have present at the election the full number of election officers required by law, either permanently or by reason of temporary absence, is not fatal to the validity of an election. The policy followed in this state has been clearly stated in the recent case of In re Order of Sammons, County Superintendent of Schools, Cottonwood County, 242 Minn. 345, 349, 65 N.W. (2d) 198, 202, where Mr. Justice Matson, speaking for the court said:
"It is the general rule that, before an election is held, statutory provisions regulating the conduct of the election will usually be treated as mandatory and their observance may be insisted upon and enforced. After an election has been held, the statutory regulations are generally construed as directory and such rule of construction is in accord with the policy of this state, which from its beginning has been that, in the absence of fraud or bad faith or constitutional violation, an election which has resulted in a fair and free expression of the will of the legal voters upon the merits will not be invalidated because of a departure from the statutory regulations governing the conduct of the election except in those cases where the legislature has clearly and unequivocally expressed an intent that a specific statutory provision is an essential jurisdictional prerequisite and that a departure therefrom shall have the drastic consequence of invalidity."
See, 18 Am. Jur., Elections, § 206; Annotation, 1 A.L.R. 1535.
Section 122.52, subd. 2, provides that the judges appointed for each polling place shall be school board members if they are available. There is no evidence here on the question of availability. In its absence, again, the presumption must be that the school survey committee and the county superintendent, in an exercise of the discretion given them on availability, made their selection of judges pursuant to statutory requirements. In re Common School Dists. Lyon and Yellow Medicine Counties, supra.
*19 6. Section 122.52, subd. 2, provides:
"* * * The polls shall be open for at least two hours, and may be open for a longer period, not to exceed 12 hours, if so designated in the posted and published notices."
The notice of election, in this case, required the polls to be open from 4 p.m. to 7 p.m. on February 20, 1953, a period of three hours. The notice complied with the requirement of the statute. The only instances where this requirement was not fulfilled was in those districts where no election was held at all, as hereafter discussed.
The evidence is clear that weather conditions and a severe snowstorm made travel difficult throughout the territory where the election was scheduled and in some parts, according to the testimony, apparently impossible. As a result no election was actually held in districts 28, 44, and 56. None came to the polling place to vote in district No. 28. As to district No. 44, there was testimony by a voter to the effect that his failure to vote was due entirely to the storm, and the clerk of the district testified that the polls in that district were not open because of the storm and that no one, to his knowledge, came to vote and was unable to do so. The clerk of district No. 56 testified that her husband and two other men were the only persons who appeared at the polling place which in that instance was open from 4:15 p.m. to 5:45 p.m. There is no testimony that any person appeared prior to opening or after closing for the purpose of voting. These four persons who appeared did not vote, but this was a matter of their own choice based upon the belief that their ballots could not be counted without all of the regularly appointed election judges being present.
It appears from the evidence that six voters who came to the polls did not cast their ballots. However, the canvassed result in the election, disclosed by the return of February 27, 1953, showed:
Total for reorganization ..................................... 176
Total against reorganization ................................. 75
Ten rural school districts were involved in the reorganization plan and recommendations. Seven of these made a return of votes *20 cast at the election. Wherever such votes were cast, counted, and returned no question has been raised that the polls were not open the time required by law. In the other three districts where the polls were not open, it clearly appears from the evidence that the only cause was the stormy weather accompanied by snow and the blocking of highways, a condition over which neither the school survey committee, the superintendent, the election judges, or the voters had any control. The severity appears to have been such that, had the three other polling places been open the full time, only six additional votes would have been cast. It is apparent from the record that the result of the election would not have been changed had every voter who was known to have come to the polls been able to cast his vote.
Relators cite numerous cases dealing with situations where election officials failed to perform their duties and the courts held that no valid election had in fact been held. None involved the uncontrollable force of the elements or adverse weather conditions of the nature encountered here. Relators have cited no case where an election has been invalidated under similar conditions and circumstances. It is also true that the respondents have cited no case where an election has been sustained under similar conditions and circumstances. The question presented appears to be one of first impression in this state.
No fraud or illegal practice on the part of election officials has been shown. The failure to open certain polling places as regularly scheduled was due to a severe snowstorm which the evidence quite convincingly establishes was the sole cause. Since the evidence is sufficiently clear that no change in the election would have resulted if all the polling places had been kept open, we conclude that the relators have failed to establish their contention that the election was invalid or to effectively challenge the facts as found by the trial court below, whose findings have the same effect and the same binding force as the verdict of a jury. The trial court found that the school election of February 20, 1953, was not invalid because of *21 the fact that no voters appeared at certain polling places due to a severe snowstorm and blocked roads.
The relators argue that the election could have been called by those charged with that duty under the statute at some other time of the year and thereby severe weather and the possibility of a snowstorm and blocked roads could have been avoided. But, as the trial court stated in its memorandum, "the statute places no restriction of any kind upon the Survey Committee as to the season during which the election should be held."
We are not aware that any such controls are permitted or restrictions exist where free elections are the order of the day. It is the prerogative of the survey committee and the superintendent to exercise their judgment and discretion in that regard, and the courts have no right to interfere with the exercise of that duty to the extent of passing upon their wisdom or lack of it in selecting a certain day in the future for voting. If the statute is otherwise complied with as to election requirements, if good faith has been exercised by the election officials so that thereby no one has been misled, and if the officials have not under the law failed to perform their statutory duties, then the date set will have to stand. State and national elections have fixed dates. No change therein can be made even after consulting the weatherman. Elections must of necessity be held in all kinds of weather. If an election is held in fact, it is valid, though there may have been interference as there was here by the elements. The vote may be reduced thereby or the outcome changed, but qualified voters who fail to go to the polls to vote under the circumstances will be bound by the expressed will of those who do. Of course, natural conditions over which man may exercise control may prevent an election in fact, but we think that interference short of that may not be classed as jurisdictional.
This must of necessity be the rule, or there would be no solid ground upon which candidate or voter could stand, for endless confusion and uncertainty would otherwise result. The trial court assigned like reasoning for the inability of either side to produce a case in point.
*22 7. Relators contend that they were denied the statutory right of appeal. After quoting § 122.48 to the effect that it provides that an appeal may be taken to the state commission within 60 days after the passage of the act or the filing of the final report or any revision or amendment to the final report, they say that there is no question under the state of the record that the petitions of the relator school districts and others were on file on May 1, 1952, which was within 60 days after the filing of the final report as revised. Relators contend that they have been deprived of their right to a hearing on the petitions in contradiction of § 122.48. They argue that the testimony is undisputed that neither the survey committee nor the state advisory board or commission has acted properly on the petitions before it.
The reorganization act as originally adopted in L. 1947, c. 421, contains no appeal procedures of any kind. The legislature by adopting L. 1949, c. 666, § 6, amended the 1947 law by inserting as subd. 3 of § 122.48 a provision for appeal to the state commission by the school board of any district where the people feel aggrieved by the proposed divisions or assignments to districts in some way, but with the following qualification:
"* * * Such appeal must be made within 60 days after the passage of this act or filing of the final report or any revision or amendment to the final report."
The record is clear that the final recommendation of the school survey committee for this reorganization was filed on November 1, 1948. As of that date there was no appeal procedure. The 1949 amendment providing for appeal did not become effective until April 25, 1949. To have effectively appealed the recommendation of November 1, 1948, relators would have had to file petitions within 60 days after April 25, 1949, when the appeal provisions took effect. But the petitions to which relators refer were not filed until June 1, 1951. Subsequent to this, the 1952 elections were held. No further petitions were filed between the 1952 and 1953 elections. Since these petitions of June 1, 1951, were not effectively filed so as to justify any appeal from the final report, it cannot be claimed that those *23 same petitions can be ruled effective to justify appeal of the revised report filed April 1, 1952. Under the circumstances disclosed by the evidence, we hold as did the court below that no right of appeal was denied to anyone.
Relators have assigned as error certain rulings by the trial court on offers of proof in connection with the 1952 election proceedings and tabulations and the assessed valuation of the area subject to reorganization recommendations. The trial court sustained objections to offers, one on the ground of immateriality and the other on the ground that the offer to prove assessed valuation was not sustained by competent evidence. We perceive no abuse of discretion in the rulings as made by the court upon the state of the record. There was no error.
The issues of this case were raised in a certiorari proceeding brought prior to the election of the school board members of the reorganized district and the bringing of this quo warranto proceeding. Now, the question has been raised whether certiorari was a proper remedy under the circumstances. The parties themselves recognize that all the issues raised in the certiorari proceeding were the same as those raised in the quo warranto proceeding. Motions were made in the lower court to dismiss both the certiorari and the quo warranto proceedings. The certiorari proceeding appearing to have been abandoned, the court entered its order discharging the writ, all issues involving the merits raised by the certiorari proceeding having become moot because of the decision in the quo warranto proceeding. Accordingly, we do not feel it necessary to rule on the question whether certiorari is a proper proceeding for raising the issues resolved in this case, and we sustain the order of the court below discharging the writ in the certiorari proceeding brought herein.
The court below found that all proceedings leading up to the reorganization election of February 20, 1953, were regular, legal, and valid, and conferred jurisdiction upon the officials thereof to conduct and hold the same; and that the said election was held and the result declared; that there was no fraud in the conduct *24 of the election; that solely by reason of adverse weather and highway conditions no votes were cast in the three rural districts numbered 28, 44, and 56; and that no appeal was taken from the final report or the revised or amended final report of the school survey committee, as provided by law.
The court further concluded as a matter of law that Independent Consolidated Joint School District No. 61 of Traverse county, Minnesota, and No. 86 of Wilkin county, Minnesota, is a duly and legally organized and existing public corporation under the laws of this state; that the named respondents designated as the first elected school officers of the newly constituted school district are the duly elected, qualified, and acting members of its school board; and that the writ in the nature of quo warranto be discharged with costs and disbursements to the prevailing parties and that judgment be entered accordingly. We concur in that result.
Affirmed.
NOTES
[1] Reported in 66 N.W. (2d) 20.
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Order entered May 13, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00325-CR
EX PARTE ZAVIER COMMINEY
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. WX18-90138-V
ORDER
Before the Court is the State’s May 9, 2019 motion to supplement the clerk’s record. We
GRANT the State’s motion. We ORDER the Dallas County District Clerk to file, within
FOURTEEN DAYS of the date of this order, a supplemental clerk’s record containing (1) the
indictment, (2) instructions relating to preliminary initial appearance, (3) the arraignment sheet,
and (4) the conditions of bond. According to the State’s motion, the indictment was filed on
October 23, 2018 and the other three documents were filed on September 14, 2018.
This appeal will be submitted without argument on June 14, 2019 to a panel consisting of
Justices Bridges, Brown, and Nowell.
/s/ CORY L. CARLYLE
JUSTICE
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-6322
DAVID WATKINS,
Petitioner - Appellant,
versus
JOSEPH P. SACCHET; ATTORNEY GENERAL FOR THE
STATE OF MARYLAND,
Respondents - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CA-
00-2545-CCB)
Submitted: April 12, 2001 Decided: April 23, 2001
Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Watkins, Appellant Pro Se. John Joseph Curran, Jr., Attorney
General, Celia Anderson Davis, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Watkins seeks to appeal the district court’s order deny-
ing relief on his petition filed under 28 U.S.C.A. § 2254 (West
1994 & Supp. 2000) and denying his motion for reconsideration. We
have reviewed the record and the district court’s opinion and find
no reversible error. Accordingly, we deny a certificate of appeal-
ability and dismiss the appeal on the reasoning of the district
court. Watkins v. Sacchet, No. CA-00-2545-CCB (D. Md. filed Jan.
30, 2001, entered Jan. 31, 2001; filed and entered Feb. 12, 2001).
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court
and argument would not aid the decisional process.
DISMISSED
2
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905 F.2d 1197
Luther HALL, Appellant,v.A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellee.
No. 87-2440.
United States Court of Appeals,Eighth Circuit.
Submitted April 5, 1990.Decided June 19, 1990.
David A. Couch, Little Rock, Ark., for appellant.
Lee Taylor Franke, Little Rock, Ark., for appellee.
Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.
ARNOLD, Circuit Judge.
1
This is a petition for writ of habeas corpus brought by Luther Hall, a prisoner in state custody. This is Hall's second petition challenging his conviction for capital felony murder in 1981. When this case was last before us, we determined that the State's defense of abuse of the writ required a remand to the District Court for further findings. Hall seeks to raise in this petition a ground--knowing use of perjured testimony--that he alleged in his first petition but did not press at the evidentiary hearing on that petition. In Hall v. Lockhart, 863 F.2d 609 (8th Cir.1988), we remanded to the District Court with instructions to hold a hearing to determine whether Hall had deliberately withheld the ground in question at the time of the first habeas petition. The District Court1 found as a fact that Hall had deliberately withheld the perjured-testimony claim. It therefore dismissed this second petition as an abuse of the writ. The District Court's findings are amply supported by the record, and we affirm.
2
Hall is serving a sentence of life without parole for two counts of capital felony murder, and a consecutive sentence of thirty years for one count of second degree murder. This appeal concerns the first conviction.2 A man named Charles Moorman testified at that trial, and Moorman now swears he testified falsely. Hall now claims that the prosecutor knew Moorman's testimony was false, but used it anyway. A version of this allegation appeared during Hall's first (pro se) habeas petition--not in the petition proper, but in the memorandum supporting the four grounds of relief initially urged. After counsel was appointed for Hall, no one mentioned or argued this point in the evidentiary hearing.
3
The District Court held that Hall had abandoned his knowing-use-of-false-testimony claim, and resurrecting it now would abuse the writ. We were not sufficiently certain of the matter to affirm on that record. We therefore remanded for a hearing where Hall could "establish his reasons for failing to press, in the previous habeas case, the claim he now asserts." Hall v. Lockhart, 863 F.2d at 610.
4
Hall has failed to establish any legally relevant reason for failing to urge the prosecutor's alleged knowing use of false testimony in his earlier habeas action. Hall argues that this claim was never abandoned, because he never intended to abandon any possible ground for relief. That argument is not borne out by the facts. The record instead casts doubt on whether Hall ever intended to offer the prosecutor's conduct as a separate ground for relief. And it reveals that even if the claim was raised, it was abandoned when not pursued at the appropriate time.
5
The allegations of Moorman's false testimony have been a part of petitioner's collateral attack from the outset. However, those allegations, as the District Court found on remand, have always been in the context of Hall's claim of ineffective assistance of his trial counsel. Throughout Hall's extensive testimony at his initial habeas hearing, he never mentioned the prosecutor's alleged knowing use of false testimony. The thrust of Hall's testimony was his trial counsel's allegedly ineffective cross examination of Moorman. As the District Court noted, Moorman was present outside that hearing and prepared to testify--but only as to the falsity of his initial testimony, not to the prosecutor's knowing participation in that falsity. It was only after his ineffectiveness claim was rejected, and his case was on appeal, that Hall attempted to refine his contention by involving the prosecutor in Moorman's false testimony. We declined to consider that allegation then because the question of the prosecutor's knowledge had not been presented to the District Court, Hall v. Lockhart, 806 F.2d 165, 167 (8th Cir.1986). We decline to consider that claim now because it is too late to present it to any federal court.
6
Successive petitions abuse the writ of habeas corpus where no legally recognizable reason exists for failing to raise the new claim in a previous petition. Rule 9(b). As the District Court concluded, though this issue was alluded to by the petitioner, he abandoned any claim he arguably had by failing to raise or press the point at the full-dress hearing on his initial petition. Given his earlier opportunity, considering the claim now would abuse the writ. Smith v. Armontrout, 888 F.2d 530 (8th Cir.1989). Nor has Mr. Hall argued that he falls within any of the recognized exceptions that allow us to reach otherwise abusive claims. Smith, 888 F.2d at 541.
7
The District Court's order dismissing this petition is affirmed.
1
The Honorable Stephen M. Reasoner, United States District Judge for the Eastern District of Arkansas, acting on the recommendation of the Honorable John F. Forster, Jr., United States Magistrate for the Eastern District of Arkansas
2
We erred in our opinion remanding this case in noting that Hall challenged his second conviction in this latest petition. We are indebted to the Magistrate for pointing out this mistake
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36 Mich. App. 123 (1971)
193 N.W.2d 203
PEOPLE
v.
HOOPER
Docket No. 9245.
Michigan Court of Appeals.
Decided September 28, 1971.
*124 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Leonard Meyers, Assistant Prosecuting Attorney, for the people.
Armand D. Bove, for defendant on appeal.
Before: T.M. BURNS, P.J., and HOLBROOK and McGREGOR, JJ.
ON REHEARING
PER CURIAM:
Defendant was convicted by a jury in the Wayne County Circuit Court of the offenses of felonious assault, MCLA § 750.82 (Stat Ann 1962 Rev § 28.277), and carrying a concealed weapon, MCLA § 750.227 (Stat Ann 1962 Rev § 28.424). Defendant was sentenced upon conviction on the counts charged to terms of from 3 years, 11 months to 4 years, and from 4 years, 11 months to 5 years, respectively. The court appointed appellate counsel to represent defendant in post-conviction proceedings. From denial of defendant's motion for new trial, this appeal is taken as of right.
We consider defendant's claims of error in the order presented.
Whether the trial court erred in not providing for a "substantial period" intervening between the minimum and maximum terms of sentence.
The transcript of sentencing in the instant case reveals that the trial judge exercised discretion in imposing the sentences upon defendant, having *125 evaluated defendant as an individual, People v. Lessard (1970), 22 Mich App 342. This Court has held that a sentence within the statutory maximum will not ordinarily be disturbed on appeal. People v. Stroble (1970), 28 Mich App 451, 453.
Whether sufficient credible evidence to sustain defendant's conviction for felonious assault was produced upon trial of this case.
In a case involving a charge of felonious assault, such as the present, it is necessary, in order to convict upon that charge, to prove only that an assault was made with a dangerous weapon. People v. Childs (1968), 11 Mich App 408, 411. A thorough review of the record convinces us that the jury's verdict was amply supported by the evidence. People v. Arither Thomas (1967), 7 Mich App 103; People v. Dawson (1971), 29 Mich App 488.
Whether reversible error occurred when, during the trial, a police officer testified, in the jury's presence, that he knew defendant "from previous occasions".
The testimony of the police officer, upon direct examination, that he knew defendant "from previous occasions" was a voluntary and unresponsive answer to a proper question. As such, it was not reversible error. People v. Tutha (1936), 276 Mich 387, 393.
Whether the trial court committed error in instructing the jury that the state must prove a matter involving circumstantial evidence beyond a reasonable doubt.
Defendant's allegation that the trial judge improperly instructed the jury as regards to the proof required on a matter involving circumstantial evidence, need not be considered for the first time on appeal, no objections to the court's instructions *126 having been made at trial. People v. Floyd (1968), 15 Mich App 284; GCR 1963, 516.2.
Whether the trial court erroneously instructed the jury that the people did not have to prove that defendant did not have a license to carry a concealed weapon.
Defendant finally contends that the trial court, in regard to the charge of carrying a concealed weapon, committed error in instructing the jury that the state need not prove that defendant did not have a license to carry such a weapon. Defendant relies on the following language contained in People v. Kelsch (1969), 16 Mich App 244, 245:
"To establish the corpus delicti of this felony, the prosecutor must prove not only that the defendant carried a concealed pistol, but also that he had no license to do so. People v. Autry (1967), 7 Mich App 480, 483."
However, the decision in Kelsch preceded the effective date of PA 1968, No 299, being MCLA § 776.20 (Stat Ann 1971 Cum Supp § 28.1274[1]) which provides:
"In any prosecution for the violation of any acts of the state relative to use, licensing and possession of pistols or firearms, the burden of establishing any exception, excuse, proviso or exemption contained in any such act shall be upon the defendant but this does not shift the burden of proof for the violation."
It is the opinion of this Court that the above statutory language has eliminated the burden upon the state of proving that defendant did not have a license to carry a concealed weapon. Accordingly, we find no error in the trial court's instruction.
Affirmed.
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16 F.3d 288
UNITED STATES of America, Appellee,v.Steven D. ALLEN, Appellant.
No. 93-3235.
United States Court of Appeals,Eighth Circuit.
Submitted Jan. 11, 1994.Decided Feb. 9, 1994.
Counsel who presented argument on behalf of the appellant was Frank R. Fabbri, St. Louis, MO.
Counsel who presented argument on behalf of the appellee was Thomas Mehan, St. Louis, MO.
Before BEAM, Circuit Judge, WELLFORD,* Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.
BEAM, Circuit Judge.
1
The State of Missouri charged Allen with possession of marijuana with intent to distribute. After the state court granted Allen's motion to suppress the seized marijuana, the state prosecutor contacted an Assistant United States Attorney (AUSA)--a former assistant state prosecutor--who decided to pursue a federal indictment. The state dismissed its case and a federal grand jury indicted Allen for possession with intent to distribute. After the district court1 denied Allen's specified motion to dismiss the indictment, Allen entered a conditional guilty plea. See Fed.R.Crim.P. 11(a)(2). Allen now appeals the denial of his specified motion to dismiss the indictment. We affirm.
2
Allen argues that because the state prosecutor contacted the AUSA rather than appeal the motion to suppress, the government engaged in a "sham prosecution" which violated his double jeopardy and due process rights. See Bartkus v. Illinois, 359 U.S. 121, 122-24, 79 S.Ct. 676, 677-79, 3 L.Ed.2d 684 (1959). Since the federal prosecution did not commence, however, until after the state prosecution had ceased, Allen's argument is meritless. See United States v. Deitz, 991 F.2d 443, 445-46 (8th Cir.1993).
3
Accordingly, we affirm.
*
The Honorable Harry W. Wellford, Senior Circuit Judge for the Sixth Circuit Court of Appeals, sitting by designation
1
The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri, adopting the recommendation of the Honorable Frederick R. Buckles, United States Magistrate Judge for the Eastern District of Missouri
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41103
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AGUSTIN GONZALEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-99-CR-151-1
--------------------
June 13, 2000
Before JOLLY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
Agustin Gonzalez has appealed his conviction for violating
8 U.S.C. § 1326(a). The judgment must be AFFIRMED. See United
States v. Benitez-Villafuerte, 186 F.3d 651, 656-59 (5th Cir.
1999), cert. denied, 120 S. Ct. 838 (2000).
AFFIRMED.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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832 So.2d 975 (2002)
LAMSON PETROLEUM CORPORATION
v.
HALLWOOD PETROLEUM, INC., et al.
Nos. 2002-C-1338, 2002-C-1681, 2002-C-2419.
Supreme Court of Louisiana.
October 25, 2002.
PER CURIAM.
Granted in part. The cases are remanded to the Third Circuit Court of Appeal. The Third Circuit is ordered to hold an en banc hearing and determine whether their decisions in Lamson Petroleum Corporation v. Hallwood Petroleum, Inc., et al., XXXX-XXXX (La.App. 3 Cir. 2/6/02), 814 So.2d 134 and Lamson Petroleum Corporation v. Hallwood Petroleum, Inc., et al., 2002-138 (La.App. 3 Cir. 7/10/02, 823 So.2d *976 431) are in conflict with their decision in Lamson Petroleum Corporation v. Hallwood Petroleum, Inc., et al., XXXX-XXXX (La.App. 3 Cir. 3/20/02, 814 So.2d 596), on the issue of whether or not defendants are good faith possessors after the filing of judicial demand, and if so, to determine which view is correct. Otherwise the writs are denied.
REMANDED.
VICTORY, J., would grand and docket No. 1690 and No. 1338.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1206-10
THE STATE OF TEXAS
v.
PAUL DAVID ROBINSON, Appellee
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS
FREESTONE COUNTY
K ELLER, P.J., delivered the opinion of the Court in which W OMACK, K EASLER,
H ERVEY and C OCHRAN, JJ., joined. C OCHRAN, J., filed a concurring opinion in which
H ERVEY, J., joined. M EYERS, J., filed a dissenting opinion. P RICE, J., filed a dissenting
opinion. J OHNSON, J., concurred.
The issue in this case is the allocation of the burden of proof in a motion to suppress under
Texas Code of Criminal Procedure Article 38.23. We hold that the defendant has the initial burden,
which shifts to the State only when the defendant has produced evidence of a statutory violation. We
shall reverse the judgment of the court of appeals.
Background
Paul Robinson was arrested without a warrant for driving while intoxicated. He was
ROBINSON — 2
transported to a hospital, where he consented to have his blood drawn. Analysis showed his blood
alcohol concentration to be 0.14%. Robinson filed a motion to suppress the results, claiming that
his blood was drawn without a warrant and without consent, and that it was not drawn by a qualified
person.1 Thus, he claimed, it should have been suppressed under both the Fourth Amendment2 and
Article 38.23.3
The trial court held a hearing on the motion, beginning by telling appellee that since it was
his motion, he should proceed. The State interrupted, agreeing to stipulate that the arrest was
without a warrant, and that because of the stipulation, the State should go first. Appellee and the trial
court both agreed. The State then called the only witness, Deputy Vercher.4 Vercher testified to the
circumstances of the arrest, but did not remember the name of, nor could he describe, the person who
drew appellee’s blood, at times simply calling the person a nurse, at other times stating that he did
not know who drew the sample. Based on Vercher’s testimony, the trial court suppressed the blood
evidence, but not on Fourth Amendment grounds. Instead, the trial court suppressed the blood
evidence based on the fact that “the State has not met the burden to prove that it was [a qualified
person] that took it.”
The 10th Court of Appeals affirmed the trial court’s order. Chief Justice Gray dissented,
1
TEXAS TRANS. CODE § 724.017 (a). “Only a physician, qualified technician, chemist,
registered professional nurse, or licensed vocational nurse may take a blood specimen at the
request or order of a peace officer under this chapter.”
2
U.S. CONST . amend. IV.
3
TEXAS CODE CRIM . PROC. article 38.23.
4
The Deputy’s name is spelled either Vercher or Burcher in different locations in the
record. We will use Vercher for convenience.
ROBINSON — 3
arguing that the court erroneously placed the burden of proof on the State to prove statutory
compliance.5 The State now presents this Court with the following question:
At a hearing on a motion to suppress blood evidence, once the defendant established
that he was arrested for driving while intoxicated without a warrant, does the burden
of proof shift to the State to prove that the blood draw was taken in accordance with
statutory requirements?
The State argues that the trial court improperly shifted the burden of proof on the 38.23
suppression issue. Because it stipulated only to the fact that appellee was arrested without a warrant,
the State argues that it assumed the burden of proof only as to the warrantless arrest. Thus,
according to the State, because appellee brought the motion to suppress, he retained the burden of
proof to establish that the blood draw was not taken in accordance with the statutory requirements.
Discussion
When reviewing a trial court’s ruling on a motion to suppress, we view the evidence in the
light most favorable to the ruling.6 If the trial court makes findings of fact, we determine whether
the evidence supports those findings.7 We then review the trial court’s legal rulings de novo unless
the findings are dispositive.8
A defendant who alleges a violation of the Fourth Amendment has the burden of producing
evidence that rebuts the presumption of proper police conduct.9 He may carry this burden by
5
State v. Robinson, No. 10-08-00185-CR (Tex. App.—Waco June 16, 2010).
6
State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
7
Id.
8
Id.
9
Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).
ROBINSON — 4
establishing that the seizure occurred without a warrant.10 The burden then shifts to the State to
prove the reasonableness of the seizure.11
Likewise, a defendant who moves for suppression under Article 38.23 due to the violation
of a statute has the burden of producing evidence of a statutory violation.12 Only when this burden
is met does the State bear a burden to prove compliance.13 This procedure is substantially similar
to that required when there is a motion to suppress under the Fourth Amendment, but it is a separate
inquiry based on separate grounds.
In the case before us, the State stipulated to the warrantless arrest, thereby relieving appellee
from the burden of rebutting the presumption of proper police conduct in making that arrest. Later,
Vercher’s testimony showed probable cause for the arrest and also showed that appellee consented
to have his blood drawn. The trial court entered a finding that there were no grounds for suppression
under the Fourth Amendment. The trial court also entered a finding that the evidence did not prove
that the blood sample was drawn by a qualified person. This finding is inapposite, however, because
even in the light most favorable to the ruling, appellee did not produce evidence of a statutory
violation. Vercher’s testimony that he did not remember who drew the blood sample is not evidence
of a statutory violation. Even if the trial court disbelieved that part of Vercher’s testimony stating
that a nurse drew the blood, there is still no evidence that the person who drew the blood was not
qualified. Since appellee never produced evidence of a statutory violation, the State never had the
10
Id.
11
Id.
12
Pham v. State, 175 S.W.3d 767, 772 (Tex. Crim. App. 2005).
13
Id.
ROBINSON — 5
burden to prove that the blood sample was drawn by a qualified person.
The record demonstrates that the trial court erroneously placed the burden of proving
statutory compliance on the State.
We reverse the judgments of the courts below and remand the case to the trial court for
further proceedings consistent with this opinion.
DELIVERED: March 16, 2011
PUBLISH
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Filed 1/19/05 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2005 ND 15
State of North Dakota, Plaintiff and Appellant
v.
Christopher Fields, Defendant and Appellee
No. 20040037
Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Benny A. Graff, Judge.
AFFIRMED.
Opinion of the Court by Neumann, Justice.
Allen M. Koppy (argued), State’s Attorney, 210 2
nd
Avenue NW, Mandan, N.D. 58554, for plaintiff and appellant.
Steven M. Light (argued) and Lindsey D. Haugen, Larivee & Light, U.S. Bank Building, 600 DeMers Avenue, Grand Forks, N.D. 58201, for defendant and appellee.
State v. Fields
No. 20040037
Neumann, Justice.
[¶1] The State appealed from the trial court’s grant of Christopher Fields’ motion to suppress evidence related to a search of his home on May 15, 2003.
We hold the nighttime search violated N.D.R.Crim.P. 41(c)(1)
, and affirm the order suppressing the evidence obtained as a result of the illegal search.
I
[¶2] On May 13, 2003, Officer Eisenmann testified at a hearing in support of a warrant to search Fields’ home. Eisenmann testified that during a garbage search law enforcement discovered five corner baggies with white residue powder, one of which tested positive for methamphetamine, three burnt “tinfoilies” regularly used for smoking methamphetamine, and a cut up hanger with the strong smell of marijuana. Eisenmann also testified he had personal knowledge Fields used his vehicle to transport narcotics. Eisenmann testified that during a traffic stop in May 2002, law enforcement discovered a handgun, cash, and drugs in Fields’ vehicle. This evidence was a result of an illegal search of Fields’ vehicle.
State v. Fields
, 2003 ND 81, ¶ 21, 662 N.W.2d 242.
[¶3] Fields moved to suppress any evidence found as a result of the 2003 search of his home, arguing the illegally obtained evidence from the 2002 traffic stop could not be used to support the warrant. Fields argued that without the tainted evidence, the warrant was not supported by probable cause. The trial court granted the motion after finding the search warrant was improperly supported by evidence of a previous illegal search of Fields’ vehicle.
See
Fields
, 2003 ND 81, 662 N.W.2d 242 (holding evidence obtained due to an unlawful detention during a traffic stop must be suppressed). The trial court held that without the evidence from the illegal search, the warrant would not have been issued because it lacked the necessary finding of probable cause.
[¶4] On appeal, the State does not dispute the evidence from the illegal search of Fields’ vehicle cannot support a valid search warrant. The State argues the search warrant was supported by enough independent evidence, even without the tainted evidence, to establish probable cause. Fields argues, even if the warrant was supported by probable cause, the evidence did not support a separate finding of probable cause sufficient to support the nighttime warrant. Fields argues the evidence obtained as a result of the deficient warrant should be suppressed.
II
[¶5] The State argues the evidence was improperly suppressed because, after excising the illegally obtained evidence, the remaining evidence is sufficient to establish probable cause for the search warrant. We have addressed probable cause stating:
Probable cause is required for a search warrant under the Fourth Amendment to the United States Constitution, and Article I, Section 8 of the North Dakota Constitution. Whether there is probable cause to issue a search warrant is a question of law. The totality-of-the-
circumstances test is used to review whether information before the magistrate was sufficient to find probable cause, independent of the trial court’s findings.
* * * *
Probable cause to search does not require the same standard of proof necessary to establish guilt at trial. Probable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place. Circumstantial evidence may alone establish probable cause to support a search warrant. The information available for a probable cause determination is considered together, not separately.
State v. Wamre
, 1999 ND 164, ¶¶ 5-6, 599 N.W.2d 268 (internal quotations and citations omitted).
[¶6] It is well established that illegally obtained evidence cannot be used to establish probable cause to issue a search warrant.
State v. Corum
, 2003 ND 89, ¶ 9, 663 N.W.2d 151 (citing
Alderman v. United States
, 394 U.S. 165, 177 (1969);
State v. Winkler
, 1997 ND 144, ¶ 12, 567 N.W.2d 330;
State v. Runck
, 534 N.W.2d 829, 833-34 (N.D. 1995);
State v. Kunkel
, 455 N.W.2d 208, 211-12 (N.D. 1990)). To determine whether probable cause exists, we excise the tainted information from the affidavit and consider the remaining legal evidence presented to the issuing magistrate.
See
State v. Winkler
, 552 N.W.2d 347, 353 (N.D. 1996) (noting to have a valid search, a search warrant must be based upon a source independent of information gained from an illegal entry). After removing the tainted evidence from consideration, evidence from the garbage search and from police surveillance of Fields’ home remain to establish probable cause for the search. The garbage search produced five corner baggies with white residue powder, one of which tested positive for cocaine, three burnt “tinfoilies” regularly used for smoking methamphetamine, and a cut up hanger with the strong smell of marijuana.
[¶7] Probable cause to issue a search warrant “exists if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.
Corum
, 2003 ND 89, ¶ 22, 663 N.W.2d 151 (citations omitted). Relying on the Eighth Circuit Court of Appeals, this Court stated, “Where drug residue is discovered in the garbage, ‘it is well established that affidavits based almost entirely on the evidence garnered from garbage may be sufficient to support a finding of probable cause.’”
State v. Jones
, 2002 ND 193, ¶ 17, 653 N.W.2d 668 (quoting
United States v. Sumpter
, 669 F.2d 1215, 1221 (8th Cir. 1982)). This Court has previously held probable cause to issue a search warrant existed when probable cause was “primarily established from drug residue in the garbage.”
Id.
(citing
State v. Duchene
, 2001 ND 66, ¶¶ 15-17, 624 N.W.2d 668 (holding probable cause to issue a search warrant was supported by marijuana seeds and stems found in the garbage along with prior drug convictions);
State v. Johnson
, 531 N.W.2d 275, 278 (N.D. 1995) (holding the presence of marijuana seeds in the garbage provided a substantial basis to support probable cause);
State v. Erickson
, 496 N.W.2d 555, 559 (N.D. 1993) (holding evidence of marijuana combined with citation and envelope with Erickson’s name in the garbage supported a determination of probable cause)).
[¶8] In
State v. Thieling
, 2000 ND 106, 611 N.W.2d 861, we noted baggies, plastic and tin foil, common household items found during a garbage search, did not support probable cause to believe illegal drugs were being packaged in the home.
Id.
at ¶¶ 9, 13. The baggies were torn and tied but did not contain drug residue.
Id.
at ¶ 9. We stated that the garbage evidence without drug residue did not create a high degree of suspicion and was “merely a thin layer to be measured in the probable cause analysis.”
Id.
Fields’ garbage also contained baggies. However, one of the baggies tested positive for a methamphetamine residue. The garbage also contained burnt tin foil consistent with methamphetamine use and a cut up hanger with the strong smell of marijuana. This actual drug evidence, rather than items that may be indicia of drugs, is enough to support probable cause. Considering the totality of the circumstances, the evidence obtained from the search of Fields’ garbage and police surveillance “would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.”
Corum
, 2003 ND 89, ¶ 22, 663 N.W.2d 151 (citations omitted). After excising the tainted evidence, the search warrant was supported by probable cause.
III
[¶9] Fields argues the search warrant was not supported by a separate finding of probable cause for the nighttime search and, therefore, the evidence should be suppressed. Rule 41(c)(1), N.D.R.Crim.P., requires the issuing magistrate find a sufficient showing of probable cause to justify the authorization of a nighttime search.
See
State v. Knudson
, 499 N.W.2d 872, 875 (N.D. 1993) (concluding reasonable cause is synonymous with probable cause) (overruled on other grounds
State v. Herrick
, 1997 ND 155, 567 N.W.2d 336). We have stated, “The purpose of Rule 41(c), N.D.R.Crim.P., is to protect citizens from being subjected to the trauma of unwarranted nighttime searches. Courts have long recognized that nighttime searches constitute greater intrusions on privacy than do daytime searches.”
State v. Schmeets
, 278 N.W.2d 401, 410 (N.D. 1979).
[¶10] When analyzing what constitutes probable cause for a nighttime warrant, we have previously stated,
Although there may be a variety of circumstances that justify the authorization of a nighttime search, we have indicated that probable cause for a nighttime search exists upon a showing that the evidence sought may be quickly and easily disposed of, and we have taken judicial notice that drugs are such evidence.
Knudson
, 499 N.W.2d at 875 (citations omitted). To the extent our prior decisions approved a per-se rule justifying the issuance of nighttime warrants in drug cases, they are overruled.
See
Herrick
, 1997 ND 155, ¶ 21, 567 N.W.2d 336 (overruling per-se rule allowing no-knock warrants in drug cases). “Merely alleging the presence of marijuana and methamphetamine does not allow one to infer the drugs were easily disposable.”
State v. Utvick
, 2004 ND 36, ¶ 21, 675 N.W.2d 387. An officer must set forth some facts for believing the evidence will be destroyed other than its mere existence.
See
Herrick
, at ¶ 23 (noting an insufficiency of proof when an officer offered no reason for the no-knock warrant other than the drugs were easily disposable).
[¶11] In
State v. Berger
, 285 N.W.2d 533 (N.D. 1979), we concluded a nighttime warrant was properly issued when the “property sought would probably be removed or destroyed because it could be easily disposed of if the search warrant was not promptly served.”
Id.
at 539. The evidence sought included marijuana and marked bills used to purchase marijuana from Berger earlier that night.
Id.
at 534-38. A survey of other jurisdictions reveals similar justifications for nighttime warrants.
See
,
e.g.
,
Arizona v. Jackson
, 571 P.2d 266, 268 (Ariz. 1977) (finding nighttime warrant proper when presented with evidence of nighttime drug sales);
Arizona v. Eichorn
, 694 P.2d 1223, 1227-28 (Ariz. Ct. App. 1984) (finding evidence of two suspected prior nighttime drug sales, rather than mere allegations drugs are sold at night, was sufficient for a nighttime warrant because the drugs might not be there in the morning);
Idaho v. Fowler
, 674 P.2d 432, 439-40 (Idaho Ct. App. 1983) (finding a nighttime warrant was properly issued when surveillance established nighttime drug sales, and it was reasonable to believe the drugs might not be present by daybreak);
People v. Walker
, 58 Cal. Rptr. 495, 498 (Cal. Ct. App. 1967) (finding a nighttime warrant was proper when the defendant was not home during the day and often took the drugs with him);
People v. Mardian
, 121 Cal. Rptr. 269, 281-82 (Cal. Ct. App. 1975) (finding a nighttime warrant was proper when defendant was moving the contraband and would be gone by six a.m.).
[¶12] In Fields’ case, the magistrate authorized the nighttime warrant because of “the odd hours maintained by the subject, and the propensity to violence demonstrated by the subject.” Fields keeping odd hours is insufficient to justify a nighttime warrant. Rule 41(d), N.D.R.Crim.P., does not require the defendant’s presence during the execution of the warrant. The “odd hours” Fields kept were irrelevant because the warrant could have been executed whether or not he was actually present in his home. Furthermore, in
People v. Watson
, 142 Cal. Rptr. 245 (Cal. Ct. App. 1977), the court found a defendant’s late and inconsistent hours was not a sufficient justification for a nighttime warrant.
Id.
at 246-48. The court noted the officer had no information indicating the evidence would not be there in the morning.
Id.
at 248. Likewise, Fields’ odd hours cannot support a finding of probable cause for the nighttime warrant.
See
id.
; N.D.R.Crim.P. 41(d).
[¶13] The magistrate also noted Fields’ propensity for violence as a justification for the nighttime warrant. However, the record does not support this conclusion. The only evidence the magistrate could have relied on for support is the gun obtained during the prior illegal search of Fields’ vehicle. Generally, the mere belief firearms are present in a home, without any other supporting evidence, is insufficient to justify a nighttime warrant.
Cf.
State v. Johnson
, 1999 ND 33, ¶ 12, 590 N.W.2d 192 (noting, standing alone, a reasonable belief a firearm is present is not enough to justify a no-knock warrant). The magistrate was not presented with any corroborating evidence showing Fields had a propensity for violence through a prior violent criminal history or other supporting information. The nighttime warrant cannot be justified by Fields’ purported propensity for violence when it is unsupported by the record.
[¶14] Therefore, considering the totality of circumstances, the officer did not meet the burden necessary to demonstrate the need for a nighttime warrant. On this record, there is no evidence to support a finding of probable cause for a nighttime warrant. We conclude the search was unreasonable because probable cause for the nighttime warrant, as required under N.D.R.Crim.P. 41(c)(1), did not exist. The evidence obtained as a result of the unwarranted nighttime search must be suppressed.
IV
[¶15] Because the nighttime warrant was not supported by probable cause, we affirm the trial court’s order suppressing the evidence obtained from the May 15, 2003, nighttime search of Fields’ home.
[¶16] William A. Neumann
Mary Muehlen Maring
Carol Ronning Kapsner
Dale V. Sandstrom
VandeWalle, Chief Justice, concurring specially.
[¶17] I concur in the majority opinion. We rely on or distinguish many of our precedents involving “no-knock” warrants in deciding the issue of the validity of a search warrant authorizing a nighttime search. Indeed, much of the underlying constitutional rationale is the same, and, under our current statutes and rules, probable cause is required for both the “no-knock” and nighttime search warrants. We have rejected a per-se rule justifying a “no-knock” warrant and we now reject a per-se rule on the issuance of nighttime warrants.
[¶18] I write separately to note that while we reject the per-se presumption that drugs are “easily disposed of” to justify either the “no-knock” or nighttime search warrant, the term “easily disposed of” has significantly different temporal meanings in the two contexts. In the “no-knock” warrant the term “easily disposed of” refers to the ability to dispose of drugs in the very brief time between the knock and the entry if a knock were required. In the context of the nighttime search warrant the time which would elapse between execution and the entry, if no nighttime search warrant were issued, is much greater and the term “easily disposed of” logically refers to disposition other than, for example, flushing down the toilet or swallowing the drug. Thus evidence that a subject of a search warrant consumed or delivered drugs within a few hours of their receipt or made deliveries in the nighttime hours would justify issuance of a nighttime search warrant. Perhaps that is what the magistrate, relying on similar words Officer Eisenmann used in testifying at the hearing on the Application for Search Warrant, meant in this instance when authorizing the nighttime warrant because of “the odd hours maintained by the subject . . . .” However that is far from clear to me and it would be speculation at best to determine that is what the officer or magistrate meant and, further, that meaning would not be substantiated by the evidence offered in support of the Application.
[¶19] Gerald W. VandeWalle, C.J.
Dale V. Sandstrom
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348 F.3d 595
UNITED STATES of America, Plaintiff-Appellee,v.Gerardo HERNANDEZ-RIVAS, Defendant-Appellant.
No. 02-4103.
United States Court of Appeals, Seventh Circuit.
ARGUED September 12, 2003.
DECIDED October 30, 2003.
COPYRIGHT MATERIAL OMITTED Michelle L. Jacobs, Office of the U.S. Atty, Milwaukee, WI for Plaintiff-Appellee.
Morris D. Berman, Madison, WI for Defendant-Appellant.
Before BAUER, KANNE, and EVANS, Circuit Judges.
BAUER, Circuit Judge.
1
Gerardo Hernandez-Rivas was convicted of participating in a conspiracy to possess and distribute cocaine. Hernandez-Rivas appeals, contending that 1) evidence presented at trial was seized in violation of the Fourth Amendment, 2) the trial court judge erred in admitting testimony in violation of the Federal Rules of Evidence, and 3) the defendant suffered from ineffective assistance of counsel. For the reasons stated below, we affirm the district court.
I. Background
2
For approximately one-and-a-half years, Hernandez-Rivas and several other Hispanic men living in Walworth County, Wisconsin were under an investigation by the Walworth County Metro Drug Unit and the Drug Enforcement Administration. The men were suspected of trafficking drugs. The investigation included, among other things, wiretaps of eighteen telephone conversations and twenty-five controlled drug purchases. As a result of their efforts, the Walworth County Metro Drug Unit learned that the men were indeed trafficking cocaine, and were in possession of at least one firearm and a large amount of cash.
3
On September 15, 2000, authorities learned that Hernandez-Rivas was planning to leave the country. That day, law enforcement officers pulled over the car in which Hernandez-Rivas was a passenger. The stated reason for the traffic stop was that the car had been traveling at sixty-one miles per hour in a fifty-five mile per hour zone. After the stop, Deputies Mulhollon and Kilpin searched the vehicle with the driver's permission. During that search they discovered three .45 caliber bullets and an envelope in the glove compartment that contained $25,000 in cashier's checks made out to "Gerardo Hernandez."
4
The deputies then asked Hernandez-Rivas to step out of the car and performed a pat-down search. Deputy Mulhollon saw and felt a quantity of cash in Hernandez-Rivas' breast pocket. He asked Hernandez-Rivas what was in his pocket, and Hernandez-Rivas replied that it was $10,000. Deputy Mulhollon seized the cash and proceeded to check for identification. When Deputy Mulhollon seized Hernandez-Rivas' wallet, he found and confiscated a falsified Wisconsin identification card and $1,000 in cash.
5
Prior to trial, Hernandez-Rivas moved to suppress the evidence seized at the time the vehicle was stopped. The magistrate judge recommended that the district court deny the motion. Hernandez-Rivas did not file an objection, and the district court adopted the motion.
6
During the course of the trial, the defendant objected to the admission of two pieces of testimony on hearsay grounds. The first came from the testimony of Deputy Kilpin. Kilpin testified that during the course of the traffic stop, the driver of the car, Jorge Luna, told Kilpin that he had obtained the cashier's checks earlier that day for Hernandez-Rivas. The second objection came during the testimony of a witness, Antonio Gomez, who stated that he had a conversation with another man, Carlos Gonzalez, who told Gomez that his cocaine supplier was "Gerardo." Both pieces of testimony were admitted over objection.
II. Discussion
A. Motion to Suppress Physical Evidence
7
Hernandez-Rivas waived his right to appeal the admission of the physical evidence seized during the traffic stop. The general rule within the Seventh Circuit is that if a party fails to file an objection with the district court, he or she "waives the right to appeal all issues, both factual and legal." United States v. Brown, 79 F.3d 1499, 1503 (7th Cir.1996) (quoting Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir.1986)). The purpose of this rule is to ensure the efficient workings of the district and appellate courts. Absent a requirement that objections be filed in the district court, all issues heard by a magistrate would be the appropriate subject of appellate review. Thomas v. Arn, 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). The Supreme Court has noted that the practical effect of this would be to "either force the court of appeals to consider claims that were never reviewed by the district court, or force the district court to review every issue in every case ...." Id. Neither scenario would be an efficient use of judicial resources. Id.
8
In this case, when the magistrate judge issued the recommendation that defendant's motion to suppress the physical evidence be denied, Hernandez-Rivas failed to file an objection with the district court. Hernandez-Rivas argues that this case fits into the exception to the general rule. Specifically, we have stated that the waiver rule should not be applied if such an application would "defeat the ends of justice." United States v. Brown, 79 F.3d 1499, 1504 (7th Cir.1996) (quoting Video Views Inc. v. Studio 21, Ltd., 797 F.2d 538, 540 (7th Cir.1986)). Within this circuit, this exception has been applied in two cases. Once, in an instance where an objection was filed, but the filing was done outside of the ten-day window. See C & F Packing Co., Inc. v. IBP, Inc. 1997 WL 619848, *4 (N.D.Ill.1997) (noting that "Pizza Hut's objection was not `egregiously late' and C & F is not prejudiced...."). The other instance was where the magistrate judge recommended that the defendant's motion for substitute counsel be denied, and the attorney in question failed to file the timely objection to preserve for appeal the issue of his own removal. Brown, 79 F.3d at 1504-05.
9
Hernandez-Rivas argues that his case presents a situation in which a waiver would "defeat the ends of justice." Particularly, Hernandez-Rivas claims that he should not be subject to waiver because he was denied effective assistance of counsel, based only on his attorney's failure to file this particular objection in the district court. Should we adopt Hernandez-Rivas' reasoning, every appellant's failure to file the procedurally necessary objections would be excused, and a party would never waive his or her right to appeal. Today we decline the invitation to construe the exception to be so broad that it swallows the rule.
10
At any rate, Hernandez-Rivas cannot prevail on his motion to suppress. He does not dispute that the car in which he was riding was stopped while it was traveling in excess of the posted speed limit. Traffic violations give police the necessary probable cause to stop the vehicle. Atwater v. City of Lago Vista, 532 U.S. 318, 322, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). In such a situation, the officer may arrest the driver and conduct a search incident to the arrest that includes the person and the area that is under the control of the person arrested. Chimel v. California, 395 U.S. 752, 760, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Hernandez-Rivas protests that although the car was traveling in excess of the speed limit, this was a pretextual reason for the stop, and that the officers were merely following the orders of those involved in the investigation. This argument fails; the Supreme Court has explained that officers' subjective motivation for making a traffic stop is irrelevant. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (noting that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.").
11
Similarly, the deputies were authorized to conduct a pat-down search of Hernandez-Rivas under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The doctrine in Terry allows an officer to conduct a pat-down search if the officer has articulable facts that led him or her to believe that the individual could be armed or present a threat to others. Id. at 27, 88 S.Ct. 1868. Here the wiretaps had revealed that Hernandez-Rivas owned a firearm, and was participating in cocaine trafficking, "a crime infused with violence." United States v. Gambrell, 178 F.3d 927, 929 (7th Cir.1999) (quoting United States v. Stowe, 100 F.3d 494, 499 (7th Cir.1996) cert. denied, 520 U.S. 1171, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997)). These facts provided the deputies reason to believe Hernandez-Rivas may be armed and present a risk of harm, satisfying Terry.
12
The extent of the pat-down search was not inconsistent with Terry. An officer may seize nonthreatening contraband that is detected during a pat-down search. Minnesota v. Dickerson, 508 U.S. 366, 373-74, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). The contraband may be detected either because it is in plain view or because the officer detected it by touch. Id. at 375-76, 113 S.Ct. 2130. During the course of the pat-down the deputies seized $10,000 cash from Hernandez-Rivas breast pocket and a false identification card and $1,000 from his wallet. The $10,000 in his breast pocket was visible to the deputy, and the deputy had reason to believe that the money was proceeds of the drug trafficking. The false identification and $1,000 came into plain view when Deputy Mulhollon handcuffed Hernandez-Rivas and checked his wallet for identification. Like the $10,000, the deputy had reason to believe that these items were also used to facilitate the drug trafficking. Neither of these seizures is inconsistent with Terry or its progeny, and thus the district court was correct in denying Hernandez-Rivas' motion to suppress the evidence.
B. Prejudicial Hearsay
13
Hernandez-Rivas challenges the admission of two pieces of testimony at trial. In reviewing a district court's evidentiary ruling, we review for abuse of discretion; further, an error will be reversed only if it had "a substantial influence over the jury." United States v. Smith, 230 F.3d 300, 307 (7th Cir.2000). Hernandez-Rivas challenges both pieces of testimony as inadmissible hearsay.
14
The first piece of testimony in question arose when Antonio Gomez, a co-conspirator, testified that he had received cocaine from Carlos Gonzalez. Gomez testified that at one point he asked Gonzalez who was supplying him with cocaine; according to Gomez, Gonzalez replied that he received his cocaine from "Gerardo." Hernandez-Rivas had objected to this line of questioning, but the trial court admitted the testimony as a statement by co-conspirators in furtherance of a conspiracy. FED. R. EVID. 801(d)(2)(E). Hernandez-Rivas argues that this statement does not fall within Federal Rule of Evidence 801(d)(2)(E) because it was "mere chitchat" and was not done to further the conspiracy. We have previously held, however, that conversations identifying actors within the conspiracy help to "confirm the lines of command in the organization," and in that way do, in fact, further the conspiracy. United States v. Pallais, 921 F.2d 684, 688 (7th Cir.1990). For this reason, Gomez's testimony was admissible.
15
The other piece of testimony was given by Deputy Kilpin, regarding a conversation that he had had with the driver of the car, Jorge Luna. Kilpin testified that when he asked Luna about the origin of the $10,000 worth of cashier's checks, Luna replied that he had obtained the checks for Hernandez-Rivas. Hernandez-Rivas objected the admissibility of this testimony, contending that it was hearsay. Reviewing the district court's decision for clear error, we find that the testimony was indeed inadmissible hearsay. It does not fall under any exception to the hearsay rule. As we stated earlier, when an evidentiary error is made, it will only be reversed if it affected the jury. Smith, 230 F.3d at 307. In determining the effect of the testimony, we will consider: (1) the importance of the witness's testimony in the prosecution's case; (2) whether the testimony was cumulative; (3) whether other evidence corroborated or contradicted the witness's material testimony; and (4) the overall strength of the prosecution's case. United States v. Ochoa, 229 F.3d 631, 639-40 (7th Cir.2000).
16
In this situation, the admission of the hearsay was harmless error. The testimony linking Hernandez-Rivas to the cashier's checks was cumulative. The wiretaps had revealed that Luna was working on behalf of Hernandez-Rivas, and that he had been out that day acquiring the requisite amount of cashier's checks for him. The checks themselves had Hernandez-Rivas' name as the remitter. When considered in light of the rest of the government's case against the defendant, the admission of this testimony did not have "substantial influence over the jury."
C. Effective Assistance of Counsel
17
Hernandez-Rivas argues that because his attorney failed to file an objection with the district court to the magistrate judge's recommendation to deny his motion to suppress the physical evidence, he was denied his constitutionally protected right to effective assistance of counsel. We consider such claims under the Strickland test. Strickland v. Washington, 466 U.S. 668, 688-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail, Hernandez-Rivas must show that his attorney fell below objective standards of representation, and that such deficiencies were prejudicial to the outcome of the trial. Id. In requiring the defendant to show prejudice to the outcome of the trial, the Supreme Court noted that "[t]he purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding." Id. at 691-92, 104 S.Ct. 2052 (emphasis added). In cases where an attorney's mistake resulted in the admission of evidence that would have otherwise been suppressed, the outcome of the trial does not become any less reliable. United States v. Jones, 152 F.3d 680, 688 (7th Cir.1998); United States v. Williams, 106 F.3d 1362, 1367 (7th Cir.1997); Holman v. Page, 95 F.3d 481, 490-92 (7th Cir.1996), cert. denied, 520 U.S. 1254, 117 S.Ct. 2414, 138 L.Ed.2d 179 (1997). This is such a case. As a result, it is not necessary for us to determine whether Hernandez-Rivas' attorney's performance was deficient. It is enough to note that whether there was error or not, the outcome of this trial was no less reliable for having heard the additional evidence. Lockhart v. Fretwell, 506 U.S. 364, 368-70, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).
18
For these reasons, we AFFIRM.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 23 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
RICKY WYATT,
Petitioner-Appellant,
v. No. 99-7087
BOBBY BOONE; ATTORNEY (D.C. No. 97-CV-261-S)
GENERAL OF THE STATE OF (E.D.Okla.)
OKLAHOMA,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Ricky Wyatt seeks a certificate of appealability to appeal the district court’s
denial of his 28 U.S.C. § 2255 motion. We deny a certificate of appealability and
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
dismiss the appeal.
Wyatt was convicted in Oklahoma state court of first degree burglary,
forcible sodomy, first degree rape, and robbery with a dangerous weapon. The
Oklahoma Court of Criminal Appeals affirmed his convictions on October 20,
1993. In 1996, the state court denied Wyatt’s application for post-conviction
relief and the Oklahoma Court of Criminal Appeals affirmed that denial on
February 5, 1997. Wyatt filed his federal 28 U.S.C. § 2255 petition for habeas
corpus on April 24, 1997, alleging fifteen grounds for relief. The magistrate
judge found Wyatt was not entitled to relief. The district court adopted the
magistrate’s findings and denied Wyatt’s petition for writ of habeas corpus and
his request for a certificate of appealability.
On appeal, Wyatt raises the same fifteen grounds for relief that he raised
with the district court: (1) the trial court erred in admitting the statement of
Dennis Miller when it had not been presented to defense counsel; (2) the trial
court erred in admitting evidence of his prior crime; (3) he was subjected to
double jeopardy because the robbery and the burglary arose from the same
transaction; (4) the trial court erred in denying his motion for continuance; (5) he
received ineffective assistance of appellate counsel; (6) he received ineffective
assistance of counsel at every stage of the criminal proceedings; (7) he received
ineffective assistance of trial counsel; (8) he was denied adequate time to prepare
2
for trial; (9) the trial court erred in giving the jury “guilty” verdict forms rather
than “not guilty” verdict forms; (10) the trial court erred in admitting his coerced
written statement that violated Miranda ; (11) the Oklahoma Court of Criminal
Appeals applied the incorrect law to his direct appeal; (12) expert testimony on
the credibility of the victim was reversible error; (13) the trial court erred in not
instructing the jury on corroboration of rape; (14) the trial court failed to
properly instruct the jury on the presumption of innocence; and (15) he was
denied the right to purchase the state’s exhibit of his statement to authorities.
After careful review of the record, we conclude the analysis and
conclusions set forth in the magistrate’s report, as adopted by the district court,
are correct and that Wyatt’s challenge to the decision lacks merit. Therefore, we
adopt the magistrate’s findings and recommendation as the opinion of this court.
See Herrera v. International Union , 73 F.3d 1056, 1057 (10th Cir. 1996)
(adopting district court’s opinion).
Wyatt’s request for a certificate of appealability is DENIED and this
appeal is DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
3
Attachment not available electronically.
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301 F.Supp.2d 389 (2004)
Robert ALBANESE, et al., Plaintiffs,
v.
PORTNOFF LAW ASSOCIATES, LTD., et al., Defendants.
No. CIV.A. 03-5697.
United States District Court, E.D. Pennsylvania.
January 16, 2004.
*390 *391 David A. Searles, Donovan Searles, LLC, Philadelphia, PA, for Robert Albanese, Plaintiff.
Benjamin G. Lipman, Portnoff Law Associates, Ltd., Wynnewood, PA, James Christie, William F. McDevitt, Christie Pabarue Mortensen & Young, Philadelphia, PA, for Portnoff Law Associates, Ltd, Michelle R. Portnoff, Dawn M. Schmidt, Defendants.
MEMORANDUM AND ORDER
KATZ, Senior District Judge.
Plaintiff Robert Albanese brings this class action[1] against Defendants Portnoff Law Associates ("PLA"), Michelle R. Portnoff, and Dawn M. Schmidt,[2] alleging that they employed deceptive practices and charged excessive fees and costs in their attempt to collect an overdue trash collection fee from Plaintiff on behalf of Lower Mount Bethel Township ("Township"). He seeks relief under the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., the Pennsylvania Fair Credit Extension Uniformity Act (FCEUA), 73 P.S. § 2270.1 et seq., and the Pennsylvania Unfair Trade Practices and Consumer Protection Law (CPL), 73 P.S. § 201-1, et seq.[3]
Presently before the court are the Parties' Cross Motions for Summary Judgment. In his Motion, Plaintiff seeks a ruling that Defendants are liable under the FDCPA[4] for their failure to make certain *392 disclosures mandated by the Act in connection with their actions taken against him and on behalf of the Township.[5] In their Motion, Defendants contend that they cannot be found liable for their actions taken with respect to the Plaintiff because such actions are not covered the FDCPA. For the reasons set forth below, both motions are denied.
I. Background
At all times relevant to this action, Plaintiff has resided with his three children at 6840 Front Street in Martins Creek, Pennsylvania, in a home that he owns jointly with his former wife, Sandra Albanese. During the years 1998-2001, neither Plaintiff nor his former wife paid trash collection fees owed to the Township.[6] On February 15, 2002, in order to resolve debt collection issues such as those involving the Plaintiff, the Township entered into a contract with PLA, a law firm whose principal purpose is to assist municipalities within the Commonwealth of Pennsylvania in administering and collecting delinquent claims.[7] The contract *393 provided that PLA would serve as the Township's exclusive attorney for the enforcement of all municipal claims arising from water, sewer, trash, and tax assessments.
Between August 1 and August 15, 2002, the Township sent PLA the delinquent trash assessments against the Plaintiff's real property for the years 1998-2001. These assessments reflected a total overdue balance of $990.92. On August 27, 2002, PLA sent Plaintiff and Mrs. Albanese a notice of delinquent trash fees, advising them that they owed the Township $1,040.52, an amount which included delinquent fees, interest,[8] and a $35.00 administrative cost. They were further advised that if payment were not received by the due date of October 2, 2002, legal proceedings would be instituted, and collection costs and attorneys fees would be assessed. The letter did not state that it was sent by a debt collector, as required by Section 1692e(11) of the FDCPA, nor did it contain the validation notice or verification language required by Section 1692g.
On November 4, 2002, PLA sent Plaintiff and Mrs. Albanese another letter stating that Plaintiff owed the Township $1,212.44, an amount which included a $160.00 legal fee. The letter advised Plaintiff that if payment were not received within ten days, a lien would be filed against his property.[9] Again, this letter did not state that it was from a debt collector, nor did it contain the required validation notice or verification language. Approximately two weeks later, on November 19, 2002, PLA followed through on its promise and prepared a lien for filing against Defendant's property. That lien was filed on or about December 4, 2002.
On that same date, PLA sent Plaintiff a third letter, this time advising that the Township had indeed filed a lien against his property and that a payment of $1,426.85 would be required to clear it. This amount included interest, a fee of $175 for filing the lien, and $25.50 for court costs. The letter also explained that if PLA did not receive full payment within fifteen days, it would take action to begin the process of scheduling a Sheriff's Sale of Plaintiff's property. This letter suffered from the same infirmities with respect to the FDCPA as the previous two.
On December 26, 2002, PLA filed a Writ of Scire Facias against Plaintiff's home. The Sheriff of Northampton County served the Writ on Plaintiff and his former wife in early January of the following year. Later that month, on January 23, 2002, PLA mailed a notice to Plaintiff and his former wife, pursuant to Pa. R.C.P. 237.1, advising them that they had ten days to act or be in default. The letter reflected a balance due of $1,744.74, which included interest, a $175.00 fee for preparing the Writ, an $87.00 Sheriff's fee for the Writ, a $10.00 court filing fee, and a $30.00 legal fee. Although the letter was purportedly signed by Schmidt, the initials "L.B." appeared *394 next to her signature. The letter did not state that it was from a debt collector and did not contain any validation notice or verification language.
On January 29, 2003, Plaintiff contacted PLA for the first time and stated that he would inquire into whether his mortgage company would pay the delinquent assessments. At that time, PLA informed him of the availability of payment plans. Plaintiff, however, did not follow up with PLA after that conversation, and on February 21, 2003, Defendants prepared and filed a default judgment against him with the Northampton Court of Common Pleas.
On March 7, 2003, PLA sent Plaintiff a letter that urged him to pay the current balance on his delinquent trash fees a sum of $1,946.79 or have a Writ of Execution filed against him. This balance included additional interest, a $175.00 attorney fee for the preparation and filing of the default judgment, $10.00 in court costs, and a $4.00 notary fee. This letter was also purportedly signed by Schmidt but again bore another's initials, this time "S.C.R." The letter did not disclose that it was from a debt collector, nor did it contain any validation notice or verification language. On June 2, 2003, PLA mailed another letter to Plaintiff, again informing him that the filing of a Writ of Execution was imminent. Two weeks later, PLA ordered a title search of Plaintiff's property.
On September 3, 2003, PLA followed through on its latest promise and filed the Writ of Execution against Plaintiff's property. Plaintiff received notice by Praecipe for Writ of Execution, signed by Schmidt, which provided that Defendants sought to collect a total amount of $4,315.27 for the delinquent trash fees. This figure included additional interest, a $75.00 title search fee, a $750.00 legal fee for the Writ, $10.00 in court costs, and a $1,500.00 sheriff fee for execution.
On September 5, 2003, after receiving the Praecipe, Plaintiff again contacted PLA and conveyed that he could not afford to satisfy his debt. Approximately two weeks later, PLA sent Plaintiff a Notice of Sheriff's Sale of his property, advising him that his home would be sold on December 5, 2003 to enforce the court judgment for $1,942.82 obtained against him by the Township. The notice further informed Plaintiff that he could prevent the sale by taking immediate action in the form of either: (1) paying his outstanding balance, (2) petitioning the court, or (3) instituting other legal proceedings. In the event that Plaintiff chose the first option, he was instructed to call PLA to find out the exact amount of his debt. This letter did not state that it was from a debt collector and did not contain any of the language required by the FDCPA.
On October 14, 2003, as a result of this chain of events, Plaintiff filed a class-action Complaint in this court, naming PLA, Portnoff, and Schmidt as Defendants. On November 4, 2003, Plaintiff filed a Motion for Temporary Restraining Order and/or Preliminary Injunction, in which he sought a stay of the Sheriff's Sales that Defendants had scheduled of his, and other class members', homes. The parties, however, entered into a stipulation approved by this court's Order dated January 12, 2004 whereby Defendants have sought a continuance of the Sheriff's Sale of Plaintiff's home and have also agreed to refrain from taking any action to facilitate the sale of property owned by class members during the pendency of this litigation. In December, 2003, the parties filed Cross Motions for Summary Judgment, both of which are now before the court.
II. Discussion
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, *395 and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). At the summary judgment stage, the court does not weigh the evidence and determine the truth of the matter. Rather, it determines whether or not there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In making this determination, all of the facts must be viewed in the light most favorable to, and all reasonable inferences must be drawn in favor of, the non-moving party. Id. at 256, 106 S.Ct. 2505.
The moving party has the burden of showing there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 639 (3d Cir.1996). In response, the non-moving party must adduce more than a mere scintilla of evidence in its favor and cannot simply reassert factually unsupported allegations contained in its pleadings. Anderson, 477 U.S. at 249, 106 S.Ct. 2505; Celotex, 477 U.S. at 325, 106 S.Ct. 2548; Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir.1989). Rather, there must be evidence on which a jury could reasonably find for the nonmovant. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505. "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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, 477 U.S. at 322, 106 S.Ct. 2548.
On the other hand, "summary judgment may not be granted if there is a disagreement over what inferences can be drawn from the facts even if the facts are undisputed." Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 744 (3d Cir.1996) (citations omitted).
A. Piper
This case presents many of the same issues decided by this court in the related case of Piper v. Portnoff Law Assoc.[10] In Piper, the class action plaintiff brought suit against PLA including individually named defendants Portnoff and Schmidt alleging that its method of collecting delinquent water fees on behalf of the City of Bethlehem violated the FDCPA, FCEUA, and CPL. 274 F.Supp.2d 681, 683 (E.D.Pa. July 31, 2003). This court granted partial summary judgment in favor of the plaintiff, holding that the defendants' actions subjected them to liability under the FDCPA. In so doing, it rejected a host of the defendants' arguments, many of which they again raise in the instant case.
Perhaps the most significant argument set forth by the defendants in Piper and rejected by this court was that they could not be held liable for their enforcement of a municipal lien against real property because the FDCPA only applies to the collection of debts against individuals. Although this court disagreed and held that the Act applies to in rem proceedings as well as those in personam, it recognized that the issue involved a debatable, controlling *396 question of law and, as such, certified it for interlocutory appeal. Id. at 690 (citing 29 U.S.C. § 1292(b)). The Court of Appeals for the Third Circuit has accepted the appeal on that issue, and the case is currently pending before it.
B. In Rem Proceedings
As in Piper, Defendants' threshold argument is that the FDCPA does not apply to their practice because PLA's letters do not concern the collection of a debt against the Plaintiff as an individual, but rather the enforcement of a municipal lien against Plaintiff's property. As set forth in Subsection A supra, this court ruled against Defendants on this precise issue in Piper, and the appeal of that ruling is currently pending before the Third Circuit. Both because Defendants have failed to convince this court that its prior decision was incorrect, and because they have not attempted to distinguish the facts of the instant case from in Piper,[11] this court finds that the FDCPA applies to in rem proceedings, as well as those in personam.
The FDCPA defines 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, whether or not such obligation has been reduced to judgment." 15 U.S.C. § 1692a(5). A consumer, as defined by the statute, is "any natural person obligated or allegedly obligated to pay any debt." Id. § 1692a(3). Defendants argue that their actions are not governed by the FDCPA because (1) according to the MCTLA, they did not seek enforcement of a debt but a lien, see 53 P.S. § 7106(a) (any lawfully imposed municipal claim against property is declared to result in a lien against that property); and (2) they did not target the Plaintiff as a consumer but instead targeted a piece of real property.
First, the delinquent trash fees constitute a debt under the FDCPA because the Plaintiff was obligated to pay money as a result of a transaction whose subject was primarily for household purposes. Pollice v. Nat'l Tax Funding, 225 F.3d 379, 401 (3d Cir.2000); Piper, 274 F.Supp.2d at 687 (applying Pollice to an in rem proceeding to collect delinquent water fees). PLA sent Plaintiff a flurry of letters, some of which informed him that he could terminate any proceedings against his home by paying money to satisfy his overdue balance. Defendants argue that because these letters were mandated by the MCTLA, see 53 P.S. §§ 7106(a.3)(1)-(4), 7106(c), their sending them does not transform the nature of the proceedings against Plaintiff from in rem to in personam. The fact that these letters may have been mandated by state law, however, is irrelevant[12] because therein, PLA nevertheless *397 instructed Plaintiff to pay money for household services rendered. As such, they fall squarely within the purview of the FDCPA.
The Defendants' second contention that the FDCPA does not apply because PLA purposefully pursued an action against Plaintiff's real property and not against the Plaintiff himself as a consumer is likewise without merit. Defendants have offered no principled explanation as to why this court should abandon its finding in Piper that, "[A] debt collector's decision to proceed in rem rather than in personam is insignificant when determining whether the underlying obligation falls within the FDCPA's statutory definition. If a debt collector were able to avoid liability under the FDCPA simply by choosing to proceed in rem rather than in personam, it would undermine the purpose of the FDCPA." 274 F.Supp.2d at 687. Indeed, other courts in this district have declined to draw such a distinction based solely on the technical characteristics of a proceeding. See, e.g., Flores v. Shapiro & Kreisman, 246 F.Supp.2d 427, 433-34 (E.D.Pa.2002) (applying FDCPA to attorney debt collector's actions in connection with mortgage foreclosure). Based on the foregoing, this court upholds its ruling in Piper that the FDCPA applies to debt collection efforts, in rem and in personam alike.
Defendants argue, in the alternative, that even if the FDCPA applies to in rem proceedings, the Act was not intended to cover the collection of municipal assessments. In support of this contention, they set forth various policy arguments, the most notable of which is that the MCTLA has been so effective in helping municipalities to collect delinquent claims cost-effectively, that it should preempt the FDCPA in this realm. This line of reasoning is flawed for two reasons.
First, the Third Circuit has explicitly held that municipal assessments qualify as debts under the Act. Pollice, 225 F.3d at 400. As such, no policy argument however convincing it might be can convince this court to contradict binding authority. Second, with regard to the preemption argument in particular, Defendants' logic is self-contradictory. In enacting the FDCPA, Congress intended to "promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). As such, the Act requires all persons to comply with state laws that are not inconsistent with its purposes. Id. § 1692n. According to the Act's terms, a state law is not inconsistent with the FDCPA "if the protection such law affords any consumer is greater than the protection provided by this subchapter." Id.
According to the Defendants, because the MCTLA sets forth more specific procedural guidelines for the collection of municipal liens, it affords consumers greater protection that the FDCPA, and, as such, is not inconsistent with the same. This argument, however, is logically flawed. While Defendants contend that their letters conformed to the requirements of the MCTLA, at the same time, they do not deny that those same letters failed to meet the procedural mandates of the FDCPA. It is quite difficult for the court to conclude that Defendants were able to comply with a purportedly more consumer-protective law, when they were unable to comply with a law that supposedly offered consumers fewer procedural safeguards. As such, because the court finds that the two laws are inconsistent, there can be no *398 question that the Defendants are bound by the FDCPA.
Even if the court were to accept this argument and find that the two laws are not inconsistent, the only conclusion it would be permitted to draw as a result would be that debt collectors are bound by both laws, and not as Defendants contend that the more protective state law preempts the federal law. The FDCPA itself makes no mention of preemption. It merely states that, to the extent a state enacts a debt collection law that protects consumers more than does the FDCPA, debt collectors must follow that state law. The statute does not contain any language suggesting that, in such cases, debt collectors must follow the state law to the exclusion of the federal law. Furthermore, Defendants have not offered, and the court has not found, any authority for the proposition that Congress intended to leave regulation of debt collection activities to the states. As a result, Defendants' alternative argument that the FDCPA was not intended to cover the collection of municipal assessments must fail.
C. Government Officer Exception to the FDCPA
Defendants next contend that their actions cannot subject them to liability under federal law because they are explicitly excepted from the FDCPA's definition of a "debt collector." The court ruled against Defendants on this precise argument in Piper, and it must do so again here because Defendants have failed to adequately distinguish the facts of the two cases.
According to the FDCPA, a debt collector is "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6). Congress excluded several categories of persons from this definition, including any state officer or employee including all political subdivisions "to the extent that collecting or attempting to collect any debt is in the performance of his official duties." Id. § 1692a(6)(C).
In Pollice, the Third Circuit held that this exemption applies only to state "officers" or "employees" and that it "does not extend to those who are merely in a contractual relationship with the government." 225 F.3d at 406. See also Brannan v. United Student Aid Funds, Inc., 94 F.3d 1260, 1263 (9th Cir.1996) (holding that the exception applies only to government officials or employees and not to a private, nonprofit organization with a government contract); Piper, 274 F.Supp.2d at 688 (applying Pollice and finding that law firm contractually bound to collect debts on behalf of municipality did not fall within FDCPA exception for government officers); Gradisher v. Check Enforcement Unit, Inc., 133 F.Supp.2d 988, 992 (W.D.Mich.2001) ("[A]n independent contractor is not entitled to an exemption to the FDCPA ... [I]f the legislature had intended to allow independent contractors, rather than just government agencies and employees, to escape liability under the FDCPA, it could have explicitly stated as much.").
Defendants advance two arguments in an attempt to overcome this precedent. First, they contend that because PLA has been appointed as the Township's "solicitor" for the collection of municipal assessments, it qualifies as an "officer" under Section 1692a(6)(C). Second, Defendants submit that other federal courts have found that similar government functionaries are exempt from compliance with the FDCPA. This court rejects both arguments.
*399 Defendants' claim that PLA has been appointed as the Township's "solicitor" for the collection of municipal assessments is unsupported by any record evidence. First, the retainer agreement between the Township and PLA does not contain the word "solicitor," nor does it indicate that the Township is conferring any official status on PLA. Instead, the document is merely a contract that sets forth the respective rights and obligations of the two parties. As such, it provides that the Township "agrees to retain PLA as its exclusive agent for the collection of unpaid garbage taxes, real estate taxes and user fees that are or become delinquent during the terms of this contract." Second, Township Ordinance 02-01 which establishes the schedule of attorney's fees that PLA is authorized to charge in connection with its collection activities likewise makes no mention of the word "solicitor" or of the fact that the Township sought to confer any type of official status on PLA. Third, in her witness statement, Defendant Schmidt explains, "PLA is the exclusive legal counsel for Lower Mount Bethel Township regarding the enforcement of municipal liens from delinquent garbage taxes." For these reasons, the court finds that there is no genuine issue as to whether PLA is an officer or employee of the Township within the meaning of 15 U.S.C. § 1692a(6)(C).
Second, Defendants' argument that other federal courts have exempted parties in similar situations as PLA is likewise without merit. In setting forth this argument, the Defendants fail to distinguish or even mention Piper, in which this court, considering a similar retainer agreement between PLA and the City of Bethlehem, found that Pollice was controlling and, as such, PLA was neither a government officer nor employee within the meaning of the FDCPA exemption. 274 F.Supp.2d at 688. Defendants instead cite to two federal cases, both of which are inapposite, and both of which were decided before Pollice.
In Heredia v. Green, the Third Circuit held that a Landlord and Tenant Officer of the Philadelphia Municipal Court was a state officer and was, therefore, exempt from the requirements of the FDCPA. 667 F.2d 392, 394 (3d Cir.1981). The Officer in Heredia was officially appointed by the President Judge of the Municipal Court, who retained the power both to remove him from his position, and to order him to take undertake specific actions. Id. Furthermore, the Officer and the Court were not contractually bound to each other. To the contrary, PLA was never appointed to a position by the Township. Instead, it executed a contract and subsequently performed the duties set forth therein, as would any independent contractor filling the precise role that the Third Circuit later held did not qualify for exemption under the Act. Pollice, 225 F.3d at 406. As such, even though PLA may have been subject to the orders of the Township, all such obligations arose from a contractual relationship to provide services and not from PLA's being appointed to any official position. Thus, Defendants' reliance on Heredia is misplaced.
Defendants also rely on Games v. Cavazos, in which the District of Delaware held that U.S.A. Funds, a private federal student loan guarantee agency, qualified for the government officer exemption because its actions in sending out debt-related notices to consumers were under the complete control and direction of the government. 737 F.Supp. 1368, 1387-88 (D.Del.1990) (finding Heredia controlling). This case, however, was decided before Pollice, and its holding has been called into doubt since. See Brannan, 94 F.3d at 1263 (holding, on similar facts, that U.S.A. Funds was subject to the FDCPA); Gradisher, 133 F.Supp.2d at 991-92 (disagreeing with Games and adopting the logic of *400 Brannan and Pollice to conclude that an independent contractor is not entitled to exemption under the FDCPA). As such, this court declines to follow Games and instead concludes, as it did in Piper, that PLA does not qualify for exemption from the FDCPA.
D. Individual Defendants
Although Plaintiff brings suit against PLA, Schmidt, and Portnoff, the Defendants contend that the court should dismiss the latter two from the action because individuals cannot be held liable for FDCPA violations on the part of an entity with which they are affiliated. This court, however, ruled against Defendants on a similar argument in Piper, and, once again, they have failed to cast doubt upon or distinguish that ruling.
As in Piper, Defendants rely on Pettit v. Retrieval Masters Creditors Bureau, Inc., in which the Seventh Circuit held that FDCPA violations were governed by respondeat superior liability. 211 F.3d 1057, 1059 (7th Cir.2000). In Pollice, however, the Third Circuit distinguished Pettit and found a general partner liable under the FDCPA for the acts of the partnership in violation thereof. Pollice, 225 F.3d at 405 n. 29 (explaining that a general partner who exercises control over the affairs of a partnership that qualifies as a "debt collector"[13] under the Act may be held liable for the acts of the partnership). Other courts have agreed with this rationale and have held that officers and employees of a debt collecting agency may be jointly and severally liable with the agency. Piper, 274 F.Supp.2d at 689 (citing cases). In particular, in Teng v. Metro. Retail Recovery, Inc., the Eastern District of New York found that an employee could be held liable for an employer's FDCPA violation because (1) each defendant employee was a "debt collector" under the Act because each was a person in a business, the principal purpose of which was debt collection; and (2) each defendant was a tortfeasor who made actionable phone calls. 851 F.Supp. 61, 67 (E.D.N.Y.1994).
In light of this precedent, it is without question that both Portnoff and Schmidt are proper Defendants in this action. See Piper, 274 F.Supp.2d at 689-90 (citing precedent and finding Schmidt and Portnoff jointly and severally liable with PLA on similar facts). Defendant Portnoff, the President of PLA whose duties include supervising the staff and the overall operations of the firm, occupies the precise position that the Pollice court held was exposed to individual FDCPA liability that of a partner who exercises control over the affairs of a partnership that qualifies as a debt collector. Likewise, Defendant Schmidt, as the attorney who signed or directed others to sign in her name many of the communications at issue that were sent by PLA to the Plaintiff, is in a similar situation to the defendants in Teng. She both acted as a debt collector within the meaning of the Act and took affirmative actions with respect to Plaintiff's account. As a result, this court holds that Defendants Portnoff and Schmidt can be subject to individual liability under the FDCPA.[14]
*401 E. Trash Fees as Debts
Unlike their prior arguments, Defendants' contention that they cannot be held liable under the FDCPA because the municipal trash assessments at issue here do not qualify as "debts" within its meaning but instead are more akin to a per capita tax cannot be evaluated at the summary judgment stage.
The FDCPA only authorizes a cause of action incident to the collection of a debt, which is defined by the Act 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, whether or not such obligation has been reduced to judgment." 15 U.S.C. § 1692a(5).
In interpreting Section 1692a(5), the Third Circuit has drawn a distinction between an obligation to pay a per capita tax which does not qualify as a debt and an obligation to pay money as the result of a pro tanto exchange which does. Pollice, 225 F.3d at 400-02; Staub v. Harris, 626 F.2d 275, 277-78 (3d Cir.1980). Other courts have agreed with this result, applying the same dichotomy in order to categorize a host of various payment obligations. See, e.g., Beggs v. Rossi, 145 F.3d 511, 512 (2d Cir.1998) (relying on Staub and finding that personal property taxes were akin to a per capita tax and, therefore, collection of same was not subject to the FDCPA); Agosta v. InoVision, Inc., 2003 WL 23009357, at *6 n. 9 (E.D.Pa. Dec.16, 2003) (citing Pollice and explaining that plaintiff's disputed utility account with PECO constituted a debt because it arose out of a transaction for household purposes); Piper, 262 F.Supp.2d at 526 (citing Staub and Pollice and finding that delinquent water assessments resulted from a pro tanto exchange because water bills varied with usage, and, therefore, qualified as debts); Clay v. Melchionne, 2000 WL 1838368, at *2 (D.Conn. Dec.7, 2000) (discussing Staub and Pollice and holding that water usage fee owed to municipality was a debt under the FDCPA); Azar v. Hayter, 874 F.Supp. 1314, 1318-19 (N.D.Fla.1995) (citing Staub and explaining that condominium association fees assessed to all owners for costs of maintenance of common areas, absent evidence of a pro tanto exchange, were not debts).
In Staub, the Third Circuit considered whether a per capita tax levied by a Pennsylvania taxing district was a debt within the meaning of Section 1692a(5). 626 F.2d at 276. The court answered that question in the negative, explaining its rationale in two important ways. First, although the court declined to explicitly decide whether the FDCPA's definition of transaction required the existence of an underlying contractual relationship, it did shed some light on its understanding of that definition. As the court wrote, "We believe that, at a minimum, the statute contemplates that the debt has arisen as a result of the rendition of a service or purchase of property or other item of value. The relationship between taxpayer and taxing authority does not encompass that type of pro tanto exchange which the statutory definition envisages." Id. Second, the court explained the requirement that the transaction be one whose subject is "primarily for personal, family, or household purposes" when it opined, "Taxes are used for more general purposes; they are not limited to the statutory purposes. They provide for such nonpersonal purposes as prisons, roads, defense, courts and other governmental services." Id. Twenty years later, in Pollice, the Third Circuit was called *402 upon to consider whether overdue property taxes, water bills, and sewer bills owed by homeowners to the City of Pittsburgh constituted debts under the Act. 225 F.3d at 385. The court explained that, "In our view, the plain meaning of Section 1692a(5) indicates that a `debt' is created whenever a consumer is obligated to pay money as a result of a transaction whose subject is primarily for personal, family or household purposes." Id. at 401. As such, the court drew a distinction between the water and sewer bills on the one hand, and the property taxes, on the other.
The Pollice court found that the water and sewer bills qualified as debts because "at the time these obligations first arose, homeowners ('consumers' of water and sewer services) had an `obligation ... to pay money' to the government entities which arose out of a `transaction' (requesting water and sewer service) the subject of which was `services ... primarily for personal, family or household purposes.'" By contrast, the court found that the property taxes did not qualify as debts because they did not arise out of a transaction. The court explained, "[T]he property taxes at issue here arose not from the purchase of property, [a transaction], but from the fact of ownership." Id. at 402 (emphasis in original).
Defendants contend that the trash fees charged by the Township are more akin to a per capita tax because they are automatically charged annually to all residential units and must be paid by each occupant, regardless of the extent to which he or she uses the trash collection services provided. Plaintiff counters by arguing that his obligation arose out of a transaction, the object of which was trash collection a specific, household service
Based on the foregoing authority, this court finds that conflicting inferences can be drawn on the issue of whether the trash fee in this case contemplates a transaction or arises from the fact of ownership. On the one hand, a specific service is rendered. On the other hand, the obligation seems to arise from the fact of ownership and does not depend on the amount of usage or, indeed, the fact of usage. The present record does not provide facts clear enough to resolve this conflict. Thus, summary judgment is not appropriate, and discovery on this issue shall proceed. See Ideal Dairy Farms, 90 F.3d at 744.
F. Specific FDCPA Violations
Plaintiff contends that PLA's letters and the notices dated August 27, 2002, November 4, 2002, December 4, 2002, January 23, 2003, March 7, 2003, all violated Section 1692e(11) of the FDCPA. That section provides that a debt collector must disclose to the consumer from whom it seeks to collect in the initial communication, as well as in subsequent communications that the communication was sent by a debt collector in an attempt to collect a debt. See supra note 5. Because Defendants did not make such a disclosure in any of these communications, the court finds that, in the event that the FDCPA is found to apply to Defendants' collection activities in this case, Defendants violated Section 1692e(11). Plaintiff's claim that the September 4, 2003 communication also violates this section, however, must fail because this requirement does not apply to formal pleadings made in connection with a legal action, and a Praecipe for Writ of Execution is such a pleading. See 15 U.S.C. § 1692e(11).
Plaintiff also maintains that the letters dated August 27, 2002 and November 4, 2002, violate section 1692g of the FDCPA, which mandates that the debt collector included certain debt verification and validation information to consumers from whom they seek to collect. See supra note 5. The court finds that these two communications *403 failed to meet the requirements of the FDCPA and, as such, if that statute is found to apply, Defendants can be held liable for such violations.
G. Counts III-V
In addition to their arguments concerning FDCPA liability, Defendants also assert that this court must dismiss Plaintiff's claims for requiring a debtor to pay excessive costs in violation of 41 Pa. Stat. Ann. §§ 501, 502 (Plaintiff's Complaint, Count III), imposition of an illegal penalty (Count IV), and unjust enrichment (Count V) because such claims are without a legal basis.[15] Defendants contend that because the MCTLA allows for the imposition of charges, expenses, and fees (including reasonable attorney's fees) in connection with proceedings to collect on delinquent accounts, Plaintiff's "general allegation that PLA is not permitted to assess attorney's fees under the MCTLA is without legal basis." This argument, however, misses the mark.
The Plaintiff does not submit that PLA cannot charge attorney's fees he concedes that it can but instead merely challenges the reasonableness of those fees. See 53 P.S. § 7106(a.1) ("It is not the intent of this subsection to require owners to pay, or municipalities to sanction, inappropriate or unreasonable attorney fees, charges or expenses for routine functions."). As such, if Plaintiff's allegations that PLA's fees were unreasonable are true, he would be entitled to the relief requested in Counts III-V. Thus, Defendants' argument in support of dismissal of these claims is rejected.
III. Conclusion
For the foregoing reasons, the Parties' Cross Motions for Summary Judgment are denied. Discovery on the issue of whether trash fees constitute debts under Pollice, or taxes under Staub, shall proceed.
ORDER
AND NOW, this 16th day of January, 2004, upon consideration of the Plaintiff's Motion for Summary Judgment on Liability and the Defendants' Motion for Summary Judgment, and the responses thereto, it is hereby ORDERED that said Motions are DENIED.
NOTES
[1] By Order entered December 4, 2003, this court certified the following class: "All natural persons who, as owners of real property located in the Commonwealth of Pennsylvania used primarily for personal, family or household purposes, received communications from defendants after January 3, 2002, relating to municipal claims for trash assessments."
[2] Defendant Portnoff, an attorney, is the sole shareholder and President of PLA. In her role as President, she is responsible for supervising the staff and operations of the firm. Her daily duties include legal work, reviewing files, preparing pleadings, interacting with clients, and marketing. Defendant Schmidt is one of the firm's associate attorneys, as well as its Corporate Director. She is the PLA attorney responsible for representing the Township.
[3] These claims comprise Counts I and II of Plaintiff's five-count, class action Complaint, which was filed in this court on October 14, 2003. Plaintiff also alleges various additional state law violations on the part of Defendants, including requiring a debtor to pay excessive costs in violation of 41 Pa. Stat. Ann. §§ 501, 502 (Count III), imposition of an illegal penalty (Count IV), and unjust enrichment (Count V).
[4] Although Plaintiff only explicitly seeks a liability ruling with respect to the FDCPA, Pennsylvania state law provides that any violation by a debt collector of the that federal statute would also constitute an unfair or deceptive practice under the FCEUA. 73 P.S. § 2270.4(a). Defendants, however, contend that Plaintiff cannot seek recovery under both the FDCPA and the FCEUA but instead must choose one statute under which to proceed. In setting forth this argument, they rely on the fact that the FCEUA prohibits cumulative penalties against debt collectors who violate both the FDCPA and the state statute. 73 P.S. § 2270.5(c). This provision, however, does not support Defendants' procedural argument here. Although it prevents this court from permitting Plaintiff to recover for the same violation under both state and federal law, the statute's ban on cumulative penalties does not prevent Plaintiff from proceeding under both statutes simultaneously so long as he chooses one of the two statutory remedies under which to seek damages. Piper v. Portnoff Law Assoc., 216 F.R.D. 325, 328 (E.D.Pa. July 8, 2003). See also Oslan v. Collection Bureau of Hudson Valley, 206 F.R.D. 109 (E.D.Pa.2002) (certifying a class under both the FDCPA and the FCEUA). Thus, Plaintiff may proceed under both statutes at this time.
[5] Despite Plaintiff's setting forth various claims in his Complaint, his Motion for Summary Judgment presently before this court is tailored to only one issue: Whether the Defendants are liable under the FDCPA for their failure to include in the form letters sent to Plaintiff the disclosures mandated by Sections 1692e(11) and 1692g of that Act.
Section 1692e(11) provides that the following constitutes an unlawful debt collection practice: "The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action." 15 U.S.C. § 1692e(11).
Section 1692g provides, "Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor." 15 U.S.C. § 1692g.
[6] Enacted on November 8, 1995, Township Ordinance No. 95-3 authorizes that an annual fee be imposed on each residential unit within the Township for refuse collection service. The fee, which is the same for each residential unit except that residents age 62 or older receive a 50% discount is due on February 15th of each year.
[7] Also on February 15, 2002, the Township enacted Ordinance No. 02-01, which set the following schedule of attorney's fees for various lien enforcement services: Internal review and sending first demand letter $160.00; File lien and mailing second demand letter $175.00; Prepare Writ of Scire Facias $175.00; Re-issue Writ $30.00; Prepare and mail letter under Pa. R. Civ. P. 237.1 $30.00; Prepare Motion for Alternate Service $175.00; Prepare Default Judgment $175.00; Prepare Writ of Execution $750.00; Attendance at sale, review distribution schedule, and resolve distribution issues $400.00.
[8] Township Ordinance No. 95-3 authorizes PLA to impose a simple interest charge against delinquent trash assessments, which charge is calculated against the unpaid principal plus the initial penalty.
[9] The Municipal Claims and Tax Liens Act (MCTLA) provides, in relevant part:
All municipal claims ... which may hereafter be lawfully imposed or assessed on any property in this Commonwealth ... shall be and they are hereby declared to be a lien on said property, together with all charges, expenses, and fees incurred in the collection of any delinquent account, including reasonable attorney fees. 53 P.S. § 7106(a).
[10] Piper resulted in four published decisions by this court. See Piper v. Portnoff Law Assoc., 262 F.Supp.2d 520 (E.D.Pa. May 15, 2003) (enjoining defendants from conducting sheriff's sale of class representative plaintiff's home); Piper v. Portnoff Law Assoc., 215 F.R.D. 495 (E.D.Pa. June 10, 2003) (certifying class under the FDCPA); Piper v. Portnoff Law Assoc., 216 F.R.D. 325 (E.D.Pa. July 8, 2003) (certifying class under both the FDCPA and state laws); Piper v. Portnoff Law Assoc., 274 F.Supp.2d 681 (E.D.Pa. July 31, 2003) (granting partial summary judgment on liability in favor of plaintiff).
[11] Although Defendants have not attempted to distinguish the two cases with respect to this argument, they have, in another context, argued that the trash fees here must be treated differently from the water debts in Piper because the former operate as a per capita tax. The court addresses this argument infra in Subsection E.
[12] In Romea v. Heiberger & Assoc., 163 F.3d 111 (2d Cir.1998), the Second Circuit rejected a similar argument. There, a tenant filed suit against her landlord's law firm, alleging that the notice it sent her demanding payment of rent arrearage violated the FDCPA. The firm argued that the notice was not covered by the Act because it was not a "communication" sent "in connection with the collection of any debt" as defined in 15 U.S.C. § 1692e. Instead, it maintained that the letter was merely a prerequisite under New York state law to instituting an in rem proceeding in order to recover possession of the property. The court disagreed, finding that "the letter was undeniably a communication as defined by the FDCPA in that it conveyed information regarding a debt to another person ... the fact that the letter also served as a prerequisite to commencement of [an in rem proceeding under state law] is wholly irrelevant to the requirements and applicability of the FDCPA." Romea, 163 F.3d at 116 (citations and quotations omitted).
[13] As set forth in Subsection C supra, the FDCPA defines a debt collector as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6).
[14] Defendants also submit that the individuals Portnoff and Schmidt should be dismissed from the case because the FDCPA prohibits recovery against multiple defendants. In support of that contention, however, they offer little more than broad policy arguments and inapposite cases none of which convince the court to abandon its holding in Piper that PLA, Schmidt, and Portnoff are all debt collectors and, as such, all liable under the FDCPA. 274 F.Supp.2d at 689-90.
[15] Although not cited, Defendants seem to move for dismissal of Counts III-V pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The court can only grant a motion to dismiss pursuant to this rule if, accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to the plaintiff, it finds that the plaintiff would not be entitled to relief. Oatway v. Am. Int'l Group, Inc., 325 F.3d 184, 187 (3d Cir.2003)
| {
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0 r d e I' Michigan Supreme Court
Lansing, Michigan
August 28, 2008 clifford w rayi@r,
Cluefjustice
137136 & (66)(67) léllii€h;@lt:~l§v&:;f\nagh
2a e ' . ’eaver
Marilyn Kelly
Maura D. Corrigan
CITIZENS PRoTECTING MICHIGAN’S §§§§§f;: §4‘;:‘;§;§§
CONSTITUTION, LOWELL R. ULRICH, justices
MICHAEL BISHOP, ALAN L. CROPSEY,
VIRGIL SMITH, JR., and MIKE BRYANTON,
Plaintiffs~Appellees,
v SC: 137136
COA: 286734
SECRETARY ()F STATE and
BOARD OF STATE CANVASSERS,
Defendants-Appellees,
and
REFORM MICHIGAN GOVERNMENT
NOW! ,
Intervening
Defendant~Appellant.
/
On order of the Court, the motion for immediate consideration is GRANTED.
The application for leave to appeal the August 13, 2008 order and the August 20, 2008
judgment of the Court of Appeals is considered. We direct that oral argument be heard
on the application on Wednesday, September 3, 2008 at 9:30 a.m. MCR 7.302((})(1).
The motion for recusal is addressed in the joint statement of Justice Young and justice
l\/larkman set forth belovv.
CAVANAGH, J., states as follows:
Preliminarily, I note that under MCR 2.003(A) a judge may, sua sponte, raise
issues regarding his qualification to hear a case. Taking that opportunity, l note that my
participation in this case would be prohibited under MCR 2.003(]3)(5) because I have a
"more than de minimis interest" in its outcome. However, l will participate because the
rule of necessity applies to this unique case, and that rule provides an exception to the
disqualification grounds based on due-process concerns and encompassed in MCR 2.003.
See United Sz‘ates v Will, 449 US 200 (1980).
Secondarily, l do not opine on the disqualification or qualification of any other
justice. This is because this Court’s traditional disqualification procedure leaves such a
determination solely to the challenged justice. l continue to find this procedure wanting
on due-process grounds, and l have offered an alternative to the unworkable status quo.l
This case is yet another example showing the need to revise our current procedure,
whether it be the adoption of my proposal in Adair or some other proposal. Nonetheless,
bound by our current procedure, l remain mute on the propriety of my fellow justices’
participation in this case.
WEAVER, J., states as follows:
Even though l have "more than de minimis interest"z in the outcome of this case, l
decline to recuse myself because the common-law rule of necessity doctrine applies in
this unique case.
All l\/lichigan judges, active and retired, who under Const 1963, art 6, § 23, are
normally eligible for assignment to cases in which a disqualification issue arises, would
also be disqualified in this unique case because the outcome of the case affects their
"more than de minimis interest[s]" as well. Under these unique circumstances, the
common law-rule of necessity requires that l sit on the case because of the duty to
provide a forum in which the case may be heard. Um`ted States v Wz`ll, 449 US 200
(1980).
Statement by KELLY, .l., to follow.
YOUNG and MARKMAN, JJ., state as follows:
After having carefully considered the Reform l\/lichigan Government Now!
(Rl\/IGN) motion to disqualify us, we deny this motion and conclude that we are required
to participate for the following reasons:
(l) lt is claimed that each of us has a disqualifying interest. Under ordinary
circumstances, we would certainly not participate in this case because we do have a direct
and disqualifying interest in its outcome. lf the proposed initiative is adopted this year,
our terms of office will be prematurely ended on December 20 of this year. Such an
interest squarely falls within MCR 2.003(B)(5), which provides in part that a judge is
disqualified when he or she "has an economic interest in the subject matter in controversy
1 Aa'az`r v Mz`chigan, 474 l\/lich 1027, 1043-1044 (2006) (statement by Cavanagh, .l.).
2 MCR 2.003(13)(5).
. . . or has any other more than de minimis interest that could be substantially affected by
the proceediiigs."3
(2) Rl\/IGN has not asserted, nor do we believe there is any basis for a claim, that
we harbor any "actual bias" for or against any party. Cain v Dep ’t of Corrections, 451
Mich 470 (1996). ludges in l\/lichigan are granted "every presumption of fairness and
integrity, and heavy indeed is the burden assumed in this Court by the litigant who would
impeach the presumption so amply justified through the years." Mahlen Lancl Corp v
Kurtz, 355 l\/lich 340, 351 (1959).
(3) Although the motion to disqualify is directed only at us, the proposed initiative
adversely affects the financial interests of all judges in this state because, among other
things, it would reduce the salary of every judge by 15 percent and decrease his or her
retirement benefits. Consequently, each of our colleagues on this Court has an
independent ethical obligation to determine whether he or she can participate. See Code
of Judicial Conduct, Canon S(C); MCR 2.003(A).
Thus, the dispositive question in this case is not merely the propriety of our own
participation, but whether any justice of this Court can participate. For if they are all also
precluded from participation by MCR 2.003, there would be no quorum of this Court able
to decide this matter. Under such circumstances, pursuant to the "Rule of Necessity,"
every justice would have a legal obligation to participate in order that judicial review is
not precluded altogether.4
(4) The "Rule of Necessity" is the ancient common-law principle that
"although a judge had better not, if it can be avoided, take part in the
decision of a case in which he has any personal interest, yet he not only may
but must do so if the case cannot be heard otherwise." [Unitea' States v
3 Although a justice of this Court is not bound by the procedural standards set forth in
l\/ICR 2.003, Fz`eger v Cox, 480 l\/lich 874, 875 (2007), the substantive standards in this
provision are applicable. See Aa’az'r v Michz`gan, 474 l\/lich 1027, 1032-1038 (2006)
(statement by Taylor, C.J., and l\/larkman, .l.). See ia'. at l05l, 1053 (concurrence of
Corrigan and Young, JJ.).
4 lf a quorum of the l\/lichigan Supreme Court cannot be formed to consider a matter, it
has no authority to act. See .]agger v Coon, 5 l\/lich 31 (1858) (there is no authority for
the Supreme Court to render judgment when there is no quorum). See also l\/lCL
600.211(3) (a majority of justices shall constitute a quorum for transacting business).
Wz`ll, 449 US 200, 213 (l980), quoting F Pollack, A First Book of
Jui~ispi~u<i@n¢@ 270 (eih ed 1929).][51
ln Evans v Gore, 253 US 245, 247-248 (1920), the United States Supreme Court held that
the members of that Court could not decline to decide whether the compensation of
federal judges was subject to the power to tax because there was no other appellate
tribunal to which the plaintiff judge could go. ln Will, supra at 2l5-2l6, a case involving
compensation for all federal judges, the Court similarly held that, where all members of
the Court would ordinarily have been required to recuse themselves for having a direct
interest in the case, none of the members was disqualified because otherwise the case
could not have been heard at all. The Court recognized that "[t]he Rule of Necessity has
been consistently applied in this country in both state and federal courts." Id. at 2l4.
See, e.g., Blz`ss v Caz`lle Bros, l49 l\/lich 601 (1907).
(5) Among the universe of potential cases or controversies coming before this or
any other supreme court, it cannot be that only those pertaining to judges and the
judiciary alone are immune from judicial review. The present dispute concerns whether
the proposed initiative has complied with the procedures of the l\/Iichigan Constitution.
As with any other proposed changes in the constitution, such compliance is required and
is subject to judicial review. The "‘overarching right of the people’ is to have the
constitution that they have ratified given respect and accorded its proper meaning."
Michz`gan U)u`z‘ecl Conservation Clubs v Secretary of State (After Rernancl), 464 Mich 359,
393 (200l) (Markman, J., concurring).
(6) The "Rule of Necessity" is properly invoked in this case because, under
ordinary circumstances, each of our colleagues would clearly be precluded by MCR
2.003(]3)(5) from participation in this case. To our knowledge, none of our colleagues, or
even RMGN, has disputed this point. Each of our colleagues is directly interested in this
case because, as in Evans and Wz`ll, each has an obvious and substantial economic interest
in the subject matter of the controversy. As stated, the five justices who will remain on
this Court if the proposed initiative is adopted will incur a l5 percent decrease in annual
salary ($24,691) for the remainder of their judicial service. Given the remaining number
of years these justices may continue to serve, the overall diminution in salary will range
from an estimated $99,000 to $346,000. At a compounded interest rate of four percent,
5 The "Rule of Necessity" is distinct from the "Duty to Sit" doctrine, under which "there
is an obligation to remain on any case absent good grounds for recusal," especially in a
court of last resort, such as the supreme court of a jurisdiction, where there are no
substitute judges to take the place of those who are recused. Aclaz`r, supra at 1040-1041
(statement by Taylor, C.J., and l\/larkman, .l.), citing Laz`ra' v Tatum, 409 US 824, 837
(]972).
this amount would range from $109,000 to $470,000 during their potential remaining
years of service on this Court.G ln addition, for those justices who participate in the
defined-benefit retirement plan, their benefits will be based upon a percentage of their
final annual salary, i.e., upon the reduced salary implemented by the proposed initiative.
For those justices who participate in the defined-contribution retirement plan, their
benefits will reflect a diminished employer contribution based upon the reduced judicial
salary. Applying the 2004 Social Security actuarial tables, the overall reduction in
retirement benefits among our five colleagues would range from $7,000 to $149,000;
taking into consideration a compounded interest of four percent for the periods of life
expectancy, these amounts would range from $8,000 to $185,000. Thus, the total salary
and retirement benefit losses incurred by our colleagues would range from $106,000 to
$494,000; with interest considered, these amounts would range from $117,000 to
$655,000.7 To say the least, this constitutes an "economic interest" in the proposed
initiative under MCR 2.003(3)(5).8
(7) That the "economic interest" of each of the seven justices in the proposed
initiative might vary in its particulars is not relevant under the "Rule of Necessity." lf a
judge has "an economic interest," or "more than a de minimis interest," that would be
adversely affected, disqualification is triggered under l\/lCR 2.003(]3)(5). There is no
caselaw that distinguishes between greater or lesser economic interests, and no hierarchy
of disqualifying interests. Rather, what is determinative is simply whether a judge under
ordinary circumstances would be subject to recusal under l\/ICR 2.003(}3)(5); there are
either grounds for recusal or there are not. Once again, we are unaware of any justice of
this Court who has asserted that he or she would not be subject to recusal in this appeal
by virtue of how the proposed initiative would affect his or her financial circumstances if
it is approved.9
6 The 30-year bond rate as of August 26, 2008, is 4.41% and the lO-year rate is 3.80%.
7 None of these calculations, of course, take into consideration that some justices may,
although not compelled to do so, nonetheless retire from this Court in order to avoid a
loss in retirement benefits.
8 lt goes without saying that although neither of us will be receiving a judicial salary if
the proposed initiative is ratified, we will also no longer be performing judicial duties in
return, and will presumably be receiving compensation in some other position.
9 We believe that Rl\/IGN misapprehends the United States Supreme Court’s holding in
Aetna Lzfe [ns Co v Lavoie, 475 US 8l3 (1986). ln Aetna, the Supreme Court held that,
although one justice of the Alabama Supreme Court was disqualified, the remaining eight
justices were not. Id. at 826-827. Thus, Aetna has no application here, where plainly all
seven justices of this Court would be disqualified lt is noteworthy that the Supreme
Court additionally engaged in the following hypothetical: "[A]ccepting appellant’s
expansive contentions might require the disqualification of every judge in the State. lf
(8) The l\/lichigan Supreme Court is this state’s highest court and alone is capable
of conclusively deciding whether the proposed initiative complies with our constitution.
There is clearly no alternative forum to resolve the state constitutional issues being raised
in the instant case. There are no procedures for replacing justices of this court who must
recuse themselves from a case, and there is no federal jurisdiction in interpreting the
constitution of this state.
(9) A due process violation occurs where a person’s liberty or property is
subjected to "‘the judgment of a court, the judge of which has a direct, personal,
so, it is possible that under a ‘rule of necessity’ none of the judges or justices would be
disqualified." Id. at 826, citing Will, supra at 2l4. Thus, the Supreme Court suggested
that, if the "Rule of Necessity" applied, none of the justices would be disqualified under
this rule, including the justice previously determined to be disqualified and who would
have had a "greater" interest. Nothing in Aetna supports RMGN’S proposition that a
court applying the "Rule of Necessity" must take into account variations in judges’
economic interests. Rather, it stands for the entirely uncontroversial proposition that,
when one judge is disqualified but a sufficient number who are not disqualified can
participate, the case should proceed without the participation of the disqualified judge.
ln addition, DuPlantz`er v Unz`ted States, 606 F2d 654 (CA 5, 1979), upon which
RMGN also relies, actually supports the proposition that it is improper to distinguish
among disqualified judges. In that case, the plaintiffs challenged a requirement that all
federal judges file personal financial statements, which failure could result in a penalty up
to $5,000. The court applied the "Rule of Necessity" because all federal judges had an
interest in the outcome and refused to distinguish between judges who had filed their
personal financial statements and those who had not. Id. at 662-663.
Finally, Wheeler v Bd of Trustees of Fargo Consolidated School Dist, 200 Ga 323
(1946), upon which RMGN also relies, supports the proposition that it is improper to
distinguish among disqualified judges. ln l/Wzeeler, all the justices had a disqualifying
interest because the new constitution that was being challenged raised each of their
salaries. Relying on the "Rule of Necessity," six of the justices did not disqualify
themselves, including one of the justices who asserted a "greater" disqualifying interest
as he had been the state’s attorney general and had offered "legal opinions concerning the
instrument now under attack." Id. at 329. lndeed, the court held that the "Rule of
Necessity" applied to this justice "with the same force and effect" as it applied to the
other justices who were not disqualifying themselves. Id. With regard to a seventh
justice who did disqualify himself, he did so only because the new constitution that was
being challenged created his very position on the court. Therefore, he only had the
authority to sit as a justice if the challenge to the new constitution failed. As the court
explained, "Should he participate in this case, his very act in doing so would presuppose
the validity of the instrument under attack." Id. at 328. ln contrast, all of the justices of
this Court clearly hold a valid position on this Court.
substantial, pecuniary interest in reaching a conclusion against him."’ Aetna Lzfe Ins Co
v Lavoie, 475 US 813, 822 (1986), quoting Tumey v Ohio, 273 US 510, 523 (1927). "A
fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349
US 133, 136 (1955). However, "most matters relating to judicial disqualification [do] not
rise to a constitutional level." Fed Trade Comm v Cement Institute, 333 US 683, 702
(1948). "The Due Process Clause demarks only the outer boundaries of judicial
disqualifications." Aetna, supra at 828.
The due process requirement against a judge having a "direct, personal,
substantial, pecuniary interest" in a case is encompassed in the more stringent l\/[CR
2.003(}3)(5). Therefore, if a judge is not disqualified under MCR 2.003(}3)(5), the
constitutional due process requirement has presumably been met. ln this case, each of
the justices is presumptively disqualified under l\/[CR 2.003(13)(5), and therefore,
RMGN’s due process rights arguably cannot be protected. However, to altogether
deprive a party, as in this case, of any tribunal to hear a case or controversy is an even
greater denial of due process.m As the United States Court of Claims has stated:
We regret that it falls our lot to decide these cases, and we would
much prefer that a resolution of the controversy not be our responsibility.
Nevertheless, we realize that the plaintiffs are entitled to have their cases
heard and decided by a court of the United States, and under the law there
is no other court to which they could go. Should we refuse to hear and
decide their cases, the doors of the courts would be closed to them. This
could amount to a denial of due process under the 14th amendment to the
Constitution. [Atkins v United States, 214 Ct Cl 186, 207 (1977).]
Accordingly, the requirements of due process must normally yield to the "Rule of
Necessity" -- a doctrine itself predicated on due process requirements -- and the
members of this Court must decide this case. That is, because all of the justices on this
Court have an economic interest in the outcome of this case, all are disqualified;
however, because this would deprive the parties of a forum in which to litigate, none of
the justices can be disqualified
10 As Rl\/IGN itself recognizes, "[t]he rule of necessity is a[n] . . . exception to the Due
Process requirement of an impartial decision maker" as it is only applicable where it is
necessary to "satisfy a litigant’s Due Process right to have his case heard." Brief of
RMGN at 9. lndeed, the "Rule of Necessity" necessarily must constitute an exception to
ordinary guarantees of due process because, by definition, it expressly allows judges to
hear a case who would ordinarily be viewed as "interested."
(10) For these reasons, we are not only exempted from recusal in this case, but we
are obligated to participate. Wz`ll, supra at 213. Therefore, we deny the motion to
disqualify.
l, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
Augusr zs, 2003 f
Clerk
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67 Wn. App. 783 (1992)
841 P.2d 767
TIMOTHY K. HESS, ET AL, Respondents,
v.
NORTH PACIFIC INSURANCE COMPANY, ET AL, Appellants.
No. 11594-1-III.
The Court of Appeals of Washington, Division Three.
November 24, 1992.
Richard C. Feltman and Feltman, Gebhardt, Eymann & Jones P.S., for appellants.
William A. Helsell, Robert N. Gellatly, and Helsell, Fetterman, Martin, Todd & Hokanson; Fred C. Pflanz, Beverly L. Anderson, and Winston & Cashatt, for respondents.
J. Tucker Miller, amicus curiae on behalf of Safeco Insurance Company.
THOMPSON, J.
North Pacific Insurance Company issued a homeowner's policy to Timothy K. and Georgianne H. Hess. The policy covered a dwelling used by Hesses as a summer cabin. On April 22, 1989, while the policy was in effect, the cabin was completely destroyed by fire.
Hesses made a claim under their policy for replacement cost of $43,182.10. North Pacific paid $20,000, the actual cash value of the destroyed dwelling, and rejected Hesses' replacement cost claim because they had not replaced the dwelling and did not intend to do so. Hesses commenced this action to recover the difference between the amount paid as actual cash value and the cost of replacement.
The parties filed cross motions for summary judgment based on stipulated facts. The trial court determined the language of the policy was ambiguous and construed it in *785 favor of the policyholders. Accordingly, Hesses' motion for summary judgment was granted and North Pacific's motion for summary judgment was denied. We affirm.
Since the parties stipulated to all pertinent facts in their cross motions for summary judgment, the issue is whether Hesses were entitled to judgment as a matter of law. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). The sole issue on appeal is whether the policy issued to Hesses requires replacement of the destroyed dwelling as a condition of payment based on replacement cost.[1]
[1-3] As North Pacific contends, a clear and unambiguous provision in an insurance policy must be enforced as written. Transcontinental Ins. Co. v. Washington Pub. Utils. Dists.' Util. Sys., 111 Wn.2d 452, 456, 760 P.2d 337 (1988). However, if a provision is fairly susceptible to two different but reasonable interpretations on its face, it is ambiguous and the court must attempt to ascertain what the parties intended. Transcontinental, at 456-57.
To determine the parties' intent, the court first will view the contract as a whole, examining its subject matter and objective, the circumstances of its making, the subsequent conduct of the parties, and the reasonableness of their respective interpretations. Greer [v. Northwestern Nat'l Ins. Co., 109 Wn.2d 191, 200, 743 P.2d 1244 (1987)]. If the court determines that the policy remains ambiguous even after its consideration of the extrinsic evidence, the court will apply a meaning and construction most favorable to the insured, even though the insurer may have intended another meaning.
Transcontinental, at 457.
Section 1 Conditions, subpart 3 of the homeowner's policy issued by North Pacific states:
3. Loss Settlement. Covered property losses are settled as follows:
a.... .
b. Buildings ... at replacement cost without deduction for depreciation, subject to the following:
(1) ... we will pay the cost to repair or replace, after application of deductible and without deduction for *786 depreciation, but not more than the least of the following amounts:
(a) the limit of liability under this policy that applies to the building;
(b) the replacement cost of that part of the building damaged for like construction and use on the same premises; or
(c) the necessary amount actually spent to repair or replace the damaged building.
Succinctly rephrased, subpart 3.b. states the insured will pay the least of: (a) policy limits; (b) replacement cost; or (c) actual dollars spent on repair or replacement. "Replacement cost" is not defined in the policy with respect to buildings.
Given a reasonable interpretation, under subpart 3, if an insured elected to rebuild and did so at an amount less than policy limits and less than "replacement cost", recovery would be limited to actual dollars expended. If an insured did not elect to rebuild and no actual dollars were expended, no loss would be payable.
According to North Pacific,
[i]n many cases, (b) and (c) will be the same if the insurer and insured agree on the replacement cost and the dwelling is actually replaced at that cost, [but in other cases, if the insured and insurer agree on replacement cost, but the insured actually spends less,] the insured would be entitled [only] to ... the difference between ... actual cash value and the amount actually spent.
Brief of Appellant, at 16-17. North Pacific contends this limits the insured's recovery and prevents "windfall profits". In essence, North Pacific defines replacement costs as those costs to replace which the insured and the insurer agree to.
North Pacific also contends that subpart 3 does not apply to the settlement of covered losses when an insured elects not to rebuild. Given North Pacific's interpretation, if an insured elects not to rebuild, the policy is converted from a replacement cost policy to an actual cash value policy by operation of subpart 4.[2] Subpart 4, phrased in terms of the *787 actual cash value of the damage, not the actual cash value of the building, states:
(4) We will pay no more than the actual cash value of the damage[[3]] unless:
(a) actual repair or replacement is complete; or
(b) the cost to repair or replace the damage is both:
(i) less than 5% of the amount of insurance in this policy on the building; and
(ii) less than $1,000.
(Italics ours.)
[4] In determining ambiguity, policy language must be interpreted as an average purchaser of insurance would understand it. Girtz v. New Hampshire Ins. Co., 65 Wn. App. 419, 422, 828 P.2d 90 (1992). Even given North Pacific's definition of "replacement cost" as what the insured and insurer agree on when the insured intends to repair or replace, an average purchaser of insurance would question why subpart 3.b.(1)(b) is in the policy if subpart 4 is interpreted as North Pacific suggests (i.e., if it refers to diminution in market value resulting from the fire rather than to replacement cost). An average purchaser of insurance would also question why 3.b.(1)(c) is in the policy, since North Pacific's interpretation clearly implies that an insured who elects not to rebuild is entitled to no settlement at all. An average purchaser of insurance might then conclude that 3.b.(1)(c) applies when there is replacement, but 3.b.(1)(b) applies if the insured elects not to replace.
[5] Although an insurance policy is to be construed so as to give force and effect to each clause, Transcontinental, at 456-57, it is not possible to give full force and effect to each clause in this policy. Subpart 4, which limits recovery to "actual cash value of the damage" if the insured does not *788 replace, and subpart 3, which permits no recovery if an insured does not replace, are antithetical. On its face, the loss settlement provision is ambiguous.[4]
Having found the policy language ambiguous, we must attempt to ascertain what the parties intended. Transcontinental, at 456-57.
There is no evidence in the record to show that the parties ever discussed the term "replacement cost" or whether actual replacement would be a condition precedent to recovering the actual value of damages suffered before the loss occurred. According to North Pacific, what the insurer really intended to say in subparts 3 and 4 was: they will pay (1) "actual cash value" (if a dwelling is not replaced), or (2) the least of replacement costs, policy limits, or actual costs expended to replace (if a dwelling is replaced). If the insurer intends to pay only "actual cash value" unless the insured repairs or replaces the insured property, that intent could have been accomplished by so stating clearly and simply.[5]
*789 [6] Generally speaking, the replacement cost method of payment does not require the actual rebuilding of the structure as a condition precedent to payment. National Fire Ins. Co. of Hartford v. Solomon, 96 Wn.2d 763, 770, 638 P.2d 1259 (1982). Based on the limited extrinsic evidence before us, and the relative reasonableness of the respective interpretations of the parties, the policy remains ambiguous on this point; the meaning and construction most favorable to the insured must be applied. Transcontinental, at 457. In so ruling, we do not hold that an insurer cannot make actual replacement a condition of replacement cost payment.[6] We hold only that the language of the policy before us is ambiguous and does not set forth the condition of repair or replacement in language an average purchaser of insurance would understand and no extrinsic evidence has been presented to clarify the ambiguity.
[7] Hesses contend if they prevail on appeal, they are entitled to attorney fees under Olympic S.S. Co. v. Centennial Ins. Co., 117 Wn.2d 37, 811 P.2d 673 (1991). We disagree. Olympic does not apply under the circumstances presented. There is no third party claim or lawsuit, coverage was not denied, and the duty to defend was not at issue. Further, we have not been directed to any contractual attorney fee provision.
We affirm.
SHIELDS, C.J., and MUNSON, J., concur.
Review granted at 121 Wn.2d 1008 (1993).
NOTES
[1] Safeco Insurance Company filed an amicus curiae brief supporting the position taken by North Pacific in this appeal.
[2] "Actual cash value" within language of a fire insurance policy has been held to be synonymous with "fair market value". National Fire Ins. Co. of Hartford v. Solomon, 96 Wn.2d 763, 770, 638 P.2d 1259 (1982).
[3] The policy does not define "actual cash value of the damage". According to North Pacific, "actual cash value of the damage" is synonymous with "actual cash value", which is defined in the policy as: "the market value of new, identical or nearly identical property less reasonable deduction for wear and tear, deterioration and obsolescence". An additional ambiguity is inherent in the policy language because "actual cash value of the damage" may mean the diminution in the market value of the building resulting from the fire or the undefined replacement cost.
[4] North Pacific and Safeco cite authorities from other jurisdictions which have determined that language similar to the policy at issue was not ambiguous. E.g., Higgins v. Insurance Co. of North Am., 256 Or. 151, 469 P.2d 766, 66 A.L.R.3d 871 (1970) (interpreting an actual cash value policy). However, we are not persuaded by their reasoning and note that Higgins specifically rejected Reese v. Northern Ins. Co. of N.Y., 207 Pa. Super. 19, 215 A.2d 266 (1965), a case specifically embraced in National Fire Ins. Co. of Hartford v. Solomon, 96 Wn.2d 763, 638 P.2d 1259 (1982).
[5] North Pacific and Safeco remind us that the policy language is copyrighted and in widespread use. This indicates there was sufficient time and ample resources to develop a policy which an average purchaser of insurance could understand. As stated in Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534, 540 (9th Cir.), cert. denied, 498 U.S. 1013, 112 L.Ed.2d 587, 111 S.Ct. 581 (1990), quoted in Emter v. Columbia Health Servs., 63 Wn. App. 378, 384, 819 P.2d 390 (1991), review denied, 119 Wn.2d 1005 (1992):
Insurance policies are almost always drafted by specialists employed by the insurer. In light of the drafters' expertise and experience, the insurer should be expected to set forth any limitations on its liability clearly enough for a common layperson to understand; if it fails to do this, it should not be allowed to take advantage of the very ambiguities that it could have prevented with greater diligence.
[6] RCW 48.27.020 allows an insurance company to provide replacement cost coverage. Neither RCW 48.27.020 nor the rules of the insurance commissioner prohibit a condition requiring actual replacement as a condition to payment based on replacement costs.
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99 F.3d 223
153 L.R.R.M. (BNA) 2657, 65 USLW 2335,132 Lab.Cas. P 11,676
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.CHAMPION LABORATORIES, INC., Respondent.
No. 95-2433.
United States Court of Appeals,Seventh Circuit.
Argued Feb. 14, 1996.Decided Oct. 24, 1996.
Aileen A. Armstrong, Linda J. Dreeben, Angela Washington (argued), National Labor Relations Board, Appellate Court, Enforcement Litigation, Washington, DC, Stephen S. Shostrom, National Labor Relations Board, Peoria, IL, for Petitioner.
Thomas O. Magan (argued), Kahn, Dees, Donovan & Kahn, Evansville, IN, Mary Lee Franke, Ziemer, Stayman, Weitzel & Shoulders, Evansville, IN, for Respondent.
Before COFFEY, FLAUM, and RIPPLE, Circuit Judges.
COFFEY, Circuit Judge.
1
Champion Laboratories, Inc. appeals a decision of the National Labor Relations Board ("NLRB") that it violated § 8(a)(1) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(a)(1), when a supervisor asked an employee how many people attended a union meeting, and when another supervisor suggested to union activists that they should be ready to move to Mexico if the union succeeded in establishing chapters at the plants. Because we find that the record lacks substantial evidence to support the NLRB's findings, we deny enforcement.
I.
2
Champion Laboratories, Inc. ("Champion," "Company") manufactures automobile filters at three non-union plants in Illinois. The plants employ about 1,750 workers. The United Automobile, Aerospace, and Agricultural Workers ("UAW," "Union") was interested in establishing chapters at Champion's plants, and began an organizational campaign. The Union held meetings for interested employees, and employees who supported unionizing passed out handbills outside the plants. Some employees also wore union buttons, T-shirts, and hats to work.
3
Champion, apparently, was less than thrilled with the prospect that the Union's endeavors might succeed. Shortly after the handbilling began, it sent employees a letter indicating that major automobile manufacturers were pressuring unionized suppliers to shift operations to Mexico, with the result that "UAW members ... are losing their jobs in record numbers." The NLRB and the Union accept that the letter was a lawful expression of the Company's views on unionization. 29 U.S.C. § 158(c). According to the NLRB, Champion also improperly tried to discourage pro-Union activities, and began enforcing various Company policies selectively against employees who openly supported the Union.
4
Two such incidents are the subject of this appeal. First, Gregory Benskin, who participated in handbilling and frequently wore several Union buttons to work, was filling out some paperwork related to the day's production in the office of Jim Smith, his supervisor. The two struck up a conversation. There had been a Union meeting the previous day. In the course of the conversation, Smith asked Benskin how many people from their production line had attended the meeting. Benskin told Smith that the meeting "didn't concern him." That ended the exchange; Smith and Benskin continued to talk on other matters.
5
The second incident occurred while two employees, Carl Bunting and Michael Ferido, were handbilling at an entrance of one of the plants. A supervisor named Judy Tate came out for a cigarette while they were there. Two workers from her production line, Carol Hixenbaugh and Tim Hatton, joined them. Tate asked Bunting what he was doing. In reply, Bunting handed her a handbill; she refused it and commented, "Well, I should have expected something like this from you, Carl." Hixenbaugh asked Bunting why he supported the Union. Bunting explained his position, and Tate then gave her reasons for opposing unionization. There is no suggestion by either party that this conversation was improper. Hatton then commented that if the Union came in, they'd all have to learn Spanish. When no-one understood his "joke," he explained that it referred to the Company's being pressured to move to Mexico. As Bunting and Ferido continued to pass out handbills, Tate added, "I hope you guys are ready to pack up and move to Mexico." Tate, Hixenbaugh, and Hatton also apparently derived some amusement by the fact that while Bunting was talking to them, workers were entering the plant behind him without receiving handbills. They repeatedly pointed out to Bunting his missed opportunities. When the three had finished their cigarettes, they went back into the plant.
6
The UAW filed an extensive complaint against Champion with the NLRB, alleging unfair labor practices in violation of § 8(a)(1) of the Act. The complaint included the incidents involving Benskin and Bunting: the Union argued that Smith's question to Benskin constituted coercive interrogation, and that Tate's comment to Bunting was an implied threat to shut down the plant. After a hearing before an administrative law judge, the ALJ found in favor of the Union. He ordered Champion to cease and desist the unfair practices, and to post notices informing employees of their rights under the Act. Champion filed exceptions to the ALJ's findings with the NLRB. An NLRB panel affirmed the ALJ's findings, adopting his reasoning as its own. Champion filed a timely petition for review; the NLRB filed a cross-application for enforcement of its order.
II.
7
Before reaching the merits of the case, we address a complaint Champion raises regarding the procedure with which the NLRB conducts its hearings. In determining whether a company has committed an unfair labor practice, the NLRB gives the company access to pre-hearing statements by NLRB witnesses only after the witness has testified, and then only for the purpose of cross-examination. 29 C.F.R. § 102.118(b). This practice, Champion argues, violates its right to due process, because it places the NLRB's counsel at an unfair advantage, and unduly hampers the company's ability effectively to cross examine witnesses. We disagree.
8
NLRB rules must comport with the due process requirements of the Fifth Amendment. See NLRB v. Carolina Food Processors, Inc., 81 F.3d 507, 512 (4th Cir.1996). We have long recognized, however, that litigants at Board hearings need not have available the full range of discovery procedures available in the federal district courts. NLRB v. Vapor Blast Mfg. Co., 287 F.2d 402, 407 (7th Cir.1961), cert. denied, 368 U.S. 823, 82 S.Ct. 42, 7 L.Ed.2d 28 (1961). The regulation of which Champion complains is analogous to the Jencks Act, 18 U.S.C. § 3500, under which a criminal defendant has access to pretrial statements of government witnesses only after the witness has testified. We agree with the First Circuit that just as the Jencks Act provides necessary protection to prosecution witnesses, so the restriction at issue here provides necessary protection to witnesses who will be testifying against an entity which controls their livelihood:
9
[A] defendant in an unfair labor practice proceeding before an administrative agency is not constitutionally entitled to more [than a criminal defendant]. Not only is the defendant's interest less in a labor dispute, but the need to protect witnesses from reprisal is even more compelling, as a general rule, since the defendant is the witness' employer.... If the employer had access to the statement before trial, the employer could effectively discourage the employee from testifying and thus frustrate enforcement of the Act.
10
P.S.C. Resources, Inc. v. NLRB, 576 F.2d 380, 387 (1st Cir.1978). The case at bar was not so unusual that application of the Board's rule resulted in gross injustice. Vapor Blast, 287 F.2d at 407-08. Consequently, the Board did not deprive Champion of its right to procedural due process.
III.
11
Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights ... to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. §§ 157, 158(a)(1). The standard of review over NLRB findings is well established. We will sustain the Board's factual findings if the record as a whole provides substantial evidence to support them, even if we might justifiably have reached a different conclusion as a matter of first impression. 29 U.S.C. § 160(e); NLRB v. Winnebago Television Corp., 75 F.3d 1208, 1212 (7th Cir.1996). Similarly, we defer to reasonable NLRB conclusions in analyzing its application of the law to particular facts, in recognition of "the Board's special function of applying the general provisions of the Act to the complexities of industrial life." NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1149, 10 L.Ed.2d 308 (1963); Winnebago Television, 75 F.3d at 1212. We also review the Board's statutory interpretations deferentially, because it is a statute the Board is entrusted with enforcing. NLRB v. Joe B. Foods, Inc., 953 F.2d 287, 291-92 (7th Cir.1992); but see Smiths Industries, Inc. v. NLRB, 86 F.3d 76, 79 (6th Cir.1996) (Board's conclusions of law reviewed de novo).
12
Champion does not contest the majority of the unfair labor practices found by the Board. These include the NLRB's findings that Champion violated § 8(a)(1) of the Act by telling a union activist he could not discuss the Union with other employees during work hours; selectively enforced a Company policy forbidding employees from leaving their work areas when on break against Union activists; selectively enforced against Union activists another policy denying off-duty workers access to production areas; and violated § 8(a)(3) by disciplining an activist for acting on behalf of the Union. Accordingly, we summarily enforce the Board's order with regard to these issues. See U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 1314 (7th Cir.1991) (en banc). The uncontested violations, however, "do not disappear altogether. They remain, lending their aroma to the context in which the contested issues are considered." Rock-Tenn Co. v. NLRB, 69 F.3d 803, 808 (7th Cir.1995) (internal quotation omitted).
A. COERCIVE INTERROGATION
13
Champion first contends that Smith did not commit an unfair labor practice when he queried Benskin about the number of people on their production line who attended the Union meeting the previous day. We agree. Because it is not unusual for employees who interact with one another on a daily basis to converse about matters which affect their work, thus conversations between employees and supervisors do not violate the Act. Guardian Industries Corp. v. NLRB, 49 F.3d 317, 322 (7th Cir.1995). Even an interrogation does not, per se, violate the Act. NLRB v. Complas Industries, Inc., 714 F.2d 729, 735 (7th Cir.1983). We categorize as "interrogations" within the meaning of § 8(a)(1) only those questions which, by word or context, suggest an element of coercion or interference. Id. Consequently, a question becomes coercive only when it is "likely to deter the interrogated worker (or others, who had heard about the interrogation) from supporting or ... working actively for the union." NLRB v. Acme Die Casting Corp., 728 F.2d 959, 962 (7th Cir.1984). Factors which we weigh in deciding whether a particular inquiry is coercive include the tone, duration, and purpose of the questioning, whether it is repeated, how many workers are involved, the setting, the authority of the person asking the question, and whether the company had otherwise shown hostility to the union. Id. We also consider whether questions about protected activity are accompanied by assurances against reprisal, and whether the interrogated workers feel constrained to lie or give non-committal answers rather than answering truthfully. NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1356 (7th Cir.1984).
14
Here, a supervisor sought to satisfy his curiosity about the Union's campaign by asking a subordinate how many people from their production line attended a union meeting. This question certainly bordered on the inappropriate, but it arose as part of an ordinary conversation, and nothing in the record suggests that the supervisor's tone was hostile, either before or after the question. While the supervisor did not apologize for raising the issue, no threat of reprisal, explicit or implicit, accompanied the query. The employee properly told the supervisor that the meeting did not concern him. The supervisor accepted the rebuke as a response, and there the matter ended. Given the hostile atmosphere which already existed at the plants, it would have been better had the supervisor not asked the question in the first place. That, however, is not sufficient to transform a single query, addressed in private to a single worker who was in his supervisor's office for normal business reasons, into "coercive interrogation." See Acme Die Casting Corp., 728 F.2d at 962.
15
The record contains no objective evidence that the question had a coercive effect. Clearly, it did not intimidate the worker to whom it was addressed: he handled the situation admirably. What matters, of course, is not whether an attempt at coercion in fact succeeded, but whether it has a tendency to coerce reasonable employees in exercising rights protected under the Act. NLRB v. Q-1 Motor Express, Inc., 25 F.3d 473, 477 (7th Cir.1994), cert. denied, 513 U.S. 1080, 115 S.Ct. 729, 130 L.Ed.2d 633 (1995). Nonetheless, we look at the issue from the perspective of the interrogated worker, E & L Transport Co. v. NLRB, 85 F.3d 1258, 1273 (7th Cir.1996), and the actual effect of the query, while not determinative, is certainly relevant to our inquiry. And that the supervisor backed off as soon as he realized that the worker had no intention of answering his question is highly significant. We have long recognized that "[i]t would be untenable, as well as an insulting reflection on the American worker's courage and character, to assume that any question put to a worker by his supervisor about unions, whatever its nature and whatever the circumstances, has a tendency to intimidate, and thus to interfere with concerted activities in violation of section 8(a)(1)". Acme Die Casting Corp., 728 F.2d at 962. Given the circumstances, we think that Smith's question is one which a reasonable worker would, like Benskin, handle with aplomb. Consequently, we find that the record does not show the existence of an unlawful interrogation.
B. THREATS
16
Champion also contests the NLRB's conclusion that supervisor Tate violated the NLRA when she commented, "I hope you guys are ready to pack up and move to Mexico." According to Champion, the NLRB's conclusion that Tate's remark constituted a threat of plant closure was unreasonable because Tate lacked decision-making power, and none of the workers could reasonably believe either that she could carry out the threat, or that it was made on behalf of the company. Moreover, Champion argues, there is no indication that Tate's comments intimidated or coerced anyone.
17
Our case law makes clear that Champion cannot succeed on these arguments, which confuse the standards applicable to threats with those applicable to coercive interrogation. Guardian Industries, 49 F.3d at 322. Unlike an interrogation, which is coercive only if reasonable employees would perceive it as such, a threat of plant closure is per se a violation of § 8(a)(1). NLRB v. Electro-Voice, Inc., 83 F.3d 1559, 1570 (7th Cir.1996); Central Transport, Inc. v. NLRB, 997 F.2d 1180, 1191 (7th Cir.1993). The rationale behind this difference in treatment is that any threat of plant closure "reasonably tend[s] to coerce employees in the exercise of their rights." Northern Wire Corp. v. NLRB, 887 F.2d 1313, 1317 (7th Cir.1989); Electro-Voice, 83 F.3d at 1570.
18
Accordingly, the only question is whether Tate's words in fact comprised an implied threat. Guardian Industries, 49 F.3d at 322. Whether a threat was made is a finding of fact within the province of the Board's expertise. E & L Transport, 85 F.3d at 1273. As noted above, such a factual finding is conclusive if supported by substantial evidence. Id. In the case at bar, however, we find that the record as a whole does not support the Board's conclusion that Tate's remarks constituted an implied threat of plant closure within the meaning of the NLRA.
19
For one thing, in concluding that Tate's comment constituted an implied threat, the ALJ found that Tate repeated it several times during the exchange with Bunting. Nothing in the record supports this conclusion. No one (including Tate) denied that Tate made the remark, but not a single witness hinted that she did so more than once. In contrast, every witness (including Bunting) agreed that after making the allusion to Mexico, Tate and the two workers with her repeatedly pointed out to Bunting that while he was discussing the Union with them, he was missing the opportunity to give handbills to workers who were entering the plant behind his back.1 The ALJ obviously conflated testimony about these remarks with testimony about the "Mexico" remark. In the face of evidence that the ALJ--and the Board, in adopting the ALJ's conclusions as its own--misread the sworn testimony, we cannot give his conclusions our usual deference. NLRB v. Illinois-American Water Co., 933 F.2d 1368, 1374 (7th Cir.1991); NLRB v. Cook Family Foods, 47 F.3d 809, 816 (6th Cir.1995) ("Even in credibility matters, [a] reviewing court does not act ... as a mere rubber stamp for the administrative agency") (internal quotation omitted).
20
Champion complains in particular that the ALJ ignored the context of Tate's remark. Context is a crucial factor in determining whether a statement is an implied threat. National By-Products, Inc. v. NLRB, 931 F.2d 445, 452 (7th Cir.1991). We agree. Bunting and Ferido chose to do their handbilling at a rear entrance to the plant, where a picnic table was set up for employees on break. They concede that Tate simply happened to come out for a smoke while they were handbilling: there is no hint that her purpose was to confront them. Neither is there any suggestion that the exchanges between Bunting, Ferido, Tate, Hixenbaugh, and Hatton were other than "casual comment[s] made within the free flow of conversation between workers and supervisors." NLRB v. Dorothy Shamrock Coal Co., 833 F.2d 1263, 1266 (7th Cir.1987). Ferido, whose testimony the ALJ specifically credited, agreed that there was "joking going on back and forth" during the conversation. The ALJ also credited the testimony that another worker (not Tate, the only supervisor present at the time) had made comments about having to learn Spanish, and reasonably concluded that Champion's (perfectly lawful) letter about being pressured to move to Mexico prompted the employees' comments.
21
Tate, then, essentially did nothing more than make an impromptu paraphrase of what another (admittedly anti-Union) worker had already said. Threatening statements are not usually made in bantering terms. NLRB v. Windemuller Electric, Inc., 34 F.3d 384, 392 (6th Cir.1994). It is true, of course, that Tate's comments, unlike those of the employer in Windemuller, do not have the virtue of being particularly funny. See id. (implied threat less likely where those being "threatened" find the comment amusing). Indeed, had the NLRB argued more expansively that Tate's remarks as a whole would have a tendency to keep reasonable employees from exercising their protected right of canvassing for union support, we might be constrained to reach a different result. The Union, however, charged exclusively that the incident constituted a threat of plant closure, and the NLRB thus pursued only that limited issue. And while Tate's comment comes close to the edge of what is acceptable under the Act, we do not think the sworn testimony in the record provides substantial evidence to support the NLRB's conclusion that this single, off-handed remark threatened the workers with plant closure should they vote for unionization.
CONCLUSION
22
The uncontested portion of the Board's order is enforced. Because we find that Champion neither engaged in coercive interrogation nor threatened plant closure, we deny the Board's petition to enforce the remainder of the order and grant Champion's petition to set that portion of the order aside.
23
ENFORCEMENT GRANTED IN PART, DENIED IN PART.
24
RIPPLE, Circuit Judge, concurring in part and dissenting in part.
25
All aspects of the Board's order ought to be enforced. I cannot agree with my colleagues that the Board exceeded its authority in determining that the employer's interrogation of an employee about union activities and threat of a plant relocation constitute violations of the National Labor Relations Act. In both instances, the Board's order is not contrary to law and is supported by substantial evidence.
26
In assessing these issues, it is important to keep in mind several very basic, but controlling, propositions. "We must recognize the Board's special function of applying the general provisions of the Act to the complexities of industrial life." NLRB v. WFMT, 997 F.2d 269, 274 (7th Cir.1993). Congress has committed to the NLRB, and not to this court, the task of developing national labor policy through enforcement of the Act. America's Best Quality Coatings Corp. v. NLRB, 44 F.3d 516, 520 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 2609, 132 L.Ed.2d 853 (1995). Our task is limited to determining whether the findings of the Board are supported by substantial evidence on the record considered as a whole, see Universal Camera Corp. v. NLRB, 340 U.S. 474, 477-88, 71 S.Ct. 456, 459-65, 95 L.Ed. 456 (1951), and whether its legal determinations have a reasonable basis in law. America's Best Quality Coatings Corp., 44 F.3d at 520. Keeping these basic propositions in mind is especially important when, as here, we are called upon to review discrete acts of the employer that, although presented separately before us on appellate review, are, in the real world of industrial relations, part of a more extensive pattern of admitted anti-union activity. As my colleagues quite appropriately note, these uncontested violations "do not disappear altogether. They remain, lending their aroma to the context in which the contested issues are considered." Rock-Tenn Co. v. NLRB, 69 F.3d 803, 808 (7th Cir.1995) (internal quotation omitted). Assessment of each of the violations here required that the Board examine carefully the circumstances of the statement of management against the backdrop of the overall labor relations situation at that plant at that time. It required that the Board, in making that appraisal, rely upon a great deal of its own institutional expertise. The climate of labor relations in a facility faced with a representational effort by a Union is nuanced, and a cold record often fails to reveal the subsurface subtleties that are of primary importance.
A.
27
The court first rejects the Board's judgment with respect to the interrogation of Gregory Benskin by Mr. Smith. There is, of course, no question that the interrogation of an employee by a member of management about his union sentiments can constitute a violation of the Act. NLRB v. Shelby Memorial Hosp. Ass'n, 1 F.3d 550, 559 (7th Cir.1993). Moreover, in order to establish a violation, it is not necessary to show that an attempt at coercion succeeded. Rather, an impermissible interference with the right of self-organization occurs when the employer engages in conduct that reasonably tends to interfere with, restrain or coerce employees with respect to union activities. Id. In assessing whether the employee's conduct can be so characterized, the Board must assess the statements from the viewpoint of the questioned employee. NLRB v. Gold Standard Enters., 679 F.2d 673, 676 (7th Cir.1982). Writing for the court in Shelby Memorial Hospital Association, Judge Kanne, although noting that the totality of the circumstances must be considered, delineated a non-exclusive list of factors that ought to be considered in determining whether the Board assessed the situation with sufficient comprehensiveness--the background of employer-employee-union relations, the identity and the authority of the questioner, the nature of the information sought, the place and the method of the questioning, and the truthfulness of the reply. He also noted that whether the employer gave a legitimate reason for the inquiry and whether the questioned employee was assured that no reprisals would follow are also important considerations. 1 F.3d at 559. See also NLRB v. Acme Die Casting Corp., 728 F.2d 959, 962 (7th Cir.1984) (delineating similar factors).
28
My reading of the opinion of the administrative law judge, as adopted by the Board, and my examination of the record convinces me that the Board's examination of these factors, although perhaps not as thoroughly articulated as it should be, sufficiently analyzes the exchange between Mr. Smith and Mr. Benskin to warrant our enforcement. The record establishes that the supervisor had requested specific information concerning the participation of his subordinates in a union meeting. The refusal of Mr. Benskin to answer is subject to a variety of characterizations. The Board could have concluded that Mr. Benskin's refusal to provide the information neutralized any coercive effect. However, in light of the other evidence of corporate anti-union animus exhibited, contemporaneously as a practical matter, the Board certainly was permitted to conclude that the episode had more deleterious effect on the labor relations atmosphere at the plant. The Board made no error of law; nor is its factual assessment so superficial that I can say that it did not take into consideration those factors that we have found relevant to the inquiry. Nor can I say that the Board's characterization of the encounter lacks substantial support in the record. Under these circumstances, it certainly is not our place to substitute our assessment for the expertise of the Board as to the implications of the employer's conduct on the labor relations environment in the plant.
B.
29
The assessment of whether a particular statement by a member of management can be considered a threat that had an impact on the labor relations atmosphere of the plant is, of course, a most difficult assessment to make on a cold record. The pages of a typed transcript make it difficult, if not impossible, to differentiate between good-natured banter among workers and the sort of statement that, even if it be made in jest, threatens and intimidates the worker who is the object of the manager's remark. Here, the administrative law judge, relying explicitly on his observation of the demeanor of the two employees to whom the threat had been directed, determined that the statement violated the Act.1 The court, acting on the cold record, disagrees with that decision. In my view, there is sufficient evidence in the record to justify--indeed to require--that we defer to the judgment of the Board. The statement at issue was made while the employees were engaged in union organizational activity and was made immediately after the supervisor had chided one of the employees for having engaged in such activity. The statement was also made in the wake of a statement by company officials that suppliers such as Champion were being pressured by the automakers to move to Mexico.
30
It is important that, as an institution, we remain faithful to the role designated for us by Congress in the enforcement of the labor laws of the United States. Because I believe that the court has deviated from that assigned role, I respectfully dissent from the court's decision to deny enforcement. In all other respects, I join the judgment and the opinion of the court.
1
Neither the Union nor the NLRB made any claim that the latter remarks, which reasonably could be construed as taunting, violated § 8(a)(1)
1
We have frequently noted that we will not overturn the credibility finding of a hearing officer, except in the most extraordinary circumstances. See Carry Cos. v. NLRB, 30 F.3d 922, 926 (7th Cir.1994) (citing cases)
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889 F.2d 239
UNITED STATES of America, Plaintiff-Appellee,v.Bruce A. MULDER, Defendant-Appellant.
No. 88-1450.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Oct. 3, 1989.Decided Nov. 8, 1989.
Roger S. Ruffin, Ruffin & Rotwein, San Francisco, Cal., for defendant-appellant.
Joseph P. Russoniello, Rory K. Little, Asst. U.S. Atty., Sanford Svetcov, Michael J. Yamaguchi, Dept. of Justice, San Francisco, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of California.
Before HUG, FARRIS and REINHARDT, Circuit Judges.
FARRIS, Circuit Judge:
1
We set forth the facts of this novel and unique matter in United States v. Mulder, 808 F.2d 1346, 1347-49 (9th Cir.1987). On the basis of probable cause developed prior to and independently of the first unlawful testing, a warrant was applied for and obtained in February 1988 permitting a chemical test of the tablets found in Mulder's suitcase. Mulder appeals the denial of his motion to suppress the results of the second test.
DISCUSSION
I. WAIVER
2
Mulder argues for the first time on appeal that the affidavit supporting the request for a search warrant was prejudicial because it informed the magistrate of the results of the earlier warrantless testing and of our decision in Mulder I. Under most circumstances, a failure to raise a particular ground in a motion to suppress before trial constitutes waiver, in the absence of "cause shown." United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir.1987). See also United States v. Houser, 804 F.2d 565, 570 (9th Cir.1986) (evidentiary questions cannot be raised for the first time on appeal in the absence of plain error). Although Mulder failed to raise these exact grounds before the district court, his claims are not waived because this failure was not due to any "belated decision to change trial tactics," United States v. Gonzales, 749 F.2d 1329, 1336 (9th Cir.1984), but was caused by a recent Supreme Court case that directly affected his claim. See United States v. Anderson, 663 F.2d 934, 939 n. 4 (9th Cir.1981) (government's failure to raise issue before trial court did not preclude raising that issue later, in response to an intervening Supreme Court decision).
3
Mulder's new claim is derived from Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), which was decided after the parties filed briefs in the district court. Murray clarified the standards for independent source cases like this one. Mulder responded to the Murray decision by recrafting his arguments on appeal to fit within that decision's framework. The intervening Murray decision constitutes "cause shown."
II. THE LEGALITY OF THE SEARCH
4
The analysis of an independent source case like this one is controlled by Murray. There, the Court held,
5
The ultimate question ... is whether the search was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents' decision to seek the warrant was prompted by what they had seen during the initial [illegal search] or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.
6
108 S.Ct. at 2535-36 (footnote omitted). Mulder argues that the testing of the tablets found in his luggage fails this test for two reasons: (1) the long delay between the actual discovery of the pills and the government's acquisition of a search warrant was unreasonable and excessive; and (2) the affidavit supporting the request for a search warrant was prejudicial because it informed the magistrate of the results of the earlier warrantless testing and of this court's decision in Mulder I.
A. The Long Delay
7
Mulder argues that the two year delay between the time of the actual discovery of the pills and the time when they were finally tested pursuant to a legal search warrant was unreasonable and excessive. According to Mulder, the long time lapse made it impossible for the government to show that the police would have sought a warrant and discovered the evidence independently even had the prior illegal search not occurred as required by Murray, 108 S.Ct. at 2534, n. 2 and Nix v. Williams, 467 U.S. 431, 444 n. 5, 104 S.Ct. 2501, 2509 n. 5, 81 L.Ed.2d 377 (1984). In other words, Mulder claims that the police officer's decision to seek a warrant for the chemical testing must have been affected by the fact that the pills had been illegally tested long before, the results were known to the officer, and the pills were in police custody for two years. If true, this would implicate the " 'search first, warrant later' mentality" that courts must be wary of in order to prohibit the use of confirmatory searches. See Murray, 108 S.Ct. at 2534, n. 2.
8
There is ample evidence however, that the search warrant was sought on the basis of probable cause developed independently of the first unlawful testing. Cf. United States v. Boatwright, 822 F.2d 862 (9th Cir.1987) (no independent source of probable cause). The police had lawful custody of the pills and could clearly see that the tablets were marked with the distinctive labeling of methaqualone tablets ("Lemmon 714"). In Mulder I we recognized that these circumstances "undoubtedly provided probable cause to seek a warrant." 808 F.2d at 1349. The police officer's decision to seek a search warrant was not affected by the prior illegal search; therefore the search was legal. See Murray, 108 S.Ct. at 2534, n. 3 ("[W]hat counts is whether the actual illegal search had any effect in producing the warrant, not whether some hypothetical illegal search would have aborted the warrant.").
9
Nor does the fact that there was a two-year delay require a different result. While a time delay in obtaining a warrant has been held to constitute a basis for holding the search illegal, see, e.g., United States v. Dass, 849 F.2d 414 (9th Cir.1988) (delay of 23 days found unconstitutional), there are two distinctions which taken together cause us to uphold the search in this case. First, in contrast to Murray, 108 S.Ct. at 2532 (where only eight hours elapsed between the first illegal search and issuance of the warrant), the government obtained Mulder's property lawfully and not as the result of an unlawful search. Moreover, Mulder never made a motion for the return of the pills or asserted any legal challenge to the government's right to retain them.1 Second, the time lapse was the result of the judicial appeal process rather than any dilatory tactics on the part of the government. The Court stated in Murray that the government should not "be placed in a worse position than it otherwise would have occupied" because of the exclusionary rule. 108 S.Ct. at 2535. Obviously an appeal based on the exclusionary rule would be included in this admonishment. The government sought a warrant in a reasonable period of time after it had exhausted its appeals. Because both factors, lawful possession and legitimate delay, were present we hold that the length of time that the government maintained possession of the pills does not require us to hold the search unlawful.
B. Information Presented to the Magistrate
10
Mulder also argues that the search was illegal because the affidavit supporting the request for a search warrant informed the magistrate of the results of the earlier warrantless testing and so prejudiced the magistrate's judgment. Mulder bases this argument on the statement in Murray that it is critical whether "information obtained during that [first illegal] entry was presented to the Magistrate and affected his judgment." 108 S.Ct. at 2535 (emphasis added). Mulder assumes that the presence of the first factor--presentation of the information from the first search--automatically implicates the second--the judgment of the magistrate. We have found this assumption to be false. See, e.g., U.S. v. Merriweather, 777 F.2d 503, 506 (9th Cir.1985); United States v. Alexander, 761 F.2d 1294, 1299-1300 (9th Cir.1985). The government did refer to the prior search in the affidavit supporting the search warrant, but it did not rely on that information and asked the magistrate not to consider the prior search in making his decision.2 Nothing in the record supports Mulder's claim that the information of the prior search did in fact affect the magistrate's decision.
11
AFFIRMED.
1
We note that Mulder's possessory interest in the pills was minimal. See Warden v. Hayden, 387 U.S. 294, 306 n. 11, 87 S.Ct. 1642, 1649 n. 11, 18 L.Ed.2d 782 (1967) (government's interest in contraband is superior to the possessor's)
2
The government revealed the results of the first search to the magistrate only in order to avoid a claim of deliberate concealment under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)
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Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit
1-9-2001
Tucker v. Fischbein
Precedential or Non-Precedential:
Docket 99-1139
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001
Recommended Citation
"Tucker v. Fischbein" (2001). 2001 Decisions. Paper 4.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/4
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Filed January 9, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 99-1139
C. DELORES TUCKER;
WILLIAM TUCKER, her husband
v.
RICHARD FISCHBEIN;
BELINDA LUSCOMBE;
NEWSWEEK MAGAZINE;
JOHNNIE L. ROBERTS;
TIME INC.
C. Delores Tucker;
William Tucker,
Appellants
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 97-cv-06150)
District Judge: Honorable Ronald L. Buckwalter
Argued October 1, 1999
BEFORE: NYGAARD, ALITO, and ROSENN, Circuit Judges.
(Filed: January 9, 2001)
Richard C. Angino, Esq. (Argued)
Angino & Rovner
4503 North Front Street
Harrisburg, PA 17110
Attorney for Appellants
Alan J. Davis, Esq.
Stephen J. Kastenberg, Esq.
Ballard, Spahr, Andrews & Ingersoll
1735 Market Street
51st Floor
Philadelphia, PA 19103
Donald N. David, Esq. (Argued)
Beth W. Fischbein, Esq.
Fischbein, Badillo, Wagner &
Harding
909 Third Avenue
New York, NY 10022
Attorneys for Appellee
Richard Fischbein
Laura E. Krabill, Esq.
Wolf, Block, Schorr & Solis-Cohen
22nd Floor
Philadelphia, PA 19103
Paul G. Gardephe, Esq. (Argued)
Milton L. Williams, Jr.
Time, Inc.
Legal Department
1271 Avenue of the Americas
New York, NY 10020
Attorneys for Appellee
Belinda Luscombe and Time, Inc.
Kevin T. Baine, Esq. (Argued)
1650 Arch Street
Williams & Connolly
725 12th Street, N.W.
Washington, DC 20005
Attorney for Appellee
Newsweek Magazine and
Johnnie L. Roberts
2
OPINION OF THE COURT
ALITO, Circuit Judge:
This case marks the third round of litigation between C.
Delores Tucker, a former state official and a community
leader, and the record companies and performers
responsible for what is known as "gangsta rap."1 Since
1993, C. Delores Tucker has crusaded against gangsta-rap
lyrics, which, she asserts, "grossly malign black women,
degrade the unthinking young black artists who cr eate
[gansta rap], pander pornography to our innocent young
children, hold black people universally up to ridicule and
contempt, and corrupt its vast audience of listeners, white
and black, throughout the world." App. at 2322. Mrs.
Tucker has taken her message to shareholder meetings of
major corporations to pressure them to divest their
holdings in record companies that pr oduce gangsta rap;
she has also addressed Congress to ur ge that steps be
taken to "curb and control the proliferation of vile,
demeaning pornographic and misogynistic music." Id.
Mrs. Tucker's efforts caught the attention of the rap
industry, and in August 1995, Interscope Recor ds, Inc.,
filed suit against her in the United States District Court for
the Central District of California (Tucker I), alleging that she
had induced a breach of contract between Death Row
Records, Inc., and Interscope. Interscope and Death Row
voluntarily withdrew that suit. Then, in July 1997, Mrs.
_________________________________________________________________
1. "Gansta rap" has been described as "a form of hip hop music that
became the genre's dominant style in the 1990s, a reflection and product
of the often violent lifestyle of American inner cities afflicted with
poverty
and the dangers of drug use and drug dealing. The r omanticization of
the outlaw at the centre of much of gangsta rap appealed to rebellious
suburbanites as well as to those who had firsthand experience of the the
harsh realities of the ghetto. Encyclopedia Britannica, "Gangsta Rap"
<http://www.britannica.com/bcom/eb/article/3/
0,5716,128693+1,00.html>. Prominent gangsta rap groups are described
as "present[ing] tales of gangs and violence," "offer[ing] hard-hitting
depictions of crack-cocaine related crime," and featuring "a marriage of
languid beats and murderous gang mentality." Id.
3
Tucker and her husband, William Tucker , filed a complaint
in the United States District Court for the Easter n District
of Pennsylvania (Tucker II), alleging that the lyrics in two
songs by deceased rapper Tupac Shakur on an album
called All Eyez On Me had attacked Mrs. Tucker using
"sexually explicit messages, offensively coarse language and
lewd and indecent words" and that she had r eceived death
threats because of her activities. Named as defendants were
Shakur's estate; Interscope, which had produced Shakur's
album; and four other companies, including T ime-Warner,
Inc., which allegedly maintained a financial inter est in
Interscope. Asserting claims for intentional infliction of
emotional distress, slander, and invasion of privacy, Mrs.
Tucker sought damages for medical expenses and mental
injury. In paragraph 50, the Complaint alleged that her
"husband, William Tucker has as a r esult of his wife's
injuries, suffered a loss of advice, companionship and
consortium." Tucker II Compl. P 50 (emphasis added), App.
at 23. Loss of consortium means loss by one spouse of
"whatever of aid, assistance, comfort, and society [one
spouse] would be expected to render or to bestow upon [the
other]." Hopkins v. Blanco, 302 A.2d 855, 856 (Pa. Super.
1973), aff 'd, 320 A.2d 139 (Pa. 1974). Loss of consortium
includes, but is not limited to, "impairment of capacity for
sexual intercourse." Restatement (Second) of Torts S 693(1)
(1977); see also W. Page Keeton, Prosser and Keeton on
Torts 931 (5th ed. 1984).
The filing of the Tuckers' lawsuit spawned numer ous
articles that focused on the "loss of consortium" claim.
Among them was an article printed by the Philadelphia
Daily News on August 2, 1997, in which the lawyer
representing Shakur's estate, Richar d Fischbein, was
quoted as saying: "[I]t is hard for me to conceive how these
lyrics could destroy her sex life . . . but we can only wait for
the proof to be revealed in court." App. at 30. Following the
Philadelphia Daily News article, wire and news services
throughout the country picked up the story, and many of
them quoted or paraphrased Fischbein's comment
interpreting the Tuckers' claim as seeking compensation for
damage to their sex life.
On August 20, 1997, Newsweek reporter Johnnie L.
Roberts telephoned the Tuckers' attorney, Richard C.
4
Angino, regarding an upcoming Newsweek story about the
lawsuit. According to Angino, he informed Roberts that,
although loss of consortium could mean loss of sex in some
cases, it did not mean that in this case. See App. at 645.
Roberts disputes Angino's account of this conversation.
On August 26, 1997, Roberts interviewed Fischbein in
connection with the story. Roberts's notes show that
Fischbein told him that one of the claims in the Tuckers'
complaint involved interference with sexual relations. In
addition to speaking with Fischbein and Angino, Roberts
read the complaint and looked up the definition of
consortium before writing his article. On September 1,
1997, Newsweek printed an article written by Roberts and
entitled "Grabbing at a Dead Star." The article stated: "Even
C. Delores Tucker, the gangsta rap foe, wants a chunk [of
Tupac Shakur's estate]. She and her husband claim that a
lyrical attack by Tupac iced their sex life." App. at 90.
Although the article did not mention the conversation
between Roberts and Angino, it did quote Fischbein as
commenting as follows regarding the loss-of-consortium
claim: "I can't wait to hear the testimony on that subject."
Id.
The next day, the Tuckers filed an amended complaint in
Tucker II (the "First Amended Complaint"), which included
an additional claim against Fischbein for making"false and
misleading statements regarding the claim herein, through
published statements that C. Delores Tuckerfiled suit
because of a `loss of her sex life.' " App. at 1711. The
amended complaint was served on Fischbein and the other
defendants, including Time-Warner , Inc.
On September 12, after he was served with the First
Amended Complaint, Fischbein gave an interview to Time
reporter Belinda Luscombe concerning the Tuckers' case.
Luscombe stated in deposition that Fischbein had told her
that "this was a lawsuit about emotional distr ess and one
of the things affected were [sic] her sexual relationship with
her husband." See App. at 2197. T ime printed Luscombe's
article, entitled "Shakur Booty," on September 15, 1997.
See App. at 34. Although the article did not quote
Fischbein, Luscombe admitted in her deposition that she
based the article solely on her interview with Fischbein and
5
on other articles, most of which appear to be derived from
Fischbein's initial comments to the press in early August.
On October 1, 1997, the Tuckers filed the complaint that
is the subject of this action (Tucker III). The complaint
alleges that Fischbein, Time, Inc. ("T ime"), and Newsweek,
Inc. ("Newsweek") defamed the Tuckers by characterizing
their loss of consortium claim in Tucker II as a claim for
loss of sexual relations. Specifically, the Tuckers maintain
that Mrs. Tucker's reputation as a moral leader was
compromised when Time and Newsweek printed Fischbein's
characterization of her suit as one to recover for the lyrics'
effect on her sex life.
Time, Newsweek, and Fischbein each moved for summary
judgment, and the District Court granted their motions,
holding that the statements in question were not capable of
a defamatory meaning and, alternatively, that the Tuckers,
who conceded that they were "public figur es," could not
adequately prove that the defendants acted with"actual
malice." Although the defendants had also contended that
the Tuckers could not prove that the statements were false,
the Court made no explicit holding on that question. This
appeal followed.
I.
"[A]lthough a defamation suit has profound First
Amendment implications, it is fundamentally a state cause
of action." McDowell v. Paiewonsky, 769 F .2d 942, 945 (3d
Cir. 1985). In this appeal, our first duty is to resolve a
question of state law, i.e., whether the Tuckers adduced
sufficient evidence to show that the statements in question
were defamatory under Pennsylvania law. If the plaintiffs
satisfied that burden, we must then deter mine if the First
Amendment precludes recovery. See Steaks Unlimited, Inc.
v. Deaner, 623 F.2d 264, 270 (3d Cir . 1980).
Under Pennsylvania law, a defamation plaintif f bears the
burden to show:
(1) The defamatory character of the communication.
(2) Its publication by the defendant.
6
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its
defamatory meaning.
(5) The understanding by the recipient of it as
intended to be applied to the plaintiff.
42 Pa. Cons. Stat. Ann. S 8343(a) (1998). Under
Pennsylvania law, the court must decide at the outset
whether a statement is capable of defamatory meaning. See
Thomas Merton Ctr. v. Rockwell Int'l Corp. , 442 A.2d 213,
215-16 (Pa. 1981). If the court determines that the
statement is capable of a defamatory meaning, the jury
must then decide whether the recipient actually understood
the statement to be defamatory. See Corabi v. Curtis Publ'g
Co., 273 A.2d 899, 904 (Pa. 1971).
A statement is defamatory if "it tends so to har m the
reputation of another as to lower him in the estimation of
the community or to deter third persons fr om associating or
dealing with him." Id. (citing Birl v. Philadelphia Elec. Co.,
167 A.2d 472, 476 (Pa. 1960)). Accord Restatement (Second)
of Torts S 559. A court must examine the meaning of the
allegedly defamatory statement in context, see Beckman v.
Dunn, 419 A.2d 583, 586 (Pa. Super. 1981), and must
evaluate "the effect [it] is fairly calculated to produce, the
impression it would naturally engender, in the minds of the
average persons among whom it is intended to cir culate."
Corabi, 273 A.2d at 907. While it is not enough that a
statement is embarrassing or annoying, see Bogash v.
Elkins, 176 A.2d 677, 678 (Pa. 1962), a court should not
dismiss a complaint unless it is "clear that the publication
is incapable of a defamatory meaning." V itteck v.
Washington Broad. Co., 389 A.2d 1197, 1200-01 (Pa. Super.
1978).
The statements at issue here were the following:
(1) The statement in Time's September 22, 1997,
article, "Shakur Booty," that "[t]he prize for the most
bizarre suit . . . goes to anti-rap warrior C. Delores
Tucker, who claims that remarks made about her on
Shakur's Album All Eyez on Me caused her so much
distress that she and her husband have not been
7
able to have sex. She wants $10 million." App. at
1634.
(2) The statement in Newsweek's September 1, 1997,
article, "Grabbing at a Dead Star," that "[Mrs. Tucker]
and her husband claim that a lyrical attack by
Tupac iced their sex life." App. at 90.
(3) Fischbein's comment, quoted in an August 2, 1997,
Philadelphia Daily News article, that "[i]t's hard for
me to conceive how these lyrics could destroy her
sex life . . . but we can only wait for the pr oof to be
revealed at trial." App. at 29.
(4) Fischbein's August 20, 1997, statement to
Newsweek columnist Johnnie L. Roberts that Mrs.
Tucker was bringing suit, in part, to recover for
damage to her sex life, and his statement, quoted in
the Newsweek article, that "I can't wait to hear her
testimony on that subject." App. at 31.
(5) Fischbein's statement to Belinda Luscombe of Time
that Tucker II "was brought for emotional distress
and that part of that was that . . . her sexual
relationship with her husband was affected." App. at
2197.
The District Court held that none of these statements
could have a defamatory meaning. The Court concluded
that, although the statements might be annoying or
embarrassing, they could not support a cause of action for
defamation. The Court stated: "There is a vast difference
between being annoyed and/or embarrassed on the one
hand, and being disgraced and ridiculed to the extent that
one's reputation is harmed and lower ed in the estimation of
the community, on the other." Dist. Ct. Op. at 6.
We cannot agree with the District Court's analysis.
Statements considerably milder than or comparable to
those at issue here have been held by the Pennsylvania
Supreme Court to be capable of a defamatory meaning. For
example, in Birl v. Philadelphia Elec. Co., 167 A.2d 472 (Pa.
1960), the Pennsylvania Supreme Court held that a
statement that an employee quit without notice was
capable of a defamatory meaning because recipients could
8
conclude that the employee lacked honor and integrity "and
was not a person to be relied upon insofar as his business
dealings were concerned." Id. at 476. In Cosgrove Studio &
Camera Shop v. Pane, 182 A.2d 751 (Pa. 1962), the
Pennsylvania Supreme Court held that an advertisement
was capable of a defamatory meaning because it implied
that a competitor had bad business practices and might
lead a recipient to question the competitor's integrity. Id. at
754.
Reading the statements at issue in this case in context
and looking at the impression that they wer e likely to
engender in the minds of the average reader , we conclude
that each is capable of a defamatory meaning. Mrs. Tucker
has led a campaign against the immorality of gangsta rap
and those who profit from it. The statements made by the
defendants--to the effect that Mrs. Tucker and her
husband brought a $10 million lawsuit because Shakur's
lyrics damaged their sex life--carry numer ous disparaging
implications. Because of the inherent implausibility of the
idea that lyrics alone could cause millions of dollars of
damage to a couple's sexual relationship, the statements
were capable of making the Tuckers look insincere,
excessively litigious, avaricious, and perhaps unstable.
Furthermore, the statements tended to suggest that the
Tuckers are hypocritical, that after condemning the gangsta
rap industry for profiting from por nography, the Tuckers
were only too willing to open up their own sex life for public
inspection in order to reap a pecuniary gain. In the more
colloquial language used by the defendants themselves, the
statements suggested that the Tuckers were"[g]rabbing [a]t
a [d]ead [s]tar['s]" "[b]ooty" and were willing to take the
witness stand at trial and publicly provide the testimony
about their sex lives that Fischbein "[couldn't] wait to hear."
Such statements were capable of lowering the Tuckers'
reputation in the eyes of the community and of causing
others to avoid associating with them.
It is worth noting that, not only were the defendants'
statements capable of a defamatory meaning, but the
Tuckers adduced evidence that their reputations were in
fact adversely affected. See 42 Pa. Cons. Stat. Ann.
S 8343(a)(4) (requiring plaintiff to prove that the recipient
9
understood the statement as defamatory). In a Philadelphia
Daily News article dated August 6, 1997, the author stated:
"I also appreciate how some people felt betrayed when she
filed a $10 million suit that has trivialized her and her
movement. For a week now, even some of her most
consistent supporters have been questioning her motives
and snickering over the suit's allegation that her sex life
has been ruined by a couple of Tupac Shakur raps." App.
at 2143. An August 17, 1997, Chicago Sun-T imes article
noted: "[I]n my eyes Tucker has suffer ed a self-inflicted
blow to her credibility. . . . Seems to me the real
humiliation comes when a woman who has fought har d
against gangsta rap makes the very personal and
embarrassing claim that a couple of those very songs
ruined her love life." App. at 265-66.
In short, the District Court erred when it held that the
defendants' statements were not capable of a defamatory
meaning under Pennsylvania law. The statements had the
tendency to lower the Tuckers in the estimation of the
community and to deter third persons fr om associating
with them. We must therefore examine whether the First
Amendment poses a bar to the Tuckers' claim.
II.
When a public official or public figure sues for
defamation, the First Amendment demands that the
plaintiff prove both that the statement was false and that it
was made with "actual malice." Hustler Magazine v. Falwell,
485 U.S. 46, 52 (1988) (emphasis in original omitted); New
York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964);
Curtis Publ'g Co. v. Butts, 388 U.S. 130, 162-65 (1967)
(Warren, C.J., concurring) (applying the New York Times
standard to public figures); U.S. Healthcare v. Blue Cross of
Greater Philadelphia, 898 F.2d 914, 931 (3d Cir. 1990).
A. Actual malice
Under New York Times v. Sullivan and its progeny, actual
malice means "knowledge that [the statement] was false or
. . . reckless disregard of whether it was false or not." New
York Times, 376 U.S. at 279-80. A public figure must
10
adduce "sufficient evidence to permit the conclusion that
the defendant entertained serious doubts as to the truth of
his publication." St. Amant v. Thompson, 390 U.S. 727, 731
(1967). "[A] court ruling on a motion for summary judgment
must be guided by the New York Times `clear and
convincing' evidentiary standard in deter mining whether a
genuine issue of actual malice exists--that is, whether the
evidence presented is such that a reasonable jury might
find that actual malice has been shown with convincing
clarity." Anderson v. Liberty Lobby, 477 U.S. 242, 257
(1986).
1. Fischbein
The Tuckers assert two grounds for holding that
Fischbein acted with actual malice. First, the Tuckers argue
that Fischbein, as a lawyer, should have known that a
claim for loss of consortium may not have anything to do
with damage to sexual relations. It follows, the Tuckers
contend, that Fischbein was at least reckless when he told
the press that Mrs. Tucker was trying to r ecover for injury
to her sex life.
We reject this argument. A claim for loss of consortium
may concern damage to sexual relations and, with respect
to the period prior to the service of the Tuckers' First
Amended Complaint, there is no evidence that Fischbein
was informed that Mr. Tucker's consortium claim did not
refer to damage to sexual relations. Nor is there evidence
from which a jury could find that Fischbein entertained
serious doubts about the truthfulness of his statements at
any time before the filing of the First Amended Complaint.
Consequently, the record is insufficient to show by clear
and convincing evidence that Fischbein was guilty during
this period of anything more than negligence in jumping to
the conclusion that Mr. Tucker's loss-of-consortium claim
related, at least in part, to sex. See St. Amant, 390 U.S. at
731; Time, Inc. v. Pape, 401 U.S. 279, 290 (1971) ("The
deliberate choice of an interpretation, though arguably
reflecting a misconception, was not enough to create a jury
issue of `malice' under New York T imes."). The Tuckers
point out that Fischbein, as the representative of Shakur's
estate, had a motive for discrediting Mrs. Tucker, but
11
circumstantial evidence of Fischbein's motive alone cannot
satisfy the actual malice standard.
The Tuckers' second argument regar ding Fischbein,
however, does have merit. As previously noted, on August
27, 1997, the Tuckers filed their First Amended Complaint,
which added Fischbein as a defendant and sought millions
of dollars in damages. The basis for adding Fischbein was
set out in Paragraph 46, which averred that Fischbein had
"made false and misleading statements regar ding the claim
herein, through published statements that C. Delores Tucker
filed suit because of a `loss of her sex life. ' " App. at 1711-
12 (emphasis added). It is undisputed that Fischbein was
personally served with this complaint before his interview
with Time magazine reporter Belinda Luscombe on
September 12, 1997.2 Nevertheless, according to
Luscombe's deposition, Fischbein told her during this
interview that the Tuckers were attempting to r ecover for
damage to their sexual relationship.
Based on this sequence of events, we are convinced that
a reasonable jury could find by clear and convincing
evidence that, at least as of the date of the service of the
First Amended Complaint, Fischbein had actual knowledge
that the Tuckers were not seeking to recover for damage to
their sexual relationship. Since the First Amended
Complaint alleged that Fischbein had defamed the Tuckers
by stating that they were attempting to r ecover for damage
to their sexual relations, a reasonable jury could certainly
conclude that an attorney who read the complaint would
understand that the Tuckers were not going to attempt to
recover for such damage. (Indeed, it would be hard to
interpret the First Amended Complaint any other way.)
Fischbein states that he did not read the First Amended
Complaint before speaking to Luscombe, but a r easonable
jury could believe that a person who is added as a
defendant in a multi-million dollar lawsuit is very likely to
read the complaint shortly after receiving it in order to see
_________________________________________________________________
2. This argument does not apply to any statements made by Fischbein
prior to August 27, 1997, including the comments published by the
Philadelphia Daily News and the August 26 interview with Roberts of
Newsweek.
12
why he or she has been sued. A reasonable jury could
disbelieve Fischbein's story and find by clear and
convincing evidence that Fischbein did read the First
Amended Complaint before the interview. W e must
therefore reverse the judgment of the District Court insofar
as it dismissed the Tuckers' claim against Fischbein with
regard to the statements to Luscombe.
The dissent disagrees with our conclusion on this point
because, in the dissent's view, "[t]he language of the
Amended Complaint, in the context of the Tuckers' pr evious
statements and actions, was insufficient to indicate a
change in their attitude toward alleging a loss of sexual
relations." Dissent at 24. But even if we agreed with the
dissent's characterization of the Tuckers' prior statements,3
the following stark facts remain: (a) the Amended
Complaint added Fischbein as a defendant and was served
upon him; (b) the Amended Complaint asserted that
Fischbein had defamed the Tuckers by stating that"C.
Delores Tucker filed suit because of a `loss of her sex life' "
(App. at 1711-12); and (c) the Amended Complaint sought
millions of dollars in damages. Surely a r easonable jury
could find, by clear and convincing evidence, that Fischbein
knew, after reading the Amended Complaint, that, whether
or not the Tuckers had previously been seeking to recover
for damage to their sexual relationship, they were no longer
doing so.4
_________________________________________________________________
3. The dissent seems at times to make findings of fact. For example, the
dissent opines that "the statements made by the Tuckers and their
attorney were deliberately cagey and equivocal so that they could, if they
wished, introduce evidence of impotence and sexual disfunction at trial."
Dissent at 22. This amounts to a finding of fact r egarding the intent of
the Tuckers and their attorney, and it is the province of the trier of
fact,
to make such a finding.
4. The dissent "find[s] it ironic that [we] believe[ ] there could be
actual
malice in a statement so similar to [the following statement] attributed
to Mr. Tucker in The Philadelphia T ribune" (Dissent at 27):
Pointedly asked how the lyrics could affect his sex life, he said,
"That's just a brief reference [in the lawsuit] -- a small part of
it. We
have to represent the situation as accurately as we can and the
only
way to experience it is to have it happen to you."
13
2. Roberts and Newsweek
The Tuckers' case against Roberts and Newsweek
includes some evidence from which a reasonable jury could
infer actual malice, but not the clear and convincing
evidence needed to survive summary judgment.
Accordingly, we must affirm the District Court's grant of
summary judgment in favor of Roberts and Newsweek.
Viewing the evidence in the light most favorable to the
Tuckers, their attorney, Richard C. Angino, spoke with
Roberts on August 20, 1997, six days before Roberts wrote
"Grabbing at a Dead Star." Accor ding to Angino, he told
Roberts in the course of this phone call that "consortium
can mean, in some cases, sex. I said most of the time it
doesn't and it doesn't in this case." Angino Dep., App. at
636.
Other statements in Angino's deposition sever ely weaken
the Tuckers' position, however, and make it impossible for
them to satisfy the clear and convincing standar d. For
instance, when asked exactly what he said to put Roberts
on notice that the Tuckers' claim did not involve
impairment of sexual relations, Angino r eplied: "I said only
in the rarest of cases would you have a count that actually
involves sex. I'm under oath, so I cannot say to you that I
said specifically, this case does not involve sex ." App. at
_________________________________________________________________
App. at 1631 (brackets in original).
At most, however, this statement may show Mr . Tucker's intent at the
time of the article, in August 1997. It hardly establishes that the
Tuckers
were seeking to recover for damage to their sexual relations after they
later filed the Amended Complaint.
Moreover, the dissent's interpretation of the statement attributed to
Mr. Tucker in the article, while certainly r easonable, is not compelled.
Without knowing the exact question posed by the reporter (and the
question is merely paraphrased in the article), it is not possible to rule
out the possibility that Mr. Tucker was simply referring to his claim for
loss of consortium, which need not necessarily have pertained to sex. In
other words, he may have said that the loss of consortium claim was "just
a brief reference [in the lawsuit]-- a small part of it." If evidence of
this
statement is admitted at trial, it will be for the trier of fact to
interpret
it.
14
431 (emphasis added). Actual malice requir es a plaintiff to
establish that the defendant had a subjective belief that the
statement was false when made, and Angino's equivocation
about the exact words he used defeats any hope the
Tuckers might have of proving actual malice on the part of
Roberts or Newsweek by clear and convincing evidence.
Therefore, we affirm the District Court's entry of summary
judgment in favor of those parties.
3. Luscombe and Time
The Tuckers set forth 24 theories under which, they
assert, it could be found that Belinda Luscombe and Time
acted with actual malice in connection with the"Shakur
Booty" article of September 15, 1997. Many of these
theories are grounded on allegations of poor journalistic
practices--e.g., that Luscombe had a pr econceived story-
line; that she did not follow Time's editorial guidelines; that
she failed to conduct a thorough investigation; and that she
copied from other stories but changed their language
without a factual basis. As the District Court found, these
theories of actual malice are without support in the case
law. While we will discuss only a few of these theories
below, we have carefully considered and r ejected all of
them.
The Supreme Court has made clear that even an extreme
departure from professional standar ds, without more, will
not support a finding of actual malice. See Harte-Hanks
Communications, Inc. v. Connaughton, 491 U.S. 657, 665
(1989). Likewise, a failure to investigate, standing alone,
does not constitute actual malice. See St. Anant v.
Thompson, 390 U.S. at 730-31; Marcone v. Penthouse Int'l
Magazine for Men, 754 F.2d 1072, 1089 (3d Cir. 1985).
The Tuckers assert that Luscombe avoided the truth by
relying on biased sources while ignoring the Tuckers' news
release, which explained the import of their Complaint.
Although the Supreme Court has held that purposeful
avoidance of the truth may support a claim of actual
malice, the evidence here falls short. In Harte-Hanks, the
Court held that there was sufficient evidence of actual
malice where, among other things, a reporter failed to
15
interview a key witness to events being reported in a story,
and the circumstances suggested that this was done for
fear that the witnesses' statement might contradict the
story the paper was committed to running. See 491 U.S. at
682-83. Likewise, in Curtis Publishing Co. v. Butts, 388 U.S.
130 (1967), the Court found actual malice when the
Saturday Evening Post failed to make adequate investigative
efforts in the face of notification that the report they were
about to print was false. Id. at 169-70. The element present
in Harte-Hanks and Butts but lacking here is evidence from
which a reasonable jury could infer that Luscombe doubted
the veracity of her story. See Harte-Hanks, 491 U.S. at 692.
The Tuckers assert that the service of the First Amended
Complaint on Time-Warner, Inc., the parent corporation of
Time, Inc., which publishes Time magazine and employs
Luscombe, should have put Luscombe on notice that the
Tuckers did not seek recovery for injury to their sex life.
This argument is far-fetched. Time-Warner, Inc., a huge
media and entertainment conglomerate, was served
because it was one of the original defendants due to its
alleged connection with Interscope Records. There is no
evidence that Luscombe or anyone else actually involved
with the "Shakur Booty" article was given or r ead the First
Amended Complaint, and unlike Fischbein, neither
Luscombe nor anyone else employed by Time magazine was
named as a defendant in that complaint. The Tuckers have
simply adduced no evidence (let alone clear and convincing
evidence) that Luscombe or anyone else involved with the
"Shakur Booty" article was aware that the Tuckers did not
intend to include injury to their sex life as a component of
the loss of consortium claim.
We likewise see no merit in the Tuckers' ar gument that
Luscombe and Time acted with actual malice because they
copied other stories but then changed their language
without a factual basis. Although the circumstances under
which an article is changed may sometimes be enough to
show actual malice, the present case does not fall into that
category. This case is readily distinguishable from St. Surin
v. Virgin Islands Daily News, Inc., 21 F.3d 1309 (3d Cir.
1994). In St. Surin, a newspaper reporter interviewed an
Assistant United States Attorney who confir med that St.
16
Surin was being investigated but refused to comment on
whether charges would be brought. An editor, however,
"changed it to read that the government expected to file
charges against St. Surin the following week." Id. at 1318.
We held that the evidence, viewed in the light most
favorable to St. Surin, showed that the editor was aware of
facts showing that her changes to the article in question
made it false. See id.
In this case, there is no comparable evidence. The
"Shakur Booty" article was clearly derived in large part from
previously published articles and did not change the import
of those articles in any material way. Moreover , as
discussed above, there is no evidence her e from which a
reasonable jury could find that Luscombe was on notice
that the facts related in her story wer e false. Accordingly,
we affirm the District Court's grant of summary judgment
in favor of Time and Luscombe.
B.
Although the District Court based its judgment only on
defamatory meaning and actual malice, it stated:"Counsel
for all defendants have made various other ar guments, not
the least of which is that the statements wer e true. By not
commenting on them, I have not necessarily r ejected them."
Dist. Ct. Op. at 13. On appeal, the defendants ar gue that
the decision of the District Court may be affir med on the
alternative ground that the Tuckers have not adduced
sufficient evidence that any of the challenged statements
were false when made. Although we may affir m a decision
on an alternative ground, see, e.g. , Erie Telecomms., Inc. v.
City of Erie, 853 F.2d 1084, 1089 n.10 (3d Cir. 1988), we
decline to do so here.
Truth is an affirmative defense under Pennsylvania law,
see 42 Pa. Const. Stat. Ann. S 8343(b)(1), but the United
States Supreme Court has held that a publicfigure must
bear the burden of proving falsity. See Philadelphia
Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1985)
(holding that "the common law's rule of falsity--that the
defendant must bear the burden or proving truth--must
similarly fall here to a constitutional r equirement that the
17
plaintiff bear the burden of showing falsity"); see also
Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 274 n.49
(3d Cir. 1980) (suggesting that Pennsylvania's practice of
placing the burden of proving truth on the defendant is
probably unconstitutional); Dunlap v. Philadelphia
Newspapers, Inc., 448 A.2d 6, 13-14 (Pa. Super . 1982)
(same). Thus, even though Fischbein's comments to
Luscombe are capable of a defamatory meaning, and even
though he may have uttered them with actual malice,
Fischbein cannot be held liable unless the Tuckers can
prove that the comments were false.
We conclude that the Tuckers have pointed to proof that
is sufficient to show, either by a preponderance or by clear
and convincing evidence,5 that Fischbein's statements to
Luscombe after the filing of the First Amended Complaint
were false.6 The First Amended Complaint alleged that
Fischbein had defamed the Tuckers when he said that they
were trying to recover for damage to their sexual relations.
In light of that allegation, it seems clear--and a reasonable
jury could certainly find--that the First Amended
Complaint itself did not seek to recover for such damage.
(Surely a reasonable jury could find that, if the Tuckers'
case had gone to trial under the Amended Complaint, the
Tuckers did not intend to seek to recover both on the
theory that Mr. Tucker suffered a loss of consortium and
that Fischbein defamed them by asserting that they
intended to recover for a loss of consortium.) Fischbein,
however, supposedly told Luscombe that "this was a lawsuit
_________________________________________________________________
5. The Supreme Court has explicitly declined to decide whether the
plaintiff must prove falsity by a pr eponderance of the evidence or by
clear and convincing evidence. See Harte-Hanks , 491 U.S. at 661 n.2
(declining to resolve the issue, but acknowledging disagreement among
the circuits). Compare Firestone v. Time, Inc., 460 F.2d 712, 722-23 (5th
Cir. 1972) (Bell, C.J., concurring) (ar guing for a clear and convincing
standard) with Goldwater v. Ginzburg, 414 F.2d 324, 341 (2nd Cir. 1969)
(suggesting a preponderance of the evidence standard) and Rattray v.
National City, 51 F.3d 793, 801 (9th Cir . 1995) (adopting Goldwater).
6. Because we have held that there is not sufficient evidence that
Fischbein acted with actual malice prior to that date, we need not and
do not decide whether there was enough evidence to show that the
statements he made during that period were false.
18
about emotional distress and one of things af fected were
[sic] her sexual relationship with her husband." App. 2197.
We hold that there was sufficient evidence of falsity to go to
the jury.
III.
Finally, we hold that the District Court corr ectly denied
the Tuckers' motions to depose in-house counsel at Time
and Newsweek. This Court exercises plenary review over a
discovery order regarding claims of attorney-client privilege.
See Livingstone v. North Belle Vernon Borough, 91 F.3d 515,
524 (3d Cir. 1996). The communications with in-house
counsel involved here were clearly for the purpose of
rendering legal advice and therefor e are privileged. The
Tuckers argue that the privilege was waived because in-
house counsel reviewed stories "in the r egular course of
business." This argument is frivolous. That reporters
regularly consult with in-house counsel to discuss potential
liability for libel does not thereby deprive those
communications of the protection of the attor ney-client
privilege. See, e.g., Upjohn Co. v. United States, 449 U.S.
383, 394 (1981) (holding that communications between
corporate counsel and a corporation's employees made for
the purpose of rendering legal advice ar e protected by the
attorney-client privilege); Liberty Lobby, Inc. v. Dow Jones &
Co., 838 F.2d 1287, 1302 (D.C. Cir . 1988) ("Pre-publication
discussions between libel counsel and editors or r eporters
would seem to come squarely within the scope of the
privilege as defined in Upjohn.").
IV.
In sum, we affirm the District Court's grant of summary
judgment as to Time and Newsweek , but reverse in part as
to Fischbein. We also affirm the District Court's denial of
the Tuckers' motion to compel the deposition of the in-
house counsel at Time and Newsweek . The case is
remanded in part for proceedings consistent with this
opinion.
19
NYGAARD, Concurring and Dissenting.
I agree with much of what the Majority says in its well-
reasoned opinion for the court. I disagr ee, however, with its
conclusion with respect to defendant Richar d Fischbein and
therefore respectfully dissent. I conclude that the District
Court did not err; that a reasonable jury could not find that
Fischbein acted with actual malice when speaking to Time
magazine reporter Belinda Luscombe; and, that summary
judgment should be affirmed in its entir ety.
I begin with the Majority's conclusion that "prior to the
service of the Tucker's first Amended Complaint, there is no
evidence that Fischbein was informed that Mr . Tucker's
consortium claim did not refer to damages to sexual
relations." I agree, but I believe that the Majority
dramatically understates the point. There is a substantial
amount of uncontradicted evidence suggesting that, prior to
the filing of their Amended Complaint, the Tuckers did
intend to include sexual damages within their loss of
consortium claim. For clarity, I will summarize this
evidence in list form below:
I. In his deposition, the Tuckers' attorney, Mr. Angino,
stipulated that at the time the suit was commenced,
the original complaint itself provided no indication
that a claim for interference with sexual relations
was not being pursued, and that someone r eading
the Tuckers' complaint might assume that it alleged
damage to sexual relations. (App. 566-70). In my
opinion, unless otherwise stated, it is axiomatic
that a loss of consortium claim includes a claim for
loss of sexual relations.
II. Mr. Angino also admitted in his deposition that
when the suit was initiated, he was not sur e
whether the Tuckers sought recovery for damage to
their sexual relations. (App. 576). He stated that
"the purpose of the consortium count was to cover
everything . . . every way in which Mr. Tucker was
affected, every way." (App. 575). The r ecord does
not contain any facts to the contrary.
III. The Tuckers themselves have failed to state, either
in their depositions or in affidavits, that they had
20
ruled out any facet of their consortium claim at
the time they originally filed it.
IV. The report of Dr. Har old Mignott, Mr. Tucker's
physician, reveals that Mr. Tucker had"a
significant amount of difficulty with impotence" at
the same time that he suffered a "significant
amount of stress" resulting from the "harassment"
and "investigation" of both himself and his wife.
The report was dated approximately one month
before the Tuckers filed their claim for loss of
consortium. (App. 583).
V. On July 31, 1997, the Tuckers issued a news
release about the Tucker II lawsuit. 7 Nothing in the
press release disclaimed damages for inter ference
with sexual relations. (App. 2072-73).
VI. After observing the media's reaction to the
consortium claim, Mr. Tucker had the opportunity
in at least three separate interviews to clarify that
he and his wife were not seeking compensation for
injury to their sexual relations. Instead, Mr .
Tucker confirmed in all three interviews that
interference with sexual relations was indeed an
element of their claims. (App. 1630-31; 2142-43;
2145).
VII. On August 13, 1997, in an interview with
Philadelphia Weekly, Mr. Angino had a similar
opportunity to clearly state for the public r ecord
_________________________________________________________________
7. The complaint in Tucker II is itself a confusing farrago of missteps
and
errors. Appellants' attorney never discussed the loss of consortium claim
with the Tuckers. (App. 518). The complaint was drafted by a law
student. It misrepresented one song by taking "snippets of words from
actual lyrics, words that are separated by many, many verses and
run[ning] them together as if they are a continuous statement," creating
what appellants' attorney now admits was "a gross and deliberate
misrepresentation." (App. 534). The appellant's attorney neither listened
to nor read the lyrics of the song that he alleges was defamatory. He
never conducted a fact check of any of the critical allegations in the
complaint. Indeed, he did not even sign it, nor is it clear from the
record
that he even read the final draft. His wife (who is not an attorney)
signed
it for him.
21
that the Tuckers were foregoing any claims
stemming from interference with sexual relations.
However, Mr. Angino failed to do so. Instead, he
stated that loss of consortium "is a standar d
addition to lawsuits of this type and refers to all
aspects of the marital relationship, not
necessarily sex." (App. 2148-49) (my emphasis).
VIII. On August 21, 1997, the Tuckers issued yet
another press release. It again failed to disavow
any claim arising out of Mr. Tucker's impotency
or injury to the Tuckers' sexual relationship.
Instead, the release confirmed the existence of
such a claim and expressed the Tuckers'
frustration that too much of the media's
attention was focused on that aspect of the case:
" `All the media gleefully jumped on the so-called
sex part in the suit that called attention to loss
of consortium, which was put in there by my
husband Bill, not by me,' [Mrs. Tucker] added,
obviously nettled." (App. 464).
IX. The Tuckers have admitted that neither they, nor
Mr. Angino, nor anyone on their behalf, ever called
Fischbein, at any time, to correct his
misunderstanding of the Tuckers' loss of
consortium claim. (App. 571, 1968).
The Tuckers have failed to provide any evidence, other than
the language in their Amended Complaint, to suggest that
they did not intend to claim loss of sexual r elations.
Instead, it is obvious to me that the statements made by
the Tuckers and their attorney were deliberately cagey and
equivocal so that they could, if they wished, intr oduce
evidence of impotence and sexual dysfunction at trial.8
In spite of substantial evidence to the contrary, the
Tuckers still claim that all of Fischbein's statements were
made with actual malice; that is, with the "knowledge that
_________________________________________________________________
8. Another way of approaching this issue is to ask whether at trial, given
the general loss of consortium that the Tuckers originally alleged, it
would have been proper for the District Court to allow introduction of
evidence of Mr. Tucker's sexual dysfunction. The answer clearly is yes.
22
[they were] false or with reckless disregard of whether [they
were] false or not." New York Times v. Sullivan, 376 U.S. at
279-80. According to the Majority, the Tuckers present two
independent arguments in support of their position.
Although I remain unconvinced that they clearly articulate
even one, I will, for the sake of discussion, addr ess both
arguments in turn.
First, the Tuckers seem to suggest that Fischbein's legal
training put him on notice that loss of consortium does not
always imply harm to sexual relations. According to their
brief:
Fischbein, who is a lawyer who knows the definition of
consortium, knew at the time that he talked to the Los
Angeles Times and the Philadelphia News and all of the
other newspapers, including Time and Newsweek, that
Mrs. Tucker did not claim in the Tucker I complaint
that her sex life had been destroyed by the lewd lyrics
of Tupac Shakur . . . Certainly a jury could find that
Mr. Fischbein's uttering his sexual spin thr oughout
this period constituted malice as defined by the
Supreme Court.
(Appellants' Br. at 46-47). The Majority quickly dismisses
this argument, and there is no need to consider it further,
except that I question the Majority's suggestion that
Fischbein may have been negligent during the period prior
to the filing of the Amended Complaint. Again, I emphasize
that all of the evidence before the court indicates that the
Tuckers, at least originally, did intend to pursue damages
for loss of sexual relations. It is har d for me to imagine how
Fischbein may have been negligent in any way.
Until this point, my concerns with the Majority's opinion
have been fairly minor. I strongly disagree, however, with its
disposition of the Tuckers' second main argument.
According to the Majority, the Amended Complaint clearly
disavowed any intent to pursue damages for loss of sexual
relations. As such, a jury could find that Fischbein had
read the complaint, and that his subsequent comments to
Time magazine constituted actual malice.9 Although I
_________________________________________________________________
9. I agree with the Majority that a r easonable jury could find, in light
of
the high stakes surrounding the law suit, that Fischbein had read the
23
readily admit that this position is mor e compelling than the
Tuckers' first argument, I still cannot agr ee. The language
of the Amended Complaint, by itself, is simply insufficient
to convince a reasonable jury, under a clear and convincing
evidence standard, that Fischbein had actual knowledge
that the Tuckers were not seeking to recover damages for
loss of sexual relations
Before explaining my position, I want to be absolutely
clear about two points. First, I agree with the Majority that,
other than the Amended Complaint, "there is no evidence"
that Fischbein acted with actual malice.10 Thus, even under
_________________________________________________________________
Amended Complaint prior to his interview with T ime. I disagree, however,
with the Majority's conclusory statement that "it would be hard to
interpret the First Amended Complaint any other way." In light of the
Tucker's previous statements, and their penchant for ambiguity, I do not
believe that a reasonable jury could establish actual malice based solely
upon the Tuckers' five line paragraph.
10. The Tuckers contend that they indicated, thr ough personal
interviews and statements by their attorney, that they did not intend to
allege loss of sexual relations. This is simply not supported by the
record. For example, in their Second Amended Complaint, they claim
that their attorney told a Newsweek Reporter"unequivocally that the
complaint did not allege . . . that the actions of Defendants related in
the
[original] complaint had anything to do with their sex life." (App. 24).
Their attorney's signature appears on this complaint. During his
deposition, however, Mr. Angino admitted that, "I said only in the rarest
of cases would you have a count that actually involves sex. I'm under
oath, so I cannot say to you that I said specifically, this case does not
involve sex." (App. 646). This is but one of many examples where The
Tuckers were vague and ambiguous in their public statements and in
their declarations to this Court. The Tuckers also argue that the
Webster's dictionary definition of consortium supports their case. (App.
25). I did a quick check to verify this claim. Using the Internet (see
www.dictionary.com, accessible via www.websters.com), I obtained the
following definition of consortium:
3. Law. The right of a spouse to the company of, help of, affection
of, and sexual relations with his or her mate.
Unless this definition has changed radically in the past three years,
Webster's cuts strongly against the Tuckers. In sum, none of this
"evidence" is sufficient to persuade a r easonable jury that any of the
defendants acted with actual malice in "misinterpreting" the Tuckers'
claims.
24
the Majority's decision, the Tuckers' entir e claim rests solely
upon the language in the Amended Complaint. As the
Tuckers admit in their brief, only two paragraphs, out of
the seventy-one contained in the complaint, addr ess the
question of sexual relations:
45. Defendant [Fischbein] has continued to defame
and harass plaintiff by holding her up in a false
light even after the complaint in this matter was
filed on June 21, 1997.
46. Defendant Fischbein made false and misleading
statements regarding the claim [asserted in the
original complaint], through published statements
that C. Delores Tucker filed suit because of a
"loss of her sex life." The statement was untrue,
and defendant Attorney Fischbein should have
known it was untrue.
(App. 1711-12). Second, the Tuckers filed the Amended
Complaint on August 27, 1997. The only statements made
by Fischbein after that date, and thus the only potentially
actionable comments, were those to T ime magazine reporter
Belinda Luscombe. I agree with the Majority that all other
comments were made without actual malice. Thus, the
question over which the Majority and I disagr ee is a fairly
narrow one, and I would characterize it in the following
manner: After all of the Tuckers' actions and comments to
the contrary, did the language in the Amended Complaint
sufficiently clarify the parameters of the loss of consortium
claim so that a reasonable jury could find that Fischbein's
comments to Time magazine were made with a reckless
disregard for the truth? I strongly believe the answer is no.
The language of the Amended Complaint, in the context
of the Tuckers' previous statements and actions, was
insufficient to indicate a change in their attitude toward
alleging a loss of sexual relations. In spite of all the media
attention, and all the harm that it supposedly caused, the
complaint failed to contain a simple, categorical statement
that the Tuckers were foregoing any claim for interference
with sexual relations. Instead, it continued to allege that
Mr. Tucker had "suffered a loss of . . . consortium," using
the very same language that was contained in the original
25
Tucker II complaint. (App. 1713). The only addition was a
short paragraph stating that Mrs. Tucker did not file the
original suit because of a loss of sexual relations. It said
nothing about Mr. Tucker, who had originally filed the loss
of consortium claim. And, as their own attor ney testified,
"when you damage one spouse, you damage the other
spouse in each and every way." (App. 566). My conclusion
is underscored by the fact that one month later , and
simultaneous with the filing of the complaint at issue in
this appeal, the Tuckers filed a Second Amended Complaint
to Tucker II, in which they unequivocally stated, for the first
time, that they were not seeking damages for interference
with sexual relations. This came far too late to serve as an
effective form of notice to Fischbein. 11
Even if the language of the complaint did clearly
communicate the Tuckers' position, as the Majority so
holds, it is not clear to me that this evidence by itself is
enough to support a jury's finding of actual malice. I am
_________________________________________________________________
11. With regard to the gravamen of this Second Amended Complaint,
plaintiffs' attorney responded as follows in his deposition:
Q. And why did you feel there was a need to have -- to file a
Second Amended Complaint?
A. I couldn't believe how dense the defense wer e.
Q. And in the Second Amended Complaint, you placed a dictionary
definition of consortium; is that correct?
A. That was a joke. It was really a joke.
Q. Well, wait a minute, sir. Ar e you saying that you were
perpetrating a joke in a Federal Court Complaint; is that what
you are telling me?
A. That's what I'm telling you. I said if I had to actually give
you a
dictionary definition. . .
Q. So you were -- you were playing ar ound a little bit in a
Federal
Court Complaint; is that correct?
A. I was saying look consortium means this.
Q. So you were playing around a little bit.
A. You -- you might say that.
App. 829-30.
26
deeply troubled by the fact that, in spite of intense media
scrutiny and its concomitant pressures, the Tuckers never
publicly clarified the nature of their suit or contacted
Fischbein directly, until they filed the complaint in this
case. In short, they did nothing to curb public scrutiny
other than amend their original complaint to include new
claims. After the numerous public comments and
accusations by the Tuckers, it is simply unr easonable to
require Fischbein to infer solely fr om the language of the
Amended Complaint that the Tuckers had changed their
position.
Finally, even if the Amended Complaint by itself was
enough to support a jury finding of actual malice, I do not
believe that Fischbein's comments were r eckless. As
previously discussed, the only comments made subsequent
to the filing of the Amended Complaint wer e those to Time
magazine on September 12, 1997. According to Luscombe's
uncontradicted notes and testimony, Fischbein stated only
that Tucker II "was brought for emotional distress and that
part of that was that her sexual relationship with her
husband was affected." (App. 2197). T ime magazine did not
quote Fischbein, and Luscombe's article relied heavily upon
seven previous articles, all published in r espected sources
from Rolling Stone to The W ashington Post prior to the filing
of the Amended Complaint. I find it ironic that the Majority
believes there could be actual malice in a statement so
similar to one attributed to Mr. Tucker in The Philadelphia
Tribune (my emphasis):
Pointedly asked how the lyrics could affect his sex life,
he said, `That's just a brief reference[in the lawsuit] -
a small part of it. We have to r epresent the situation as
accurately as we can and the only way to experience it
is to have it happen to you.'
As previously discussed, in addition to this statement, there
is a substantial amount of evidence that indicates that the
Tuckers originally did bring their suit, at least in part, to
recover for loss of sexual relations. Regardless of whether
they later changed their position, a literal r eading of
Fischbein's statement to Time r eveals no "reckless
disregard for the truth."
27
The record demonstrates that Fischbein, at the time of
his conversation with Time magazine, (1) was not aware
that the Tuckers intended to relinquish their claims for
interference with sexual relations, and (2) even if he was,
his comments were not reckless. As a r esult, I conclude
that the Tuckers cannot meet their burden of
demonstrating facts sufficient to show that Fischbein made
any statements that he suspected were false. As such, I
would affirm the grant of summary judgment in its entirety.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
28
| {
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} |
NUMBER 13-06-071-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
___________________________________________________________________
MIRTHALA CASTANEDA MARTINEZ, Appellant,
v.
H.
HOLLIS RANKIN, III, Appellee.
___________________________________________________________________
On appeal from the 332nd District Court
of Hidalgo
County, Texas.
___________________________________________________________________
MEMORANDUM OPINION
Before Justices
Rodriguez, Castillo, and Garza
Memorandum
Opinion Per Curiam
Appellant, MIRTHALA
CASTANEDA MARTINEZ, perfected an appeal from a judgment entered by the 332nd District Court of Hidalgo County, Texas, in
cause number C-771-04-F(1).
After the record was filed and after the cause was referred to
mediation, the parties filed a joint motion to dismiss the appeal. In the motion, the parties state that this
case has been resolved and appellant no longer wishes to prosecute this
appeal. The parties request that this
Court dismiss the appeal and that costs be borne by the party incurring same.
The Court, having
considered the documents on file and the joint motion to dismiss the appeal, is
of the opinion that the motion should be granted. The joint motion to dismiss is granted, and
the appeal is hereby DISMISSED.
PER CURIAM
Memorandum Opinion delivered and filed this
the 8th day of June, 2006.
| {
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Slip Op. 14- 51
UNITED STATES COURT OF INTERNATIONAL TRADE
THE TIMKEN COMPANY,
Plaintiff,
.v. Before: Jane A. Restani, Judge
UNITED STATES, Consol. Court No. 13-00069
Defendant,
CHANGSHAN PEER BEARING CO., LTD.
and PEER BEARING COMPANY,
Defendant-Intervenors.
OPINION
[Commerce’s amended final results in antidumping duty review sustained regarding Commerce’s
targeted dumping analysis and remanded for Commerce to reexamine alleged currency
conversion error.]
Dated: May 2, 2014
William A. Fennell, Terence P. Stewart, and Stephanie M. Bell, Stewart and
Stewart, of Washington, DC, for plaintiff.
Tara K. Hogan, Senior Trial Counsel, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, of Washington, DC, for defendant. With her on the brief
were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald
T. Blades, Jr., Assistant Director. Of counsel on the brief was Justin R. Becker, Attorney, Office
of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of
Washington, DC.
Herbert C. Shelley and Christopher G. Falcone, Steptoe & Johnson LLP, of
Washington, DC, for defendant-intervenors.
Restani, Judge: This matter is before the court on plaintiff The Timken
Company’s (“Timken”) and defendant-intervenors Changshan Peer Bearing Co., Ltd. and Peer
Bearing Company’s (collectively “CPZ/SKF”) motions for judgment on the agency record
Consol. Court No. 13-00069 Page 2
pursuant to USCIT Rule 56.2. The issues before the court stem from the U.S. Department of
Commerce’s (“Commerce”) amended final determination in the 2010–2011 antidumping duty
review of certain tapered roller bearings from the People’s Republic of China. Tapered Roller
Bearings and Parts Thereof, Finished and Unfinished, from the People’s Republic of China:
Final Results of Antidumping Duty Administrative Review; 2010–2011, 78 Fed. Reg. 3396
(Dep’t Commerce Jan. 16, 2013) (“Final Results”), as amended by Tapered Roller Bearings and
Parts Thereof, Finished and Unfinished from the People’s Republic of China: Amended Final
Results of Antidumping Duty Administrative Review; 2010–2011, 78 Fed. Reg. 12,035 (Dep’t
Commerce Feb. 21, 2013) (“Amended Final Results”). CPZ/SKF challenges Commerce’s
failure to correct an alleged ministerial error and convert CPZ/SKF’s reported further
manufacturing costs from Thai baht to U.S. dollars. Changshan Peer Bearing Co., Ltd.’s & Peer
Bearing Co.’s Mem. of Points & Auths. in Supp. of Their Mot. for J. on the Agency R., Ct. No.
13-00095, ECF No. 36, 8–22 (“CPZ/SKF Br. in Supp.”). Timken challenges Commerce’s
targeted dumping analysis in the Amended Final Results. Pl. The Timken Co.’s Mem. of Points
& Auths. in Supp. of Its Mot. for J. on the Agency R., ECF No. 22, 12–25 (“Timken Br.”).
Defendant United States (“the government”) refutes the challenge to Commerce’s targeted
dumping analysis in the Amended Final Results and requests a partial voluntary remand to
Commerce to reexamine CPZ/SKF’s further manufacturing costs. Def.’s Resp. to the Rule 56.2
Mots. for J. on the Agency R., ECF No. 39, 11–21 (“Government Br.”). For the reasons stated
below, Commerce’s Amended Final Results are sustained in part and remanded in part.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2012), which grants
Consol. Court No. 13-00069 Page 3
the court authority to review actions contesting the final determination in an administrative
review of an antidumping order. Such determinations are upheld unless they are “unsupported
by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C.
§ 1516a(b)(1)(B)(i).
DISCUSSION
I. Ministerial Error
A. Background
In 1987, Commerce issued an antidumping duty order on tapered roller bearings
and parts thereof from the People’s Republic of China. Antidumping Duty Order; Tapered
Roller Bearings and Parts Thereof, Finished or Unfinished, from the People’s Republic of China,
52 Fed. Reg. 22,667 (Dep’t Commerce June 15, 1987). In response to requests from interested
parties, Commerce initiated an administrative review of the aforementioned antidumping duty
order. Initiation of Antidumping and Countervailing Duty Administrative Reviews, Requests for
Revocations in Part and Deferral of Administrative Reviews, 76 Fed. Reg. 45,227, 45,228–29
(Dep’t Commerce July 28, 2011). The information in dispute before the court was submitted by
CPZ/SKF to Commerce in its questionnaire response on December 12, 2011, which included
information concerning CPZ/SKF’s further manufacturing costs incurred in Thailand. SKF’s
Resp. to Dep’t’s Section C Supplemental Questionnaire, PD 108 at bar code 3045930-01 (Dec.
12, 2011), Ct. No. 13-00095, ECF No. 29 (Aug. 5, 2013). The file layout prepared by the
programmer that was used to calculate the margin listed the field name for further manufacturing
costs as “Further Manufacturing Cost (USD/PIECE).” Id. The supporting documents submitted
by CPZ/SKF that Commerce relied upon in its calculations, however, indicated that the further
Consol. Court No. 13-00069 Page 4
manufacturing costs were reported in Thai baht. See id.
In its preliminary determination, Commerce treated CPZ/SKF’s further
manufacturing costs as denominated in U.S. currency and calculated a weighted-average
dumping margin of 7.74%. See Tapered Roller Bearings and Parts Thereof, Finished or
Unfinished, from the People’s Republic of China: Preliminary Results of the 2010–2011
Antidumping Duty Administrative Review, Rescission in Part, and Intent to Rescind in Part, 77
Fed. Reg. 40,579, 40,585 (Dep’t Commerce July 10, 2012) (“Preliminary Results”). CPZ/SKF
did not raise the issue of the currency inconsistency following the Preliminary Results. See
CPZ/SKF Br. in Supp. 5–6. Accordingly, Commerce continued to treat CPZ/SKF’s further
manufacturing costs as denominated in U.S. currency and issued its Final Results on January 16,
2013, calculating a weighted-average dumping margin for CPZ/SKF of 15.28%. Final Results,
78 Fed. Reg. at 3397.
After Commerce disclosed its calculations for the Final Results, CPZ/SKF timely
filed its ministerial error allegation concerning CPZ/SKF’s reported further manufacturing costs.
SKF’s Ministerial Error Comments, PD 194 at bar code 3114908-01 (Jan. 15, 2013), Ct. No.
13-00095, ECF No. 29 (Aug. 5, 2013). According to CPZ/SKF, the further manufacturing costs
should have been treated as denominated in Thai baht, and Commerce thus should have applied
the Thai-baht-to-U.S.-dollar exchange rate to those costs. Id. at 2–6. On February 21, 2013,
Commerce issued its Amended Final Results with a revised weighted-average dumping margin
of 14.91%, but Commerce did not recognize the inconsistency concerning CPZ/SKF’s further
manufacturing costs incurred in Thailand as a ministerial error. See Amended Final Results, 78
Fed. Reg. at 12,036. CPZ/SKF challenges Commerce’s decision not to address the inconsistency
Consol. Court No. 13-00069 Page 5
and its subsequent use in calculations. CPZ/SKF Br. in Supp. 8–22.
B. Analysis
A “ministerial error” is defined as “an error in addition, subtraction, or other
arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and
any other similar type of unintentional error which [Commerce] considers ministerial.” 19
C.F.R. § 351.224(f) (2013); see also 19 U.S.C. § 1675(h). CPZ/SKF notes that the error in the
calculation of its reported further manufacturing costs is due to a typo by the programmer who
created the file layout used in Commerce’s calculations. CPZ/SKF Br. in Supp. 4. CPZ/SKF
asserts that Commerce’s failure to convert the further manufacturing costs to U.S. currency from
Thai baht constitutes a ministerial error, and Commerce’s refusal to correct the error is improper
due to interests in accuracy and fairness, even if the error does not constitute a ministerial error.
Id. at 8–22. The government asserts that the error does not constitute a ministerial error as
defined in the statute and for various reasons there is no binding obligation on Commerce to
correct the error. Government Br. 19–21. Notwithstanding Commerce’s contention that the
error does not constitute a ministerial error, the government requests partial remand to
Commerce to reconsider the currency discrepancy in CPZ/SKF’s reported further manufacturing
costs. Id.
Generally, a request for a voluntary remand due to substantial and legitimate
agency concerns should be granted. SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed.
Cir. 2001). Commerce’s concerns are substantial and legitimate when (1) Commerce has a
compelling justification for the remand, (2) the justification for remand is not outweighed by the
need for finality, and (3) the scope of the remand is appropriate. Ad Hoc Shrimp Trade Action
Consol. Court No. 13-00069 Page 6
Comm. v. United States, 882 F. Supp. 2d 1377, 1381 (CIT 2013). Here, Commerce has
substantial and legitimate reasons for its request for voluntary remand. Commerce has a
compelling justification because of a likely inaccurate determination. See Government Br. 9–10.
Here, the interest in protecting the administrative proceeding from material inaccuracy does not
appear to be outweighed by a need for finality, in part because Timken seeks remand on another
ground, and the other parties to the litigation desire remand to address this alleged inaccuracy.
Lastly, the scope of the remand is appropriate since it is limited to Commerce reconsidering the
currency conversion of CPZ/SKF’s reported further manufacturing costs. Because Commerce
has a substantial and legitimate concern, it is likely that an easily correctable error has occurred,
and there is no suggestion that the request for partial voluntary remand is frivolous or in bad
faith, the government’s request for voluntary remand to Commerce to reexamine the conversion
error for CPZ/SKF’s reported further manufacturing costs is granted.1
II. Targeted Dumping
A. Background
Until 2012, Commerce’s default methodology for comparing home market and
export prices in administrative reviews of antidumping orders had been the average-to-
transaction (“A-T”) methodology. See Antidumping Proceedings: Calculation of the Weighted-
Average Dumping Margin and Assessment Rate in Certain Antidumping Duty Proceedings;
Final Modification, 77 Fed. Reg. 8101, 8101 (Dep’t Commerce Feb. 14, 2012). Commerce,
when using the A-T methodology, did not allow transactions with export prices above the home
1
As Commerce has exercised its discretion to correct this error, if it exists, it is now
immaterial whether the error is “ministerial” or not. Commerce shall correct any error in this
regard.
Consol. Court No. 13-00069 Page 7
market price to offset transactions with export prices below the home market price. Id.
Commerce’s refusal to offset export prices below the home market price with export prices
above the home market price is referred to as “zeroing.”2 In February 2012, Commerce changed
its default comparison methodology in administrative reviews to the average-to-average (“A-A”)
methodology in order to comply with World Trade Organization decisions and international
obligations. See id. at 8101–02. Although Commerce eliminated the practice of zeroing from its
default methodology, Commerce did not rule out the possibility of using zeroing if the
circumstances warranted its use, such as instances of so-called “targeted dumping.” See id. at
8104, 8106–07.
Commerce uses 19 U.S.C. § 1677f-1(d)(1)(B),3 which by its terms applies to
antidumping investigations, as the threshold for determining whether to apply the A-T
methodology (likely with zeroing) instead of the default A-A methodology in reviews. See, e.g.,
Issues and Decision Memorandum for the Final Results of the Antidumping Duty Administrative
Review: Circular Welded Carbon Steel Pipes and Tubes from Turkey—May 1, 2010, through
2
For a detailed explanation of the zeroing practice and its history, see Union Steel v.
United States, 823 F. Supp. 2d 1346 (CIT 2012), aff’d, 713 F.3d 1101 (Fed. Cir. 2013).
3
19 U.S.C. § 1677f-1(d)(1)(B) provides:
The administering authority may determine whether the subject merchandise is being
sold in the United States at less than fair value by comparing the weighted average
of the normal values to the export prices (or constructed export prices) of individual
transactions for comparable merchandise, if—
(i) there is a pattern of export prices (or constructed export prices) for
comparable merchandise that differ significantly among purchasers, regions,
or periods of time, and
(ii) the administering authority explains why such differences cannot be
taken into account using [the average-to-average methodology or the
transaction-to-transaction methodology].
Consol. Court No. 13-00069 Page 8
April 30, 2011, A-489-501, at 10 (Nov. 30, 2012), available at
http://enforcement.trade.gov/frn/summary/turkey/2012-29529-1.pdf (last visited Apr. 25, 2014);
Issues and Decision Memorandum for the Final Results of the Antidumping Duty Administrative
Review of Tapered Roller Bearings and Parts Thereof, Finished and Unfinished from the
People’s Republic of China, A-570-601, at 8 (Jan. 8, 2013) (“I&D Memo”), available at
http://enforcement.trade.gov/frn/summary/PRC/2013-00835-1.pdf (last visited Apr. 25, 2014).4
Under the targeting statute, before Commerce can use the A-T methodology, Commerce must
first find “a pattern of export prices (or constructed export prices) for comparable merchandise
that differ significantly among purchasers, regions, or periods of time.” 19 U.S.C.
§ 1677f-1(d)(1)(B)(i). This pattern is what is commonly referred to as “targeted dumping.”
Additionally, Commerce must explain why the A-A methodology (or the rarely used transaction-
to-transaction (“T-T”) methodology)5 cannot take such differences into account. Id.
§ 1677f-1(d)(1)(B)(ii). Commerce thus may use the A-T methodology if it finds targeted
dumping and explains why the default A-A or T-T methodologies cannot take account of the
pattern.
Commerce has used the so-called Nails test to determine whether targeted
4
For further background on the statutory and regulatory framework regarding targeted
dumping, see Timken Co. v. United States, Slip Op. 14-24, 2014 Ct. Int’l Trade LEXIS 25, at
*2–8 (CIT Feb. 27, 2014).
5
Although the T-T methodology is also listed as a preferred methodology, Commerce,
for practical reasons, rarely employs this methodology. See 19 C.F.R. § 351.414(c)(2) (“The
Secretary will use the transaction-to-transaction method only in unusual situations, such as when
there are very few sales of subject merchandise and the merchandise sold in each market is
identical or very similar or is custom-made.”).
Consol. Court No. 13-00069 Page 9
dumping has occurred.6 See Certain Steel Nails from the People’s Republic of China: Final
Determination of Sales at Less than Fair Value and Partial Affirmative Determination of Critical
Circumstances, 73 Fed. Reg. 33,977 (Dep’t Commerce June 16, 2008); Certain Steel Nails from
the United Arab Emirates: Notice of Final Determination of Sales at Not Less than Fair Value,
73 Fed. Reg. 33,985 (Dep’t Commerce June 16, 2008). The Nails test proceeds in two stages,
each done on a product-specific basis (by control number or CONNUM). The first stage is
referred to as the “standard-deviation” test. I&D Memo at 10. If 33% or more of the alleged
targeted group’s (i.e., customer, region, or time period) sales of subject merchandise are at prices
more than one standard deviation below the weighted-average price of all sales under review,
those sales pass the standard deviation test and are considered in step two—the “gap” test. Id.
In performing the gap test, Commerce considers whether the “gap” between the weighted-
average sales price to the targeted group and the weighted-average sales price to the next-highest
non-targeted group is greater than the average gap between the non-targeted groups. Id. at
10–11. If the gap between the targeted group and the next-highest non-targeted group is greater
than the average gap, those sales pass the gap test. Id. If more than 5% of total sales of the
subject merchandise to the alleged target pass both tests, Commerce determines that targeting
6
It appears Commerce has since adopted an entirely different test in later reviews. See,
e.g., Certain Activated Carbon from the People’s Republic of China: Issues and Decision
Memorandum for the Final Results of the Fifth Antidumping Duty Administrative Review,
A-570-904, at 21–22 (Nov. 20, 2013), available at
http://enforcement.trade.gov/frn/summary/prc/2013-28359-1.pdf (last visited Apr. 25, 2014);
Issues and Decision Memorandum for the Final Results of the Antidumping Duty Administrative
Review: Welded Carbon Steel Standard Pipe and Tube Products from Turkey; 2011–2012,
A-489-501, at 38–39 (Dec. 23, 2012), available at
http://enforcement.trade.gov/frn/summary/turkey/2013-31344-1.pdf (last visited Apr. 25, 2014).
The court expresses no opinion on a test that was not employed in this case.
Consol. Court No. 13-00069 Page 10
has occurred. Id. at 11. Commerce then compares the sales that have passed the Nails test with
total U.S. sales in order to determine if the targeted sales are sufficient to warrant consideration
of the A-T methodology. Id.
Turning to the facts of the case before the court, in anticipation of Commerce’s
use of the new default methodology (i.e., A-A), Timken alleged that CPZ/SKF engaged in
targeted dumping and submitted factual information to Commerce to use in its targeted dumping
analysis along with a request for Commerce to use the alternative A-T methodology in its
preliminary determination. Timken’s Factual Submission, PD 92–93 at bar code 3044403-01
(Dec. 2, 2011), ECF No. 29 (Aug. 12, 2013); Timken’s Pre-Preliminary Comments, PD 160 at
bar code 3075802-01 (May 16, 2012), ECF No. 29 (Aug. 12, 2013). Commerce used the default
A-A methodology and did not engage in a targeted dumping analysis in the preliminary results.
Preliminary Results, 77 Fed. Reg. at 40,582. Commerce explained that it applied the newly
adopted default methodology in order to afford the parties an opportunity to comment on its
application in the context of this review and stated that it intended to consider whether an
alternative methodology was appropriate under the circumstances of this review. Id.
In its post-preliminary analysis, Commerce found that an insufficient number of
sales passed the Nails test to warrant using the A-T methodology. Post-Preliminary Calculation
Memorandum at 2, PD 183 at bar code 3109493-01 (Dec. 7, 2012), ECF No. 29 (Aug. 12, 2013).
After the parties submitted their comments, Commerce continued to find that an insufficient
number of sales passed the Nails test and thus refused to depart from the default A-A
methodology. I&D Memo at 10–14. In its justification, Commerce noted that the use of the
word “may” in 19 U.S.C. § 1677f-1(d)(1)(B) gave Commerce the discretion not to depart from
Consol. Court No. 13-00069 Page 11
the default A-A methodology even if both prongs of the Nails test were satisfied. Id. at 12.
Timken challenges Commerce’s determination regarding Timken’s targeted
dumping allegation, arguing that Commerce deviated from its past practice in its application of
the Nails test and that Commerce provided no explanation regarding its application of its
sufficiency determination.7 See Timken Br. 12–25. The government maintains that Commerce’s
determination was consistent with its prior applications of the Nails test and that Commerce
makes its determinations regarding whether to use the A-T methodology on a case-by-case basis
rather than employing a specific de minimis threshold. See Government Br. 11–18. CPZ/SKF
argues that Commerce has not departed from its past practice and has provided a sufficient
explanation for its final determination.8 See Resp. Br. of Changshan Peer Bearing Co., Ltd. &
Peer Bearing Co. Opp. the Rule 56.2 Mot. of The Timken Co., ECF No. 36, 11–28 (“CPZ/SKF
Br. in Opp’n”).
B. Analysis
1. Consistency with Past Practice
Timken first argues that Commerce’s decision to compare the results of the Nails
7
Timken refers to Commerce’s sufficiency determination as a de minimis test. See
Timken Br. 23–24. The government denies that Commerce created a de minimis test. See
Government Br. 15–18. Because of this disagreement in labeling the step in Commerce’s
analysis as a de minimis test, the court will refer to Commerce’s determination as a sufficiency
determination.
8
CPZ/SKF maintains its position that Commerce lacks the statutory authority to engage
in a targeted dumping analysis in an administrative review, but does not appeal Commerce’s
decision to engage in such an analysis in this case because it concurs with Commerce’s final
determination. Resp. Br. of Changshan Peer Bearing Co., Ltd. & Peer Bearing Co. Opp. the
Rule 56.2 Mot. of The Timken Co., ECF No. 36, 12 n.5. The court rejected this same argument
in Timken Co. v. United States, 2014 Ct. Int’l Trade LEXIS 25, at *18 n.7, and CP Kelco Oy v.
United States, Slip Op. 14-42, at 8–13 (CIT Apr. 15, 2014).
Consol. Court No. 13-00069 Page 12
test to total U.S. sales when determining whether a sufficient pattern exists as part of the targeted
dumping analysis is inconsistent with Commerce’s past practice in applying the Nails test. See
Timken Br. 12–18. According to Timken, Commerce’s prior decisions have established a
practice of considering any sales that have passed the Nails test as constituting a pattern, thereby
warranting a comparison between the resulting margins under the A-A methodology and the A-T
methodology. Id. at 14–18. Timken alleges that Commerce explicitly had declined in four other
cases to engage in a de minimis inquiry in determining whether a pattern exists for purposes of
19 U.S.C. § 1677f-1(d)(1)(B). Id. (citing Issues and Decision Memorandum for the Final
Determination in the Antidumping Duty Investigation of Multilayered Wood Flooring from the
People’s Republic of China, A-570-970 (Oct. 11, 2011), available at
http://enforcement.trade.gov/frn/summary/prc/2011-26932-1.pdf (last visited Apr. 25, 2014);
Issues and Decision Memorandum for the Less than Fair Value Investigation of Certain Steel
Nails from the United Arab Emirates, A-520-804 (Mar. 19, 2012),
available at http://enforcement.trade.gov/frn/summary/uae/2012-7067-1.pdf (last visited Apr. 25,
2014); High Pressure Steel Cylinders from the People’s Republic of China: Issues and Decision
Memorandum for the Final Determination, A-570-977 (Apr. 30, 2012), available at
http://enforcement.trade.gov/frn/summary/prc/2012-10952-1.pdf (last visited Apr. 25, 2014);
Issues and Decision Memorandum for the Antidumping Duty Investigation of Large Residential
Washers from the Republic of Korea, A-580-868 (Dec. 18, 2012), available at
http://enforcement.trade.gov/frn/summary/korea-south/2012-31104-1.pdf (last visited Apr. 25,
2014)). Timken argues that remand is necessary due to Commerce’s divergence from past
practice and its failure to provide a justification for its change in practice. Id. at 18–22.
Consol. Court No. 13-00069 Page 13
The government argues that Commerce’s determination was consistent with its
prior decisions and a reasonable exercise of its discretion. Government Br. 12–18. Commerce
cited three prior cases in which it engaged in a similar sufficiency analysis, notwithstanding the
fact that some sales had passed the Nails test. I&D Memo at 11–12 (citing Certain Stilbenic
Optical Brightening Agents from Taiwan: Preliminary Determination of Sales at Less than Fair
Value and Postponement of Final Determination, 76 Fed. Reg. 68,154 (Dep’t Commerce Nov. 3,
2011); Ball Bearings and Parts Thereof from France, Germany, and Italy: Final Results of
Antidumping Duty Administrative Reviews; 2010–2011, 77 Fed. Reg. 73,415 (Dep’t Commerce
Dec. 10, 2012); Circular Welded Carbon Steel Pipes and Tubes from Turkey; Final Results of
Antidumping Duty Administrative Review; 2010 to 2011, 77 Fed. Reg. 72,818 (Dep’t
Commerce Dec. 6, 2012)). The government also argues that Commerce’s determination was a
reasonable exercise of its discretion and otherwise in accordance with law. Government Br.
17–18. Although Commerce stated that a sufficient pattern under the Nails test did not exist in
this case, Commerce further supported its decision to use the A-A methodology by relying on its
discretionary authority granted by the statute. Commerce noted that 19 U.S.C.
§ 1677f-1(d)(1)(B) states that Commerce “may” use the A-T methodology if it finds targeted
dumping, but it is not required to do so. I&D Memo at 12. Commerce also noted it had
previously indicated that it would proceed on a case-by-case basis in determining when to use
the A-T methodology and explained that its prior cases did not preclude the analysis undertaken
here. Id.
CPZ/SKF argues that Commerce had no duty to explain any departure from its
past practice because the cases cited by Timken do not reflect a well-established practice from
Consol. Court No. 13-00069 Page 14
which Commerce would be obligated to explain a departure. CPZ/SKF Br. in Opp’n 11–16.
CPZ/SKF argues further that Commerce’s targeted dumping methodology does not warrant a
presumption of continuity because its methodology has been in a state of flux in recent years and
Commerce had indicated an intention to proceed on a case-by-case basis. Id. at 16–17.
Timken’s argument regarding past practice is essentially the same argument that
was presented in Timken Co. v. United States, Slip Op. 14-24, 2014 Ct. Int’l Trade LEXIS 25
(CIT Feb. 27, 2014). In that case, the court treated Commerce’s sufficiency determination as an
exercise of its discretionary authority granted by 19 U.S.C. § 1677f-1(d)(1)(B) and found that the
cases cited by Timken, which are also cited by Timken in this case, did not create any
meaningful inconsistencies. See id. at *23–28. As indicated, here, Commerce invoked its
discretionary authority granted by 19 U.S.C. § 1677f-1(d)(1)(B) in its decision to not use the A-T
methodology. I&D Memo at 12. As the court held in Timken Co., there is little, if any,
inconsistency with the cases cited by Timken when Commerce’s sufficiency determination is
understood as an exercise of its discretionary authority. Timken Co., 2014 Ct. Int’l Trade
LEXIS 25, at *23. Because Timken’s arguments on this issue mirror the arguments that were
rejected in Timken Co., the court, for the reasons stated in Timken Co., continues to find that
Commerce’s prior practice does not preclude it from engaging in a sufficiency determination as
part of its exercise of discretionary authority. See id. at *13–29.
2. Commerce’s Explanation of Its Sufficiency Determination
Timken also argues that Commerce failed to explain the purpose of its additional
sufficiency determination and what amount of sales it considers sufficient. Timken Br. 23–25.
Because Commerce allegedly failed to provide such an explanation, Timken argues that remand
Consol. Court No. 13-00069 Page 15
is necessary. Id.9
In response to Timken’s arguments regarding the purpose of the sufficiency
determination, the government explains that it is within Commerce’s discretion to continue to
employ the A-A methodology, even if targeted dumping is found, and that Commerce uses the
additional sufficiency determination in exercising that discretion. Government Br. 13–18. The
government explains further that Commerce is proceeding on a case-by-case basis rather than
establishing a de minimis threshold, and Commerce uses the additional sufficiency determination
in its case-by-case analysis in deciding when to exercise its discretion. Id. at 15–17. The
government additionally argues that Commerce’s experience in conducting the Nails test has
informed its judgment in determining whether the A-T methodology is appropriate. Id. at 18.
Again, the same issue and arguments were presented to the court in Timken Co.
As explained in Timken Co., the purpose of the sufficiency test is clear. Commerce relies on the
word “may” in the statute, and, as a result, the additional sufficiency determination used by
Commerce is easily understood as a tool in determining whether Commerce should exercise its
discretion to depart from the default A-A methodology. Timken Co., 2014 Ct. Int’l Trade
LEXIS 25, at *31–32. Only when a significant number of sales pass the Nails test, when
compared to total U.S. sales, will Commerce consider invoking its discretion to depart from the
default A-A methodology. Id.; I&D Memo at 11.
9
The court notes that Timken also suggests that comparing the number of sales that pass
the Nails test to all U.S. sales is unreasonable because the Nails test fails to capture all targeted
sales. Timken Co.’s Reply Br., ECF No. 42, 18–20. To the extent that Timken may be relying
on this argument to attack directly Commerce’s determination, Timken failed to raise this
argument in its opening brief and did not present it to the agency. The court therefore will not
consider it. See KYD, Inc. v. United States, 836 F. Supp. 2d 1410, 1413–14 (CIT 2012).
Consol. Court No. 13-00069 Page 16
To support its argument that remand is necessary because Commerce was
required—but failed to—explain what amount of sales would be considered “sufficient,” Timken
cites Washington Red Raspberry Commission v. United States, which held in the then absence of
a statute or regulation defining de minimis that Commerce “may find that dumping margins less
than 0.50 percent are de minimis, but only if [Commerce] explains the basis for its decision.”
Wash. Red Raspberry Comm’n v. United States, 859 F.2d 898, 903 (Fed. Cir. 1988). The
government argues that Commerce satisfied its obligation to explain by (1) conducting the Nails
test, (2) evaluating the volume of sales passing the Nails test relative to all U.S. sales, and
(3) determining whether the facts justified employing the A-A methodology. Government Br. 18
(citing I&D Memo at 11).
Commerce generally has a duty to explain the grounds for its determination.
NMB Singapore Ltd. v. United States, 557 F.3d 1316, 1319 (Fed. Cir. 2009); see also 19 U.S.C.
§ 1677f(i)(3)(A) (requiring Commerce to include an explanation of the basis for its
determination). If an agency’s explanation is not perfectly presented, a court may find that the
agency adequately explained its determination if the agency’s line of reasoning is “reasonably
discernable.” NMB Singapore Ltd., 557 F.3d at 1319. When proceeding on a case-by-case basis
in exercising discretionary authority, as Commerce does here, “Commerce is not required to
justify its determination in terms of past alternatives,” as long as it acts reasonably. Qingdao
Taifa Grp. Co. v. United States, 780 F. Supp. 2d 1342, 1350 (CIT 2011).
Here, Commerce has explained adequately its analysis in reaching its
determination that the sales found to have passed the Nails test were insufficient to warrant
consideration of the alternative A-T methodology. The default methodology in reviews is the
Consol. Court No. 13-00069 Page 17
A-A methodology. 19 C.F.R. § 351.414(c)(1). The statutory provision that Commerce uses as
guidance in reviews in deciding whether to deviate from the default methodology states that
Commerce “may” use the A-T methodology in the context of a targeted dumping analysis if
certain conditions are met. 19 U.S.C. § 1677f-1(d)(1)(B). Even when those conditions are
satisfied, however, Commerce is not required to abandon the A-A methodology. Id. Unlike the
situation in Washington Red Raspberry Commission, upon which Timken heavily relies, the
relevant statutory provision in this case expressly gives Commerce the discretion to ignore a
targeted dumping finding and continue to employ the A-A methodology. The court gives
substantial deference to Commerce in choosing whether to invoke such discretion. Cf. AK Steel
Corp. v. United States, 28 CIT 1408, 1417, 346 F. Supp. 2d 1348, 1355 (2004) (declining to
require Commerce to prove that respondent cooperated to the best of its abilities when it refuses
to use adverse facts available because statute expressly stated that Commerce “may” use adverse
facts when respondent fails to cooperate to best of its abilities, not that it must). Commerce
found that the results of the Nails test were insufficient to warrant consideration of the A-T
methodology because the percentage of sales found to be targeted was extremely small.10 In its
briefs submitted to the court, Timken argues that the A-T methodology is warranted if any sales
pass the Nails, but Timken fails to put forth any detailed and specific argument as to why the
amount of sales in this case should otherwise be considered sufficient. Although Commerce did
not set an amount of sales it considers sufficient, no reasonable person could find the minuscule
percentage of sales found to be targeted in this case to be sufficient to require Commerce to
10
For the exact percentages, see Response Brief of Changshan Peer Bearing Co., Ltd. and
Peer Bearing Co. Opposing the Rule 56.2 Motion of The Timken Co., ECF No. 35, 25
(confidential version).
Consol. Court No. 13-00069 Page 18
invoke its discretion to abandon the default A-A methodology in favor of the A-T
methodology.11 Commerce explained its analytical steps and considered and rejected Timken’s
arguments before the agency regarding why the amount of targeted sales should be considered
sufficient in this case. I&D Memo at 10–13. Under the facts of this case, this was an adequate
explanation.12
The court does not hold that Commerce is excused from providing an explanation
for its sufficiency determinations. The court holds rather that because Commerce relied on the
default A-A methodology, the percentage of sales that were targeted was very small, and Timken
has failed to present a detailed argument to the court why the small number of targeted sales in
11
This does not mean that Commerce necessarily was precluded from invoking such
discretion.
12
The court recognizes that the court remanded another recent targeted dumping case for
Commerce to further explain the application of its de minimis test. See CP Kelco Oy, Slip Op.
14-42. In CP Kelco, Commerce summarily rejected the respondent’s claim that the amount of
sales that passed the Nails test should be considered de minimis. Id. at 19. The court remanded
to Commerce for a reasoned explanation for rejecting the respondent’s de minimis claim. Id. at
20–21.
The case currently before the court is distinguishable in two important and related
respects. First, Commerce in this case refused to depart from the default A-A methodology. In
contrast to CP Kelco, where Commerce “used an exceptional methodology to generate Kelco’s
margins,” here, Commerce chose not to deviate from the default methodology to increase
margins. See id. at 21 n.14. Second, the court in CP Kelco did not decide whether the targeted
sales were de minimis, although the percentage there was much greater. See id. The court here,
in contrast, finds that the amount of sales passing the Nails test are so small that no reasonable
person could conclude that Commerce would be required to invoke its discretion to apply the
“exceptional” A-T methodology and increase margins. In fact, Timken never explained in its
briefs to the court why the amount of targeted sales in this case should be considered sufficient,
aside from arguing that any sales that pass the Nails test should be considered sufficient as part
of its attack on Commerce’s general ability to engage in an additional sufficiency inquiry. To
the extent that Timken raised any such arguments before the agency, they appear to have been
addressed by Commerce in the I&D Memo, and Timken has not challenged directly those
explanations. See I&D Memo at 13.
Consol. Court No. 13-00069 Page 19
this case should be considered sufficient to require use of the A-T methodology, Commerce’s
explanation was adequate for the court to determine that it acted reasonably.
CONCLUSION
For the foregoing reasons, the government’s request for voluntary remand is
granted for Commerce to reexamine the alleged currency conversion error for CPZ/SKF’s
reported further manufacturing costs. In all other respects, the Amended Final Results are
sustained. Commerce shall complete and file its remand determination by June 2, 2014. Timken
and CPZ/SKF shall have until July 2, 2014 to file objections, and the government shall have until
July 18, 2014 to file its response.
/s/ Jane A. Restani
Jane A. Restani
Judge
Dated: May 2 , 2014
New York, New York
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26 F.3d 131
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.Michael J. LOOMIS, Plaintiff-Appellant,v.Richard A. VERNON; Arvon Arave, Defendants-Appellees.
No. 93-36108.
United States Court of Appeals, Ninth Circuit.
Submitted June 6, 1994.*Decided June 14, 1994.
Before: TANG, PREGERSON, and T.G. NELSON, Circuit Judges.
1
MEMORANDUM**
2
Michael J. Loomis, an Idaho state prisoner, appeals pro se the district court's dismissal without prejudice of his 42 U.S.C. Sec. 1983 complaint. The district court specifically stated that it was dismissing the complaint and not the action. Therefore, we dismiss Loomis's appeal for lack of an appealable final order.
3
The dismissal of a complaint without the dismissal of the underlying action is not considered an appealable final order under 28 U.S.C. Sec. 1291. Gerritson v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir.1987); Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984).
4
Here, the district court "administratively terminated" Loomis's complaint pending the outcome of Loomis v. Idaho State Bd. of Corrections, No. 93-004-S-HLR (D. Idaho filed Aug. 3, 1993). The district court found that the two cases raised substantially similar claims. In dismissing the complaint, the district court terminated the complaint but did not dismiss the action. The district court's order states: "Once Civil Case No. 93-004-S-LHR is fully resolved, should [Loomis] wish to pursue further claims, he may then move to reopen this proceeding." Thus, Loomis is free to reopen his action with claims not disposed of in the other case currently pending in the district court. Therefore, we conclude that the district court's order dismissing Loomis's complaint and not the action is not an appealable final order. See Gerritson, 819 F.2d at 1514; Hoohuli, 741 F.2d at 1171 n. 1.
5
DISMISSED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
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53 F.3d 343NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES of America, Plaintiff-Appellee,v.Kyung Hwan MUN, Defendant-Appellant.
No. 94-3361.
(D.C. No. 94-CR-30001).
United States Court of Appeals, Tenth Circuit.
April 26, 1995.
Before MOORE, BARRETT, and EBEL, Circuit Judges.
ORDER AND JUDGMENT1
MOORE, Circuit Judge.
1
Neither party has requested oral argument, and after examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
2
This is a direct appeal from a conviction of unlawfully possessing a homemade knife by the defendant who was an inmate at USP Leavenworth. The sole issue on appeal is whether the district court erred when it refused to permit a defense witness to testify about the veracity of the government's case.
3
Defendant asserts the issue of credibility is essential because only one witness, a guard, was able to connect defendant to the knife. He offered Benjamin Thomas Tisdale, another Leavenworth inmate, to establish the guard had a reputation among inmates as a liar.
4
At a hearing outside the presence of the jury, defense counsel attempted to establish a foundation for Mr. Tisdale's knowledge of the guard's reputation. Mr. Tisdale was asked whether he was aware of the guard's reputation "in the prison for truthfulness or untruthfulness." Mr. Tisdale responded he was, and when asked what that reputation was, the court sustained the government's objection for lack of foundation. Counsel then attempted to lay a foundation, but limited his questioning to whether Tisdale had his own opinion. Because he did, Tisdale was then asked the basis of that opinion. He responded the guard "planted evidence in my cell ... to make himself look good." Counsel then attempted to have Mr. Tisdale state the guard had planted evidence on others, but that issue was foreclosed when further testimony developed Tisdale's knowledge was based on hearsay. Further attempts were made to ostensibly lay a foundation, but without success.
5
In short, then, no foundation was ever laid to show Mr. Tisdale was acquainted with the guard's reputation for truth and veracity. In this appeal, counsel take great pains to argue over general issues relating to reputation and opinion and the admissibility of both, but two seminal issues get lost in the discussion.
6
First, there was no evidentiary basis offered to show Mr. Tisdale knew of the guard's reputation. After soliciting an answer Tisdale knew of that reputation, the proper line of questioning was abandoned, and the witness was asked to focus on specific acts that at best could be described as bad character. Second, and perhaps most telling, because the admission of reputation testimony is governed by the trial court's exercise of discretion, defendant has made no effort to show how the court abused that discretion. Both of these failures are fatal to defendant's cause.
7
Assuming for the sake of argument a prison guard's reputation for veracity among the prisoners is probative evidence of his credibility, an interesting question itself, there must still be a foundation for that testimony. Mr. Tisdale's own opinion of that reputation is not sufficient. Deschenes v. United States, 224 F.2d 688, 691 (10th Cir.1955). Indeed, the witness must have knowledge of how others within the community of the impeachee regard his reputation for truth. Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1552 (10th Cir.1988). The record being bare of any effort to produce the basis for Mr. Tisdale's claim of knowledge of the guard's reputation for truth among the prisoner community, he failed to meet the threshold for introduction of such evidence.
8
Defendant, relying upon Fed.R.Evid. 608(a), contends it was proper for Mr. Tisdale to state his opinion of the guard's veracity. Indeed, he asked that question, and the answer was stricken because there had been no foundation laid for the response. Although he subsequently laid that foundation, counsel never restated his question, and Mr. Tisdale was not again asked to offer his opinion. As a result, there is no basis for his argument that the district court failed to follow the dictates of Rule 608(a).
9
Assuming defendant could overcome those hurdles, he has still fallen short of the mark. In the last analysis, admissibility of evidence of reputation for truth and veracity is left to the sound discretion of the district court. United States v. Bedonie, 913 F.2d 782, 802 (10th Cir.1990), cert. denied, 501 U.S. 1253 (1991). Given defendant's failure to establish a necessary foundation, coupled with the fact the witness himself was impeachable because of his own felony conviction, we have difficulty seeing how the district court abused its discretion here. Although there are additional reasons for concluding no error was committed, these are ample for this appeal.
10
AFFIRMED.
1
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470
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663 P.2d 967 (1983)
Calvin J. KELLY, Appellant,
v.
STATE of Alaska, Appellee.
No. 6311.
Court of Appeals of Alaska.
May 13, 1983.
*968 Marlin D. Smith, P.C., Fairbanks, for appellant.
Elizabeth H. Sheley, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
OPINION
BRYNER, Chief Judge.
Calvin Kelly was indicted on February 24, 1981, on charges of issuing a bad check in violation of AS 11.46.280. The indictment alleged that on or about the 24th day of October, 1980, Kelly had issued a check payable to Fred Meyer Jewelers in Fairbanks knowing that it would not be honored by the drawee. Kelly was convicted on June 18, 1981, following a jury trial. He was subsequently sentenced to a maximum term of five years' incarceration. He then filed this appeal.
Kelly first argues that the trial court erred in allowing him to represent himself. He asserts that the trial court failed to establish for the record, in accordance with McCracken v. State, 518 P.2d 85 (Alaska 1974), that his waiver of counsel was knowing and intelligent, and that he was capable of representing himself. Kelly also argues that the seriousness of the trial court's failure to make this inquiry is compounded by the fact that Kelly decided to represent himself only because his attorney had made no contact with him as late as ten days before the omnibus hearing.
Discussion of this issue is not possible without reference to the history of Kelly's decision to represent himself at trial. At his March 2, 1981, arraignment Kelly stated that he wanted to represent himself, though he did accept appointment of consultative counsel. On March 4, 1981, Kelly wrote a letter to Superior Court Judge Jay Hodges in which he stated that he had changed his mind and now desired appointment of a public defender. In response to this letter the public defender agency was appointed to represent Kelly on March 10, 1981.
On April 12, 1981, Kelly wrote a letter to Superior Court Judge James Blair requesting that his attorney, David Backstrom, be disqualified; Kelly argued that another public defender should be appointed because Backstrom had failed to make contact as of that date. On May 26, Kelly filed a "Motion for Self-Representation with Assistance of Public Defender as for Witnesses and Subpoenas." On the following day Kelly wrote a letter to Superior Court Judge Gerald Van Hoomissen in which he restated his desire to defend himself; in this letter, however, Kelly did not indicate that dissatisfaction with his attorney was the reason for his decision to act as his own counsel.
Kelly's motion for self-representation was granted at an omnibus hearing held on June 5, 1981. The hearing opened with this exchange:
Judge Van Hoomissen: Mr. Kelly, you've indicated in your last motion that you want to represent yourself... [Y]ou've gone from wanting to represent yourself to desiring the public defender to not wanting Mr. Backstrom ... to wanting a particular attorney, back not to representing yourself.
Kelly: Yes, your honor. The reason for this is I've a public defender has been appointed to me [sic] since March the 6th and I have never seen a public defender yet. And I think it's very inadequate on *969 their part and I'm ready for trial on the 15th of June ... I don't feel that I've been given adequate attorney to start with. I've researched this case . .. I filed a motion to represent myself and I feel that I could do it in [an] adequate in proper way.
Van Hoomissen: Well, all right. First of all let me just say this. You have a right to represent yourself, but you must be aware of the fact that I would hold you to the same standard of conduct and the same rules of evidence that I will an attorney. I'm not going to bend them because of the fact you're representing yourself. Do you understand that?
Kelly asserts that this inquiry by the court failed to conform to the standards announced in McCracken v. State, 518 P.2d 85, and that the failure was exacerbated by the lack of contact between Kelly and his public defender before trial.
In McCracken, 518 P.2d at 91, the supreme court decided that the Alaska Constitution guaranteed a criminal defendant the right of self-representation. However, the court also stated:
The right is not absolute. In order to prevent a perversion of the judicial process, the trial judge should first ascertain whether a prisoner is capable of presenting his allegations in a rational and coherent manner before allowing him to proceed pro se. Second, the trial judge should satisfy himself that the prisoner understands precisely what he is giving up by declining the assistance of counsel.
The Alaska Supreme Court has recognized the continuing validity of this rule on several occasions; see, e.g., Swensen v. Anchorage, 616 P.2d 874, 877-78 (Alaska 1980); Gregory v. State, 550 P.2d 374, 380 (Alaska 1976). In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court also recognized the existence of a criminal defendant's constitutional right of self-representation, but found that this right could be considered intelligently exercised only upon a showing, on the record, that the defendant was advised of the dangers and disadvantages of self-representation. Id. 422 U.S. at 835-36, 95 S.Ct. at 2541-42, 45 L.Ed.2d at 581-82.
The state does not maintain that the trial court complied with the McCracken standard. Rather, the state takes the position that non-compliance can be excused in light of the facts of this case. The state points to Kelly's extensive criminal record, his legal sophistication as evidenced by several pretrial motions that he filed, and the relatively uncomplicated nature of the crime with which he was charged. The state argues that these considerations would have made a McCracken inquiry merely pro forma. The state further argues that the trial court's failure to make a full McCracken inquiry can be excused because Kelly, while allowed to represent himself, was also given an attorney to assist him and thus received hybrid representation.
We are persuaded that the facts of this case compel a finding that the trial court's failure to make a full McCracken inquiry can be excused. Our review of the record reveals that Kelly possesses a considerable degree of legal acumen. His understanding of the legal process is demonstrated by the pretrial motions that he filed and by the memoranda in support of those motions. Judge Van Hoomissen was aware of Kelly's familiarity with legal research because Kelly had filed a motion requesting greater access to the Fairbanks jail law library. We also note that Kelly has had considerable experience with the criminal justice system. Thus, the record indicates a strong likelihood that Kelly was aware of the advantages inhering to a criminal defendant from representation by counsel. In Fowler v. United States, 411 A.2d 618, 623-24 (D.C.App. 1980), the court relied upon similar circumstances in deciding that the trial court had not compromised the defendant's sixth amendment rights despite its failure to make a formal inquiry on the record. Although Kelly's experience with the legal process and his skill in representing himself might not, standing alone, excuse the failure to make a proper inquiry on the record, we deem these *970 factors highly relevant in assessing the significance of the fact that Kelly was afforded hybrid representation and did not, in fact, act entirely on his own.
We agree with the state's assertion as to the importance of Kelly's having received the benefits of hybrid representation at trial. At the omnibus hearing Judge Van Hoomissen acknowledged Kelly's request for limited assistance of counsel, but made it clear that the public defender, David Backstrom, would not be relegated to the role of "a gopher going out serving subpoenas and the rest of it."[1] The record convinces us that Backstrom actually did play a significant role in Kelly's defense. For example, Backstrom brought the court's attention to contacts between witnesses and jurors, which allegedly took place during a recess; he objected to the prosecution's use of a Virginia conviction for grand larceny when Kelly elected to take the stand; and he also questioned Kelly on direct and redirect examination.
In Cano v. Anchorage, 627 P.2d 660 (Alaska App. 1981), we decided that it was error for the trial court to force the defendant to choose between self-representation and representation by counsel, and we recognized that hybrid representation would in some cases be an appropriate alternative to representation by counsel. We did not address the question of whether a McCracken inquiry would be required in situations involving some form of hybrid representation. In the present case, we believe that the substantial level of assistance rendered at trial by Kelly's counsel justifies the conclusion that the trial court's failure to make a formal McCracken inquiry may be excused.
At least one jurisdiction has expressly decided that formal inquiry of the defendant is not required in any case where hybrid representation is employed. In reaching this conclusion, the Texas Court of Criminal Appeals reasoned that hybrid representation did not involve waiver of counsel; thus, failure to establish for the record that the defendant's waiver was voluntary and knowing could not be considered error. Maddox v. State, 613 S.W.2d 275, 286 (Tex. Cr.App. 1981) (opinion on rehearing); Phillips v. State, 604 S.W.2d 904, 908 (Tex.Cr. App. 1979). Accord Rainwater v. State, 634 S.W.2d 67 (Tex.Cr.App. 1982). We believe that the basic premise of Maddox is applicable to this case: since Kelly benefited substantially from Backstrom's assistance as counsel at trial, the need for the trial court to satisfy the McCracken requirement was necessarily less acute.
Our holding, however, is a narrow one. We do not conclude that a McCracken inquiry can be dispensed with in every case where the defendant receives some form of hybrid representation. We find only that Kelly's considerable legal experience and expertise and the substantial level of legal representation that he actually received from counsel at trial excuse the trial court's failure to make a full inquiry on the record to establish expressly that Kelly knowingly and intelligently waived his right to legal representation.
Kelly's next argument involves the prosecution's use for impeachment purposes of a jury verdict finding that Kelly had committed armed bank robbery in violation of federal law. The verdict in the federal trial was returned on May 20, 1982; Kelly had not yet been sentenced on this charge when his state trial commenced on June 16, 1981. Kelly contends on appeal that the trial court's decision to permit impeachment through use of this conviction was error. He relies upon Federal Rule of Criminal Procedure 32(b), which defines a judgment of conviction as including the sentence received. Kelly also relies upon United States v. Semensohn, 421 F.2d 1206, 1208 (2d Cir.1970), in which the trial court was found to have erred in allowing the defendant to be impeached at trial with his plea of guilty in a separate case, which was awaiting sentencing.
*971 Rule 609(a) of the Alaska Rules of Evidence[2] applies in this situation, permitting the use of certain prior convictions to impeach the testimony of a witness. The rule is based upon corresponding Federal Rule of Evidence 609. The state acknowledges that the commentary to Rule 609(a) is silent concerning the question of when a "conviction" arises. However, the state contends that Evidence Rule 609(f) provides support for its position that use of the bank robbery conviction was proper. Evidence Rule 609(f) reads:
Pendency of Appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.
The state suggests that there is no logical reason why impeachment of a witness should be permitted after his sentencing for a conviction from which an appeal has been taken, but not permitted after a jury has reached a finding of guilt on which sentencing has not occurred. In United States v. Klein, 560 F.2d 1236 (5th Cir.1977), cert. denied, 434 U.S. 1073, 98 S.Ct. 1259, 55 L.Ed.2d 777 (1978), the Fifth Circuit Court of Appeals accepted precisely this argument in connection with Federal Rule of Evidence 609(e), which is identical to Alaska Rule 609(f). The court reasoned that,
if a jury can comprehend that a prior conviction on appeal may be reversed, it can also comprehend that a jury verdict of guilt may be set aside upon a motion for a judgment of acquittal ... [or] a motion for a new trial... . Thus, we can perceive no logical distinction, for purposes of impeachment, between a conviction on appeal and a jury verdict of guilty where judgment and sentence have not yet been entered, so long as the defendant has the opportunity to explain to the jury the legal status of the "conviction."
Id. at 1240 (footnote omitted). We find this reasoning persuasive.
The term "conviction" does not always denote a formally entered judgment. For example, under certain circumstances the legislature has used "conviction" to mean the finding of guilt, and not the imposition of sentence and entry of a judgment of conviction. See AS 12.30.040(b); Kwallek v. State, 658 P.2d 794, 795 n. 1 (Alaska App. 1983). Impeachment is permitted here because the witness has been found guilty of conduct which might cast doubt upon the veracity of his testimony. A witness' truthfulness is affected by a conviction for a crime of dishonesty or false statement to the extent that the conviction represents a determination that the witness has committed acts indicating his potential dishonesty. Thus, for purposes of impeachment, the probative value of a prior conviction is independent and unrelated to the status of the witness as a convicted criminal or to the fact that the witness has been subjected to punishment for his offense. Accordingly, there is little reason to require that impeachment of a witness by prior convictions calls for the existence of both a valid finding of guilt a verdict and a formally entered sentence or judgment of conviction.[3] Therefore, we hold that, for the purposes *972 of Evidence Rule 609(a), "conviction" may be defined to include those situations in which a verdict of guilt has been accepted, but sentencing has not yet occurred.
At any rate, we believe that use of the bank robbery verdict to impeach Kelly, even if erroneous, was harmless error. A judgment of conviction on the federal charge was duly entered after Kelly's conviction in this case, and it would now be pointless to remand for a new trial in which the federal conviction would now plainly be admissible. See State v. Bouthillier, 4 Or. App. 145, 479 P.2d 512 (Or. App. 1970). Furthermore, we believe we can fairly say in this case that the improper material did not affect the result. Sandvik v. State, 564 P.2d 20, 24 n. 7 (Alaska 1977). See Fairman v. State, 83 Nev. 287, 429 P.2d 63, 64 (Nev. 1967).
Kelly also argues that the trial court erred in permitting a series of bad checks written by him to be introduced into evidence. These checks were written between October 13 and October 26, 1980; the check Kelly wrote to Fred Meyer, which was the subject of the bad check charge, was written on October 24. Also admitted was a group of Kelly's bank statements which listed these checks.
Kelly argues that admission of these checks was error because any probative value the checks possessed was outweighed by the prejudice they created. A.R.E. 403. The state argues that admission of this evidence was proper under Evidence Rule 404(b),[4] as evidence of the intent required under AS 11.46.280, or as evidence that the bad check Kelly wrote to Fred Meyer was not simply a mistake. The state also notes that Kelly made no objection at all to fourteen of the seventeen checks and objected to introduction of the bank statements which listed the bad checks only on grounds of authenticity.
We hold that admission of this evidence was proper under Rule 404(b) to prove intent and absence of mistake. Kelly fails to demonstrate how any prejudice created by the evidence to which an objection was actually entered outweighs its probative value. We conclude that Kelly has not shown that the trial court's action amounted to an abuse of its discretion. Sheakley v. State, 644 P.2d 864, 873 (Alaska App. 1982); Doisher v. State, 632 P.2d 242, 253-54 (Alaska App. 1981), rev'd on other grounds, 658 P.2d 119 (Alaska 1983).
Kelly's last asserted trial error involves testimony by Ralph Seekins, a Fairbanks car dealer and a member of an organization known as the Full Gospel Businessmen's Fellowship. This group visited and made contact with Fairbanks area prisoners; Seekins met Kelly through the group's activities, and Kelly worked for Seekins as a janitor after his release on bail pending trial. At trial Kelly decided to call Seekins as a character witness, apparently hoping that Seekins' testimony would establish that Kelly had received loans from Seekins in the past and had always paid them back. However, Kelly also questioned Seekins about a specific loan:
Q: [W]hat large amount did he [Kelly] borrow from you?
A: I don't recall anything over in excess of $100. I don't recall anything larger than that, not from me.
Q: Mr. Seekins, did the defendant ever show you a check that he had made overdrawn and asked you to borrow the money to make it good that he would give it back to you?
A: I knew of overdrawn checks.
Q: No, I'm talking about a check that he came in from school one day.
*973 A: If so, I I I don't remember any significant dollar amount. I have a hard time remembering anything that was ... significant, because I I make it a policy not to loan money to anybody, even my employees. My attitude is if I if I load [sic, loan] money to someone, I expect never to see it again, and if I do get it back, I'm surprised.
On cross-examination Seekins testified that he had made cars available to Kelly; when the last such car had developed mechanical problems, Kelly had asked for and obtained a pickup truck from Seekins after promising to pay Seekins for it within a week. The prosecution proceeded to elicit testimony, without objection by Kelly or Backstrom, that Seekins never saw the truck again. When the trial court questioned the relevance of this testimony, the prosecution responded that testimony about the truck would counter the defendant's contention "that he made good the things that he borrowed." This explanation was accepted by the court and cross-examination continued with testimony that the truck had ultimately been abandoned in Champaign, Illinois.
Apparently in order to rehabilitate Seekins' testimony, Kelly questioned him extensively on redirect about the allegedly stolen truck and the contents of a sales agreement that the parties purportedly had written. On recross-examination the state again tried to establish that Kelly had stolen this truck.
Kelly now contends that it was error for the court to permit the prosecution to cross-examine Seekins concerning this truck. His argument is virtually the same as his previous argument concerning the bad checks; Kelly asserts that this testimony, as evidence of past wrongful acts, should have been excluded by Evidence Rule 404(b), and he again maintains that the prejudice created by admission of this testimony outweighs its probative value. A.R.E. 403.
The state asserts that Kelly's questioning of Seekins was intended to create an inference that Kelly was a person who paid his debts; therefore, cross-examination about the truck was within the scope of direct examination and was properly admitted to rebut the inference of honesty created by Seekins' testimony on direct. The state also points out that it was actually Kelly who dwelt at great length on the fact that Seekins believed Kelly had stolen the truck.
While the ultimate purpose of Kelly's direct examination of Seekins is not absolutely clear, it does appear that Kelly was attempting to establish that he had repaid money borrowed from Seekins on several occasions. Since Kelly apparently sought to place his integrity in issue through his questioning of Seekins, the prosecution's limited questioning about the truck was proper rebuttal; certainly, in the absence of a timely objection by Kelly or Backstrom, this line of inquiry did not constitute plain error. The most damaging testimony about the allegedly stolen pickup occurred during redirect examination of Seekins by Kelly. This subject also received considerable attention during Backstrom's redirect examination of Kelly. Thus, the prejudicial impact created by Seekins' testimony is almost entirely attributable to conscious choices made by Kelly and his co-counsel. Under these circumstances, we find that admission of the challenged evidence did not constitute an abuse of discretion. Doisher v. State, 632 P.2d at 253-54.
Finally, Kelly contends that the sentence imposed by the court was excessive. Kelly was sentenced by Judge Gerald Van Hoomissen to a maximum sentence of five years' incarceration, to be served consecutively to Kelly's federal court sentences. Judge Van Hoomissen had initially expected to be able to rely on the presentence report prepared in Kelly's federal case; the state was not permitted to use this report, so a presentence report had to be prepared from information available to the district attorney.
At sentencing the district attorney argued that Kelly should receive the maximum term, based upon consideration of the sentencing objectives found in AS 12.55.005[5]*974 and upon the state's contention that Kelly was a "worst offender in his class in terms of theft-related offenses." The state also argued the existence of two aggravating factors, AS 12.55.155(c)(7) and (10),[6] which would allow enhancement of Kelly's term if he had been presumptively sentenced.
In response, Kelly argued that he should be subject to presumptive sentencing. He pointed out that the state had served him with an authenticated copy of a prior Virginia conviction for grand larceny pursuant to AS 12.55.145(b),[7] but had failed to file a notice of aggravating or mitigating factors as required by AS 12.55.155(f). Kelly contended that the Virginia conviction triggered presumptive sentencing so that he should receive the presumptive, two-year sentence specified by AS 12.55.125(e)(1) for a second, class C felony.
The prosecution argued that the state's failure to file a notice of aggravating factors was chargeable to Kelly's conduct, because Kelly had requested an early sentencing, which precluded the state from obtaining authenticated copies of other judgments of conviction. Judge Van Hoomissen refused to treat this as a presumptive sentencing case. Instead, he expressly found Kelly to be a worst offender within his class. In response to questioning by Kelly, the trial court stated that it was relieving the state of the responsibility of complying with the statutory requirement that factors in aggravation (and mitigation) be filed in writing not later than ten days prior to the date of sentencing. Kelly was then sentenced to a non-presumptive five-year maximum term.
Kelly renews on appeal the argument that he should have been subject to presumptive sentencing. We agree with this contention. The legislature did not intend the presumptive sentencing provisions of the revised criminal code to be applied optionally, at the discretion of the court or the prosecution. The presumptive sentencing structure is mandatory, and it must be followed when it applies. When, as in this case, a party has had insufficient time to comply with the notice requirements relating to proof of prior convictions or aggravating and mitigating factors, the appropriate remedy should normally be a continuance of the sentencing proceedings. Failure to consider prior crimes for presumptive sentencing purposes can be condoned only in those cases where the state, after exercising due diligence, is unable to meet the statutory requirements for proof of a prior conviction. See AS 12.55.145(d). *975 Since it is undisputed here that Kelly had previously been convicted of a felony and was subject to presumptive sentencing, the non-presumptive sentence imposed by the sentencing court was unauthorized and unlawful. We must therefore vacate Kelly's sentence and remand his case for resentencing in accordance with the requirements of the presumptive sentencing statutes. We express no opinion concerning the presence or absence of aggravating and mitigating factors. However, on remand, the state should be given an appropriate period of time to allege and establish any prior convictions Kelly may have, and both Kelly and the state should be afforded ample time and opportunity to allege and prove aggravating and mitigating factors.
The judgment is AFFIRMED; the sentence is VACATED, and this case is REMANDED for resentencing.
NOTES
[1] We are not convinced by Kelly's contention that his decision to represent himself was attributable only to his attorney's purported failure to contact him. Though it is true that Kelly vacillated on this question, his desire to represent himself was expressed long before he became dissatisfied with Backstrom.
[2] A.R.E. 609(a) provides in pertinent part:
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is only admissible if the crime involved dishonesty or false statement.
[3] The situation of the bail statute and of the present case must be distinguished from the use of "convictions" under AS 12.55.125-.155, for presumptive sentencing purposes. It is the imposition of a disability or penalty resulting from a conviction which justifies treatment of a defendant as a second offender for purposes of presumptive sentencing under AS 12.55.125-.155. Presumptive sentencing is appropriate for a multiple offender when his current offense was committed after the offender has already been sentenced and given an opportunity to reform on a prior occasion. See State v. Rastopsoff, 659 P.2d 630 (Alaska App. 1983). In the present case, the finding of guilt is the crucial factor in terms of credibility, and formal imposition of a sentence has no separate effect on the defendant's truthfulness as a witness.
A separate argument could be made that the finality of a formal judgment of conviction is a factor that should preclude impeachment based solely on a verdict of guilt. We believe that, in the ordinary case, the added finality of a formal judgment is not sufficiently significant to prevent reliance on a verdict of guilty for impeachment purposes. However, there may be individual cases where uncertainty as to the validity of a verdict exists and where such uncertainty is sufficient to justify a ruling that impeachment based on the verdict should not be permitted.
[4] A.R.E. 404(b) provides:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
[5] AS 12.55.005 reads:
Declaration of purpose. The purpose of this chapter is to provide the means for determining the appropriate sentence to be imposed upon conviction of an offense. The legislature finds that the elimination of unjustified disparity in sentences and the attainment of reasonable uniformity in sentences can best be achieved through a sentencing framework fixed by statute as provided in this chapter. In imposing sentence, the court shall consider
(1) the seriousness of the defendant's present offense in relation to other offenses;
(2) the prior criminal history of the defendant and the likelihood of his rehabilitation;
(3) the need to confine the defendant to prevent further harm to the public;
(4) the circumstances of the offense and the extent to which the offense harmed the victim or endangered the public safety or order;
(5) the effect of the sentence to be imposed in deterring the defendant or other members of society from future criminal conduct; and
(6) the effect of the sentence to be imposed as a community condemnation of the criminal act and as a reaffirmation of societal norms.
[6] AS 12.55.155(c)(7) and (10) read:
(7) a prior felony conviction considered for the purpose of invoking the presumptive terms of this chapter was of a more serious class of offense than the present offense
(10) the conduct constituting the offense was among the most serious conduct included in the definition of the offense.
[7] AS 12.55.145(b) reads:
When sentence is imposed under this chapter, prior convictions not expressly admitted by the defendant must be proved by authenticated copies of court records served on the defendant or his counsel at least 10 days before the date set for imposition of sentence.
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400 F.Supp. 358 (1975)
Guy CONDOSTA
v.
VERMONT ELECTRIC COOPERATIVE, INC., et al.
Civ. A. No. 73-206.
United States District Court, D. Vermont.
September 9, 1975.
*359 *360 Michael H. Lipson, Vermont Legal Aid, Inc., Burlington, Vt., Nancy E. Kaufman, Montpelier, Vt., for plaintiff.
Richard M. Finn, Montpelier, Vt., for all defendants except Vt. Electric Co-op.
Dick, Hackel & Hull, Rutland, Vt., for defendants.
AMENDED MEMORANDUM AND ORDER
HOLDEN, Chief Judge.
This is a civil rights action brought by the plaintiff against the defendants as a result of the termination of the plaintiff's electric service for nonpayment of a disputed bill. The plaintiff seeks declaratory and injunctive relief, as well as money damages, under 42 U. S.C. §§ 1983, 1985(2) and 1986 (1970). Several defendants have moved to dismiss the complaint against them. Vermont Electric Cooperative, Inc., (hereafter VEC) moved for judgment on the pleadings, and the defendant Albert Ravenna has moved for severance of the claim against him. Each motion will be considered separately.
I Motions to Dismiss
Defendants William A. Gilbert, Daniel B. Ruggles III, the Vermont Public Service Board and Kimberly B. Cheney have each moved to have the complaint against them dismissed.[1] For the reasons which follow, the motions to dismiss are granted to this extent: (1) the complaint against the Vermont Public Service Board (hereafter PSB) as a government agency, (2) the § 1985(2) claim against defendants Gilbert and Ruggles, (3) the § 1983 claim asserted against defendants Gilbert and Ruggles insofar as relief by way of a pecuniary award is sought, and (4) the § 1986 claim against the defendant Cheney. However, the motions to dismiss of the defendants Gilbert and Ruggles are denied in that aspect of the complaint based on § 1983 which seeks declaratory relief against them in their individual and official capacities.
*361 A. Defendant Vermont Public Service Board
The plaintiff alleges that the defendant PSB conspired to violate and violated his due process and equal protection rights as guaranteed by the Fourteenth Amendment by denying the plaintiff a hearing prior to the termination of his electric service. On the strength of this claimed deprivation, the plaintiff seeks declaratory relief and money damages against the PSB under 42 U.S.C. §§ 1983 and 1985(2) (1970).[2]
Ordinarily the disposition of a federal suit against the PSB would require a determination by this Court of whether or not PSB is, in actuality, an "alter-ego" of the state, with the State being the real party in interest. George R. Whitten, Jr., Inc. v. State University Construction Fund, 493 F.2d 177, 179-180 (1st Cir. 1974). This inquiry would give rise to Eleventh Amendment considerations and questions of sovereign immunity. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).
However, we need not reach these questions here for the reason that the PSB is not a "person" within the meaning of the Civil Rights Statutes. Rosado v. Wyman, 414 F.2d 170, 178 (2d Cir. 1969), rev'd on other grounds, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Sykes v. California, 497 F.2d 197, 201 (9th Cir. 1974); Surowitz v. New York City Employees' Retirement System, 376 F.Supp. 369, 371 (S.D.N.Y. 1974).[3] Since the plaintiff's complaint fails to state a claim upon which relief can be granted against the PSB, its motion to dismiss must be granted.
B. Defendants Gilbert and Ruggles
The plaintiff claims that these defendants, while members of the PSB, engaged in a conspiracy that violated his due process and equal protection rights in denying him a hearing prior to the termination of his electric service. The plaintiff requests declaratory relief and money damages against the defendants in both their official and individual capacities under 42 U.S.C. §§ 1983 and 1985(2) (1970).[4]
A claim for damages asserted against a state officer in his official capacity, is, in effect, an action against the State, which is barred by the Eleventh Amendment. Edelman, supra at 662-663, 94 S.Ct. 1347. A state may waive its sovereign immunity; Vermont has waived state immunity within the limits of the insurance coverage of its employees.[5] However, this *362 statutory waiver does not extend to suits in federal court. Miller v. Vermont, 201 F.Supp. 930 (D.Vt. 1962); Lewis v. Vermont, 289 F.Supp. 246 (D.Vt.1968). Therefore, the complaint fails to state a cause of action upon which relief in the form of money damages can be granted against defendants Gilbert and Ruggles in their official capacities as commissioners of the PSB.
Actions for declaratory relief against a state officer in his official capacity are not to be construed as suits against the state barred by the Eleventh Amendment. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Williams v. Eaton, 443 F.2d 422, 428 (10th Cir. 1971).[6] The plaintiff's amended complaint alleges sufficient facts to meet the requisites of a § 1983 action to the extent that the plaintiff seeks declaratory relief against defendants Gilbert and Ruggles in both their official and individual capacities.[7] Consequently, their motions to dismiss in this respect are denied.
The plaintiff's § 1985(2) complaint is fatally deficient on its face because it fails to allege that the defendants' violation of his constitutional rights was the product of any class-based discrimination. Johnston v. N.B. C., 356 F.Supp. 904, 909 (E.D.N.Y. 1973).[8]
In construing § 1985(3), the Supreme Court held:
The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971) (footnote omitted).
The same construction must be given the same language in § 1985(2). The § 1985(2) claim against defendants Gilbert and Ruggles is dismissed.
There remains to be considered only the § 1983 complaint for money damages against these two defendants in their individual capacities. The defendants contend that judicial immunity bars the granting of any such relief.
The members of the PSB often perform judicial functions. They are:
[C]lothed with judicial power to entertain proceedings and determine the facts upon which the existing laws shall operate in a controversy between consumers and the public service corporation . . .. In the exercise of this judicial function the public service board has the authority and the duty to investigate any claimed unlawful act adversely affecting a consumer served by a utility subject to its supervision. North v. City of Burlington Electric Light Department, 125 Vt. 240, 214 A.2d 82 (1965).[9]
Since the plaintiff's claim for money damages is based on the failure of the commissioners to grant him a hearing, he seeks to impose liability on Gilbert and Ruggles for discretionary inaction on their part. It is clear that such discretionary inaction on the part of PSB commissioners is protected under the doctrine of quasi-judicial immunity. McCray v. Maryland, 456 F.2d 1 (4th Cir. 1972); Gilbert v. Godnick, No. 75-55 (D.Vt. May 22, 1975); see also, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (judicial immunity); *363 Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (legislative immunity).
The answers to interrogatories filed by defendants VEC and its manager, Walter Cook, state that VEC:
[N]ever disconnects a disputed bill until such time as the dispute is resolved . . . . [T]he Public Service Board ordered Vermont Electric Cooperative, Inc., to follow its Tariff and to disconnect the electrical service of the Plaintiff . . . .
The plaintiff contends that this action, if taken by defendants Gilbert and Ruggles, was beyond the scope of their authority and thus cannot be protected by the doctrine of quasi-judicial immunity. However, a distinction must be made under Civil Rights Act cases between actions taken in clear absence of authority as distinguished from those done in excess of jurisdiction.[10]Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351-352, 20 L.Ed. 646 (1871); Bauers v. Heisel, 361 F.2d 581, 590-591 (3rd Cir. 1966), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967). Since defendants Gilbert and Ruggles have jurisdiction in all matters respecting "The manner of operating and conducting any business subject to supervision under this chapter," 30 V.S.A. § 209(3) (1972), their alleged directive to the utility VEC to terminate the plaintiff's electric service cannot be held to have been taken in clear absence of authority. Bradley, supra. Thus, the defendants Gilbert and Ruggles are protected by quasi-judicial immunity. Accordingly, that aspect of the plaintiff's § 1983 complaint which seeks to recover money damages against them as individuals is dismissed.
C. Defendant Cheney
The plaintiff seeks declaratory relief and money damages against the defendant Cheney, individually and in his capacity as Attorney General for the State of Vermont, under 42 U.S.C. § 1986 (1970).[11] The plaintiff's claim is based on the alleged failure of defendant Cheney to investigate the plaintiff's charge that he was being deprived by the PSB and VEC of his constitutional right to a hearing.
In order for an action under § 1986 to lie, the plaintiff must sufficiently establish a violation of § 1985. Turner v. Baxley, 354 F.Supp. 963, 973 (D.Vt.1972); Johnston, supra at 909-910. Section 1986 refers specifically to wrongs "conspired to be done, and mentioned in section 1985." As previously discussed, the plaintiff's § 1985(2) claim is deficient due to the failure to allege the essential element of class-based discrimination; therefore, the § 1986 claim against the defendant Cheney must likewise be dismissed.
II Motion for Judgment on the Pleadings
The plaintiff's complaint requests injunctive and declaratory relief and money damages against the defendant VEC under 42 U.S.C. §§ 1983 and 1985(2) (1970) and under Vermont common law.[12] VEC has filed a motion requesting *364 judgment on the pleadings on the basis of two alternative theories: (1) that the defendant VEC did not act "under color of state law" when terminating the plaintiff's electric service,[13] and (2) that electric service does not constitute "property" within the meaning of the Fourteenth Amendment. We disagree, and deny VEC's motion for judgment on the pleadings.
One of the requisite elements of a § 1983 cause of action is that the defendants acted under color of state law. 42 U.S.C. § 1983 (1970); Kletschka, supra at 447. In the recent decision of Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), the Supreme Court found that the action of a privately owned and operated Pennsylvania corporation, with a certificate of public convenience, which was subject to extensive regulation by the Pennsylvania Public Utility Commission, was not acting under color of state law when it terminated the electric service of one of its customers. The Court stated that the appropriate test in that situation for determining whether that utility's conduct constituted state action under the Fourteenth Amendment was:
(W)hether there was a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. Jackson, supra at 351, 95 S.Ct. at 453.
In finding that such a nexus did not exist, the Court held that the granting of a monopoly status by the state, the nature of the service provided,[14] and the pro forma approval of the utility's tariff providing for the method of termination under attack, were together insufficient to transform the action of Metropolitan Edison Co. into that of the State of Pennsylvania. Jackson, supra at 351-357, 95 S.Ct. 449. We believe that the facts herein alleged are sufficiently distinguishable from those in Jackson to find that state action is adequately found on the face of the pleadings.
Mr. Justice Rehnquist, in refuting Jackson's contention that the Pennsylvania Commission's approval of Metropolitan Edison's termination practice was state action, clearly indicated that a different situation arises when the state regulatory agency has ordered the termination:
Approval by a state utility commission of such a request from a regulated utility, where the Commission has not put its own weight on the side of the proposed practice by ordering it, does not transmute a practice initiated by the utility and approved by the Commission into "state action." Jackson, supra at 357, 95 S.Ct. at 456 (emphasis added).
In the case at hand, VEC has admitted that it terminated the plaintiff's electric service pursuant to instructions from the PSB.[15] Furthermore, the plaintiff alleges that the PSB was intimately involved *365 in the negotiations between himself and VEC prior to the termination of his service. Such an allegation stands in direct contrast to the findings of the lower courts in the Jackson case that no state official participated or cooperated in the termination there challenged. Jackson v. Metropolitan Edison Co., 348 F.Supp. 954, 958 (M.D.Pa.1972), aff'd 483 F.2d 754, 758 (3rd Cir. 1973). On these bases, we find that the pleadings allege a "sufficiently close nexus" between the PSB and the action of VEC that VEC's action may, at this stage of the proceedings, be "fairly treated as that of the State itself." Jackson, supra at 351, 95 S.Ct. at 453.
Moving on to a consideration of VEC's second theory, the Court concludes that electric service does constitute "property" within the meaning of the Fourteenth Amendment. In discussing this issue of what constitutes property under the Fourteenth Amendment, the Supreme Court has stated:
To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives . . .. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).
That the plaintiff relies upon electric service in his daily life cannot be questioned; his ability to obtain heat in the winter, refrigeration and cooking of his food, and light by which he can see at night is dependent upon his receipt of electric service. Probably no other single utility service is so vital to this plaintiff's day-to-day existence. Furthermore, under Vermont law, the plaintiff also has a legitimate claim of entitlement to electric service:
A . . . corporation engaged in the business of . . . transmitting in this state electric energy . . . and distributing it for heating, lighting or power purposes or for any other public use . . . shall sell and distribute the same to any and all persons . . . that desire to use the same within this state . . .. 30 V.S.A. § 2801 (1972) (emphasis added).
As with the entitlement to routes for airlines, channels for television stations and pension and social security benefits, see Goldberg v. Kelly, 397 U.S. 254, 262 n. 8, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), this plaintiff's entitlement to electric service is subject to protection as a property right.[16] In legal contemplation
"[E]lectricity . . . is property capable of ownership and of sale, and *366 it may be the subject of larceny." 26 Am.Jur. 2d Electricity, Gas & Steam § 1 (1966).
For these reasons, the defendant VEC's motion for judgment on the pleadings is denied.
III Motion for Severance
The defendant Albert Ravenna, has moved to sever the claim against him. The plaintiff alleges that Ravenna, who is a state policeman stationed in Brattleboro, helped VEC to disconnect the plaintiff's electric service. The only relief requested under 42 U.S.C. § 1983 (1970) is in the form of an injunction enjoining Ravenna from assisting in the termination of electric service without a court order.
Although the plaintiff indicates that he has no objection to Ravenna's motion, the Court sees no reason why severance should be granted and, therefore, denies the motion. Under Fed.R.Civ.P. 21, the determination of this motion is within the Court's discretion. Fair Housing Development Fund Corp. v. Burke, 55 F.R.D. 414, 419 (E.D. N.Y.1972). Since the claim asserted against the defendant Ravenna clearly arises out of the same transaction or occurrence (i. e. the disconnection of the plaintiff's electric service) and since there will be common issues of law and fact, this Court finds that proper joinder exists. See 7 C. Wright, Federal Practice & Procedure (Civil) § 1683 (1972). Therefore, in the interests of judicial economy, Fed.R.Civ.P. 1, the case against all the defendants shall be tried in one action.
Accordingly, it is ordered:[17]
1. That defendant Public Service Board's motion to dismiss is granted;
2. That the plaintiff's motion to amend his complaint to allege a Fourteenth Amendment claim against the Public Service Board is denied without prejudice;
3. That the plaintiff's § 1985(2) claim against defendants VEC, Gilbert and Ruggles is dismissed;
4. That the plaintiff's § 1983 claim insofar as it seeks money damages against the defendants Gilbert and Ruggles is dismissed;
5. That the motions to dismiss of defendants Gilbert and Ruggles, insofar as they relate to the plaintiff's request for declaratory relief under § 1983, are denied;
6. That defendant Cheney's motion to dismiss is granted;
7. That the plaintiff's motion to amend his complaint to assert a pendent, Vermont common law claim against the defendant VEC is granted;
8. That the defendant VEC's motion for judgment on the pleadings is denied;
9. That the defendant Ravenna's motion for severance is denied; and
10. That this case shall be set for a hearing on the plaintiff's request for a preliminary injunction, and all counsel are to provide the Court with memoranda supporting their respective positions if they have not already done so.
NOTES
[1] Defendants Gilbert and Ruggles are being sued individually and in their capacity as commissioners of the Vermont PSB. Defendant Gilbert is also being sued in his capacity as chairman of the PSB.
Defendant Cheney is being sued individually and in his capacity as the Attorney General for the State of Vermont.
[2] At the hearing on PSB's motion to dismiss, the plaintiff requested permission to amend his complaint against PSB to allege a direct action based on the Fourteenth Amendment, with jurisdiction founded on 28 U.S.C. § 1331 (1970), due to the recent decision of Brault v. Town of Milton, No. 74-2370 (2d Cir. Feb. 24, 1975).
Permission to so amend the complaint is denied until such time as the Brault decision is rendered, following the rehearing; en banc by the Second Circuit. Should that decision be favorable to the plaintiff's position, his request to amend his complaint may be raised anew at that time.
[3] The plaintiff conceded this point at the hearing; however, he subsequently revoked that concession, citing Forman v. Community Services, Inc., 500 F.2d 1246 (2d Cir. 1974).
Although that opinion stated by way of dictum that agencies are "persons" under the Civil Rights Act, the cited authority for that statement was Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir. 1970), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1971), and Holmes v. New York City Housing Authority, 398 F.2d 262 (2d Cir. 1968). Neither of those two cases squarely faced the issue of whether the defendant was a "person" under the Civil Rights Act; and, furthermore, the court in Holmes stated clearly that the N.Y.C. Housing Authority was a public corporation. Holmes, supra at 263. For these reasons, this Court declines to follow Forman and relies instead on the cases cited.
[4] Defendant Gilbert is being sued in two official capacities; as commissioner of the PSB and as chairman of the PSB. As is evident from subsequent discussion herein, this two-fold official capacity is of no consequence to the present motions.
[5] 29 V.S.A. §§ 1401 & 1403 (1972).
[6] Accord, Klein v. New Castle County, 370 F.Supp. 85 (D.Del.1974) (declaratory relief against county officials granted).
[7] Kletschka v. Driver, 411 F.2d 436, 447 (2d Cir. 1969); Griffin v. Beckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).
[8] Accord, Hahn v. Sargent, 388 F.Supp. 445, 449 (D.Mass.1975); Phillips v. Singletary, 350 F.Supp. 297, 301-303 (D.S.C.1972); McIntosh v. Garofalo, 367 F.Supp. 501, 505-506 (W.D.Pa.1973).
[9] See McTighe v. New England Telephone & Telegraph Co., 216 F.2d 26, 29, (2d Cir. 1954); Trybulski v. Bellows Falls Hydro-Electric Corp., 112 Vt. 1, 20 A.2d 117 (1941).
[10] This alleged act of ordering the disconnection of the plaintiff's service was also a discretionary one, falling within the commissioners' judicial function to determine what action should be taken in the particular situation then presented.
[11] Section 1986 provides:
Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured . . . for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented . . ..
[12] The complaint against Walter Cook, as manager of VEC, was dismissed with the plaintiff's consent at the hearing.
The Court grants the plaintiff's motion to amend his complaint to assert a pendent, Vermont common law claim against the defendant VEC. The Court also dismisses on its own motion the § 1985(2) claim against VEC for the reasons stated in Part I, Subsection B of this opinion.
[13] VEC's memorandum in support of its motion argues that no hearing is required prior to termination of electric service under Jackson v. Metropolitan Edison Co., 419 U. S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). However, that case held that the actions of the defendant, in terminating the plaintiff's electric service, were not state action under the Fourteenth Amendment. The Court specifically declined to reach the issue of whether a hearing was required prior to termination. Jackson, supra at 359, 95 S.Ct. 449. Therefore, for purposes of this motion, this Court will presume that the defendant VEC wished to contend the issue of state action, rather than that stated in its memorandum.
[14] The plaintiff had contended that the defendant corporation performed a public function. The Court rejected that contention, stating that under Pennsylvania law, the furnishing of utility service was not a state or municipal function. Jackson, supra at 352-353, 95 S.Ct. 449.
[15] VEC stated this specifically in Paragraphs 9 and 10 of its affirmative defenses in its January 7, 1974, answer to the plaintiff's initial amended complaint. It omitted such an allegation in its more recent answer to the plaintiff's second amended complaint. In addition, VEC, through its manager, Walter Cook, made this statement under oath in its answer to plaintiff's interrogatory # 84(b).
Since the Court is not treating this motion as one for summary judgment under Fed.R. Civ.P. 56, it is restricted to the consideration of allegations in the pleadings. And, ordinarily, VEC's more recent answer would supersede that filed on January 7, 1974. Phillips v. Murchison, 194 F.Supp. 620, 622 (S.D.N.Y.1961). However, because VEC's more recent answer was filed subsequent to the hearing on the motion for summary judgment and after the significance of its earlier admission had become apparent, it would be overly technical for this Court to refuse to take notice of VEC's earlier answer under a rigid application of the Federal Rules. Fed.R.Civ.P. 1.
[16] In finding that electric service is property within the meaning of the Fourteenth Amendment, the Court intimates no view as to the nature of due process protection which must be afforded the plaintiff prior to the termination of his service:
The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be "condemned to suffer grievous loss," . . . and depends upon whether the recipient's interest in avoiding that loss outweighs the governmental interest in summary adjudication. Goldberg, supra at 262-263, 90 S.Ct. at 1017.
Compare Goldberg, supra; Board of Regents, supra; Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); and Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). The determination of that issue cannot be made until full briefing and argument by counsel, which is unavailable at present. We simply find at this point that the plaintiff's interest in electric service is sufficiently necessary "[T]o provide a minimally decent environment," Fuentes, supra, at 89, 92 S.Ct. at 1999 and, therefore, that VEC is not entitled to judgment on the pleadings.
[17] This AMENDED MEMORANDUM and ORDER supersedes the Memorandum and Order originally filed in this cause on July 7, 1975, and withdrawn on August 11, 1975.
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THE ATTOHSET ~GESERAL
OF TEXAS _.
January 19, 1987
Rooorable Carlos Valdez Opinion No. J’M-622
Nueces County Attorney
901 Leopard, Room 206 Re: Abolition of Nueces County
Corpus Christi. Texas 78401 Water Control District No. 4
Dear Mr. Valdes:
You have asked which statute, if any. vi11 control the abolition
of Nueces County Water Control and Improvement District No. 4 if the
unanncxed portion of it is annexed by the city of Corpus Christi. You
explain that the district was created in 1952 pursuant to article XVI,
section 59, of the Texas Constitution [the conservation amendment] and
chapter 51 of the Texas Water Code. At that time the district embraced
territory in the cities of Aransas Pass and Port Aransas, and It also
embraced some unincorporated territory.
You advise that, at the present time, a portion of the district
also lies within the city of Corpus Christi, which wishes to annex the
part of the district that remains in an unincorporated area. See
V.T.C.S. art. 970a [Municipal Annexation Act]. Both Aransas Pass and
Port Aransas. are located within the extraterritorial jurisdiction of
Corpus Christi, a larger city.
Your specific questions are:
1. In light of the fact that this district has
not provided and is not providing drainage
services, will the provisions of article 1182c-5,
section 2A(l). V.T.C.S.. apply to this district.
at the time all of the district lies wholly within
more than one city?
2. If the above article does not apply at the
time all of the district lies wholly within more
than one city, vhat article or statute will apply
in such situation?
Your questions are premised on Corpus Christi’s annexing the
portion of the -dl.s.tric~t _wh~ch~-~~liesin--unincorporated .__ ____
territory. After this event, no part of the district will be outside
of an incorporated city.
p. 2802
Honorable Carlos Valdes - Page 2 (JM-622)
--. -- -. ~. Article-1182o-5,.VIT.C.S.i-was-ortginally enacted in 1959 to deal
with the distribution of power and responsibility when two or more
cities have within their limits part of the territory of a water
control and improvement or supply district. Section 2 of the statute
provided that such districts could be abolished “by mutual agreement
between the district and the cities wherein such district lies.” Acts
1959. 56th Leg., ch. 228, 52, at 515. The provision about which you
inquire was added in 1971. It makes the abolition of certain
districts automatic:
Sec. 2A(l). Notwithstanding any other provision
of the law or this Act, any conservation and
reclamation district created or existing pursuant
to article XVI, section 59 of the Constitution of
Texas which lies wholly within more than one city.
and which, ou April 1, 1971, did not lie wholly
.within more than one city, and which, on said date,
was not a party to a contract providing for a
federal grant for research and development pursuant
to title 33, sections 1155(a)(2) and 1155(d) of the
United States Code, as amended, and which has
provided or his providing fresh water supply,
sanitary sewer and .drainage services shall be
abolished ninety (90) days after the inclusion z
all of the territory of said district within said
cities, and the physical assets, properties and
facilities of the district shall be distributed to
said cities and its intangible assets, bonded
indebtedness, liabilities, obligations and other
debts assumed by said cities in the following
manner. . . . (Emphasis added).
-See Acts 1971, 62nd Leg., ch. 228, at 1076.
You point out that Nueces County Water Control and Improvement
District No. 4 has never provided drainage services as part of its
operations. Therefore, you suggest, it does not come strictly within
section 2A of article 1182c-5, which purports to apply only to a
district “which has provided or is providing fresh water supply,
sanitary sewer -and drainage services.”
We agree. By its terms. section 2A applies only to districts
that orovide. or have urovided. all three services. and that is the
construction we give it: Cf. Aikin v. Franklin County Water District,
432 S.W.Zd 520 (Tex. 1568);ee 53 Tex. Jur. 2d Statutes 1130 (1564).
In our opinion. section 2Ay article 1182c-5 will not operate to
automatically abolish the district if the city of Corpus Christi
annexes those portions of it not already located within an in-
corporated area.
p. 2803
Honorable Carlos Valdes - Page 3 (~~-622)
-~~-.Ccrtain-~cities~ having a population in excess of 275,000 may
unilaterally force the abolition of a water control district, but none
of the three cities here meet that population criterion. See V.T.C.S.
art. lllOd, 59. In our opinion, section 2, not section 2AEf article
1182c-5, V.T.C.S., controls the manner In which Nueces County Water
Control and Improvement District No. 4 may be abolished subsequent to
the annexation of the remainder of district territory not now within
an Incorporated area.
Section 2(a) of article 1182c-5 specifies that when, by annexa-
tion or original incorporation. the entire territory comprising a
water control and improvement district or a fresh water supply
district -- organized for the primary purpose of providing such
municipal functions as the supply of fresh water for domestic or
commercial uses, or the furnishing of sanitary sewer service -- lies
1
wholly within two or more cities, then “[s]uch district may be
abolished by mutual agreement between the district and cities wherein
such district lies.” The sectiou provides, in that event, for the
distribution of the district’s assets and the prorata assumption of
its liabilities, subject to operation of the system through a board of
trustees until certain of its liabilities are discharged. The
district can be abolished in similar fashion even if it is -not
.annexed . -See V.T.C.S. art. 1182c-5, 52(b).
In response to your questions, we advise that at present the
provisions of section 2A(l) of article 1182c-5, V.T.C.S.. would not
apply to Nueces County Water Control and Improvement District No. 4
were it to be annexed by the city of Corpus Christi. but that section
2(a) of that statute would apply.’
SUMMARY
At present, annexation by the city of Corpus
Christi of the unannexed portion of Nueces Water
1. -See V.T.C.S. art. 1182c-5, (l(a).
2. It is unnecessary to discuss section 11 of article 970a,
V.T.C.S., the Municipal Annexation Act, which places restrictions on
the annexatioaof certain water districts, because the restrictions do
not apply to a district wholly or partly within the extraterritorial
jurisdiction of more than one city. -Id. 511, subdiv. B.
pa 2804.
Honorable Carlos Valdez - Page 4 (JM-622)
Control and Improvement District No. 4 will not
make applicable the automatic abolition features
of section 2A(l) of article 1182c-5, V.T.C.S.
Abolition of the district will be controlled by
section 2(a) of the statute.
VeryJtruly yo&
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER I
First Assistant Attorney General
MARY gELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared,by Bruce Youngblood
Assistant Attorney General
p. 2805
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Opinion issued June 4, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00795-CV
———————————
BOB BENNETT & ASSOCIATES, P.C. AND BOB BENNETT, Appellants
V.
GARY O. LAND, Appellee
On Appeal from the 125th District Court
Harris County, Texas
Trial Court Case No. 2012-20006
MEMORANDUM OPINION
Bob Bennett & Associates, P.C. and Bob Bennett appeal the trial court’s
judgment confirming an arbitration award in favor of Gary O. Land. Appellants
identify one issue on appeal, with a number of sub-issues, challenging the
confirmation of the award.
We affirm.
Background Summary
Gary O. Land retained the legal services of Bob Bennett & Associates, P.C.
and Bob Bennett (collectively, “Appellants”) to represent Land in a matter
involving a possible civil rights violation and a federal investigation of Land.
Land also retained Appellants to assist in a commercial dispute in Potter County,
Texas.
On February 10, 2011, Land signed an attorney retainer and fee agreement
(“the Fee Agreement”) with Appellants. Among other matters, the Agreement
addressed the scope of Appellants’ representation of Land and set out how fees and
expenses would be calculated and billed. The Agreement also contained an
arbitration provision, which provided, in part, as follows:
In order to facilitate a quick and inexpensive resolution of any
disputes concerning this Agreement, the parties agree that any
disputes arising out of the Agreement, whether contractual or tortious
in nature will be resolved by submission to binding arbitration
pursuant to the rules of the Houston Bar Association Fee Dispute
Committee. . . . To further clarify our Agreement on arbitration,
arbitration would apply to any controversy, claim or dispute in the
course and scope of the business relationship or arising out of or
relating to this Agreement or the breach, termination, enforcement,
interpretation or validity thereof, including the determination of the
scope or applicability of this Agreement to arbitrate.
2
Our dispute shall be determined by arbitration in Houston,
Texas before a panel selected by, and per the rules of the Houston Bar
Association Fee Dispute Committee, in accordance with the laws of
the State of Texas for Agreements made in and to be performed in
Texas. “Disputes” shall include, without limitation, those involving
fees, costs, billing, and breach of ethical or fiduciary duties. The
arbitration shall be administered by the Houston Bar Association Fee
Dispute Committee, pursuant to its Rules and Regulations. . . .
As required by the Fee Agreement, Land paid a $50,000 retainer to the firm.
Appellants commenced providing services to Land for which Land was invoiced.
After some time, the $50,000 retainer was exhausted. However, Appellants
continued to provide services to Land.
On August 3, 2011, Land sent a letter to Appellants stating that he was
terminating Appellants’ representation of him. Land indicated in the letter that he
disagreed with the fees that Appellants had charged him. Land retained another
attorney to represent him in the fee dispute with Appellants. New counsel sent a
letter to Appellants requesting a fee reduction of $35,000. The letter also requested
Appellants to refund a portion of the retainer Land had paid.
As permitted by the Fee Agreement, Land initiated the arbitration process by
filing a fee dispute complaint with the Houston Bar Association’s Fee Dispute
Committee. In the complaint, Land stated that the amount of fees in dispute was
$70,998.31. Land sought the return of $35,000 of the $50,000 in fees that he had
paid the firm. Appellants consented to the arbitration and filed an arbitral counter-
claim, alleging that Land owed the firm $25,787.50 in unpaid fees.
3
The matter was assigned to an Arbitration Panel comprised of two attorneys
and one non-attorney. The arbitration hearing occurred over the course of three
days. Land appeared and testified at the hearing by telephonic conference call.
Bob Bennett also testified at the hearing. In addition, Appellants offered the
affidavits of several attorneys indicating that the fees charged by Appellants were
reasonable. The Arbitration Panel also considered documentary evidence,
including invoices sent by Appellant to Land.
The Arbitration Panel issued its written Arbitration Award on January 3,
2012. The panel awarded Land $27,500 and expressly awarded Appellants nothing
on the counter-claim.
Rule 7.03 of the Rules and Regulations of the Houston Bar Association’s
Fee Dispute Committee provides that a party may apply to the Fee Dispute
Committee Chair for a modification or correction of an arbitration decision. On
February 3, 2012, Appellants filed a motion for modification and correction
(“modification motion”) of the Arbitration Award. The Arbitration Panel issued an
order denying the modification motion on March 2, 2012. The Arbitration Award
remained unchanged. The order also included a 17 page explanation, detailing the
grounds for the panel’s January 3, 2012 Arbitration Award.
On April 4, 2012, Land filed a motion to confirm the Arbitration Award in
the trial court. Appellants answered and filed an application for vacatur of the
4
award on April 27, 2012. The parties then filed a series of responses and replies
regarding whether the Arbitration Award should be confirmed. After a hearing,
the trial court signed an order granting Land’s motion to confirm and “enter[ing]
judgment in accordance with the [A]rbitration [A]ward.”
Appellants now appeal the judgment. They identify one issue with a number
of sub-issues in which they assert that the trial court erred by confirming the
Arbitration Award. Specifically, Appellants contend that the trial court erred by
confirming the award because the arbitrators exceeded the scope of their authority,
demonstrated partiality to Land, did not permit Appellants to finish cross-
examining Land, and committed gross mistake.
Judicial Review of Arbitration Award
A. Scope and Standard of Review
Texas law favors the arbitration of disputes. Jones v. Brelsford, 390 S.W.3d
486, 491–92 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (citing E. Tex. Salt
Water Disposal Co., Inc. v. Werline, 307 S.W.3d 267, 271 (Tex. 2010); Brazoria
Cnty. v. Knutson, 176 S.W.2d 740, 743 (Tex. 1943)). As a result, judicial review
of an arbitration award is extraordinarily narrow and focuses on the integrity of the
process, not the propriety of the result. Id. at 492 (citing Women’s Reg’l
Healthcare, P.A. v. FemPartners of N. Tex., Inc., 175 S.W.3d 365, 367–68 (Tex.
App.—Houston [1st Dist.] 2005, no pet.)). We review a trial court’s decision to
5
confirm or to vacate an arbitration award de novo. Ouzenne v. Haynes, No. 01–
10–00112–CV, 2012 WL 1249420, at *1 (Tex. App.—Houston [1st Dist.] Apr. 12,
2012, pet. denied) (mem. op.) (citing In re Chestnut Energy Partners, Inc., 300
S.W.3d 386, 397 (Tex. App.—Dallas 2009, pet. denied)). We examine the entire
record in making such review. Id.
Every reasonable presumption must be indulged to uphold the arbitrator’s
decision, and none is indulged against it. CVN Group, Inc. v. Delgado, 95 S.W.3d
234, 245 (Tex. 2002); New Med. Horizons II, Ltd. v. Jacobson, 317 S.W.3d 421,
428 (Tex. App.—Houston [1st Dist.] 2010, no pet.). Review of an arbitration
award is so limited that even a mistake of fact or law by the arbitrator is not a
proper ground for vacating an award. Universal Computer Sys., Inc. v. Dealer
Solutions, L.L.C., 183 S.W.3d 741, 752 (Tex. App.—Houston [1st Dist.] 2005, pet.
denied).
B. Timeliness of the Challenge
Land moved for confirmation of the Arbitration Award pursuant to section
171.087 of the Texas General Arbitration Act (“TGAA”).1 Section 171.087
provides, “Unless grounds are offered for vacating, modifying, or correcting an
1
The Fee Agreement states that a dispute under the agreement should be
determined by arbitration in accordance with the law of Texas. The parties each
rely on the Texas General Arbitration Act and appear to agree that it governs this
case. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 171.001–.098 (Vernon 2011).
Appellants also challenge the Arbitration Award on the common-law ground of
gross mistake, which is discussed infra.
6
award under Section 171.088 or 171.091, the court, on application of a party, shall
confirm the award.” TEX. CIV. PRAC. & REM. CODE ANN. § 171.087 (Vernon
2011).
Appellants asserted in the trial court that the Arbitration Award should be
vacated pursuant to section 171.088. That section provides,
(a) On application of a party, the court shall vacate an award if:
(1) the award was obtained by corruption, fraud, or other
undue means;
(2) the rights of a party were prejudiced by:
(A) evident partiality by an arbitrator appointed as a
neutral arbitrator;
(B) corruption in an arbitrator; or
(C) misconduct or wilful misbehavior of an arbitrator;
(3) the arbitrators:
(A) exceeded their powers;
(B) refused to postpone the hearing after a showing of
sufficient cause for the postponement;
(C) refused to hear evidence material to the controversy;
or
(D) conducted the hearing, contrary to Section 171.043,
171.044, 171.045, 171.046, or 171.047, in a manner that
substantially prejudiced the rights of a party; or
(4) there was no agreement to arbitrate, the issue was not
adversely determined in a proceeding under Subchapter B, and
7
the party did not participate in the arbitration hearing without
raising the objection.
(b) A party must make an application under this section not later than
the 90th day after the date of delivery of a copy of the award to the
applicant. A party must make an application under Subsection (a)(1)
not later than the 90th day after the date the grounds for the
application are known or should have been known.
(c) If the application to vacate is denied and a motion to modify or
correct the award is not pending, the court shall confirm the award.
Id. at § 171.088 (footnote omitted).
Appellants identify three statutory grounds as reasons to vacate—and not to
confirm—the Arbitration Award:
The Arbitration Panel exceeded its authority (see id. § 171.088(a)(3)(A));
The Arbitration Panel was not impartial (see id. § 171.088(a)(2)(A));
The panel conducted the arbitration contrary to TGAA section 171.047
because Appellants were denied the right to finish cross-examining Land
(see id. § 171.088(a)(3)(D)).
As he did in the trial court, Land points out that Appellants did not timely
file the application to vacate within 90 days of receiving a copy of the Arbitration
Award, as required by section 171.088(b). We have held that the 90-day period is
a limitations period after which a party no longer has a right to petition a court to
vacate an arbitration award; that is, the applicant no longer has the right to judicial
8
review of the decision. 2 See New Med. Horizons II, Ltd. v. Jacobson, 317 S.W.3d
421, 428 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing La. Natural Gas
Pipeline, Inc. v. Bludworth Bond Shipyard, Inc., 875 S.W.2d 458, 462 (Tex.
App.—Houston [1st Dist.] 1994, writ denied)). A party seeking to bar
confirmation of an arbitration award for one of the reasons listed in 171.088 must
do so within 90 days or forfeit his right to make such challenge. See id. If the
challenge is not timely asserted, the only alternative for the trial court is to confirm
the arbitration award. See id.; TEX. CIV. PRAC. & REM. CODE ANN. §§ 171.087,
171.088(a)(3)(A), (b).
In this case, the Arbitration Award was rendered on January 3, 2012. An
email in the record from Land’s counsel to Bob Bennett indicates that Appellants
were aware of the award by January 4, 2012. Appellants filed the motion to
modify the award with the fee dispute committee on February 3, 2012. The motion
was denied by written order on March 2, 2012. That order also explains the
grounds for the award. Land filed his motion to confirm the Arbitration Award in
2
The only exception to the requirement that the application for vacatur must be
filed within 90 days of receiving a copy of the award is when the vacatur
application asserts that the award “was obtained by corruption, fraud, or other
undue means.” See TEX. CIV. PRAC. & REM. CODE ANN. § 171.088(b). Under
those circumstances, the applicant must move for vacatur within 90 days “after the
date the grounds for the application are known or should have been known.” Id.
Bennett has not alleged such grounds in this case.
9
the trial court on April 4, 2012. Appellants filed their answer and application to
vacate the award in the trial court on April 27, 2012.
Appellants do not dispute that the application to vacate—filed on April 27,
2012—was not filed within 90 days after delivery of the Arbitration Award.
Instead, Appellants argue that the application was timely because it was filed less
than 90 days after the issuance of the March 2, 2012 order denying the
modification motion and detailing the grounds for the award. Appellants assert
that, because they are challenging the grounds supporting the award set out in that
order, the 90-day limitations period should run from March 2, 2012. Appellants,
however, offer no authority to support this position.
In Teleometrics International, Inc. v. Hall, we were presented with an
analogous argument. 922 S.W.2d 189, 192 (Tex. App.—Houston [1st Dist.] 1995,
writ denied). There, the appellee had filed a motion to confirm an arbitration
award in the trial court. See id. at 190. The appellants then filed a motion to
clarify the arbitration award with the arbitrator. See id. The arbitrator denied the
motion to clarify and, as here, left the original arbitration award unchanged. See
id. The appellants then answered and moved to vacate the award in the trial court.
See id. Although it was filed within 90 days of issuance of the order denying the
motion to clarify, the motion to vacate was filed more than 90 days after the
10
original arbitration award. See id. Ultimately, the trial court rendered judgment
confirming the arbitration award. Id. at 191.
Similarly to this case, the appellants in Teleometrics International argued
that their application to vacate was timely because it was filed less than 90 days
after the arbitrator denied the motion to clarify. See id. The appellants asserted
that the filing of the motion to clarify served to extend the time to file the motion to
vacate. Id. Construing the predecessor to section 171.088, we stated that “there is
no authority that the mere filing of a motion to clarify an award extends the
limitations period to file a motion to vacate the award.” Id. at 192. We explained,
Both the Texas General Arbitration Act and interpretive case law are
clear that the 90–day limitation period begins to run from the date of
the conclusive award itself. It is true that in Louisiana Natural Gas
Pipeline, the appellate court measured the 90–day limit from the date
the amended arbitration findings were signed. 875 S.W. 2d at 462. In
this case, however, because [appellants’] motion [to clarify] was
denied, there was no modified or corrected award to extend the 90–
day limitations period.
Id. We held “any motion to vacate was due 90 days after the initial, and
conclusive, award was delivered.” Id. Because the motion to vacate was untimely,
we affirmed the trial court’s judgment confirming the arbitration award. See id.
As in Teleometrics International, we find no authority to hold that the 90-
day limitations period was extended by the March 2 order denying Bennett’s
motion to modify the award, because the arbitrators did not modify the initial
award or grant any relief. The March 2 order denying relief made no change to the
11
original and definitive award. We conclude that the 90-day limitations period for
filing the vacatur application began to run on delivery of the January 3, 2012
Arbitration Award. See id.; see also TEX. CIV. PRAC. & REM. CODE ANN.
§ 171.088(b); Zars v. Davis, No. 04-05-00800-CV, 2006 WL 2955326, at *2 (Tex.
App.—San Antonio Oct. 18, 2006, no pet.) (mem. op.) (explaining that TGAA 90-
day limitations period set forth in sections 171.088 is strictly enforced).
Appellants did not file the vacatur application until April 27, 2012; therefore, it
was untimely. 3 We hold that the trial court could not review Appellants’ asserted
statutory grounds for vacatur, because they did not timely assert those grounds
within the 90-day limitations period following delivery of the award, as required
by statute. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 171.087, 171.088; New
Med. Horizons II, 317 S.W.3d at 431; Teleometrics Int’l, 922 S.W.2d at 192.
C. Gross Mistake
In addition to the statutory grounds for vacatur, Appellants also contend that
the trial court erred in refusing to vacate the Arbitration Award because the
arbitrators committed a gross mistake.
3
The Arbitration Panel denied Appellants’ motion to modify on March 2, 2012. At
that point, Appellants still had 30 days to file their vacatur application. Thus, even
if they were waiting to learn whether the panel would modify the award,
Appellants had ample time to timely seek judicial vacatur of the award in the trial
court after the modification motion was denied.
12
Gross mistake is a Texas state common-law standard that has been used to
attack arbitration awards. 4 Callahan & Assocs. v. Orangefield Indep. Sch. Dist.,
92 S.W.3d 841, 844 (Tex. 2002). A “gross mistake” is a mistake by the arbitrator
that implies bad faith or failure to exercise honest judgment. Ouzenne, 2012 WL
1249420, at *2 (citing Anzilotti v. Gene D. Liggin, Inc., 899 S.W.2d 264, 266 (Tex.
App.—Houston [14th Dist.] 1995, no writ)). Gross mistake results in a decision
that is arbitrary or capricious. Universal Computer Sys., 183 S.W.3d at 752. An
honest judgment made after due consideration given to conflicting claims, however
erroneous, is not arbitrary or capricious. Id.
The March 2, 2012 order indicates that, in addition to examining specific
attorney’s fees charged by Appellants to Land, the Arbitration Panel also viewed
the fees on a “global basis” to determine their reasonableness. In this respect, the
panel explained that it was reviewing the fees in the context of the overall
representation of Land by Appellants. The order also indicates that the panel
4
The United States Supreme Court has held that the statutory grounds provided in
Federal Arbitration Act sections 10 and 11 for vacating, modifying, or correcting
an arbitration award are the exclusive grounds for vacating an arbitration award.
Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 584, 128 S. Ct. 1396, 1403,
(2008). In contrast, the Supreme Court of Texas has reserved opinion regarding
the continued viability of common law grounds for attacking an arbitration award
under the TGAA. See E. Tex. Salt Water Disposal Co. v. Werline, 307 S.W.3d
267, 270 n.7 (Tex. 2010) (“We express no opinion on this issue [of whether an
arbitration under the TGAA can be set aside on common law grounds.]”).
13
considered the non-exclusive factors listed in the Houston Bar Association’s
arbitration rules for determining the reasonableness of the fees.
Appellants argue that the Arbitration Panel committed a gross mistake by
considering the reasonableness of the fees on a global basis. They assert that
determining the reasonableness of the fees on a global basis is not sanctioned by
the bar association’s arbitration rules or the Fee Agreement. However, as
explained, the panel indicated in the order that it also considered the non-exclusive
factors listed in the arbitration rules for determining the reasonableness of the fees.
We do not agree that the arbitrators’ consideration of the fees in the context of the
Appellants’ overall representation of Land, in addition to considering the
particularized non-exclusive factors listed in the arbitration rules for determining
fee disputes, indicates bad faith or a failure to exercise honest judgment.
In addition, it is not within our province to interpret the Fee Agreement to
ascertain whether the panel determined the reasonableness of the fees in
accordance with its provisions. See Universal Computer Sys., 183 S.W.3d at 753.
Instead, our review is limited to whether the arbitrators’ conduct constitutes bad
faith or a failure to exercise honest judgment. See id. The party seeking to vacate
an arbitration award has the burden of demonstrating how the arbitrators made a
gross mistake. Id. at 752. Appellants do not explain how considering the fees on a
14
global basis violates the Fee Agreement in a manner that rises to a level of bad
faith or to a failure to exercise honest judgment.
Appellants also cite the manner in which the Arbitration Panel viewed and
applied the evidence as indicating gross mistake. Appellants point out that, at the
arbitration hearing, they offered affidavits from a number of attorneys attesting to
the reasonableness of the attorney’s fees. They point out that the only testimony
offered by Land was his own testimony. Appellants further cite language in the
March 2 order in which the panel indicated that it would have reached the same
award even if it had discredited Land’s testimony and given credence to the
Appellants’ evidence.
By their contentions, Appellants are essentially arguing that the Arbitration
Panel was wrong in its view of the evidence and ultimately in its decision. As the
fact-finder, the Arbitration Panel was the judge of the credibility of the witnesses
and could choose whom to believe and whom to disbelieve. See Ouzenne, 2012
WL 1249420, at *2 (citing Xtria L.L.C. v. Intern. Ins. Alliance, Inc., 286 S.W.3d
583, 597 (Tex. App.—Texarkana 2009, pet. denied). Significantly, review of an
arbitration award is so limited that an arbitration award may not be vacated even if
there is a mistake of fact or law. Graham–Rutledge & Co. v. Nadia Corp., 281
S.W.3d 683, 689 (Tex. App.—Dallas 2009, no pet.). Appellants’ contentions
relating to how the panel viewed and applied the evidence may show a mistake of
15
fact or law, but they do not rise to the level of gross mistake. See Ouzenne, 2012
WL 1249420, at *2.
Lastly, Appellants contend that the Arbitration Panel committed a gross
mistake because the panel’s March 2 order contains a table categorizing and
grouping the various attorney’s fees charged by Appellants. Appellants assert that
the panel inaccurately categorized and miscalculated the fees. Appellants contend
that these inaccuracies are misleading and indicate that the panel acted in bad faith.
We disagree. At most, any inaccuracies in categorization or valuation by the panel
may indicate a mistake of law or fact; that is, a mistake in the panel’s decision-
making process. However, any such mistakes do not tend to show bad faith or a
failure by the panel to exercise honest judgment. See id.; Graham–Rutledge &
Co., 281 S.W.3d at 689.
We overrule Appellants’ sole issue, and all sub-issues, challenging the trial
court’s confirmation of the Arbitration Award.
Rule 45 Sanctions
In his brief, Land requests that this Court impose sanctions against
Appellants for filing a frivolous appeal. See TEX. R. APP. P. 45 (authorizing
imposition of sanctions for filing of frivolous appeal). Land asserts that Appellants
have “no reasonable grounds on which the arbitration award can be vacated.” He
contends that, despite the fact that their challenges have no merit, Appellants have
16
“delayed and appealed this case on every opportunity available” to avoid paying
the arbitration award and to cause Land to incur greater attorney’s fees.
After considering the record, briefs, or other papers filed in this Court, we
may award a prevailing party damages if we objectively determine that an appeal is
frivolous. See TEX. R. APP. P. 45; Smith v. Brown, 51 S.W.3d 376, 381 (Tex.
App.—Houston [1st Dist.] 2001, pet. denied). An appeal is frivolous when the
record, viewed from the perspective of the advocate, does not provide reasonable
grounds for the advocate to believe that the case could be reversed. Smith, 51
S.W.3d at 381.
The decision to grant appellate sanctions is a matter of discretion that an
appellate court exercises with prudence and caution and only after careful
deliberation. Id. Although imposing sanctions is within our discretion, we will do
so only in circumstances that are truly egregious. See id. While we disagree with
the merits of the appeal, after considering the record and briefs, we do not
conclude that the circumstances in this case warrant sanction. Accordingly, we
overrule Land’s request for Rule 45 sanctions.
17
Conclusion
We affirm the judgment of the trial court and deny Land’s request for
sanctions.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Bland.
18
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(2008)
KNICKERBOCKER DIALYSIS, INC., Plaintiff,
v.
TRUEBLUE, INC. previously known as Labor Ready, Inc., and First Health Group Corp., Defendants.
No. 08-CV-329 (ADS)(WDW).
United States District Court, E.D. New York.
October 11, 2008.
MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
On January 23, 2008, Knickerbocker Dialysis, Inc. ("the Plaintiff") filed this action against TrueBlue, Inc., formerly known as Labor Ready, Inc. ("Labor Ready"), and First Health Group Corporation ("First Health" or "Defendant"), alleging breach of contract. On March 24, 2008, First Health moved to dismiss the complaint under FED.R.CIV.P. 12(b)(6), on the ground that the Plaintiff's common law contract claim is preempted by the Employee Retirement Income Security Act ("ERISA").
I. BACKGROUND
The following facts are taken from the Plaintiffs complaint. Labor Ready, a Washington State agency that places temporary employees in a number of fields, retained First Health, a Delaware corporation, to serve as the third-party administrator of Labor Ready's employee group health plan ("the plan"). Davita, Inc. ("Davita") is a corporation that provides, among other things, billing services to various dialysis centers throughout the country. The Plaintiff is the owner of a dialysis center in Garden City, New York.
On or about May 27, 2005, First Health and Davita entered into a Single Patient Agreement ("the agreement"), a contract that established the payment rate for dialysis services the Plaintiff provided to one unnamed beneficiary under the plan. Pursuant to the agreement, this patient was to receive dialysis services at a discounted rate provided that the claim was paid within a specified time. The agreement further provided that if the claim was not paid within the specified time, payments were to be paid at the Plaintiff's full customary rate. From September, 2004 through July, 2006, the Plaintiff provided dialysis services to the patient and Labor Ready was billed for those services through its agent First Health.
However, the Plaintiff alleges that Labor Ready failed to make payments on $486,189.28 owed under the terms of the agreement. On January 23, 2008, the Plaintiff filed suit against Labor Ready and First Health alleging that both parties had breached the agreement. On March 24, 2008, First Health moved to dismiss the complaint, arguing that the Plaintiff's common law cause of action for breach of contract is preempted by ERISA because the Plaintiff is seeking to recover benefits payable under an employee benefits health plan.
II. DISCUSSION
A. The Motion to Dismiss Standard
In considering a 12(b)(6) motion to dismiss, "`[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir.2001) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). In this regard, the Court must "accept all of the plaintiffs factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Starr v. Georgeson S'holder, Inc., 412 F.3d 103, 109 (2d Cir. 2005); Desiderio v. Nat'l Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999).
A complaint should be dismissed only if it does not contain enough allegations of fact to state a claim for relief that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The Second Circuit has interpreted Twombly to require that a complaint "allege facts that are not merely consistent with the conclusion that the defendant violated the law, but which actively and plausibly suggest that conclusion." Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir.2007).
B. ERISA Preemption
Congress enacted ERISA to protect the interests of beneficiaries of private retirement plans by reducing the risk of loss of pension benefits. Geller v. County Line Auto Sales, Inc., 86 F.3d 18, 22 (2d Cir.1996). To that end, "ERISA established a comprehensive federal statutory program intended to control abuses associated with pension benefit plans." Id. In order to achieve national uniformity in the regulation of such plans, ERISA expressly preempts "any and all State laws insofar as they ... relate to any employee benefit plan" covered by the statute. 29 U.S.C. § 1144(a).
Accordingly, common law actions that "relate to" employee benefit plans are preempted by ERISA. See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)) (stating that a law "relates to" an employee benefit plan "if it has a connection with or reference to such a plan"). However, the "presumption against preemption is considerable" and "state laws of general application that merely impose some burdens on the administration of ERISA plans" should not be preempted. Plumbing Indus. Bd., Plumbing Local Union No. 1 v. Howell Co., Inc., 126 F.3d 61, 67 (2d Cir.1997). As the Second Circuit has explained, the preemption provision "does not require the creation of a fully insulated legal world that excludes these plans from regulation of any purely local transaction." Hattem v. Schwarzenegger, 449 F.3d 423, 430 (2d Cir.2006) (citing Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 145 (2d Cir.1989)). To insulate plans subject to ERISA in such a way would create for those plans "a charmed existence that never was contemplated by Congress." Id.
C. As to Whether the Plaintiffs Claim is Preempted
The United States Supreme Court has held that the anti-preemption presumption can be overcome where: (a) "a state law clearly refers to ERISA plans in the sense that the measure acts immediately and exclusively upon ERISA plans or where the existence of ERISA plans is essential to the law's operation"; or (b) "a state law has a clear connection with a plan in the sense that it mandate[s] employee benefit structures or their administration or provid[es] alternative enforcement mechanisms." Howell, 126 F.3d at 67 (internal citations and quotation marks omitted).
Here, First Health has not shown that the state contract laws under which the Plaintiff bases it claim "clearly refer" to ERISA. State contract law makes no express reference to ERISA. Nor does it act "immediately and exclusively" upon ERISA as common law breach of contract claims are brought in a wide range of contexts. Moreover, the existence of an ERISA plan is obviously not essential to the operation of New York contract law because such plans are not an element of a breach of contract claim. See Grunwald v. Physicians Health Servs. of New York, Inc., 1998 WL 146226, at *6 (S.D.N.Y. Mar.25, 1998) (finding that New York's common laws of contract do not clearly refer to ERISA). Similarly, First Health cannot demonstrate that compliance with New York contract law would affect the benefit structures or administration of Labor Ready's ERISA plan. See De Buono v. NYSA-ILA Medical and Clinical Servs. Fund, 520 U.S. 806, 814-15, 117 S.Ct. 1747, 138 L.Ed.2d 21 (1997) (holding that state laws of general applicability that do not impose such burdens on ERISA plans are not preempted).
In fact, the preemption argument offered by First Health here is similar to one that has already been rejected by the Second Circuit. In Thrift Drug, Inc. v. Universal Prescription Administrators, the plaintiff pharmacy brought a breach of contract action against a health plan administrator for its alleged failure to pay reimbursements under an implied contract. 131 F.3d 95, 96 (2d Cir.1997). On appeal, the defendant argued that because the plaintiff disbursed prescriptions to beneficiaries of the defendant-administered ERISA plan, the plaintiff's cause of action was actually a claim for benefits that was preempted by ERISA. In rejecting this argument, the Second Circuit held that:
[The plaintiff], however, plainly does not represent any participants or beneficiaries of [the defendant's] benefit plan. In this simple contract cause of action, [the plaintiff] represents only itself seeking reimbursement from [the defendant] for the prescriptions [the plaintiff] dispensed. [The plaintiff's] contract claim has no effect on employee benefit structures or their administration and does not interfere with the calculation of any benefits owed to any employee. In short, it relates only to the contractual relationship between a plan and its service provider and does not remotely touch upon the relationship between the plan and its beneficiaries. Therefore, ERISA preemption is not implicated.
Id. at 98.
Here, as in Thrift Drug, the Plaintiff represents only itself seeking payments allegedly due to it as the third-party beneficiary of an agreement between Davita and First Health. The Plaintiff's claim relates only to the contractual relationship between a plan-administrator and one of its service providers and does not touch upon the relationship between Labor Ready's plan and its beneficiaries. Accordingly, ERISA preemption is not applicable in the instant case.
III. CONCLUSION
Based on the foregoing, it is hereby
ORDERED, that the Defendant's motion to dismiss the Plaintiff's complaint is DENIED.
SO ORDERED.
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51 F.Supp.2d 252 (1999)
Ben GELBFISH, Individually and d/b/a B.G. Chain Co. and as Assignee of Ernest D. Gaulin d/b/a Abba Jewelry, Plaintiffs,
v.
UNITED STATES POSTAL SERVICE, Defendant.
No. 98 CV 3964 (NG).
United States District Court, E.D. New York.
June 11, 1999.
*253 Nathaniel E. Leserowitz, Brooklyn, NY, for Plaintiff.
Gail A. Matthews, Assistant U.S. Attorney, of counsel Zachary W. Carter, United States Attorney, E.D.N.Y., Celia Goldwag Barenholtz, Robert Mandel, Kronish Lieb Weiner & Hellman LLP, New York City, for CEPA, defendant.
Arthur Felsenfeld, Andrews & Kurth, New York City, for Bear Stearns, defendant.
MEMORANDUM AND ORDER
GERSHON, District Judge.
Presently before the court is the defendant's motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction because of plaintiff's failure to exhaust the administrative remedies available under the postal regulations for seeking indemnification for undelivered, registered mail.
This is an action involving two lost packages that were sent via registered mail. According to the complaint, on or about June 30, 1994, plaintiff's assignor Ernest D. Gaulin d/b/a Abba Jewelry Co ("Abba") sent two packages, each containing a spool of gold chain, to plaintiff via registered, insured mail (having paid the appropriate fees for postage and insurance). Plaintiff alleges that he brings this action on behalf of himself and as assignee of Abba. The package identified by registered article number R195717504 had a value of $12,547.47[1] and the package identified by registered article number R195717505 had a value of$12,566.02. Plaintiff never received these two packages, and they were not returned to Abba.
The complaint further alleges, that, on or about August 24, 1994, Abba filed a claim for the non-delivered packages with the United States Postal Service ("USPS"). By letter dated October 18, 1994, the USPS denied the claim on item R195717504 on the ground that a delivery receipt had been found. On or about November 11, 1994, the claim on item R195717505 was paid to Abba in the amount of $12,571.47. Abba then sent the check it had received with respect to that claim to plaintiff, who deposited the check. The USPS subsequently determined that the registry number, T195717508, that Abba had identified on the claim form was incorrect and that the claim had thus been paid wrongly. The USPS found that there was a delivery receipt for the correct registry number and began collection proceedings to recover the amount paid to Abba. In June 1995, the USPS opened an investigation into the non-delivery of both packages after plaintiff represented that he received neither package. By letter dated March 24, 1997, the USPS denied Abba's claim and informed Abba that, based on its forensic analysis of the handwriting on the delivery receipts, both packages had been delivered to plaintiff. The USPS then reinstated its claim to the money it had previously paid Abba.
*254 DISCUSSION
"A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). When considering a motion to dismiss, the court "must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995) (quoting Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.1994)). On a motion challenging the court's subject matter jurisdiction pursuant to Fed. R.Civ.P. 12(b)(1), the court may look to evidence outside the pleadings, such as affidavits, to resolve jurisdictional fact issues. See, e.g., Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986).
Defendant argues that plaintiff's failure to appeal the USPS's decision to Claims Appeal and to the Consumer Advocate constitutes a failure to exhaust the Postal Service's administrative remedies for seeking indemnification for lost packages. It is undisputed that plaintiff failed to file an appeal with Claims Appeal and the Consumer Advocate prior to filing his complaint in this court. Nevertheless, plaintiff asserts that his failure to exhaust his administrative remedies should be waived because the USPS's denial letter did not set forth his appeal rights.
The USPS is liable only to the extent that it agrees to be liable. Frank Mastoloni & Sons, Inc. v. United States Postal Service, 546 F.Supp., 415, 419 (S.D.N.Y.1982) (citation omitted). The extent to which the USPS agrees to be liable is identified in the postal laws and regulations, in this case the Domestic Mail Manual ("DMM") which regulates registered mail. The DMM is issued pursuant to the USPS's power to adopt regulations, 39 U.S.C. § 401, and is incorporated by reference into the Code of Federal Regulations. 39 C.F.R. § 111.4. Because the DMM is incorporated by reference into the Code of Federal Regulations, it is deemed published in the Federal Register, 39 C.F.R. § 111.1, and a plaintiff is presumed to have notice of the DMM's contents. Mastoloni, 546 F.Supp. at 419 n. 4 (citing 44 U.S.C. § 1507). See also Ridgway Hatcheries, Inc. v. United States, 13 Ohio Misc. 253, 278 F.Supp. 441, 443 (N.D.Ohio 1968) (finding that parties who purchased postal insurance were deemed to have notice of postal insurance regulations published pursuant to Federal Register Act). The two pertinent postal regulations here are DMM § S010.4.2, which provides that a customer may appeal a claim decision by filing a written appeal within three months of the date of the original decision, and DMM § S010.4.3, which provides that final review of a decision denying a postal customer's indemnity claim is made by the USPS Consumer Advocate at USPS Headquarters. The DMM does not impose an obligation on the USPS to inform a claimant of his or her appeal rights. See Dudek Decl. Ex. 1.
Here, neither plaintiff, the intended recipient of the two allegedly undelivered packages sent via registered mail, nor his assignor, the sender of the packages, appealed the USPS's decision at any time, let alone within the three-month period specified in Section S010.4.2 of the DMM. Plaintiff's argument that his failure to exhaust his administrative remedies should be waived because the USPS did not notify him of his appeal rights is without merit because plaintiff and his assignor are deemed to have notice of the DMM and their appeal rights as described therein. Accordingly, plaintiff's complaint is dismissed for lack of subject matter jurisdiction for failure to exhaust administrative remedies.
Defendant also argues that plaintiff had no standing to bring this action and presumably argues that plaintiff could not have exhausted his administrative remedies as a result. It is unnecessary to *255 reach this issue because, even if plaintiff is treated as the proper party, this court lacks subject matter jurisdiction over this action. Neither plaintiff nor his assignor appealed the USPS's decision to the Claims Appeal or the Consumer Advocate and thus, the complaint must be dismissed.
CONCLUSION
Defendant's motion to dismiss is granted and plaintiff's complaint is dismissed for lack of jurisdiction for failure to exhaust administrative remedies.
SO ORDERED.
NOTES
[1] Plaintiff seeks to amend the complaint on the ground that the correct value of this claim is $21,000.00. Because this court finds that it does not have jurisdiction over plaintiff's complaint, this request is moot.
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559 F.2d 1205
U. S.v.Beard
No. 76-1557
United States Court of Appeals, Second Circuit
5/11/77
1
E.D.N.Y.
2
AFFIRMED*
*
Oral opinion delivered in open court in the belief that no jurisprudential purpose would be served by a written opinion. An oral opinion or a summary order is not citable as precedent. Local Rule Sec. 0.23
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417 F.Supp.2d 212 (2006)
SEARS PETROLEUM & TRANSPORT CORP., Plaintiff,
Donald R. Lassman, Chapter 7 Trustee of the Estate of George F. Burgess, Intervenor,
v.
BURGESS CONSTRUCTION SERVICES, INC., George F. Burgess, Gregory Burgess, as Administrator/Executor of the Estate of Anne M. Burgess, Defendants.
No. CIV.A. 00-10674-RBC.
United States District Court, D. Massachusetts.
March 6, 2006.
*213 M. Ellen Carpenter, Roach & Carpenter, P.C., Boston, MA, for Donald R. Lassman, Intervenor Plaintiff.
Joseph J. Coppola, Norwell, MA, for Sears Petroleum and Transport Corp., Plaintiff.
Scott J. Fishman, Jennings, Jennings, & Fishman, Weymouth, MA, for Gregory Burgess, Defendant.
Richard A. Freedman, Newman & Newman, P.C., Boston, MA, for Anne M. Burgess, Defendant.
Brian J Hughes, Jackson & Coppola PC, Assinippi Commons, Norwell, MA, for Sears Petroleum and Transport Corp., Plaintiff.
Donald H. Jackson, Jr., Assinippi Commons, Norwell, MA, for Sears Petroleum and Transport Corp., Plaintiff.
Raymond D. Jennings, III, Jennings, Jennings & Fishman, Weymouth, MA, for Gregory Burgess, Defendant.
Robert G. Najarian, Jr., Attorney at Law, Hingham, MA, for Sears Petroleum and Transport Corp., Plaintiff.
Eve A Pimonte-Stacey, Roach & Carpenter, P.C., Boston, MA, for Donald R. Lassman, Intervenor Plaintiff.
Howard I. Rosen, Newman & Newman, Boston, MA, for George F. Burgess, Burgess Construction Services, Inc., Anne M. Burgess, Defendants.
*214 OPINION[1]
ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON STATUTE OF LIMITATIONS ISSUES (# 143)
ROBERT B. COLLINGS, United States Magistrate Judge.
I. INTRODUCTION
In this action, Sears Petroleum & Transport Corporation ("Sears" or the "plaintiff") originally brought suit against Burgess Construction Services, Inc. ("Burgess Construction"), George F. Burgess ("Burgess" or the "debtor"), Anne M. Burgess a/k/a Anne Love Burgess ("Anne") and Rockland Trust Company ("Rockland Trust") to recover on a judgment for breach of contract, to reach and apply assets and for injunctive relief. During the pendency of this case, Burgess filed for bankruptcy protection and then both Burgess and Anne died. The Chapter 7 Trustee of the Estate of Burgess, Donald R. Lassman (the "Trustee"), moved to intervene in this matter since he had a similar matter pending in the bankruptcy court. Leave for the Trustee to intervene was allowed. Consequently, the Trustee is an Intervenor and the current defendants are Burgess Construction, Burgess and Gregory Burgess as Administrator/Executor of the Estate of Anne M. Burgess ("Gregory Burgess" or the "defendant")(collectively, the "defendants"). Both the plaintiff and the Trustee are seeking to recover certain allegedly fraudulent conveyances made by Burgess to Anne.
On September 28, 2005, Gregory Burgess filed the instant motion for summary judgment, along with a supporting Memorandum of Law and Statement of Material Facts, asserting that several of the claims of the plaintiff and/or the Trustee are barred by the statute of limitations. (# # 143, 144, 145) In response, on October 28, 2005, Sears filed an Opposition to Defendant's Motion for Partial Summary Judgment on Limitations Issues (# 148), and similarly, on October 31, 2005, the Trustee filed an Opposition to Defendant's Motion for Partial Summary Judgment on Statute of Limitations Issues (# 149). On November 7, 2005, the defendant filed a Reply Brief of Defendant in Response to the Trustees [sic] Opposition to Defendant's Motion for Summary Judgment on Statute of Limitations Issues (# 151). Then, at the Court's request, on November 22, 2005, the Trustee filed a Memorandum of Law on Standing of Sears Petroleum to Pursue Causes of Action for Fraudulent Conveyances of Funds (# 159) and a Supplemental Brief with Regard to the Statute of Limitations on the Resulting Trust Count (# 160). On November 29, 2005, Sears, with the Court's permission, filed a Reply to Trustee's Memorandum on Limitations Issues (# 165). On December 5, 2005, the Court held a hearing and heard argument from the parties regarding the motion for summary judgment. Thus, the motion is now in a posture for resolution. For the reasons set forth below, the Court shall has denied in part and allowed in part the motion for summary judgment.
II. FACTUAL BACKGROUND
By deed dated July 30, 1962, Burgess and Anne took title to a residential property located at 104 South Pleasant Street, Hingham, Massachusetts (the "property"). (Verified Complaint # 1 ¶ 11) The property was the Burgess' marital property, and they lived there from 1962 until their deaths. (# 1 ¶ 11) On or about July 31, *215 1962, the property was transferred by Burgess and Anne to the Pleasant Street Realty Trust, of which Burgess was the Trustee. (# 1 ¶ 12) On or about April 22, 1965, the property was conveyed by the Pleasant Street Realty Trust to Burgess and Anne, as tenants by the entirety. (# 1 ¶ 13) Immediately thereafter, by deed recorded on April 23, 1965, the property was conveyed to Anne solely. (# 1 ¶ 14)
During his lifetime, Burgess operated a number of contracting businesses, including "Burgess Steeplejacks" and "Burgess International." (Joint Pre-Trial Memorandum # 150 at 1) Burgess Construction was organized on August 9, 1993. (# 150 at 3) For the most part, Burgess did not keep any type of financial records or bank accounts for his business or personal use. (# 150 at 2) It was his practice to cash checks received from his contracting jobs at check cashing establishments, pay his workers in cash and keep the rest for himself. (# 150 at 2) Otherwise, he would deposit his business and personal checks into a checking account held solely in Anne's name. (# 150 at 3)
On or about November 26, 1993, Burgess (first doing business as Burgess International Ltd. Corp. and then as Burgess Construction) contracted with Sears to install two steel storage tank bottoms and provide other tank upgrades for a total contract amount of $326,000. (# 150 at 4) By letter dated March 25, 1995, Sears wrote to Burgess giving notice of breach of contract and of the resulting damages to Sears. (# 150 at 5)
Sears alleges that the funds of Burgess Construction were used for the personal benefit of Burgess and Anne. (# 1 ¶ 19) Sears was directed by Burgess to wire payment for services rendered by Burgess Construction to an account at Rockland Trust which Burgess referred to as the "Burgess Account." (# 1 ¶ 20) Sears believes that the account at Rockland Trust was in the name of Anne M. Burgess and that Burgess and Anne used this account to keep funds belonging to Burgess Construction away from Burgess Construction's creditors and as their own personal account. (# 1 ¶ 22)
On December 29, 1999, Sears recovered a judgment (the "judgment") for breach of contract against Burgess Construction and Burgess in the United States District Court for the Northern District of New York for the sum of $400,649.37, plus prejudgment interest in the amount of $162,262.98 for a total of $562,912.35. (# 1 ¶ 6) The defendants have never paid any part of the judgment. (# 1 ¶ 8) On April 6, 2000, Sears filed the instant action. (See generally # 1)
On December 15, 2000, Burgess d/b/a Burgess Construction filed a voluntary petition under Chapter 7 of the Bankruptcy Code. (Adversary Complaint # 144-2 ¶ 7) The Trustee was appointed immediately thereafter. (Joint Stipulation of Facts # 141 ¶ 24) In connection with the bankruptcy, Burgess was deposed and he testified inter alia that he never filed a federal or state tax return and never paid withholding taxes for the employees of his various businesses. (# 144-2 ¶ 21) He testified further that Anne never worked and earned only a de minimus income since 1960. (# 144-2 ¶ 22) Burgess was Anne's only source of financial support, was the sole contributor of household income and the sole source of funds used to maintain the property. (# 144-2 ¶¶ 24, 25) On a number of occasions, both before and after Burgess filed for bankruptcy, Burgess transferred his income to Anne, Anne deposited the funds into her accounts and used the funds to pay the expenses of maintaining the property and other household and living expenses. (# 144-2 ¶¶52, 53; # 150 at 5-6, 14)
*216 On May 28, 2003 Burgess died and on June 6, 2004 Anne died. (See Suggestions of Death # # 109, 131) The Burgess' son, Fred, lived with his parents at the property until after Anne's death. (# 150 at 15)
III. DISCUSSION
A. Standard of Review
Summary judgment purports "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Podiatrist Ass'n, Inc. v. La Cruz Azul De Puerto Rico, Inc., 332 F.3d 6, 12 (1 Cir.2003) (citing Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1 Cir. 1990) (quoting Fed.R.Civ.P. 56 Advisory Committee's note)). The party moving for summary judgment bears the initial burden of asserting the absence of a genuine issue of material fact and "support[ing] that assertion by affidavits, admissions, or other materials of evidentiary quality." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1 Cir.2003). After the moving party has met its burden, "the burden shifts to the summary judgment target [the nonmoving party] to demonstrate that a trialworthy issue exists." Mulvihill, 335 F.3d at 19 (citing Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1 Cir.2000)).
When considering whether to grant summary judgment, the Court must determine whether:
. . . 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 judgment as a matter of law.
Fed.R.Civ.P. 56(c).
In making this assessment, the Court must "scrutinize the record in the light most flattering to the party opposing the motion, indulging all reasonable inferences in that party's favor." Mulvihill, 335 F.3d at 19 (citing Morris v. Gov't Development. Bank, 27 F.3d 746, 748 (1 Cir.1994)); see also Podiatrist Ass'n, Inc., 332 F.3d at 13; Pure Distributors, Inc. v. Baker, 285 F.3d 150, 152 (1 Cir.2002); New England Regional Council of Carpenters v. Kinton, 284 F.3d 9, 19 (1 Cir.2002) (citing Dynamic Image Technologies, Inc. v. United States, 221 F.3d 34, 39 (1 Cir.2000)); Kearney v. Town of Wareham, 316 F.3d 18, 22 (1 Cir.2002).
Despite this "notoriously liberal" standard, Mulvihill, 335 F.3d at 19, summary judgment cannot be construed as "a hollow threat." Kearney, 316 F.3d at 22. A factual dispute which is neither "genuine" nor "material" will not survive a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, in deciding whether a factual dispute is "genuine," the Court must determine whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Kearney, 316 F.3d at 22 (citing United States v. One Parcel of Real Prop. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1 Cir.1992)); Suarez, 229 F.3d at 53 (citing McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1 Cir.1995)). In circumstances where submitting the issue in dispute to the jury amounts to "nothing more than an invitation to speculate," summary judgment is appropriate. Feliciano de la Cruz v. El Conquistador Resort and Country Club, 218 F.3d 1, 9 (1 Cir.2000) (quoting Lattimore v. Polaroid Corp., 99 F.3d 456, 467-68 (1 Cir.1996)). In weighing whether a factual dispute is "material," the Court must examine the substantive law of the case, because "only disputes over the facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." *217 Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Kearney, 316 F.3d at 22.
The focus at the summary judgment phase "`should be on the ultimate issue: whether, viewing the aggregate package of proof offered by the plaintiff and taking all inferences in the plaintiffs favor, the plaintiff has raised a genuine issue of fact . .'." Rivas Rosado v. Radio Shack, Inc., 312 F.3d 532, 535 (1 Cir.2002) (quoting Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 430-31 (1 Cir.2000)); see also Leahy v. Raytheon Co., 315 F.3d 11, 16-17 (1 Cir.2002); Suarez, 229 F.3d at 53. The party objecting to summary judgment may not merely rest upon the statements put forth in its own pleadings. See Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11, 26 (1 Cir.2002) (citing Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1 Cir.1994) (a party objecting to summary judgment fails to put forth a genuine issue of material fact merely by filing an affidavit contradicting unambiguous answers contained in a prior deposition)). Instead, Rule 56(c):
mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which the 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).
B. The Motion for Summary Judgment
In his motion for summary judgment, the defendant argues that three different claims are barred by the statute of limitations. First, he contends that the Trustee's resulting trust claims (# 144-2, Counts IV, V and VI) are time-barred. Second, he argues that Sears' claims that the property was fraudulently transferred from Burgess to Anne in 1965 (# 1, Count II) is barred by the statute of limitations. Finally, the defendant asserts that the claims of monetary transfers from Burgess to Anne between 12/15/98 and 12/15/2002 (# 144-2, Counts I, II and III)[2] belong to the Trustee exclusively and that Sears is precluded from recovery on those claims. For the reasons set out below, the Court has allowed in part and denied in part the defendant's motion.
1. The resulting trust claims
The Trustee alleges that as a consequence of the transfer of the property from Burgess to Anne, a resulting trust was created because Burgess intended that the benefit of the property inure to him, not to Anne. (# 144-2 ¶ 86) The Trustee further contends that Anne (or actually, Anne's estate) holds the property as trustee of a resulting trust for the benefit of Burgess and that Anne has not repudiated the resulting trust. (# 144-2 ¶¶ 72-73, 79-80, 87-88)
The defendant, however, argues that the six year statute of limitations for a resulting trust has expired because Anne, the trustee of the resulting trust, repudiated the existence of a resulting trust on November 26, 1996. (# 144 at 2) Specifically, the defendant explains that during a deposition in connection with a lawsuit against Burgess in Plymouth Superior Court, Anne testified that she believed that her son, Frederick, owned the property. (# 144 at 2) It is thus the defendant's position that Anne's testimony to this effect constituted *218 repudiation of the resulting trust and that the beneficiary of the resulting trust (i.e., Burgess) was on notice of the repudiation since Burgess' counsel was aware of Anne's testimony. (# 144 at 2-3) The Trustee takes issue with the defendant's stance, arguing that Anne's brief testimony could not be considered repudiation of the resulting trust. (# 149 at 3-4)
It is undisputed that the applicable statute of limitations on a resulting trust claim is six years. Mass. Gen. L. c. 260, § 2; Stapleton v. Macchi, 401 Mass. 725, 729, 519 N.E.2d 273, 276 (1988). The dispute here is whether Anne's testimony about ownership of the property is enough to constitute repudiation of the resulting trust such that summary judgment should enter in favor of the defendant.
The "statute of limitations [on a resulting trust claim] does not begin to run in favor of a trustee against a beneficiary until the trustee has repudiated the trust and knowledge of that repudiation has come home to the beneficiary." Kearney v. Mechanics Nat'l Bank of Worcester, 343 Mass. 699, 703, 180 N.E.2d 667, 670 (1962) (citations omitted). An "oral repudiation" of a resulting trust "must be open, definite and made or brought to the attention of a person who had the right to institute proceedings for the recovery of the funds." Stuck v. Schumm, 290 Mass. 159, 164, 194 N.E. 895, 899 (1935). Therefore, in the instant case, the two issues are whether Anne's testimony was "open and definite" and whether Burgess had notice of Anne's testimony to the effect that she thought that Frederick owned the property. Obviously, the defendant argues that the testimony was open and definite and that Burgess did have the requisite notice; the Trustee takes the opposite position.
The Court need not decide the issues definitively because it is well-established that whether a certain act constitutes repudiation is a question of fact for trial. See All Saints Parish, Waccamaw v. Protestant Episcopal Church in the Diocese of South Carolina, 358 S.C. 209, 234, 595 S.E.2d 253, 267 (2004), reh'g denied (Apr. 23, 2004), cert. denied, (July 8, 2005)(reversing the grant of summary judgment because there was a genuine issue of ma terial fact as to whether the plaintiff repudiated the trust); see also Demoulas v. Demoulas, 1993 WL 818620, *11 (Mass.Super.Oct.4, 1993)(ruling that whether the statute of limitations on a resulting trust claim was tolled because the trustee did not repudiate the trust was a question of fact to be determined at trial); Kay v. Village of Mundelein, 36 Ill.App.3d 433, 438, 344 N.E.2d 29, 33 (1975)("Whether a given act is consistent with the continuance of the trust or indicates an intent to repudiate the trust and claim adversely, is a question of fact. . . ."); Davidson v. Stagg, 94 Mont. 272, 22 P.2d 152, 155 (Mont.1933)(whether a certain act establishes a repudiation of a trust is a "fact issue for the consideration of the jury under proper instructions of the court."); Randall v. Constans, 33 Minn. 329, 338, 23 N.W. 530, 534 (1885) ("As respects the statute of limitations [on a resulting trust claim], or the effect of lapse of time, these are questions which will more properly arise upon the trial of the issues of fact.").
Thus, it is clear that whether Anne's testimony during her deposition was sufficient repudiation is a question of fact, not to be resolved at the current juncture by the Court. Therefore, summary judgment on the resulting trust claims in favor of the defendant is not appropriate and as such, the Court has denied summary judgment on such claims.[3]
*219 2. The 1965 transfer of the property
The defendant argues that the statute of limitations on the allegedly fraudulent conveyance of the property in 1965 from Burgess to Anne expired in 1971. (# 144 at 4) He contends that under the Massachusetts Fraudulent Conveyance Act ("MFCA"), the applicable statute of limitations is the period applicable to the underlying action; in this case, it would be six years since the underlying action is a breach of contract action. (# 144 at 4)(citing Mass. Gen. L. c. 260, § 2) Moreover, says the defendant, there is no tolling of the statute of limitations on this fraudulent conveyance claim. (# 144 at 4)
In its opposition brief, Sears did not address the defendant's argument that the statute of limitations had run on the fraudulent conveyance of the property claim, and the defendant in his reply brief noted this fact and suggested that Sears had thus conceded the issue. On November 17, 2005, the Court issued a procedural order requesting that Sears inform the Court if it were indeed conceding the point. (# 157 at 2) Sears did not submit any pleading addressing the issue but did at the hearing on the summary judgment motion explain to the Court that it would not be opposing the defendant's motion regarding the statute of limitations on the 1965 transfer of the property.[4] Thus, the Court has allowed the defendant's motion regarding the statute of limitations on the purportedly fraudulent transfer of the property.
3. The monetary transfer claims
The defendant's motion regarding the monetary transfer claims consists of two parts-1. he asserts that only the Trustee, not Sears, is entitled to pursue the allegedly fraudulent monetary transfers made by Burgess to Anne pre-petition[5], and 2. he contends that the Trustee's claims regarding such transfers are governed by a four year statute of limitations and thus, any transfers made prior to December 15, 1998 (four years before the filing of the Trustee's complaint on December 15, 2002) cannot be pursued by the Trustee. (# 144 at 5). As will be explained below, the defendant is basically correct as to the former contention and incorrect as to the latter.
The defendant references bankruptcy law to support his position that only the Trustee and not Sears can go after the monetary transfers made by Burgess to Anne. Specifically, he cites to In re Mi-Lor Corp. for the proposition that "no creditor has individual avoidance rights after the petition filing. Bankruptcy being a collective proceeding for the benefit of all creditors, avoidance rights belong only to the estate representative; upon their exercise the property recovered becomes part of the bankruptcy estate." (# 144 at 5-6) (quoting In re Mi-Lor Corp., 233 B.R. 608, 619 (Bankr.D.Mass.1999)(citing 11 U.S.C. § 541(a)(3))). In other words, the *220 defendant's argument is that in the instant case, bankruptcy law is applicable and under such law, the Trustee, not any individual creditor, may pursue transferred property in order to restore it to the estate.
Not surprisingly, the Trustee agrees with the defendant's assessment while Sears disagrees wholeheartedly. The Trustee did not address the issue in his opposition brief, but, at the Court's request, did submit an additional memorandum of law in which he explains that his position is that the "Trustee has the exclusive right to pursue the fraudulent monetary transfer claims" from Burgess to Anne "pursuant to his `strong arm' powers under Section 544(b)[6] of the Bankruptcy Code . . ." (# 159 at 1) According to the Trustee, Sears cannot go after such transfer claims unless it received permission from the bankruptcy court, that is, relief from the "automatic stay", a stay which is in place as a result of the bankruptcy filing. (# 159 at 6)
Sears, on the opposite end of the spectrum, asserts that Sears is the only entity that may pursue the fraudulently transferred funds although it posits that the Trustee may have the right to pursue transfer claims for a one-year period, from December 15, 1999 to December 15, 2000. (# 165 at 3) Sears relies on Sections 544 and 548 of the Bankruptcy Code to support its position that the Trustee may go after only those transfers made within one year prior to Burgess' bankruptcy petition. Specifically, Section 544 provides that "the trustee may avoid the transfer of an interest of the debtor in property . . . that is voidable under applicable law by a creditor holding an unsecured claim. . . ." 11 U.S.C. § 544. "Applicable law" is understood here to be state law-that is, the Massachusetts Uniform Fraudulent Transfer Act ("UFTA"). See, e.g., Sender v. Simon, 84 F.3d 1299, 1304 (10 Cir.1996)(stating that the "trustee's powers under [section 544] are predicated on the non-bankruptcy law, usually state law, applicable to the transaction to be avoided."); In re Dergance, 218 B.R. 432, 434 (Bankr.N.D.Ill.1998)(stating that UFTA was "applicable law" under Section 544). And, Section 548 sets out, in relevant part, that
[t]he trustee may avoid any transfer of an interest of the debtor in property . . . that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily (A) made such transfer . . . with actual intent to hinder, delay or defraud any entity to which the debtor was or became, on or after the date that such transfer was made . . . ,indebted; or (B)(i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and (ii)(I) was insolvent on the date that such transfer was made . . ., or became insolvent as the result of such transfer.
Title 11 U.S.C. § 548(a)(1)(emphasis added).
Sears goes on to argue that while the Trustee may have the right to pursue fraudulent transfer claims for the one-year period set forth in Section 548, the Trustee has no additional power to go after any other transfers and that Sears, as a creditor, is the entity with the ability to assert a claim for damages and seek to recover a judgment by pursuing the fraudulent transfers, pursuant to Section 9 of the UFTA. That section provides that, "to the extent a transfer is voidable in an action by a creditor [under UFTA § 8(a)(1)], the *221 creditor may recover judgment for the value of the asset transferred . . . or the amount necessary to satisfy the creditor's claim, whichever is less." Mass. Gen. L. c. 109 § 9.
Thus, Sears appears to be making a distinction between avoidance, on the one hand, and a claim for damages, on the other hand. According to Sears, it has the right pursuant to Section 9 of the UFTA to go after the fraudulent transfers in order to recover a judgment, and the Trustee has the concurrent right pursuant to Sections 544 and 548 of the Bankruptcy Code to "avoid" the fraudulent transfers that took place within the requisite one-year time period. That is, it is Sears' contention that it may rely on state law to seek monetary damages from the defendants while at the same time the Trustee may use bankruptcy law to bring an avoidance action.
The Trustee, however, does not agree that a distinction should be drawn between avoidance of the fraudulent transfers and a claim for damages based on the fraudulent transfers. In other words, says the Trustee, the "statutory fraudulent transfer causes of action[] asserted by the Trustee. . . . under M.G.L. ch. 109A and statutory authority at 11 U.S.C. 544(b), are identical causes of action . . . to those fraudulent transfer counts alleged by Sears." (# 159 at 8 n. 4) It is the Trustee's firm position that only the Trustee may pursue the fraudulent transfers, except in the circumstance where the Trustee fails to act as against the fraudulent transfers and the creditor receives court approval to seek recovery of the transfers, a circumstance that has not occurred in this case.[7] (# 159 at 6-7)
It is clear that Sears' position and the Trustee's stance (which is basically the same as the defendant's on this point) cannot be reconciled. One of them is right and one of them is not. The issue is thus whether state law and bankruptcy law can be utilized together in this case such that both Sears and the Trustee can maintain the same fraudulent transfer claims or whether bankruptcy law "trumps" state law such that only the Trustee may pursue the claims regarding the fraudulent transfers of the funds from Burgess to Anne.
In short, the Trustee is correct. It is well-established that creditors may not "vie with the bankruptcy trustee for the right to pursue fraudulent conveyance actions. To the contrary, the commencement of bankruptcy gives the trustee the right to pursue fraudulently conveyed assets to the exclusion of all creditors." Klingman v. Levinson, 158 B.R. 109, 113 (N.D.Ill.1993)(emphasis added); see also In re Bluestone, 102 B.R. 103, 105 (Bankr.N.D.Ohio1989)(creditor "has no standing to seek avoidance of an alleged fraudulent transfer under § 548.").
Sears appears to have completely overlooked the fact that once the debtor filed for bankruptcy protection, an automatic stay was put in place to protect individual creditors from going after the debtor. See generally 11 U.S.C. § 362, the automatic stay provision. Sears makes much of the fact that there is case law to the effect that a trustee may not bring claims on behalf of creditors when the causes of action belong solely to the creditors. See # 148 at 7-8. However, such law does not change the situation here: without court approval, Sears cannot pursue an action against the debtor without violating the automatic *222 stay. At this juncture, the fraudulent transfer claims belong solely to the Trustee.
Indeed, were Sears allowed to pursue its fraudulent transfer claims, it would put Burgess' other creditors at a distinct disadvantage. "The purpose of fraudulent conveyance law, whether state or federal, and of Section 548 is to prevent harm to creditors by a transfer of property from the debtor." In re Murphy, 331 B.R. 107, 124 (Bankr.S.D.N.Y.2005)(collecting cases). That is, the Trustee will go after the transfers for the benefit of the estate and all the creditors, whereas Sears obviously would be seeking the judgment only for itself. And, if Sears prevailed on its claims, it would be recovering money that rightfully belonged to the estate. Sears should not be allowed an "end-run" around the proper bankruptcy channels. The bottom line is that, despite Sears' attempts to draw a distinction between an avoidance claim and a claim for damages, the money sought by the Trustee and by Sears is the same money. Thus, the Trustee is the only party who may pursue the pre-petition fraudulent transfers, and the defendant's summary judgment motion has been allowed on this issue.[8]
The only remaining issue is whether the Trustee may pursue the fraudulent transfers back to 1998, as the defendant asserts, back to 1996, as the Trustee contends, or back only until 1999, as Sears argues. It is Sears' position that Section 548 of the Bankruptcy Code applies and that therefore, the Trustee may only go after those transfers made within one year prior to the petition; the Trustee says that Section 544 of the Bankruptcy Code is applicable and thus, he may go after transfers made up to four years pre-petition. The defendant agrees that Section 544 governs but contends that the four year period dates back from the filing date of the Trustee's adversary complaint.
As set forth above, Section 548 clearly contains a one-year statute of limitations whereas Section 544 relies on "applicable law" which here is the UFTA. The UFTA provides that a claim for fraudulent transfer must be brought within four years after the transfer was made or the obligation was incurred, or within one year after the transfer or obligation was or could reasonably have been discovered. Mass. Gen. L. c. 109A § 10. Obviously, what must now be determined is the extent of the interplay between Sections 544 and 548.
The court in In re Randy, 189 B.R. 425 (Bankr.N.D.Ill.1995) addressed just this issue. The Randy court explained that:
Since the UFTA is state law, the Trustee may reach its benefits in a federal bankruptcy case by using his avoiding powers under § 544(b) of the Code. The provisions of the UFTA essentially parallel § 548 of the Code. The only significant difference is that, under UFTA, the Trustee can recover property that was fraudulently transferred out of the estate more than one year before the petition date. Under § 548, the Trustee may only avoid a transfer that is "within one year before the date of the filing of the petition." 11 U.S.C. § 548(a). Causes of action for fraudulent conveyances can be brought under the UFTA within four years after the transfer was made. . . . Therefore, the Trustee must rely on [state] law if he is to recover *223 . . . payments that were made earlier than one year before the bankruptcy petition was filed.
Randy, 189 B.R. at 443. See also In re Foos, 204 B.R. 545, 548 (Bankr.N.D.Ill. 1997) (stating that defendant's argument that "under § 548 the trustee may only avoid transfers made within one year before bankruptcy" was "correct" but stating that "argument is of no consequence" since trustee was relying on UFTA, not § 548).
Thus, in the case at bar, the Trustee may assert claims for fraudulent conveyances within four years after the transfers were made; he just must rely on Massachusetts law (i.e., UFTA) to do so. And, indeed, in Counts I and II of his complaint, he sets forth that he is indeed relying on UFTA.[9] In other words, Section 544 gives the Trustee the right to rely on state law to pursue fraudulent conveyance claims. Here, state law is UFTA and UFTA (Mass. Gen. L. c. 109A § 10) contains a four year statute of limitations which is thus the applicable statute of limitations. Section 544 and Section 548 are alternative sections; that is, Section 548 in no way "preempts" Section 544 and therefore, the Trustee may rely on Section 544, the result being that the statute of limitations in the instant case is four years.
The last question that must be resolved in connection with the motion for summary judgment is whether the four year period runs back from the date of the filing of the petition or from the date of the filing of the adversary complaint. The defendant asserts, with little to support his position, that since the Trustee's complaint was filed on December 16, 2002[10], any transfers made prior to December 15, 1998 (i.e., four years earlier than the filing of the complaint) are time-barred. (# 144 at 5)
The Trustee, in contrast, relies on 11 U.S.C. § 108 ("Section 108") to support his claim that the four year period runs back from the date that Burgess filed the bankruptcy petition, December 15, 2000, which means that the Trustee may pursue monetary transfer claims that occurred as early as December 15, 1996. (# 149 at 8) Section 108 provides, in pertinent part, that:
(a) if applicable nonbankruptcy law . . . fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of
(1) the end of such period . . . occurring on or after the commencement of the case; or
(2) two years after the order for relief.
In the instant case, "applicable nonbankruptcy law" refers to state law, specifically Mass. Gen. L. c. 109A. An "order for relief' refers to the debtor's bankruptcy petition. See 11 U.S.C. § 301 ("The commencement of a voluntary [bankruptcy] case . . . constitutes an order for relief. . . . ").
Section 108(a) thus has three requirements: "First, the applicable nonbankruptcy law must `fix a period within which the debtor may commence' the action. *224 Second, the debtor must file for bankruptcy before expiration of that period. Finally, the [trustee] must commence the action before expiration of the extension period." In re AMS Realty, Inc., 114 B.R. 229, 232 (Bankr.C.D.Cal.1990).[11] In the case at bar, only two of the three requirements of Section 108(a) have been satisfiedBurgess filed for bankruptcy before the expiration of that statute of limitations[12], and the Trustee filed his complaint exactly two years after the order for relief. But, what has not been met here is that the debtor himself could have commenced a fraudulent transfer action, as required by § 108. See generally Hoult v. Hoult, 862 F.Supp. 644 (D.Mass.1994). Thus, despite the Trustee's arguments to the contrary, Section 108 is not applicable here.
It is well settled that:
§ 108(a) refers to pre-filing causes of action belonging to the debtor and not to a cause of action created by the Bankruptcy Code. . . . [A] fraudulent transfer action maintained by a debtor-in-possession [or a trustee] under 11 U.S.C. section 544(b) is clearly the creation of the Bankruptcy Code.
In re Mahoney, Trocki & Associates, Inc., 111 B.R. 914, 920 (Bankr.S.D.Cal.1990) (citations omitted)(emphasis added).
In other words, Section 108 "by its express terms, . . . applies only to actions which the debtor could commence pre-petition. It is therefore inapplicable to the trustee's action under § 544(b), in which the trustee asserts a claim as a putative creditor." In re Dry Wall Supply, Inc., 111 B.R. 933, 935 n. 2 (D.Colo.1990) (emphasis in original). Thus, it is clear that Section 108 does not apply to the instant case. Instead, the correct section to be utilized is 11 U.S.C. § 546 ("Section 546").
As one court aptly explained,
It is only the avoidance powers afforded to the . . . trustee by section 544 that enable a debtor or trustee to bring fraudulent conveyance actions. Courts have, therefore, construed section 108 to be inapplicable to actions brought under section 544, leaving such actions subject only to the limitations set forth in section 546.
In re Revco D.S., Inc., 118 B.R. 468, 499 (Bankr.N.D.Ohio1990); see also In the Matter of Princeton-New York Investors, Inc., 219 B.R. 55, 59 (D.N.J.1998)("the two limitations periods in the Code relate to different causes of action: § 108(a) involves a trustee's actions brought on behalf of the debtor, whereas § 546(a) limits the time a trustee has to commence an avoidance action as representative of the estate."); In re Colonial Realty Co., 168 B.R. 512, 517 (Bankr.D.Conn.1994)("When the trustee asserts an avoidance action under § 544(b) on behalf of creditors of the estate, the limitation period fixed by § 546(a) applies, not § 108(a), which applies *225 to actions asserted on behalf of the debtor.").
Thus, since § 546(a) is the operative statute, it is necessary to set forth the relevant portions of that law: "An action or proceeding under section 544, 545, 547, 548 or 553 of this title may not be commenced after the earlier of (1) the later of(A) 2 years after the entry of the order for relief; or (B) 1 year after the appointment or election of the first trustee. . . .; or (2) the time the case is closed or dismissed." Title 11 U.S.C. § 546(a).
Certainly, the wording of this statute is somewhat confusing. At its core, "it requires the action be brought within the earlier of two years after the trustee is appointed or before the close of the bankruptcy proceeding." In re Martin, 142 B.R. 260, 266 (Bankr.N.D.Ill.1992). In the case at bar, the Trustee was appointed on December 15, 2000, the same date that Burgess filed his bankruptcy petition. Thus, any fraudulent transfer actions must have been brought by December 15, 2002 in order to have been timely filed. The Trustee filed his adversary proceeding within this time frame. This conclusion does not, however, end the inquiry.
There is a two-part analysis for determining whether an action brought under 11 U.S.C. § 544(b) is timely. The applicable state statute of limitations is only relevant to the first part of the test, which requires the action to be maintainable under the state statute of limitations as of the commencement of the bankruptcy proceeding. Once the bankruptcy petition is filed, 11 U.S.C. § 546 governs the time for bringing the action, and it requires the action be brought within the earlier of two years after the trustee is appointed or before the close of the bankruptcy proceeding. Under this analysis, it is immaterial if the state limitations period accrues during the pendency of the bankruptcy case.
In re Martin, 142 B.R. at 265. See also 4 Collier on Bankruptcy ¶ 546.02[1][b] ("If the state law limitations period governing a fraudulent transfer action has not expired at the commencement of a bankruptcy case, the trustee may bring the action pursuant to section 544(b), provided that it is commenced within the section 546(a) limitations period.").
Therefore, there is a two-part analysis that must be undertaken. First, the fraudulent transfer actions must have been maintainable as of December 15, 2000, the date of the filing of the bankruptcy proceeding. Since, as discussed above, there is a four year statute of limitations, any transfers made prior to December 15, 1996 could not be sued upon since the statute would already have run on those transfers. For all transfers made on or after December 15, 1996, the Trustee would have until December 15, 2002 to bring suit, pursuant to the two-year "extension" provided for in Section 546. In other words, "so long as the statute of limitations has not run at the filing of the petition, the trustee may then utilize the provisions of § 546(a)." In re Mahoney, 111 B.R. at 920; Fraudulent Transfers: Applications and Implications § 4:21 (2005) ("the fraudulent transfer action must be allowable at the time the bankruptcy petition has been filed.").
In sum, to resolve the question of whether the Trustee has the right to pursue transfers back to 1998 or 1996, the answer is that he may go after transfers back to 1996, based upon Section 546. Although Section 546 does not explicitly state that the operative date is the date of the filing of the bankruptcy proceeding, the case law makes clear that the action must have been maintainable as of the petition date; if not, then the Trustee may not act upon it. See, e.g., In re Mahoney, 111 *226 B.R. at 919 ("The California statute of limitations [on a fraudulent transfer claim] can be given effect by reaching back three[13] years from the date of the filing of the petition to determine whether the alleged transfer had taken place within that time frame."); In re Florida West Gateway, Inc., 182 B.R. 595, 598 (Bankr. S.D.Fla.1995) (holding that § 546 applied because transfer at issue occurred two years prior to the commencement of the bankruptcy case, well within the four year statute of limitations for a fraudulent transfer claim).
As discussed above, Section 546 applies when the Trustee is acting as a putative creditor. Thus, the purpose of Section 546 is to ensure "that at the time of the filing of the petition the trustee will have no greater rights than those accorded by the state law to a creditor holding a potential claim." In re Mahoney, 111 B.R. at 919. Therefore, in the instant case, where there are numerous allegedly fraudulent transfers, the Trustee may pursue only those which were maintainable as of the date of the filing of the bankruptcy petitioni.e., those that occurred on or after December 15, 1996 which is four years before the filing of the petition.[14]
In conclusion, Sections 544 and 546 allows the Trustee to "act" as a creditor and bring suit upon any fraudulent transfer claims that were maintainable as of the date of the filing of the bankruptcy proceeding, as long as he did so within two years after his appointment. Thus, the Trustee, although he relied on the wrong bankruptcy code section to support his argument, is ultimately correct, and he may pursue monetary transfer claims dating from December 15, 1996 to December 15, 2000.[15]
IV. CONCLUSION
In conclusion, the defendant's motion for summary judgment was allowed on the claim regarding the statute of limitations on the transfer of the property and was allowed to the extent that the Trustee has the exclusive right to pursue monetary transfers claims for transfers that occurred from December 15, 1996 to December 15, 2000. Sears may not pursue transfer claims after the December 15, 1996 but may go after claims for transfers occurring prior to December 15, 1996 and those occurring post-petition. The summary judgment motion was denied on the resulting trust claims and was denied to the extent that the motion sought to limit the Trustee's fraudulent transfer claims back only to December 15, 1998.
NOTES
[1] The Court entered an Order on the motion (# 143) on February 24, 2006 indicating that an Opinion was to follow.
[2] Sears' complaint does not contain a specific cause of action for fraudulent transfer of funds but seeks in its request for relief to recover monies held in Anne's name. (# 1, Request for Relief ¶¶ 3, 7, 8, 9)
[3] The Court notes that the defendant did not cite any cases establishing that testimony like Anne's could be considered sufficient repudiation.
[4] Similarly, the Trustee did not address the issue in his papers since he will not be pursuing any claims that would be affected by the six year state statute of limitations having run on the fraudulent conveyance claim. That is, the Trustee has lodged claims for a resulting trust on the property for which the statute of limitations does not run until the trust has been repudiated, as explained above.
[5] Sears and the Trustee are in agreement that Sears has the right to pursue claims regarding monetary transfers made by George to Anne post-petition (i.e., after December 15, 2000)(See # 159 at 8). Indeed, the Trustee is not seeking to recover post-petition transfers. Thus, as referenced herein, the monetary transfers are those that occurred pre-petition.
[6] In his papers, the Trustee refers at least once to Section 554, rather than 544. Clearly, this is typographical error, and the Court assumes that the Trustee meant to reference Section 544.
[7] Compare In re Pilavis, 233 B.R. 1, 4 (Bankr. D.Mass.1999)(court gave creditor approval to pursue a fraudulent transfer action against the debtor based on the finding that the Trustee "failed to pursue the case" and because "the litigation presents no burden to the estate. . . . ").
[8] This includes fraudulent transfers back to 1996, as will be discussed in detail below. Sears does have the right to go after monetary transfers that occurred prior to December 15, 1996 and those that occurred post-petition. The Trustee does not dispute Sears' right in this regard.
[9] Sears may attempt to make something of the fact that in his complaint, the Trustee sets forth that is he is proceeding under various Bankruptcy Code sections, including Section 548, but does not include Section 544. This fact is of little moment since the Trustee in his papers and during the hearing made it clear that he is indeed proceeding pursuant to Section 544, as well as Section 548 and other Code sections.
[10] The Trustee filed his complaint on December 16, 2002 because December 15, 2002, the deadline for filing, was a Sunday. Hereinafter, December 15, rather than December 16, will be used as the operative date.
[11] The AMS Realty case stated that Section 108(a) can be utilized only by Chapter 11 trustees and debtors-in-possession, not by Chapter 7 trustees, like the one in the case at bar. See 114 B.R. 229, 232 (Bkrtcy.C.D.Cal. 1990). However, such language has since been discredited as a typographical error or oversight. See Mishkin v. Ageloff, 1998 WL 651065, *5 (S.D.N.Y. Sept. 23, 1998)("this language from AMS Realty was a typographical error or otherwise unintentional. Section 108 refers to `the trustee' without any qualifications.").
[12] What makes this case confusing is that there were numerous monetary transfer claims that have been alleged to be fraudulent. Therefore, there are really numerous statutes of limitations in operation. That is, Burgess filed for bankruptcy on December 15, 2000, within the statute of limitations for some of the transfers and outside the statute of limitations for others.
[13] The court in In re Mahoney relied upon a three year statute of limitations since that was the applicable statute of limitations for fraudulent transfer claims in California. In our case, the statute of limitations is four years, as discussed at length above.
[14] As mentioned above, there is no dispute here that the Trustee's action was commenced prior to the expiration of two years after his appointment.
[15] In the papers, there is discussion of whether the UFTA or the MFCA would apply to certain transfers. As far as the summary judgment motion is concerned, no such decision is necessary since all of the transfer claims to be pursued by the Trustee occurred after the effective date of the UFTA-October 6, 1996. That is, the Trustee has the right to go after transfers made on or after December 15, 1996, well after the October 6, 1996 effective date, so all of those transfers are governed by the UFTA.
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. _
.
Honorable J. K. Williams
Commissioner, CoordinatingBoard
Texas College and University System
Sam Houstoh State Office Building
Austin, Texas 78701 Opinion No. K-214
_
Re: Whether the submitted
proposed form of affl-
davit for an election
to authorize the Travis
County Junior College
. District to levy and
collect a maintenance
tax and issue bonds
will substantially
comply with Article
5.04 of the Election
Dear Mr. Williams: Code,
In your recent opin'ionrequest you have submitted the
following relevant facts:
.(!I Travis County Junior College'Dlsttiict'was
createa ana seven trustees were elected at an election
held within the District on November 9, 1963. At the
same election the electorate failed to vote authorization
for the District to Issue bonds or levy a maintenance tax.
.In a subsequent election the voters failed to approve the
Issuance of bonds or the levying of a maintenance tax.
(2) The Board of Trustees plans to call an election
for April 20 1968, for the purpose of submitting propo-
sitions to the voters which If passed would authorize
the District to levy a maintenance tax'and Issue bonds
for school purposes. '
(3) Since the District has never been authorized
to levy a maintenance tax, no tax rolls have ever been
compiled or adopted by the Trustees. No one has ever
rendered property to the Dlstr1c.tfor taxation. ,.
.-~ -;1027-
Honorable J. K. Williams, page 2 (K-214)
(4) Pursuant to the requirementsof Article 5.04
of the Election Code, the Secretary of State has pro-
mulgated a form of affidavit to be signed by each voter
in a bond election, which requires that the affiant
identify property which has been rendered for taxation
to the political subdivision holding the election.
Since no one has rendered property for taxation to the
District no one could truthfully sign the affidavit
promulgatedby the Secretary of State In this Instance.
A form of affidavit which the District proposes to use
in view of the above situation Is attached to your opinion
request which reads as follows:
"AFFIDAVITOF OWNERSHIP OF PROPERTY
SUBJECT TO TAXATION
For Voting at Election held by
Travis County Junior Colle e District
on April 20, 1968 " ,~ "
"I so1emnl.yswear that I own property which is subject
to taxation by the Travis County Junior College District;
and that the following Is a description of one Item of
property so owned by me on this date.
(Descriptionof Property)
"I understand that the giving of false'lnformationin
this affidavit Is a felony punishable by a fine not to
exceed $5000.00 or by Imprisonment In the penitentiary
not to exceed 5 years, or by both such fine and.lmprlson-
ment.
X
(Signature of Voter)
"Sworn to before me by the above-signed voter on this the
20th day of April, 1968.
nlgnatureT6!fficer AdministeringOathr '
-1028-
Honorable J. K. Williams, page 3 (M-214)
You then ask whether this form of affidavit, If used
by the District in the election to be held on April 20, 1968,
would substantiallycomply with the requirementsof Article
5.04 of the Election Code.
In Mlnthorn v. Hale, 372 S.W.2d 752 (Tex. Clv. APP.,
1964, no writ) the Court said at page 753:
"The rule Is that statutes regulating the manner
of holding an election are merely directory, and a
departure from their provisions will not, ordlnarllz,
invalidate an election, unless such departure or such
irregularity have affected or changed the result of
the election." (Emphasis added.)
,.
Ordinarily, before a person may vote In a bond election,
he must render his property for taxation to the polltlcal
subdlvlslon holding the election and must execute an affidavit
to that effect. Article 6, Sec. 3a, Texas Constitution,Art-
icles 5.03 and 5.04, Election Code. However, the requirement
that a person render his property before being allowed to vote
in bond elections Is not absolute In situations, such as In
the Travis County Junior College District,,where no tax rolls
have been prepared or adopted, no tax levy has been authorized
by the electorate, and no one has rendered property for tax-
ation. The Supreme Court said In Hanson, v.:Jors, 145 Tex.
320, 198 S.w.2d 262 (1946), at page 263, In talking about a
similar situation,
I,
...In other words, each voter at the election
was a property owner, and the only reason he had not
rendered his property for taxes was the very suffl-
clent one that there were no taxes to pay. To hold
that a voter In that situation could not legally cast
hls ballot would be to punish a citizen who has been
guilty of no dereliction or omission whatever. It
would amount to a disfranchisementof the entire prop-
erty-owning citizenship of Cleveland because for a
decade that city very commendably levied no taxes
when no taxes were necessary.... We do,not believe
the voters of this state had any such lntendment In
mind when they adopted Art. VI, Sec. 3a, supra. To
hold the election In this case Invalid, under the facts
stated, would accomplish no good; It would remedy no
evil."
Article 5.04 contemplates that each voter sign an affi-
v1029-
Honorable J. K. Williams, page 4 (~-214)
:
davlt promulgatedby the Secretary of'State. Sl~nce~n6
voter in the District could truthfully sign such affidavit,
to require each voter to do so would disfranchise every
voter In the District, We do not believe that the Legls-
lature intended such a result in amending Article 5.04 of
the Election Code during~the last session of the Legislature.
The form of affidavit which the District proposes to
use In the election to be held on April 20, 1968, requires
that the voter state that he owns property subject to tax-
ation located in the District and that he describe such
property as contemplated by Article 5.04, supra. We cannot
see that the use of such affidavit would lead to fraud, mis-
conduct, or other irregularity In the conduct of the proposed
bond election. Absent such a showing it is the opinion of
this Department that under the submitted facts the use of
the proposed form will substantiallycomply with the requlre-
ments of Article 5.04 of the Election Code.
SUMMARY
The submitted proposed form of affidavit for
use in a bond election, In a political subdivision
In which a tax roll has never been prepared to
authorize the Travis County Junior College l%strict
to levy and collect a maintenance tax and issue bonds
will substantiallycomply with Article 5.04 of the
Election Code.
t'rulyyours,
C. MARTJN
General of Texas
Prepared by John W. Fainter, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Philllos. Chairman
Kerns Taylor Co&airman
W. V. Geppert .
Tom Fortescue
Bill Craig
Malcolm Quick
A. J. Carubbi Jr.
Executive Assistant
-1030-
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505 F.3d 650 (2007)
Muhammad Bilal TARIQ, Petitioner,
v.
Peter D. KEISLER, Acting Attorney General of the United States, Respondent.
No. 06-2518.
United States Court of Appeals, Seventh Circuit.
Argued April 12, 2007.
Decided October 9, 2007.
*651 *652 Godfrey Y. Muwonge (argued), Alliance for the Defense of New Americans' Rights, Milwaukee, WI, for Petitioner.
Walter M. Evans, Jeffery R. Leist (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Before RIPPLE, EVANS and SYKES, Circuit Judges.
RIPPLE, Circuit Judge.
Muhammad Bilal Tariq, a native and citizen of Pakistan, came to the United States with his parents in 1996. Mr. Tariq was thirteen years old at the time and entered the Country on a visitor's visa. He and his parents remained beyond their authorized stay. In 2003, he was served with a notice to appear before an Immigration Judge ("IJ"). Mr. Tariq appeared and conceded his removability. He then applied for asylum and withholding of removal. The IJ denied his asylum application on the ground that it had not been filed within one year of Mr. Tariq having reached eighteen years of age, as required by 8 U.S.C. § 1158(a)(2)(B). The IJ then denied Mr. Tariq's request for withholding of removal because he had not demonstrated a clear probability that he would be subject to persecution based on some protected characteristic if he were returned to Pakistan. The IJ also denied Mr. Tariq's motion for a continuance pending the outcome of his application for labor certification, on the ground that, even if Mr. Tariq were able to obtain a labor certification, he would deny Mr. Tariq adjustment of status as an exercise of discretion.
Mr. Tariq appealed the decision of the IJ to the Board of Immigration Appeals ("Board" or "BIA") and filed a motion to supplement the record on appeal with evidence he claimed would refute the factual findings of the IJ with respect to his fear of persecution. In a brief per curiam order, the BIA adopted and affirmed the decision of the IJ in its entirety but did not address Mr. Tariq's new evidence.
Mr. Tariq now petitions for review the decision of the BIA denying his applications for asylum and withholding of removal as well as his motion for a continuance and the failure on the part of the BIA to address his motion to supplement the record on appeal. For the reasons set forth in this opinion, we deny Mr. Tariq's petition for review.
I
BACKGROUND
Mr. Tariq was born in Pakistan, but lived most of his childhood in the United Arab Emirates ("UAE"). When his father's business ventures in the UAE failed, the family returned to Pakistan to escape his creditors. One of these creditors, a loan shark identified as "Mustafa," followed the family to Pakistan, where he allegedly threatened Mr. Tariq's father and the rest of the family. The family then fled to the United States, where, on December 14, 1996, they entered with nonimmigrant visitor's visas. Mr. Tariq was thirteen at the time he entered the United States.
In March 2003, in response to new regulations issued by the Attorney General regarding the National Security Entry-Exit Registration System ("NSEERS"), Mr. Tariq registered with the Department of Homeland Security ("DHS"). Because Mr. Tariq had overstayed his visitor's visa, removal proceedings were initiated, and, *653 on April 7, 2003, Mr. Tariq received a notice to appear before an IJ. At his initial appearance on April 30, 2003, Mr. Tariq conceded removability but informed the IJ that he was filing for labor certification and that he believed he was entitled to apply for adjustment of status under the grandfather provision of § 245(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255(i), based on an application for labor certification filed by his mother before April 30, 2001.[1] The IJ then advised Mr. Tariq that he should bring to the next hearing information concerning his eligibility for adjustment of status, as well as any application for asylum or other relief.
On October 1, 2003, Mr. Tariq submitted his application for asylum, withholding of removal and relief under the Convention Against Torture ("CAT") to the IJ. Mr. Tariq's employer filed a labor certification application for Mr. Tariq on July 9, 2004.[2] A hearing was scheduled for March 9, 2005 to consider Mr. Tariq's requests for asylum, withholding of removal and CAT relief, as well as a motion for a continuance pending the outcome of his application for labor certification.
At the hearing, Mr. Tariq and his mother both testified in support of his application for asylum and withholding of removal. Mr. Tariq first explained that the delay in his asylum application had been the result of his parents' divorce and volatile relationship, which had caused him to assume some responsibility for the care of his younger siblings. In support of the merits of his asylum application, he testified that the family had been forced to leave the UAE when his father's businesses had failed in order to escape Mustafa. Mr. Tariq testified that Mustafa had followed the family to Pakistan and had threatened Mr. Tariq's father as well as the rest of the family. He further testified that the police had come to investigate the threats, but they did nothing to stop them. According to Mr. Tariq, this prompted the family to leave Pakistan out of concern for their safety. However, Mr. Tariq admitted that he was not aware of any attempts by Mustafa to contact his family after they came to the United States. He also stated that he did not know of Mustafa's present whereabouts or whether he was still alive at that time.
Apart from his fear of harm at the hands of Mustafa, Mr. Tariq testified that he feared persecution because he could not speak the language, and he did not regularly practice his Muslim faith. Mr. Tariq asserted that, as a consequence of these factors, he would be persecuted because people would attribute Western political opinions to him.
Next, Mr. Tariq's mother testified. She corroborated Mr. Tariq's testimony that the family had left the UAE because of debts owed to Mustafa. She also stated that Mustafa had followed the family to Pakistan. However, she did not testify that the family actually encountered Mustafa in Pakistan, nor did she state that the police were called in response to any threats.
*654 Mr. Tariq also offered an affidavit from his father in support of his application for asylum, which corroborated much of Mr. Tariq's testimony. However, Mr. Tariq's father did not appear as a witness. In response to the affidavit, the Government proffered a printout of a Nonimmigrant Information System ("NIIS") report[3] which suggested that Mr. Tariq's father, or someone with the same name and birth-date, had traveled to the United States on a visa issued in Islamabad in 2000. Additionally, the Government proffered the asylum application of Mr. Tariq's father, which did not mention the debt or fear of Mustafa as a basis for his application.
The IJ denied Mr. Tariq's asylum claim because Mr. Tariq had not filed his asylum application within one year of reaching the age of majority, and he had not established extraordinary circumstances that would excuse his failure to apply in timely fashion. Therefore, the IJ continued, Mr. Tariq was required to satisfy the more stringent standards for withholding of removal. The IJ determined that Mr. Tariq had not established a clear probability of persecution necessary to be entitled to that form of relief. First, the IJ concluded, Mr. Tariq had not established that his fear of harm was based on any of the statutorily protected grounds. The IJ concluded that any threat posed by Mustafa was on account of a personal dispute between Mustafa and Mr. Tariq's father, not on account of his membership in any identifiable social group. The IJ noted that we have held that personal disputes cannot serve as the basis for asylum or withholding of removal. The IJ further concluded that Mr. Tariq had presented no evidence that he faced a clear probability of persecution on account of imputed political opinions owing to his Western upbringing, which claim, the IJ stated, was supported by no more than speculation.
Additionally, the IJ noted that Mr. Tariq's father had not mentioned Mustafa in his own application for asylum. This, the IJ concluded, weakened Mr. Tariq's claimed fear of persecution at the hands of Mustafa. The IJ also added that the Government's NIIS reports indicating that somebody matching the biographical description of Mr. Tariq's father had traveled to Pakistan undercut the credibility of his father's affidavit. In any event, the IJ added, Mr. Tariq had failed to demonstrate a clear probability that the government of Pakistan would be unable to protect Mr. Tariq from Mustafa or that there was any connection between Mustafa and the government of Pakistan.
The IJ also denied Mr. Tariq CAT relief, on the ground that he had not suffered past torture and that it was not more likely than not that he would suffer future torture.
The IJ then denied Mr. Tariq's request for a continuance pending the outcome of his application for labor certification. Recognizing that Mr. Tariq was entitled to the benefits of § 245(i), the IJ nevertheless concluded that, even if Mr. Tariq were able to obtain labor certification and, as a result, a visa, he would deny Mr. Tariq adjustment of status as a matter of discretion. Among the reasons given by the IJ *655 to support this decision, the IJ pointed to "the weak and tenuous basis for [Mr. Tariq's] claim of asylum and withholding of removal eligibility," which claims the IJ had determined were filed "solely for purposes of delay." A.R. at 111-12. The IJ also pointed to Mr. Tariq's continued illegal presence in the United States and failure to come forward to seek asylum or adjustment of status until the Attorney General's changes to NSEERS required his registration.
Mr. Tariq appealed this decision to the BIA. Along with his appeal, he filed a motion to supplement the record on appeal. The additional evidence Mr. Tariq sought to introduce included an affidavit from his father explaining he had not mentioned Mustafa in his initial asylum application because it had been filed hastily and therefore did not reflect all of the reasons for fearing persecution if returned to Pakistan. Additionally, he stated that, after arriving in the United States, he never had returned to Pakistan and that the NIIS report must concern another individual.
The BIA adopted and affirmed the IJ's decision. In its decision, the BIA did not address Mr. Tariq's motion to supplement.[4]
II
DISCUSSION
In his petition, Mr. Tariq asks that we review the decision of the BIA upholding the IJ's denial of his applications for asylum and withholding of removal. He also submits that the BIA erred when it failed to address his motion to supplement the record on appeal when it adopted the decision of the IJ. Mr. Tariq further asks that we review the denial of his motion for a continuance. "Where, as here, the BIA summarily adopts the IJ's decision, this Court reviews the IJ's factual findings and reasoning as though they were the Board's." Boci v. Gonzales, 473 F.3d 762, 765-66 (7th Cir.2007).
A.
We now turn to Mr. Tariq's application for asylum. The IJ concluded that Mr. Tariq was ineligible for asylum because he had failed to file his claim within one year of turning eighteen. Mr. Tariq contends that the IJ should have excused the delay in filing because he had demonstrated changed circumstances that materially affected his eligibility for asylum or extraordinary circumstances related to the filing itself.
Section 1158(a)(2)(B) provides that an applicant for asylum must demonstrate by clear and convincing evidence that he has filed the application within one year of arriving in the United States.[5] However, the IJ may consider an application for asylum even if the applicant fails to prove he filed within one year of admission
if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within [one year of arrival].
*656 8 U.S.C. § 1158(a)(2)(D). We generally lack jurisdiction to review the IJ's determination in this regard, see id. § 1158(a)(3); however, we may review the IJ's decision with respect to questions of law, see 8 U.S.C. § 1252(a)(2)(D); Mabasa v. Gonzales, 455 F.3d 740, 744 (7th Cir. 2006).
Mr. Tariq points to two grounds that he contends constitute legal error in the IJ's application of § 1158(a)(2)(D). First, he submits that the IJ incorrectly applied § 1158(a)(2)(D) by focusing on whether the asserted changed circumstances had affected his claim as opposed to his eligibility for asylum. Although Mr. Tariq does not explain precisely the distinction he believes the IJ drew, the gravamen of this contention is that § 1158(a)(2)(D) directs the IJ's inquiry regarding changed circumstances to whether the alleged changes affected his eligibility for asylum. Second, he asserts that the IJ erred by requiring him to demonstrate "exceptional" as opposed to "extraordinary" circumstances relating to his delay in applying for asylum.
Taking the first point, in applying § 1158(a)(2)(D), the IJ noted that the one-year deadline may be waived if the applicant "demonstrates a change in circumstances that materially [a]ffect the asylum claim itself." A.R. at 97. Although the IJ did not recite verbatim the language in § 1158(a)(2)(D), this passage reveals that the IJ understood that the changed circumstances to which the statute refers are those that affect the applicant's eligibility for asylum.
With respect to the second contention, the record taken as a whole demonstrates its lack of merit. Although, on one occasion, the IJ did refer to Mr. Tariq's burden in terms of "exceptional circumstances," the IJ then proceeded to identify the burden in terms of "extraordinary circumstances." A.R. at 97. Further, the IJ's ultimate conclusion was that Mr. Tariq had "failed to fall within the extraordinary circumstances exception to the one year filing deadline." Id. at 98 (emphasis added).
In the absence of legal error in the IJ's application of § 1158(a)(2)(D), we are without jurisdiction to review further his determination that Mr. Tariq's application for asylum had not been filed in a timely fashion.
B.
Mr. Tariq next contends that the IJ erred when he denied the application for withholding of removal. In order to establish an eligibility for withholding of removal, an applicant must demonstrate a clear probability of persecution on account of his "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A); Mabasa, 455 F.3d at 745. To establish a clear probability of persecution, the applicant "must demonstrate that `it is more likely than not that [he] would be subject to persecution' in the country to which he would be returned." INS v. Cardoza-Fonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (quoting INS v. Stevic, 467 U.S. 407, 429-30, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984)). "The acts of private citizens do not constitute persecution unless the government is complicit in those acts or is unable or unwilling to take steps to prevent them." Chakir v. Gonzales, 466 F.3d 563, 570 (7th Cir.2006). We review the IJ's decision denying withholding of removal under the substantial evidence standard. Mabasa, 455 F.3d at 745. We shall not reverse the decision of the IJ unless Mr. Tariq can demonstrate "that `the evidence not only supports that conclusion, but compels it.'" Id. (quoting *657 INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
Mr. Tariq has not met his burden. Mr. Tariq presented two grounds for withholding of removal: (1) his fear of Mustafa and (2) his fear of discrimination because of political opinions attributed to him on account of his Western upbringing. The IJ denied withholding of removal on the first ground because Mr. Tariq had failed to demonstrate that any harm at the hands of Mustafa would be on account of Mr. Tariq's membership in a particular social group. The IJ denied withholding of removal on the second ground because Mr. Tariq had presented no evidence that his Western upbringing would cause individuals in Pakistan to attribute political opinions to him. With respect to both grounds for withholding of removal, the IJ also held that Mr. Tariq had failed to demonstrate that the government of Pakistan was unwilling or unable to protect him.
Mr. Tariq advances no argument to refute these conclusions. Moreover, the record supports the IJ's findings. Accordingly, we must hold that his decision to deny Mr. Tariq withholding of removal was supported by substantial evidence.
C.
Mr. Tariq asserts that the BIA erred in failing to address his motion to supplement the record on appeal. The Government concedes that it was error for the BIA to fail to address this motion. However, we shall not reverse the decision of the BIA if an error is harmless. Cf. Pronsivakulchai v. Gonzales, 461 F.3d 903, 907 (7th Cir.2006) (holding that to prevail on a claim that an immigration hearing was procedurally insufficient, the petitioner must demonstrate prejudice).
Before the IJ, the Government had introduced two pieces of evidence to impeach the affidavit testimony of Mr. Tariq's father with respect to the threat posed by Mustafa. First, the Government introduced a NIIS report showing that someone with biographical information similar to Mr. Tariq's father had entered the United States in 2000 on a visa issued in Pakistan. This information indicated that his father had returned to Pakistan at some point prior to that reentry despite the threat posed by Mustafa. The second piece of evidence was Mr. Tariq's father's application for asylum, which made no mention of Mustafa. This documentation cast doubt on the assertion in the affidavit of Mr. Tariq's father that Mustafa would harm Mr. Tariq if he were forced to return to Pakistan. In an attempt to counter the Government's submission, Mr. Tariq sought to supplement the record.
As we have discussed earlier, the primary reasons given by the IJ for denying Mr. Tariq withholding of removal with respect to the threat from Mustafa were Mr. Tariq's failure to establish that any harm would be on account of his membership in a particular social group and his failure to demonstrate that the government of Pakistan was unable or unwilling to protect him. In the IJ's analysis, the Government's evidence was relegated to a footnote indicating that this evidence undercut the credibility of Mr. Tariq's father regarding the likelihood of persecution at the hands of Mustafa. This credibility determination was wholly unrelated to the IJ's determination that Mr. Tariq had not demonstrated that any persecution would be on account of his membership in a particular social group or that the government of Pakistan had the willingness and capacity to protect him.
We must conclude, therefore, that, even if the BIA had permitted Mr. Tariq to supplement the record and had credited fully his supplemental evidence, Mr. Tariq *658 still would not have established that any persecution would be on account of his membership in a particular social group or that the government of Pakistan would be unable or unwilling to protect him. We therefore must conclude that any error on the part of the BIA in failing to consider Mr. Tariq's supplemental evidence was harmless.
D.
Mr. Tariq further asks that we review the IJ's decision denying his motion for a continuance. In Ali v. Gonzales, 502 F.3d 659, 2007 WL 2684825 (7th Cir.2007), the court held that we have no jurisdiction over this matter.
Conclusion
For the reasons set forth in this opinion, we conclude that the IJ's denial of Mr. Tariq's application for asylum and withholding of removal was supported by substantial evidence. We also hold that any error on the part of the BIA in its treatment of Mr. Tariq's motion to supplement the record on appeal was harmless. Finally, we have no jurisdiction to review the denial of Mr. Tariq's motion for a continuance.
Accordingly, we must deny Mr. Tariq's petition for review.
PETITION DENIED; DECISION AFFIRMED.
NOTES
[1] The grandfather provision permits aliens otherwise ineligible for adjustment of status under 8 U.S.C. § 1255(a) or (c) to apply for adjustment of status if they were the beneficiary of either a petition for classification under 8 U.S.C. § 1154 or an application for labor certification filed before April 30, 2001. See 8 U.S.C. § 1255(i)(1)(B). Because Mr. Tariq was a minor at the time his mother applied for labor certification, he is considered a beneficiary of her application. See id.; 8 C.F.R. § 245.10(a)(1)(B).
[2] An application for labor certification also had been filed by Mr. Tariq's employer sometime in 2003, but it is unclear from the record what happened with this application.
[3] The NIIS was a database of records tracking the arrival and departure of individuals as nonimmigrant visitors. See 68 Fed.Reg. 5,048 (Jan. 31, 2003). Since early in 2005, the NIIS has been integrated into the Treasury Enforcement Communications System maintained by the United States Customs and Border Protection. See Elizabeth M. Grieco, Office of Immigration Statistics, Estimates of the Nonimmigrant Population in the United States: 2004, at 1 n. 2 (2006); see also United States Department of Homeland Security, Privacy Impact Assessment Update of the United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT), at 3 n. 3 (2007).
[4] Mr. Tariq also moved for reconsideration of the BIA's decision on the ground that the BIA had failed to address the evidence he had presented in his motion to supplement the record. The BIA denied Mr. Tariq's motion to reconsider. He does not appeal that decision.
[5] Because Mr. Tariq was under eighteen when he arrived in the United States, the IJ determined that the one-year period did not commence until his eighteenth birthday.
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460 N.W.2d 486 (1990)
In re MARRIAGE OF Russell James COLLINGWOOD and Susan Arlene Collingwood.
Upon the Petition of Russell James Collingwood, Appellee,
and Concerning Susan Arlene Collingwood, Appellant.
No. 89-1471.
Court of Appeals of Iowa.
July 26, 1990.
Sharon A. Mellon of Mellon & Spies, Iowa City, for appellant.
Patricia C. Kamath, Iowa City, for appellee.
Heard by OXBERGER, C.J., and HAYDEN and HABHAB, JJ.
HAYDEN, Judge.
The parties, Susan and Russell Collingwood, were married in 1978. They have *487 two children, a boy born in September 1982 and a girl born in July 1986.
Russell is a farmer, working in partnership with his parents on a family farm. Susan is trained as a teacher. However, she has not practiced that vocation since early in the marriage, allegedly at Russell's request, but she now desires to resume it. She has been unable to find a teaching job, however, and is presently working in the admissions office of the University of Iowa.
The couple lived on the family farm from their marriage until their separation in 1988. They occupied the main farmhouse, while Russell's parents lived in a residence a short distance away.
The paternal grandparents have developed a caring relationship with the two children, including frequently providing day care services. The grandmother often came to the Collingwood's home to take care of the children and help with housekeeping chores. After the parties' separation, the children spent the days with their grandmother while their father, Russell, was engaged in farm work. Russell would come to his mother's house each day at noon for lunch with the children.
Prior to the birth of the second child in 1986, Susan was the primary caretaker for the older child. However, following the birth of the younger child Susan suffered from a variety of medical problems for over two years. Shortly after the birth she was diagnosed as having thrombophlebitis in both legs; this condition required "vein-stripping" surgery in both legs. In addition, she suffered from postpartum depression; this depression was aggravated by Epstein-Barr virus (chronic long-term mononucleosis), which Susan probably contracted during her hospitalization for vein surgery. Finally, in May 1988, when Susan seemed about to recover from these maladies, she suffered a compound leg fracture which immobilized her for several months. The parties separated about the time she recovered from the fracture.
When Susan became ill after the birth of the second child, Russell took a more active role in the details of child care. He also relied heavily on his parents and hired persons to provide child care and household services.
After the parties' separation, the paternal grandparents became more involved in caring for the children. The children spent the days with their grandmother while their father, Russell, was working in the fields. Russell would come to his mother's house each day at noon for lunch with the children. They would return to the family home down the road with their father each evening.
After the separation, Susan moved to an apartment in Williamsburg. Unable to find a job teaching, she worked in the admissions office at the University of Iowa. She had a forty-five minute commute each way. She was unsure of where she would be living in the future, as she was still looking for a teaching position.
Extensive psychological evaluations of both the parents and children were done prior to trial. While both parents had some personal problems, either would make a good parent. The children were found to be well adjusted.
After trial, the district court placed the children in joint legal custody and in Russell's primary physical care. The district court found both parties are good parents and can provide adequate homes for the children. The court characterized the custody decision as difficult. The court acknowledged Russell can provide a stable home on the family farm, is unlikely to change his residence to accept employment, and can give the children close contact with their paternal grandparents, with whom they have an established warm relationship.
Susan has appealed from the dissolution decree. She contends the children should be placed in her physical care rather than Russell's physical care.
Susan does not challenge the decree's primary economic provisions. She does argue, however, the district court should have awarded her attorney's fees of $4,500. *488 She also requests attorney's fees on appeal.
Our opinion is de novo. Iowa R.App.P. 4. We are not bound by the trial court's factual findings, but give weight to them. Iowa R.App.P. 14(f)(7).
The sole issue presented on appeal is whether the district court erred in granting physical custody of the two children to Russell. The court's major concern in custody cases is the best interest of the children. The objective is placement in an "environment most likely to bring the children to healthy physical, mental, and social maturity." Labert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988).
The factors considered in awarding custody are enumerated in Iowa Code § 598.41(3) and in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974), and need not be listed here. They include the educational, emotional, material, and social needs of the children.
We recognize this case presents a close question. Both parents are dedicated to providing for their children. These children have grown and developed well.
Upon reviewing the record, it is clear the district court decided this case within its mandate to protect and advance the best interests of the children. In a thoughtful and well reasoned opinion, the lower court carefully examined the facts and circumstances surrounding this case. The trial court's finding of fact and conclusions of law demonstrates its comprehensive understanding of the underlying emotions and problems.
Weighing all the evidence on balance, we agree the long-term stability of the father tips the scale in favor of placement of the children with Russell. The children have spent all their lives to the present on the farm. Russell is satisfied with his life as a farmer and fully intends to remain on the family farm. Russell's parents reside nearby, and provide the children with loving care and the warmth of an extended family.
Russell is emotionally stable and cares for his children. His occupation will keep him in one locale in the future. He works in an environment where he can be physically with his children daily. His income is adequate to provide for their basic needs.
Additionally, the record reflects Russell is willing to cooperate with Susan in securing liberal visitation rights for the children. There is some evidence of Susan's reluctance to fully cooperate in this regard.
We affirm the district court awarding physical custody to the father, Russell Collingwood.
Appellant's request for attorney fees is denied. As she is to receive a $20,000 property settlement, plus $5,000 a year for the next several years, the appellant will have adequate resources for her attorney fees. Each party is to pay his or her own attorney fees.
The costs of this appeal are assessed against appellant Susan Collingwood.
AFFIRMED.
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113 U.S. 408 (1885)
HYATT & Others
v.
VINCENNES NATIONAL BANK, & Another.
Supreme Court of United States.
Submitted January 27, 1885.
Decided March 2, 1885.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA.
*411 Mr. Addison C. Harris, Mr. William H. Calkins and Mr. William Armstrong for appellants. &mdash.
Mr. F.W. Viehe for appellees.
*413 MR. JUSTICE BLATCHFORD delivered the opinion of the court. He recited the facts as above stated, and continued:
The only question for decision is, by the stipulation of the parties, whether the property in question should have been sold in the manner in which personal property was required by the statute of Indiana to be sold.
The statute in force at the time, in regard to the sale of personal property on execution, 2 Rev. Stat. of Indiana, of 1852, part 2, ch. 1, act of June 18, 1852, art. 22, §§ 468, 469, vol. 2 of Davis' edition of 1876, p. 218, provided as follows: "Sec. 468. Previous notice of the time and place of the sale of any personal property on execution shall be given for ten days successively, by posting up written notices thereof in at least three of the most public places in the township where the sale is to be made. Sec. 469. Personal property shall not be sold unless the same shall be present and subject to the view of those attending the sale; and it shall be sold at public auction in such lots and parcels as shall be calculated to bring the highest price."
The Revised Statutes of Indiana, of 1852, in force at the time, in regard to the sale of real estate on execution, 2 Rev. Stat., part 2, ch. 1, act of June 18, 1852, vol. 2 of Davis' edition of 1876, provided as follows, Art. 24, § 526, p. 232: "Sec. 526. The following real estate shall be liable to all judgments and attachments, and to be sold on execution against the debtor owning the same, or for whose use the same is holden, viz.: First. All lands of the judgment debtor, whether in possession, reversion or remainder. Second. Lands fraudulently conveyed with intent to delay or defraud creditors. Third. All rights of redeeming mortgaged lands; also, all *414 lands held by virtue of any land-office certificate. Fourth. Lands, and any estate, or interest therein, holden by any one in trust for, or to the use of, another. Fifth. All chattels real of the judgment debtor." Art. 22, § 463, p. 215: "Sec. 463. The estate or interest of the judgment debtor in any real estate shall not be sold on execution, until the rents and profits thereof, for a term not exceeding seven years, shall have been first offered for sale at public auction; but, if the same shall not sell for a sum sufficient to satisfy the execution, then the estate or interest of the judgment debtor shall be sold by virtue of the execution." Art. 22, § 466, p. 217: "Sec. 466. Real estate, taken by virtue of any execution, shall be sold at public auction at the door of the court house of the county in which the same is situated; and, if the estate shall consist of several lots, tracts, and parcels, each shall be offered separately; and no more of any real estate shall be offered for sale than shall be necessary to satisfy the execution, unless the same is not susceptible of division." Art. 22, § 467, as amended February 2, 1855, p 217: "Sec. 467. The time and place of making sale of real estate, on execution, shall be publicly advertised by the sheriff, for at least twenty days, successively, next before the day of sale, by posting up written or printed notices thereof, in three public places in the township in which the real estate is situated, and a like advertisement at the door of the court-house of the county; and also by advertising the same, for three weeks successively, in a newspaper printed nearest to the real estate, if any such newspaper be printed within the jurisdiction of the sheriff."
In the rules prescribed by the act, Art. 48, § 797, p. 313, vol. 2 of Davis' edition of 1876, for its construction, it is enacted, that such rules shall be observed, "when consistent with the context." Among those rules are these that "the word `land,' and the phrases `real estate,' and `real property,' include lands, tenements and hereditaments;" and that "the phase `personal property' includes goods, chattels, evidences of debt, and things in action." But no definition or construction is given of the phrase "chattels real."
The Revised Statutes of Indiana, of 1843, act of February 11, *415 1843, part 2 chap. 29, Art. 1, § 1, provided as follows: "Section 1. When, by any law of this State, real estate is authorized or directed to be sold by virtue of any execution, the same shall bé construed to mean and include, 1. All the lands, tenements, and hereditaments of the judgment debtor, whether in possession, reversion or remainder. 2. Lands, tenements, and hereditaments fraudulently conveyed with intent to defeat, delay, or defraud creditors. 3. All rights of redeeming mortgaged lands, tenements, or hereditaments, and also all lands held by virtue of any land-office certificate. 4. Lands, tenements, and hereditaments, and any estate or interest therein, holden by any one in trust for, or to the use of, another, on execution issued on any judgment against the person to whose use, or for whose benefit, the same are holden." The provisions of these four clauses were substantially retained in the Revision of 1852, and the provision as to "chattels real of the judgment debtor" was added as a 5th clause. Although, by the Revised Statutes of 1843, part 2, chap. 29, Art. 1, § 3, p. 454, judgments were made a lien on real estate and chattels real of the judgment debtor, which provision is contained in the Revision of 1852, part 2, chap. 1, Art. 24, § 527, of vol. 2 of Davis' edition of 1876, chattels real were not specifically made liable to sale on execution as real estate, till 1852, when the 5th clause was added.
That clause must be interpreted according to the accepted meaning of the words, "chattels real." Blackstone defines chattels real, according to Sir Edward Coke, 1 Inst. 118, to be such as concern, or savor of, the realty, as terms for years of land, and says they are called real chattels, as being interests issuing out of, or annexed to, real estates, of which they have one quality, viz., immobility, which denominates them real, but want the other, viz., a sufficient legal indeterminate duration, which want it is that constitutes them chattels. 2 Bl. Comm. 386. Chancellor Kent says, 2 Kent, 342: "Chattels real are interests annexed to or concerning the realty, as a lease for years of land; and the duration of the term of the lease is immaterial, provided it be fixed and determinate, and there be a reversion or remainder in fee in some other person."
*416 The interest of the judgment debtors in this case in the land covered by the Bunting agreement was a chattel real; and as the dispute here relates to machinery, buildings, fixtures and improvements situated on the Bunting premises, and held under the Bunting agreement, it follows that that property had impressed on it, by the statute, for the purposes of a sale on execution, the character of a chattel real, and became, for those purposes, real estate, and, therefore, was not required to be sold as personal property, present and subject to the view of those attending the sale, but was properly sold as real estate, at the door of the county court house.
The estate for years, or the interest in the land, could not be subject to view. The machinery, buildings, fixtures and improvements were created under the privilege given by the agreement to occupy the land with constructions and buildings for mining coal and other minerals, and, although Helphenstine & Co. had the right to remove the buildings and fixtures at the expiration of the agreement, yet, so long as they were held under the agreement, on the premises, and were of the character referred to, they followed the term for years and partook of its character.
In Barr v. Doe, 6 Blackford, 335, in 1843, it was held that a parol lease for three years was a chattel interest, and could be sold as a chattel, on an execution issued by a justice of the peace. But that decision does not apply to the statute now under consideration, and no case is cited or found in the courts of Indiana, which holds to the contrary of the views above expressed. Indeed, in the Revised Statutes of 1843, part 3, ch. 47, § 347, p. 992, form No. 10, the form prescribed for an execution by a justice of the peace was against "goods and chattels," while in the Revision of 1852, vol. 2 of Davis' edition of 1876, part 5, ch. 127, form No. 4, the form runs against "goods" only.
The case of Buhl v. Kenyon, 11 Mich. 249, is cited for the appellants. It was there held, that an estate for years in land was to be sold, on execution, as personal estate, and that a sale of it in accordance with the statutory provisions for the sale of real estate was void. The court proceeded on the ground that, as the statute of Michigan provided that the words "real *417 estate, ... when not inconsistent with the manifest intention of the legislature, ... shall be construed to include lands, tenements, and real estate, and all rights thereto, and interests therein;" and also provided that "all the real estate of a debtor, whether in possession, reversion or remainder, including lands fraudulently conveyed, with intent to defeat, delay or defraud his creditors, and the equities and rights of redemption hereinafter mentioned, shall be subject to the payment of his debts, and may be sold on execution as hereinafter provided;" and also enacted, that "all chattels, real or personal, and all other goods liable to execution by the common law, may be taken and sold thereon, except as is otherwise provided by law;" and, as a leasehold interest of the kind in question was a chattel interest, and was by the last named provision classed among personal property, it was not within the law applicable to the sale of lands on execution. In the present case, a chattel real is distinctly classed, by § 526, among "real estate liable to be sold on execution," and must, therefore, be sold in the manner in which § 466 directs that "real estate taken by virtue of any execution shall be sold."
The point decided in Meni v. Rathbone, 21 Ind. 454, 467, was, that a lease for years, acquired by a wife during coverture, became the property of her husband, when reduced to possession by him, and, being a chattel, was personal property, under the definition before referred to, and subject to the husband's debts, and, being a chattel real, a judgment against the husband was, by the statute of 1852, a lien upon it.
The motion made in the Circuit Court to modify the decree was based on the idea, that, while the term for years might be a chattel real, the machinery, buildings, fixtures and improvements placed on the land should have been sold as personal property. As the statute requires that real estate "shall" be sold at the door of the court house, the visible property could not be sold there in view of the persons attending the sale of the real estate, unless it was first severed from the land; and to have so treated it would, doubtless, have rendered not only it but the term of years worthless, as vendible articles. No such result could have been contemplated by the law-makers, *418 and none such can be allowed, if another reasonable and consistent construction is to be found.
It is not necessary or proper to consider any question involved in any right of redemption. Nor is it intended to decide anything as to the status of any of the property, aside from the lawfulness of the manner of its sale, under the statute in regard to such sale.
The decree of the Circuit Court is
Affirmed.
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UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, ALDYKIEWICZ, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant First Class CHRISTOPHER C. CASTLEBERRY
United States Army, Appellant
ARMY 20120117
Headquarters, 82nd Airborne Division (Rear) (Provisional)
G. Bret Batdorff, Military Judge (arraignment)
James E. Hardin, Military Judge (trial)
Lieutenant Colonel Paul J. Cucuzzella, Staff Judge Advocate
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jaired D. Stallard, JA; Captain Mathew M. Jones, JA (on brief).
For Appellee: Lieutenant Colonel James L. Varley, JA; Major Katherine S. Gowel,
JA; Captain T. Campbell Warner, JA (on brief).
27 December 2013
---------------------------------
MEMORANDUM OPINION
---------------------------------
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
Senior Judge COOK:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of one specification of failing to go to his appointed place of
duty and two specifications of violating a general regulation , in violation of Articles
86 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 88 6 and 892 (2006)
[hereinafter UCMJ]. 1 The convening authority approved the adjudged sentence of a
bad-conduct discharge and reduction to E-4.
1
As part of appellant’s plea agreement, appellant pleaded not guilty and was found
not guilty of Specifications 1 and 3 of Charge II, violations of Article 92, UCMJ and
Charge III and its specification, a violation of Article 120, UCMJ.
CASTLEBERRY—ARMY 20120117
This case is before us pursuant to Article 66, UCMJ. Appellant raises four
assignments of error. Based on our resolution of the first assigned error, we need
not address the remaining assignments of error.
BACKGROUND
The charges appellant faced at trial were based on three separate incidents.
Because the focus of our analysis will be on the second incident, we will initial ly
and briefly discuss the third and first incidents before moving on to the second . On
15 June 2011, the appellant’s First Sergeant informed appellant that he was going to
be in charge of delivering food to soldiers currently involved in a field problem and
in order to perform that duty, he would need to report to the Devil Dining Facility at
0615 on 16 June 2011 the next morning. Appellant failed to report for that duty.
This offense was the basis for Charge I and its specification, a violation of Article
86, UCMJ.
Prior to that offense, on or about 25 February 2011, while in a temporary duty
status and participating in a four-month course held at Fort Huachuca, Arizona,
appellant violated a lawful general regulation 2 by wrongfully using his government
travel card. Specifically, appellant used his government travel card to withdraw $60
to help another soldier pay his bar tab. This offense is the basis for Specification 2
of Charge II, a violation of Article 92, UCMJ.
Appellant challenges neither of these two convictions. It is the third offense,
Specification 4 of Charge II, also charged under Article 92, UCMJ, that appellant
challenges. This specification alleged:
In that [appellant] did, at or near Fort Huachuca,
Arizona, on or about 17 April 2011, violate a
lawful general regulation, to wit: paragraph 4 -14(b),
Army Regulation 600-20, dated 11 February 2009,
by wrongfully maintaining a prohibited relationship
with Specialist [LFP].
The underlying behavior that led to this charge involved appellant’s
participation in a night of beer pong. Specifically, while still in a temporary duty
status at Fort Huachuca, appellant and several other soldiers in appellant’s course
played beer pong in the game room of their shared barra cks on a Sunday evening.
The other soldiers who played beer pong with appellant were in the grade of either
E-3 or E-4. The game consists of participants tossing ping pong balls into cups
lined up on a table, and participants are required to consume beer when the other
2
Paragraph 4(t)(2), 82d Airborne Division Regulation 190-2, 30 November 2010.
2
CASTLEBERRY—ARMY 20120117
team scores points. Appellant estimated that he consumed seven beers while playing
beer pong that evening.
Over the course of the night, appellant took his shirt off. Specialist (SPC)
LFP, playing on the opposing team, then took his s hirt off. In addition, appellant
repeatedly exposed his penis to distract SPC LFP and other male opponents. 3 In
response, SPC LFP likewise repeatedly exposed his penis to distract appellant and
other opponents. At approximately 2215, after the appellant, SPC LFP and other
soldiers had been playing beer pong for over three hours, a female staff sergeant
(SSG), SSG S, told appellant and SPC LFP to put their shirts back on and that it was
time to stop playing beer pong because it was 15 minutes past quiet hours. In
response, SPC LFP looked at the appellant and asked whether he was going to let her
“talk to a sergeant first class like that.” Staff Sergeant S then yelled at SPC LFP and
while she spoke to the appellant privately, the beer pong participants l eft the game
room. Neither SSG S nor any other female witnessed appellant or SPC LFP
exposing their penises.
LAW AND DISCUSSION
Findings
During the providence inquiry into appellant’s plea of guilty to Specification
4 of Charge II, the military judge advised appellant of the elements of Article 92,
UCMJ, violating a lawful regulation, as follows:
Number one, that there was in existence a lawful general
order or regulation. In that it is alleged you violated a
lawful general regulation that being: paragraph 4-14(b)
of Army Regulation 600-20, dated 11 February of 2009 4,
that you had a duty to obey such regulation; and that on
the 17 th of April of 2011, that you did violate this general
3
Although not entirely clear from the record, it can be safely assumed it was this
exposure that led to Charge III and its specification, a violation of Article 120,
UCMJ, indecent exposure. As part of his pretrial agreement, appellant pleaded not
guilty to this offense and the government agreed not to present evidence. As a
result, appellant was acquitted of this offense at trial.
4
As pointed out by appellant’s counsel, Army Regulation 600 -20, Army Command
Policy [hereinafter AR 600-20] was promulgated on 18 March 2008 and a Rapid
Action Revision (RAR) was issued on 11 February 2009. A later RAR was issued 27
April 2010 and would have been the applicable version to use for the charged
offense. However, the text of the applicable paragraph, 14-4(b), is identical in all
three versions and appellant neither alleges prejudice nor has he been prejudiced by
this issue.
3
CASTLEBERRY—ARMY 20120117
regulation by wrongfully maintaining a prohibited
relationship with Specialist [LFP].
The contents of paragraph 4-14.b., AR 600-20 5 are as follows:
Relationships between soldiers of different rank are
prohibited if they:
(1) Compromise, or appear to compromise, the integrity
of supervisory authority or the chain of command.
(2) Cause actual or perceived partiality or unfairness.
(3) Involve, or appear to involve, the improper use of rank
or position for personal gain.
(4) Are, or are perceived to be, exploitive or coercive in nature.
(5) Create an actual or predictable adverse impact on discipline,
authority, morale, or the ability of the command to accomplish its
mission.
The military judge did not read this paragraph to the appellant during the
providence inquiry. When the military judge asked appellant about this offense,
appellant stated:
I engaged in a drinking game with [SPC P]. I knew about
[AR 600-20]; it is signed by a General Officer. I know
this. I have actually studied this in my tenure as a
Noncommissioned Officer. And it clearly violates the
supervisory to subordinate role. And it is inconsistent
with Senior Noncommissioned Officer duties, sir.
In response to the military judge’s further questioning, appellant testified that in
addition to SPC LFP, multiple E-3s and E-4s participated in beer pong on the night
in question. After explaining the rules of beer pong to the military judge , appellant
admitted that although he consumed seven beers that night , he was still aware of his
surroundings. He further admitted that exposing his penis to two male soldiers in
order to distract them during the game was inappropriate and that he should have
corrected SPC LFP when he talked back to SSG S.
We find the plea inquiry falls far short on this charge. It is not enough to
elicit legal conclusions. The military judge must also elicit the necessary facts to
support the plea of guilty. United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F.
1996). The record of trial must reflect not only that the elements of each offense
5
Because this paragraph was not made a part of the record, we take judicial notice
of it.
4
CASTLEBERRY—ARMY 20120117
have been explained to the accused, but also “make clear the basis for a
determination by the military trial judge . . . whether the acts or the omissions of the
accused constitute the offense . . . to which he is pleading guilty.” United States v.
Care, 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969). “The fundamental
requirement of [a] plea inquiry under [Care] and [R.C.M.] 910 involves a dialogue
in which the military judge poses questions about the nature of the offense and the
accused provides answers and explanations that describe his personal understanding
of the criminality of his or her conduct. ” United States v. Medina, 72 M.J. 148, 149
(C.A.A.F. 2013) (quoting United States v. Hartman, 69 M.J. 467, 469 (C.A.A.F.
2011)).
Here, appellant did not articulate which provision of AR 600 -20, paragraph
4-14.b, he believed he violated. It is important to note that although appellant
played beer pong with multiple junior enlisted soldiers, he was only charged with
violating AR 600-20 by maintaining an improper relationship with SPC LFP. The
stipulation of fact offers some illumination on this charging decision in that it states
that SPC P and appellant were both permanently assigned to the same company at
Fort Bragg. However, the stipulation, while silent on whether appellant had any
supervisory authority over SPC LFP, does state that SPC LFP was not in appellant’s
chain of command and that appellant merely knew SPC LFP was in his company at
his home station. If anything, the stipulation sets up a matter inconsistent with
appellant’s providence inquiry to the extent appellant stated that drinking with SPC
LFP “clearly violates the supervisory to subordinate role.” The military judge left
this conflict unresolved.
Therefore, it appears that paragraph 14-4.b(1) is inapplicable because the
record does not support finding appellant had supervisory or chain of command
responsibility over SPC LFP either at Fort Huachuca or at Fort Bragg. Of the
remaining subparagraphs under AR 600-20, paragraph 4-14.b.(5), is the only one
that could be remotely triggered based on the facts of this case. However, the
providence inquiry and stipulation of fact fall short in either: establishing the
necessary facts to support a guilt y plea; establishing whether the acts or the
omissions of the accused constitute the offense to which he was pleading guilty; or
establishing that appellant personally understood the criminality of his conduct.
See Outhier, 45 M.J. at 331; Care, 18 U.S.C.M.A. 535, 541. See also Medina, 72
M.J. at 149.
Reviewing the military judge's acceptance of appellant’s guilty plea for an
abuse of discretion, we therefore find the minimal facts elicited here raise a
substantial question regarding the appellant's guilty plea to Specification 4 of
Charge II. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). As such,
we will take appropriate action to set aside the findings in regards to this
specification in our decretal paragraph .
5
CASTLEBERRY—ARMY 20120117
Sentence Appropriateness and Reassessment
After findings, appellant stood convicted of three relatively minor offenses.
These offenses, considering the totality of the circumstances, call into question the
appropriateness of his approved punitive discharge and three-grade reduction to E-4.
Our decision to set aside the most serious of the three offenses, Specification 4 of
Charge II, resolves any doubt we may have had regarding sentence appropriateness
because the approved sentence is now clearly inappropriate when considering the
remaining findings we will affirm in our decretal paragraph.
Having found the approved sentence inappropriate, we next consider whether
we can confidently reassess the sentence in light of the modified findings or whether
we must order a rehearing on sentence. Considering the error noted, our superior
court’s guidance in United Sates v. Sales, 22 M.J. 305 (C.M.A. 1986) and United
States v. Winckelmann, __ M.J. __, slip. op. at 12-13 (C.A.A.F. 18 Dec. 13), and
after conducting a thorough analysis of the totality of the circumstances presented
by appellant’s case, we can be “reasonably certain as to the severity of the sentence
that would have resulted in the absence of the error.” Sales, 22 M.J. at 307 n. 3.
Addressing Winckelmann’s non-exhaustive factors 6, the first, second, and
fourth factors support our ability to reassess appellant’s sentence. With respect to
the first factor, we find that our setting aside of Specification 4 of Charge II does
not result in a dramatic change in penalty landscape or exposure. Considering the
second factor, appellant was sentenced by a military judge alone. Evaluating the
fourth factor, the remaining offenses are the type of offense that we have the
experience and familiarity with to reliably determine what sentence would have been
imposed. As for the third factor, while the gravamen of the remaining offenses
differs from that of the offense we set aside, the difference is not so significant as to
undermine our ability to confidently reassess appellant’s sentence.
6
Factor 1: “[d]ramatic changes in penalty landscape and exposure”; factor 2:
“[w]hether an appellant chose sentencing by members or a military judge alone”;
factor 3: “[w]hether the nature of the remaining offenses capture the gravamen of
criminal conduct included within the original offenses”; and, factor 4: “[w]hether
the remaining offenses are of the type that judges of the courts of criminal appeals
should have the experience and familiarity with to reliably determine what sentence
would have been imposed at trial.” Winckelmann, __ M.J. __, slip. op. at 12-13.
6
CASTLEBERRY—ARMY 20120117
CONCLUSION
On consideration of the entire record, the finding of guilty of Specification 4,
Charge II, a violation of a lawful general regulation, is set aside and that
specification dismissed. The remaining findings of guilty are AFFIRMED.
Reassessing the sentence on the basis of the error noted, the entire record, and
in accordance with the principles of United States v. Sales, 22 M.J. 305 (C.M.A.
1986) and Winckelmann, __ M.J. __, slip. op. at 12-13, we AFFIRM only so much of
the sentence as provides for reduction to the grade of E -6. We find this sentence
purges the error in appellant’s case and is also appropriate. All rights, privileges,
and property of which appellant has been deprived by virtue of that portion of the
findings and sentence set aside by this decision, are ordered to be restored. See
UCMJ arts. 58b(c) and 75(a).
Judge ALDYKIEWICZ and Judge HAIGHT concur.
FOR THE COURT:
ANTHONY O. POTTINGER
Chief Deputy Clerk of Court
7
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66 N.Y.2d 444 (1985)
In the Matter of New York Public Interest Research Group, Inc., et al., Respondents,
v.
New York State Department of Insurance, Appellant.
Court of Appeals of the State of New York.
Argued November 14, 1985.
Decided December 19, 1985.
Robert Abrams, Attorney-General (Wayne L. Benjamin, Robert Hermann and Peter H. Schiff of counsel), for appellant.
Lewis B. Oliver, Jr., and Harriet B. Oliver for respondents.
Chief Judge WACHTLER and Judges JASEN, SIMONS, KAYE, ALEXANDER and TITONE concur.
*446MEYER, J.
The use in regulations promulgated by the Superintendent of Insurance pursuant to Insurance Law § 2329 of aggregate industry data rather than the individual carriers' line-by-line results in order to determine the excess profit to be refunded on motor vehicle insurance policies is not inconsistent with the provisions of that section. The order of the Appellate Division should, therefore, be reversed, with costs, and judgment granted in favor of defendant declaring 11 NYCRR part 166 to be valid.
I
Petitioners/plaintiffs (hereafter plaintiffs) are the New York Public Interest Research Group (NYPIRG), a not-for-profit membership corporation, whose purposes include protection of consumers' rights, and six individual members of NYPIRG each of whom owns an automobile for which he or she has purchased automobile insurance. By their petition/complaint they ask article 78 relief with respect to regulations (11 NYCRR part 166) promulgated by the Superintendent of Insurance establishing the method for determining excess profit under Insurance Law § 2329, as well as judgment declaring the regulations invalid for failure to comply with that section. Their contention is that the regulations, which adopted an aggregate industry approach to determination of the point at which profit becomes excess, contravenes section 2329, because it requires the same company-by-company, line-by-line determination called for by regulations (11 NYCRR part 165) adopted pursuant to Insurance Law § 2323.
Respondent/defendant Department of Insurance (hereafter defendant or Department) filed objections in point of law and moved to dismiss for failure to state a cause of action. Special Term granted the motion to dismiss, holding that the adoption of the regulations was legislative action not reviewable in an article 78 proceeding and that, there being legislative findings supporting the method used by the Department, the regulations were valid. On appeal to the Appellate Division, a majority of that court agreed that an article 78 proceeding was not a proper method by which to challenge quasi-legislative action, but concluded that the part 166 regulations were invalid because at variance with the part 165 regulations, whereas Insurance Law § 2329 required that excess profits *447 under section 2329 be "computed in accordance with" the regulation required by section 2323. It, therefore, modified on the law by reversing so much of Special Term's judgment as dismissed the complaint, declared the regulations unlawful and invalid, and, as so modified, affirmed. The dissenting justices concluded that the part 166 regulations were rationally based and, therefore, valid. They reasoned that the purposes behind the two Insurance Law sections differed; that part 165 vested discretion in the Superintendent to permit or require use of a different method of computing profit than that provided for in that part when doing so would produce a more reliable result and that the Superintendent had concluded, after long study, that use of aggregate industry data was necessary to minimize random fluctuations and avoid unfair treatment of some insurers; and that to set an excess profit threshold for each individual insurer involved serious technical problems. We agree, although on somewhat different reasoning, with the result reached by the dissenting justices and, therefore, reverse and grant judgment declaring part 166 valid.
II
Insurance Law § 2323 (a) provides that:
"(a) The superintendent shall by regulation establish a method for determining profitability, from whatever source profits are derived, and rates of return on net worth, assets and earned premiums, with respect to each kind of insurance subject to this article, based on reasonable and uniform assumptions, including assumptions as to:
"(1) amounts of net worth attributable to such kinds of insurance;
"(2) assets available for investment generated by such kinds of insurance;
"(3) federal income taxes; and
"(4) average earnings on insurers' investments."
The subdivision applies "to all kinds of insurance written on risks or operations in this state", with exceptions not pertinent to this case (Insurance Law § 2302 [a]).
Section 2329, on the other hand, deals only with excess profits on motor vehicle insurance. To the extent here pertinent, it provides: "In accordance with regulations prescribed by the superintendent, each insurer issuing policies which are *448 subject to article fifty-one of this chapter, including policies of motor vehicle personal injury liability insurance or policies of motor vehicle property damage liability insurance or insurance for loss or damage to a motor vehicle, shall establish a fair, practicable, and nondiscriminatory plan for refunding or otherwise crediting to those purchasing such policies their share of the insurer's excess profit, if any, on such policies. An excess profit shall be a profit beyond a percentage rate of return on net worth attributable to such policies, computed in accordance with the regulation required by section two thousand three hundred twenty-three of this article, and determined by the superintendent to be so far above a reasonable average profit as to amount to an excess profit, taking into consideration the fact that losses or profits below a reasonable average profit will not be recouped from such policyholders. Each plan shall apply to policy periods between January first, nineteen hundred seventy-four and December thirty-first, nineteen hundred eighty-five."[1]
The Appellate Division majority noted that part 165 and part 166 were consistent to the extent that both define profit in terms of net worth, that the part 165 formula includes industry data and the part 166 formula considers individual insurer data, and that part 166's computation of profits on an aggregate industry basis rather than on a percompany basis as under part 165 "may be well advised and thoughtfully conceived" (106 AD2d, at p 831), but nevertheless held part 166 invalid because not "in accordance with * * * part 165." For a number of reasons we disagree.
The Superintendent of Insurance is vested by Insurance Law § 301 with the power to prescribe regulations interpreting the provisions of the Insurance Law, provided only that his regulations are not inconsistent with some specific provision of the law (Ostrer v Schenck, 41 N.Y.2d 782, 785). By that section he is granted "`broad power to interpret, clarify, and implement the legislative policy'" (id.) and his interpretation, if not irrational or unreasonable, will be upheld in deference to his special competence and expertise with respect to the insurance industry, unless it runs counter to the clear wording of a statutory provision (Kurcsics v Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459; Matter of Howard v Wyman, 28 N.Y.2d 434, 438; see, Matter of Jones v Berman, 37 N.Y.2d 42).
*449It is not argued in the present case that the 21% excess profit threshold established by part 166 is irrational. Rather it is contended, and the Appellate Division held, that the regulation was inconsistent with the requirement of section 2329 that it be "in accordance with" part 165, the regulation issued under section 2323. Inconsistency as a matter of statutory interpretation within the rule of the Kurcsics case exists, however, only if "in accordance with" means in strict conformity with rather than in harmony with, or not inconsistent with. Yet the phrase has generally been construed to require not identicality of result but only reasonable or just correspondence (City & County of San Francisco v Boyd, 22 Cal 2d 685, 690, 140 P2d 666, 668 ["in accordance with" the prevailing rate of compensation does not proscribe a rate in excess of the prevailing maximum]; Holmgren v City of Lincoln, 199 Neb 178, 182, 256 NW2d 686, 689 [the words "in accordance with a comprehensive plan" establish the plan as a guide, not something which "sets future zoning in concrete until the plan itself is changed"]; City of Norfolk v Norfolk Landmark Pub. Co., 95 Va 564, 567, 28 SE 959, 960 ["in accordance with the constitution and laws of this state" is the equivalent of "not repugnant to," "not in conflict with," or "not inconsistent with"; a statute authorizing a city to tax anything for which a license is required by the State does not preclude its taxing what the State does not]; see, In re Coane's Estate, 310 Pa 138, 143, 165 Atl 2, 4 [a bequest made "in accordance with" an antenuptial agreement requiring payment of an annual stipend "unconditionally" was not intended by the testator to modify the agreement but to comply with it "unconditionally"]). It follows that, as the dissenting justice stated, "the Superintendent of Insurance could rationally construe the uniformity requirement [of section 2329] as prohibiting inconsistent results, rather than mandating identical formulas" (106 AD2d, at p 832).
There is, moreover, a further ambiguity in the second sentence of section 2329 which brings into play the Superintendent's power of interpretation and his expertise: is it, as plaintiffs argue, "profit" that is to be "computed in accordance with" part 165 on a company-by-company, line-by-line basis, or, as the Department contends, "net worth attributable to" motor vehicle insurance that must be so computed, leaving the Superintendent free to compute the rate of return on net worth which constitutes an excess profit on an aggregate industry basis, the rate thus arrived at to be then applied to *450 individual carriers. That the latter rather than the former was intended is, as the dissent below pointed out, consistent with the different purposes of the two provisions. Thus, the reason for assessing profitability as provided in section 2323 is to assure that insurance rates "not be excessive, inadequate or discriminatory, to promote price competition and competitive behavior among insurers, to provide rates that are responsive to competitive market conditions" (Insurance Law § 2301). Section 2323 applies to a wide variety of insurance coverages (Insurance Law § 2302), whereas section 2329, which applies only to motor vehicle insurance, was intended to give motor vehicle policyholders the benefit of the reduction in automobile accidents and resulting claims fortuitously produced by the then existing gasoline shortage and the enactment in 1973 of no-fault legislation.[2] It is apparent, therefore, that the reductions which section 2329 required were occasioned not by individual carrier activity, but by outside factors which would be expected to affect all carriers in approximately the same way.
That conclusion is also strongly suggested by the section's use of "reasonable average profit" as a measure of excessiveness. Reasonable average profit could refer to the annual profits of an individual insurer averaged over a given period (e.g., the six-year cycle which the industry apparently accepts as appropriate, see, 11 NYCRR 166-2.3), but the industry-wide factors motivating the section suggest rather that it refers to a reasonable profit average as determined by the Superintendent on an industry basis, against which to measure excessiveness resulting from external and unforeseen factors.[3] This follows reasonably from the direction that the Superintendent take "into consideration the fact that losses or profits below a reasonable average profit will not be recouped from such policyholders", for if it is a company and line reasonable average profit rather than one based on industry average, the reasonable average profit will have to be set higher for some *451 carriers in order to protect them against the nonrecoverability of their losses, or below average profits, in later years, to the disadvantage of policyholders who will, as a result, receive a lesser distribution.
Both plaintiffs and defendant argue that the Legislature's failure to amend the section favors their or its interpretation; plaintiffs, because though part 165 was promulgated in 1975, the sunset date of section 2329 was extended three times thereafter (citing L 1977, ch 9; L 1979, ch 498; L 1982, ch 527) and continued in the same form in the 1984 recodification of the Insurance Law; the Department, because part 166 was promulgated December 30, 1982 and the Legislature thereafter, by Laws of 1983 (ch 472), again extended the sunset date of the section and then continued the section in the 1984 recodification without change. We have held legislative acquiescence by silence significant in prior cases (Lucenti v Cayuga Apts., 48 N.Y.2d 530, 541; Engle v Talarico, 33 N.Y.2d 237, 242), but when the inferences arising from legislative inaction are as contradictory as those sought to be drawn here, we think it the more realistic course to decline to draw an inference of legislative intent either way from the failure to act (cf. Boys Mkts. v Clerks Union, 398 US 235, 241; Dickerson, The Interpretation and Application of Statutes, at 181-182).
Finally, it is necessary only to note that plaintiffs' line-by-line contention is inconsistent with the reference in the first sentence of section 2329 to various types of motor vehicle insurance and the requirement by that sentence of a plan for refund "to those purchasing such policies their share of the insurer's excess profit, if any, on such policies". The repeated reference to "policies" without regard to whether one or more lines of coverage are included in the policy can only be read as requiring a refund per policy rather than per line, or at least the Superintendent could reasonably so interpret the section.
For the foregoing reasons, the order of the Appellate Division should be reversed, with costs, and judgment should be granted in favor of defendant declaring 11 NYCRR part 166 valid.
Order, insofar as appealed from, reversed, etc.
NOTES
[1] The December 31, 1985 limitation of the plan corresponds with the expiration of section 2323 on the same date (Insurance Law § 2342).
[2] Section 2329 was enacted by the Laws of 1973 (ch 13) and amended by the Laws of 1974 (ch 501). The 1974 amendments were part of Governor Wilson's legislative program (1974 NY Legis Ann, at 217) and, as noted in his message sending the amendatory bill to the Legislature (id.) and in his approval message (id., at 388), were motivated by both the energy crisis and the passage of the no-fault statute.
[3] Ultimately, of course, individual experience will play a part in what a particular carrier is required to return to its policyholders (see, 11 NYCRR 166-2.6 [b], [c]).
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12-155-cr
United States v. Alhakk
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 12th day of December, two thousand twelve.
PRESENT: DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges,
JOHN GLEESON,
District Judge.*
- - - - - - - - - - - - - - - - - - - -x
UNITED STATES OF AMERICA,
Appellee,
-v.- 12-155-cr
YUSEF ALHAKK, AKA JOSEPH DANIELS,
Defendant-Appellant.
- - - - - - - - - - - - - - - - - - - -x
FOR APPELLEE: JOSEPH J. KARASZEWSKI, Assistant
United States Attorney, for William
J. Hochul, Jr., United States
Attorney for the Western District
of New York, Buffalo, New York.
FOR DEFENDANT-APPELLANT: JAYME L. FELDMAN (Marianne Mariano,
on the brief), Federal Public
Defender's Office, Buffalo, New
York.
*
The Honorable John Gleeson, of the United States
District Court for the Eastern District of New York, sitting by
designation.
Appeal from a judgment of the United States District
Court for the Western District of New York (Arcara, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Yusef Alhakk was convicted,
following a plea of guilty, of one count of receipt of child
pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). The
district court (Arcara, J.) sentenced him principally to 120
months' imprisonment, a sentence that was substantially below the
Guidelines range of 151 to 188 months, as determined by the
district court.
On appeal, Alhakk challenges the procedural and
substantive reasonableness of his sentence. We review the
procedural and substantive reasonableness of a district court's
sentence for abuse of discretion. United States v. Cavera, 550
F.3d 180, 188 (2d Cir. 2008) (en banc). We apply de novo review
to the district court's rulings on questions of law, including
Guidelines interpretation, and clear-error review to its rulings
on questions of fact, including those that inform Guidelines
application. See United States v. Legros, 529 F.3d 470, 474 (2d
Cir. 2008).
We assume the parties' familiarity with the underlying
facts, the procedural history of the case, and the issues
presented for review.
- 2 -
1. Procedural Reasonableness
Pursuant to U.S. Sentencing Guidelines Manual
("U.S.S.G.") § 3E1.1(a), a defendant may receive a two-level
reduction in his offense level calculation if he "clearly
demonstrates acceptance of responsibility for his offense."
U.S.S.G. § 3E1.1(a). In addition, a defendant who qualifies for
a reduction under § 3E1.1(a) may receive an additional one-level
reduction under § 3E1.1(b) if his offense level is 16 or greater
and the government makes a motion stating that he "timely
notif[ied] authorities of his intention to enter a plea of
guilty, thereby permitting the government to avoid preparing for
trial and permitting the government and the court to allocate
their resources efficiently." U.S.S.G. § 3E1.1(b).
Alhakk argues that the district court committed
procedural error in denying him the additional one-level downward
adjustment pursuant to § 3E1.1(b). He asserts that he was
entitled to the additional one-point reduction "because [he] did
not force the government to prepare needlessly for trial and has
fully accepted responsibility for his actions since his 2010
arrest." Br. for Def.-Appellant at 14. The claim fails.
"[A] government motion is 'a necessary prerequisite' to
the granting of the third point" under § 3E1.1(b). United States
v. Lee, 653 F.3d 170, 173 (2d Cir. 2011) (quoting United States
v. Sloley, 464 F.3d 355, 359 (2d Cir. 2006)); see also U.S.S.G.
§ 3E1.1, cmt. n.6. This requirement may be excused (1) where the
government's refusal to move is based on an unconstitutional
motive; or (2) when the government acts in bad faith in failing
- 3 -
to so move. Lee, 653 F.3d at 173 (citing Sloley, 464 F.3d at
360-61). Ordinarily, a sentencing court's decision not to grant
a defendant a decrease pursuant to § 3E1.1 is "'entitled to great
deference on review.'" United States v. Taylor, 475 F.3d 65, 68
(2d Cir. 2007) (per curiam) (quoting U.S.S.G. § 3E1.1, cmt. n.5).
The record in this case contains no evidence to suggest
that the government's refusal to make a § 3E1.1(b) motion was
based on an unconstitutional motive or made in bad faith. Cf.
Lee, 653 F.3d at 174 (government may not refuse to move for
additional one-point reduction because defendant invoked his due
process right to contest errors in the PSR). Moreover, Alhakk
violated the terms of his bond by fleeing the United States,
conduct warranting an obstruction of justice enhancement under
U.S.S.G. § 3C1.1. Only in "extraordinary cases" will a defendant
who engages in obstruction of justice be entitled to a reduction
under § 3E1.1, as such conduct "ordinarily indicates that the
defendant has not accepted responsibility for his criminal
conduct." U.S.S.G. § 3E1.1, cmt. n.4. Although the government
agreed in the plea agreement not to oppose Alhakk's request for a
two-level downward adjustment pursuant to § 3E1.1(a), it made no
promise to move for the additional one-point reduction, and
Alhakk has shown no reason why this Court should view his case as
"extraordinary."
To the extent Alhakk argues that it unfairly compounds
his punishment to use his conduct in fleeing the country both to
apply an obstruction enhancement and to deny an acceptance-of-
responsibility reduction, the claim lacks merit. "The Guidelines
- 4 -
explicitly permit the same act to be counted both for an
obstruction enhancement under section 3C1.1 and for denial of an
acceptance of responsibility decrease under section 3E1.1."
United States v. Castellanos, 355 F.3d 56, 60 (2d Cir. 2003)
(citing U.S.S.G. § 3E1.1, cmt. n.4). Accordingly, the district
court did not commit procedural error.
2. Substantive Reasonableness
Alhakk contends that his 120-month sentence was
substantively unreasonable because (1) the district court applied
a four-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(4) for
sexual exploitation of a minor involving sadistic or masochistic
conduct; and (2) the district court did not properly consider the
concerns articulated in United States v. Dorvee, 616 F.3d 174 (2d
Cir. 2010), and the factors set forth in 18 U.S.C. § 3553(a). We
reject both challenges.
First, pursuant to U.S.S.G. § 2G2.2(b)(4), "[i]f the
offense involved material that portrays sadistic or masochistic
conduct or other depictions of violence," a defendant's offense
level will be increased by four levels. U.S.S.G. § 2G2.2(b)(4).
Alhakk admits that two of the images discovered on his computer
qualified procedurally for the enhancement under § 2G2.2(b)(4),
but he argues that the district court committed substantive error
by applying the four-level enhancement on the basis of only two
images out of the 436 still images and 314 videos found on his
computer. We have upheld the application of a § 2G2.2(b)(4)
enhancement, however, where the offense involved only one image
depicting sadistic or masochistic conduct. See, e.g., United
- 5 -
States v. Hotaling, 634 F.3d 725, 731 (2d Cir. 2011); United
States v. Delmarle, 99 F.3d 80, 83 (2d Cir. 1996). The district
court concluded that the fact that only two sadistic or
masochistic images were found "does not sufficiently mitigate the
harm caused by those images." Sentencing Tr. at 16:3-4, United
States v. Alhakk, No. 06-cr-165 (W.D.N.Y. Dec. 21, 2011), ECF No.
42. We find no abuse of discretion in this conclusion.
Second, Alhakk's assertion that the district court
failed to justify the reasonableness of the imposed sentence is
misplaced. At sentencing, defense counsel emphasized Alhakk's
serious health problems, his troubled childhood, and his efforts
to reconnect with his family. In response, the government noted
that Alhakk's case was unusual in that, unlike many defendants
charged with child pornography crimes, Alhakk had an extensive
criminal history. The government also noted that Alhakk had been
"difficult throughout [the] case," and remarked that Alhakk had
fled for five years to Thailand, "a country that is known for a
prevalent sex trade among children." Sentencing Tr. at 9:21,
10:10-11.
The record reflects that the district court considered
the parties' arguments, the advisory Guidelines range, and the
factors set forth in 18 U.S.C. § 3553(a). The court specifically
addressed and acknowledged, inter alia, Alhakk's difficult
childhood, his age, his poor health, his extensive history of
substance abuse, and the absence of any evidence that he had
engaged in sexual contact with a minor. Against these factors,
the court balanced the seriousness of Alhakk's conduct, the risk
- 6 -
he would offend again, and the need for specific and general
deterrence. Further, the court noted that it had given "special
consideration" to the concerns expressed in Dorvee. Sentencing
Tr. at 18:6-7. Based on all of these considerations, the court
concluded that a below-Guidelines sentence of 120 months'
imprisonment was sufficient but not greater than necessary to
fulfill the requirements of § 3553(a). Nothing in the record
demonstrates that the court failed adequately to balance the
§ 3553(a) factors, or that its sentence was "shockingly high,
shockingly low, or otherwise unsupportable as a matter of law."
United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).
We have considered Alhakk’s remaining arguments and
find them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
- 7 -
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45 Cal.App.3d 252 (1975)
119 Cal. Rptr. 78
THE STATE OF CALIFORNIA, Plaintiff and Respondent,
v.
HASLETT COMPANY et al., Defendants and Appellants. ROBERT L. ABBOTT, Plaintiff and Appellant,
v.
THE STATE OF CALIFORNIA et al., Defendants and Respondents.
Docket Nos. 33618, 33619.
Court of Appeals of California, First District, Division Three.
January 9, 1975.
*254 COUNSEL
Neil Boorstyn, James Martin MacInnis, Conrad Donner and Stephen Zalkind for Defendants and Appellants and for Plaintiff and Appellant.
Evelle J. Younger, Attorney General, and Dennis M. Eagan, Deputy Attorney General, for Plaintiff and Respondent and for Defendants and Respondents.
OPINION
BROWN (H.C.), J.
The State of California (State) is the respondent in two actions which have been consolidated on this appeal. In one action (1 Civil 33618), the State filed a complaint for unlawful detainer against Warehouse Investment Company, Haslett Company and Robert L. Abbott. This action resulted in the grant of a summary judgment to the State. The other action (1 Civil 33619) was filed on behalf of plaintiffs Warehouse Investment Company, Haslett Company and Robert L. Abbott against the State of California. The plaintiffs sought injunctive relief and specific enforcement of a purported oral agreement between the State and plaintiffs to lease a certain commercial and office building located at 680 Beach Street in San Francisco and hereinafter referred to as the Haslett Warehouse. A demurrer was sustained to this action without leave to amend.
The State has moved to dismiss both appeals, 1 Civil 33618 on the ground that a timely notice of appeal was not filed and 1 Civil 33619 on the ground that the appeal was not authorized by Warehouse Investment Company and Haslett Company. We deferred decisions on the motions for determination after oral argument.
*255 We conclude that the notice of appeal in 1 Civil 33618 was timely under rule 3(b), a motion to vacate having been filed thereunder. In the motion to vacate, appellant had argued that a continuance granted to prepare opposition to the State's motion for summary judgment had not been long enough and respondent now argues that a motion to vacate does not lie for review of a court's previous decision where no new facts or circumstances are alleged. New facts or circumstances are inevitably present in this situation, however, where the prejudice, or lack of it, from an inadequate continuance becomes known as the cause is concluded.
A notice of appeal in 1 Civil 33619 was taken by Robert L. Abbott in the name of all plaintiffs. Since it is clear that Haslett Company and Warehouse Investment Company did not authorize an appeal, and do not wish to pursue an appeal, we consider the appeal in 1 Civil 33619 only as the appeal of Robert L. Abbott.
The State originally acquired the Haslett Warehouse in 1963 by condemnation in order to convert it into a part of the San Francisco Maritime State Historic Park. The State was not able to put the warehouse to use immediately and the Haslett Company and its subtenants stayed on under oral leases until June 30, 1966, when Haslett Company was given a written lease of five years, terminating June 30, 1971.
Appellant Robert Abbott had become a subtenant in the warehouse prior to June 30, 1966. In his declaration in opposition to respondent's motion for summary judgment, appellant declares that he is the person primarily responsible for a development project now known as Wharfside by which Haslett Company, Warehouse Investment Company and himself had joined to remodel the building as a commercial bazaar-type enterprise. (1a) Appellant Abbott contends that over a five-year period, from the summer of 1966 to July 1971, State representatives made oral representations that, if the joint venture developed the warehouse, the State would subsequently grant the joint venture leasehold interests of a term or terms sufficient to enable the venture to recover their investment, together with a fair return. Abbott states that the joint venture, in reliance on these representations, undertook extensive remodeling on behalf of new tenants, and that the fair market value of the improvements which have been made in reliance exceed $2 million.
Contrary to the facts in Abbott's declarations, the State's position is that no oral promises were made. The Haslett Company agreed that no *256 commitments were made to them by the State for the period subsequent to June 30, 1971. Their position was that they claimed no leasehold interests after June 30, 1971, and did not want to be bound by holdover.
The purported agreement was not in writing and was violative of section 1624, subdivision 4, of the Civil Code (an agreement for leasing for a period in excess of one year). The agreement also was not approved as provided in section 11005.2 of the Government Code (requiring all agreements pertaining to an interest of the State in real property to be approved by the Director of General Services). Appellant, however, claims that having expended substantial sums relying on the oral agreement, the State should be estopped to present the defenses and that the State should be compelled to specifically perform the oral agreement.
(2) The existence of an estoppel is generally a question of fact involving the establishment of several factual requirements. (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305 [61 Cal. Rptr. 661, 431 P.2d 245].) The question is appropriate for summary judgment however, as well as for a judgment at the pleading stage if, assuming all factual requirements have been met, no estoppel could exist as a matter of law. (See Pettitt v. City of Fresno (1973) 34 Cal. App.3d 813, 818-819 [110 Cal. Rptr. 262].) (1b) We shall assume therefore that state officers orally promised that they would negotiate for a long-term lease and that appellants relying upon said promise expended substantial sums of money improving the subject property.
It is now well recognized that in unusual cases estoppel may be applied against the government. (3) "The government may be bound by an equitable estoppel in the same manner as a private party when the elements requisite to such an estoppel against a private party are present and, in the considered view of a court of equity, the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel." (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 496-497 [91 Cal. Rptr. 23, 476 P.2d 423].)
The rule articulated in Mansell has been applied since that decision in cases relevant to assessing the public significance of raising an estoppel in the case at hand. In Pettitt v. City of Fresno, supra, 34 Cal. App.3d 813, for example, the court concluded as a matter of law that an estoppel could not be raised to render valid a permit issued in violation of a zoning ordinance because the public policy in preserving the community *257 patterns was one of a vital public interest. In Crumpler v. Board of Administration (1973) 32 Cal. App.3d 567 [108 Cal. Rptr. 293], the court found no public interest which would be adversely affected by applying estoppel to preclude a retroactive reclassification of certain employees. However, estoppel was not available to preclude prospective reclassification which would have "a disruptive effect on the administration of the retirement system." (32 Cal. App.3d at p. 584.)
In Santa Monica Unified Sch. Dist. v. Persh (1970) 5 Cal. App.3d 945 [85 Cal. Rptr. 463], petition for hearing denied, an official for the school district made a written offer to purchase property which the owner accepted in writing. The written offer was orally affirmed but not ratified or approved by the board as required by Education Code sections 1002.5 and 15961. The board then refused to purchase the property, having decided to abandon the eminent domain proceedings which had been the basis for the offer. Although decided before Mansell, the court was consistent with the rule set forth in Mansell when it refused to raise an estoppel against the school district. The court recognized the adverse effect upon the public interest in any device which would promote secrecy in public affairs. "If the cited sections of the Education Code demonstrate anything, they demonstrate a legislative intention that such major decisions of school boards as the purchase of school sites should be open and subject to public scrutiny." (5 Cal. App.3d at p. 953.) Also relevant to the situation at hand is the court's comment that "[p]ersons dealing with a school district are chargeable with notice of limitations on its power to contract." (5 Cal. App.3d at p. 952.)
(1c) In the instant case, the basic protection of the statute of frauds (Civ. Code, § 1624, subd. 4) would be thwarted should an estoppel be raised since appellant seeks to enforce an oral agreement to grant a lease for a period over one year. (See Space Properties, Inc. v. Tool Research Co. (1962) 203 Cal. App.2d 819, 826 [22 Cal. Rptr. 166].) The statutory requirements of Government Code sections 11005.2 and 14608 which require written approval would be evaded by "a bare oral promise" as in County of San Diego v. Cal. Water etc. Co. (1947) 30 Cal.2d 817 [186 P.2d 124, 175 A.L.R. 747]. The statutory requirement of independent written approval of the Director of General Services protects the public from improvident or secret action as does the requirement of ratification in Persh. Furthermore, the only authority in the Department of General Services for a lease of this property is contained in Government Code section 14670, providing for leases of state property for up to five years.
*258 For the above reasons, it is concluded that an estoppel may not be raised to render effective an oral promise to enter into a lease agreement in this case. This conclusion makes it unnecessary to discuss the various contentions by which the State seeks to convince this court that one or another of the elements of an estoppel have been resolved adversely to appellant by the affidavits and pleadings.
Motions to dismiss the appeals are denied.
The judgments are affirmed.
Draper, P.J., and Good, J.,[*] concurred.
The petition of appellant Abbott for a hearing by the Supreme Court was denied March 6, 1975.
NOTES
[*] Retired judge of the superior court, sitting under assignment by the Chairman of the Judicial Council.
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Filed 5/1/13 P. v. Kirkwood CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B244816
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA056748)
v.
LARRY KIRKWOOD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Kathleen Blanchard, Bernie C. Laforteza, Judges. Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
___________________________________________
We appointed counsel to represent appellant in this matter. After examining the
record, counsel filed a “Wende” brief raising no issues on appeal and requesting that we
independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We directed
appointed counsel to immediately send the record on this appeal and a copy of the opening
brief to appellant and notified appellant that within 30 days from the date of the notice he
could submit by brief or letter any grounds of appeal, contentions or argument he wished us
to consider. We received a response from appellant that we will discuss below.
We have examined the entire record and are satisfied that counsel’s responsibilities
have been satisfied and that no arguable issue exists on the basis of the record before us.
(People v. Wende, supra, 25 Cal.3d at p. 441.) We set out below a brief description of the
facts and procedural history of the case, the crimes of which the appellant was convicted,
the punishment imposed and appellant’s contentions on appeal. (People v. Kelly (2006)
40 Cal.4th 106, 110.)
The complaint charged appellant with two counts of second degree burglary. Only
Count 2 alleged that appellant used a firearm in the commission of the crime. Pursuant to a
plea bargain, appellant pleaded “no contest” to Count 2 of the complaint and admitted
personally using a gun in the crime as alleged in that count. Count 1 was dismissed.
At the sentencing hearing appellant moved to withdraw his plea claiming that it
was based on misinformation from his appointed counsel regarding the facts of the case.
He also claimed that he thought he was pleading to Count 1 of the information which did not
allege a gun use enhancement instead of Count 2 which did. The court denied the motion.
The court sentenced appellant to the midterm of three years and a consecutive
10 years for the gun use under Penal Code section 12022.53, subdivision (b).
Appellant filed a notice of appeal claiming that “I didn’t know what [no contest]
meant[.]” The court granted a certificate of probable cause.
After appellant’s appointed counsel on appeal filed a “Wende” brief, appellant filed
two letters with us essentially arguing that his plea should be set aside because his attorney
provided ineffective assistance. Specifically, appellant alleges that his attorney gave
him “wrong information” and there was no evidence that he used a gun in the robbery.
The record refutes appellant’s claims.
2
Before accepting appellant’s plea of no contest the court asked appellant: “Do you
understand that your plea of no contest will be treated the same as a guilty plea by this and
every other court?” Appellant answered: “Yes, ma’am.” The court mentioned several times
that appellant was pleading to “Count 2” and asked appellant if he had any questions or if
there was anything he didn’t understand. Appellant’s only question was whether the prison
would assign him to fire camp. The court also informed appellant that the complaint alleged
that during the commission of the offense in Count 2, he “personally used a firearm, a
handgun, within the meaning of Penal Code section 12022.53 subdivision (b)” and asked
appellant: “Sir, do you admit or deny that allegation?” Appellant answered: “I admit.”
No evidence of appellant’s use of a gun was produced because there was no
preliminary hearing or trial. Appellant’s counsel explained at the hearing, however, that the
police had an identification of appellant by the victim in Count 2 along with the victim’s
statement: “This is the suspect that held a gun on me.” Counsel also told the court that she
advised appellant that if he did not accept the prosecution’s offer of 13 years the prosecution
threatened to add a gang enhancement to the charges “that would increase the exposure to
30 years.” We cannot judge from the record the seriousness of the prosecution’s threat.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, J.
We concur:
MALLANO, P. J.
CHANEY, J.
3
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(2008)
Toyya BREWTON, Plaintiff,
v.
The CITY OF NEW YORK, the New York City Police Department, Police Officer Detective Dwight Hovington and Police Officer Detective Frank Manns, and Police Officers John Does and Jane Does (the last two names being fictitious, and who are employees of the New York City Police Department who are not yet identified), Defendants.
No. 05-CV-3574 (ENV)(RLM).
United States District Court, E.D. New York.
May 1, 2008.
MEMORANDUM AND ORDER
VITALIANO, District Judge.
Plaintiff Toyya Brewton brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants violated her rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution by subjecting her to false arrest, unlawful imprisonment, and malicious prosecution. She also raises pendent state claims, including intentional infliction of emotional distress.
Three defendants, the City of New York and Detective Dwight Hovington (the "City Defendants") and Detective Frank Manns,[1] have now moved for summary judgment pursuant to Rule 56. For the reasons set forth below, the City Defendants' motion is granted in part and denied in part. Detective Manns's motion is granted in its entirety.
Background
The relevant facts are drawn from the submissions of the parties on the motions for summary judgment. To the extent there are any disputes as to fact, those disputes are noted.
This action arises out of the aftermath of a domestic incident report ("DIR") filed by Brewton with the New York Police Department ("NYPD"), at the 100th Precinct, on February 24, 2004, related to and prompted by an allegedly harassing phone call she claims to have received from her ex-boyfriend, Albert Regan. According to Brewton, she and Regan had been involved in an on-and-off relationship beginning in 1997. Their relations were often violent and, on more than one occasion, the NYPD was called to respond to their fighting. Correspondingly, Brewton purportedly filled out successive domestic incident reports with the NYPD which resulted in the issuance of successive orders of protection against Regan. Throughout their relationship, Regan also was in-and-out of jail for various offenses unrelated to his relationship with Brewton. The Brewton-Regan relationship finally ended in 2000.
On or around February 11, 2004, Brewton received a voice message on her answering machine at home, which stated: "Hello, Toyya, Toyya, are you there, is anyone there, Toyya, are you there." That message was preceded by a voice prompt stating that the conversation would be recorded. Brewton recognized the voice on the answering machine as Regan's. She believed that Regan was calling her from prison, because she recognized the voice prompt from prior occasions when she had spoken to Regan from prison. Almost two weeks later, on February 24, 2004, Brewton called Detective Manns, a NYPD police officer but also another former boyfriend, seeking advice with respect to the phone call.[2] Detective Manns went to Brewton's house later that day and listened to the message. He informed Brewton that if she felt she was being threatened she had the right to go to the local police precinct and fill out a complaint report.[3]
Later that day, Brewton went to the 100th Precinct stationhouse. Once there, Detective Manns directed Brewton to Police Officer Thomas Marrone, who assisted her in completing the DIR at issue. The "Victim's Statement" on the DIR, which appears to have been completed by Brewton, states as follows: "My ex-boyfriend called my home from jail looking for me and I had a domestic violent dispute with him in the past and I fear for me and my daughter's safety." The "Description of Incident" on the DIR, apparently completed by Officer Marrone, states:
At TPO C/V present at 100 pet S/H states that her ex-boyfriend is currently incarcerated and he called her house and left a message on her machine. C/V further states she had an order of prot. against him and she does not know when he gets out, but she is in fear that he will & (sic) do something to her.
Brewton's DIR was subsequently directed to Detective Hovington, who conducted an investigation.
Detective Hovington's testimony and investigation notes indicate that his entire investigation took place on February 27, 2004. According to Detective Hovington, he first called Brewton at home but received no answer. Next, he performed a computer check on Regan, which indicated that Regan was out of jail on parole. The computer search did not indicate that there was any history between Brewton and Regan.[4] Detective Hovington then called Regan's parole officer, Laura Owens. Owens confirmed that Regan had been released from prison approximately one month prior to the date on which the alleged phone call to Brewton was made. Owens also told Detective Hovington that Regan was making regular visits to her office, had full-time employment, and that he was starting a new family.[5] Regan then called Detective Hovington himself. Detective Hovington informed Regan of Brewton's allegations. Regan denied leaving the voice message and stated that he had not seen Brewton in five or six years.[6]
Detective Hovington then called Brewton and requested that she come to the precinct. She arrived at approximately 1:30 pm. Later that afternoon, Brewton was formally arrested and charged with falsifying a police incident report in the third degree, a misdemeanor under New York Penal Law § 240.50.
The picture painted by the parties of the events that occurred between the time that Brewton arrived at the precinct and the time that she was placed under formal arrest is as conflicted as the tales of what preceded her visit. The parties, moreover, have provided little to no information at all in their Rule 56.1 statements concerning the events leading up to the arrest. In spite of the failure of the parties to blaze a trail through the admissible proof, the Court has, nonetheless, conducted a careful review of the deposition testimony and affidavits,[7] and has found the proof, in large part, to be both externally and internally inconsistent. At least this much can be divined:
Upon arriving at the police station, Detective Hovington asked Brewton to accompany him to an interview room. He proceeded to interview her for approximately 15 minutes and then left the room. According to Detective Hovington, he did not believe at that time that Brewton was lying, but felt that there were inconsistencies in her story with respect to the time of the phone call, the date of the phone call and the location of the caller. Leaving the room was a mental strategy that he used, he said, to give her an opportunity to think about their conversation, before he questioned her again. Brewton does not deny that Detective Hovington left her in the interview room. In fact, she claims that she went outside the room to look for him. It was at this point, Brewton contends, that Detective Hovington shoved her back inside the room and threatened to put handcuffs on her if she moved again.
Detective Hovington questioned Brewton a number of times that afternoon, although the substance of these conversations remains unclear. In relevant part, Brewton claims that she called her house and played for Detective Hovington the tape of Regan's voice message; but Detective Hovington denies having heard the tape. Brewton also testified at her deposition that Detective Hovington stated to her that he had spoken to Regan and that Regan sounded like a nice young man who had moved on. She also quoted Detective Hovington as stating that "it's typical, you black women always want to see us black man in jail," though, curiously, in her affidavit, she attributes that very same statement to Detective Manns and not Detective Hovington.
After their third conversation, Detective Hovington informed Brewton that she would be placed under arrest. Brewton started to cry and asked to see Detective Manns. She also asked to call her mother, which she was permitted to do. After Brewton spoke to her mother, her mother spoke with Detective Hovington. According to Detective Hovington, plaintiff's mother stated that she did not understand why Brewton was being arrested and that she intended to call the Internal Affairs Bureau.
When Detective Manns arrived at the 100th precinct, sometime after 4 pm, he was informed that Brewton had been placed under arrest for filing a false report. He went to see Brewton in the interview room and told her that everything would be all right. According to Brewton, Detective Manns stated to her that the only reason she was being placed under arrest was because her mother had threatened to call Internal Affairs.
Brewton was held in the interview room for a number of hours before she was transported to Central Booking. She was eventually arraigned on her alleged violation of New York Penal Law § 240.50, which provides, in relevant part:
A person is guilty of falsely reporting an incident in the third degree when, knowing the information reported, conveyed or circulated to be false or baseless, he:... 3. Gratuitously reports to a law enforcement officer or agency (a) the alleged occurrence of an offense or incident which did not in fact occur; or (b) an allegedly impending occurrence of an offense or incident which in fact is not about to occur; or (c) false information relating to an actual offense or incident or to the alleged implication of some person therein.
N.Y. Penal Law § 240.50 (McKinney 2006).
Discussion
1. Standard for Summary Judgment
A motion for summary judgment is granted only if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court's responsibility in assessing the merits of a summary judgment motion is thus not to try issues of fact, but rather to "determine whether there are issues of fact to be tried." Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir.1995) (quoting Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 244 (2d Cir.1984)). In deciding such motions, the moving party bears the burden of demonstrating that there is no genuine issue as to any material fact, see, e.g., Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.2005), and the evidence presented will be construed liberally in favor of the party opposing the motion, see, e.g., Sec. Ins. Co. of Hartford v. Old Dominion Freight Line. Inc., 391 F.3d 77, 83 (2d Cir.2004). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper." Hetchkop v. Woodlawn at Grassmere, Inc., 116 F.3d 28, 33 (2d Cir. 1997).
If the moving party meets its initial burden of demonstrating the absence of a disputed issue of material fact, the burden shifts to the nonmoving party to present "specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party may not then rely solely on "conclusory allegations or unsubstantiated speculation" in order to defeat a motion for summary judgment. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). Rather, the nonmoving party must "make a showing sufficient to establish the existence of [each] element to that party's case ... since a complete failure of proof concerning an essential element of ... [the] case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. If the evidence favoring the nonmoving party is "merely colorable ... or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
2. False Arrest
Defendants move for summary judgment on Brewton's false arrest claims on the ground that there was probable cause to arrest Brewton, or, alternatively, that the individual officers are entitled to qualified immunity because there was arguable probable cause to arrest her.
The elements of a false arrest claim under § 1983 and the Fourth Amendment are substantially similar to those of a false arrest claim under New York law. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996). To prove the elements of false arrest, plaintiff must show: (1) that defendants intended to confine her; (2) that she was conscious of her confinement; (3) that she did not consent to be confined; and (4) that the confinement was not otherwise privileged. Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995); Bernard v. United States, 25 F.3d 98, 102 (2d Cir.1994). Probable cause "constitutes justification and is a complete defense to an action for false arrest, whether that action is brought under state law or under [42 U.S.C] § 1983." Weyant, 101 F.3d at 852 (internal citations and quotations omitted). Even absent probable cause to arrest, a police officer will be entitled to qualified immunity if he can demonstrate that there was arguable probable cause for the arrest. Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.2004).
a) Probable Cause
Probable cause exists "when the arresting officer has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Singer, 63 F.3d at 119 (internal quotation omitted). Whether probable cause exists "turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him ... and not on the officer's actual state of mind at the time the challenged action was taken." Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct, 2778, 86 L.Ed.2d 370 (1985) (internal quotation omitted). Thus, the court's inquiry focuses solely on the facts available to the officer at the time of arrest. Ricciuti v. Neiv York City Transit Auth., 124 F.3d 123, 128 (2d Cir.1997); Dukes v. City of New York, 879 F.Supp. 335, 340 (S.D.N.Y.1995) ("the soundness of the arrest hinges on the existence of probable cause at the time the arrest was made"). Facts subsequently learned by the officer, whether they buttress or belie the existence of probable cause, are irrelevant. See Ricciuti, 124 F.3d at 128. Moreover, "[o]nce a police officer has a reasonable basis for believing that there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest." Id. (citing Baker v. McCollan, 443 U.S. 137, 145-46, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)).
Reviewing the evidence in this case, the Court is left mostly to unravel the parties' differing versions of events. The Court undertakes this analysis with a focus on the undisputed facts and mindful that, for purposes of the instant motions, the Court need only determine whether a genuine issue of material fact exists after viewing the evidence in the light most favorable to Brewton. The Court also is mindful that "[credibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment." Fischl v. Armitage, 128 F.3d 50, 55-56 (2d Cir.1997).
In support of their motions for summary judgment, defendants contend that probable cause existed for Brewton's arrest because, prior to the arrest, the following information had been ascertained by Detective Hovington: (1) through his computer check and his conversation with Parole Officer Owens, Detective Hovington had determined that Regan was not incarcerated, but had been paroled prior to the date and time of the phone call; (2) having spoken to him, Detective Hovington found Regan to be credible when he denied making the phone call; and (3) Detective Hovington found Brewton to be incredible during her interview. Defendants argue, therefore, that Detective Hovington had probable cause to believe that Brewton had included false information in her police report, namely, the identity and location of the individual who called her.
In opposition, Brewton accuses Detective Hovington of fabricating and, in some instances, outright lying about the results, of his investigation. She contends that a computer check would have revealed a history of domestic violence between Brewton and Regan. Further, she claims that Detective Hovington listened to the voice message while she was at the precinct, even though Detective Hovington denies it. Brewton also insists that she was only arrested after her mother called internal affairs.[8] Brewton, of course, also maintains that Regan was in jail on the date and time of the phone call. She thus argues that the there are material facts in dispute and that summary judgment is inappropriate.
For the most part, the allegations of fabrication by Detectives Hovington and Manns are wholly conclusory and irrelevant. Yet, a nonmovant is not required to score 100% on her objections. Even one material issue of fact in dispute is sufficient to defeat summary judgment as to Brewton's arrest by Detective Hovington. And, with respect to whether Detective Hovington had probable cause regarding the scienter element of the crime for which Brewton was arrested, the material issues of fact are very much in dispute.
When conducting a probable cause inquiry, the court's duty is to look at the "totality of the circumstances." See United States v. Cruz, 834 F.2d 47, 51 (2d Cir.1987) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). An arresting officer need not have concrete proof of each element of a crime to establish probable cause for an arrest. Rather, "probable cause is a fluid concept turning on the assessment of probabilities in particular factual contexts not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S. at 232, 103 S.Ct, 2317. Courts have found, though, at least in certain circumstances, that probable cause must be satisfied with respect to the knowledge or intent elements of a crime. See United States v. Maday, No. CR-88-35E, 1989 WL 53027, at *5 (W.D.N.Y. May 16, 1989) (holding that probable cause must be satisfied with respect to scienter); Rodls v. City and County of San Francisco, 499 F.3d 1094, 1100 (9th Cir.2007) (holding that "[w]ithout at least some evidence regarding the knowledge or intent elements of the crime, probable cause is necessarily lacking."); cf. McGuire v. City of New York, 301 F.Supp.2d 333, 337 (S.D.N.Y. 2004) (analyzing whether arresting officer had probable cause to infer scienter); Mahase v. City of New York, 96 CV 6105, 2000 WL 263742, at *3 (E.D.N.Y. Jan. 5, 2000) (same).
Here, Brewton was arrested and charged with filing a false police report, "knowing the information reported, conveyed, or circulated to be false or baseless." N.Y. Penal Law 240.50(3)(c) (emphasis added).[9] Because reporting false information in a police incident report is not a crime absent the element of scienter, the Court finds that probable cause must be satisfied with respect to this element.[10] Indeed, to hold otherwise would leave vulnerable to arrest any individual who unknowingly provided false information in a police report, no matter how innocent the mistake. Such a result is untenable.
With that in mind, the Court's first task is to determine when the "arrest" took place for purposes of Brewton's false arrest claims. "[W]henever a police officer accosts an individual and restrain his freedom to walk away, he has `seized' that person." Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). If a reasonable person would not feel free to leave police custody, an arrest has likely occurred. Id. Therefore, interpreting the facts in the light most favorable to Brewton, the Court determines that a seizure took place approximately 15 minutes after she arrived at the police station, when Detective Hovington allegedly pushed her into the interview room and threatened to handcuff her if she attempted to leave.[11] Consequently, the facts relevant on these motions to the probable cause inquiry are those facts known to Detective Hovington prior to this earliest alleged confinement, i.e., the information learned through his investigation of Brewton's DIR on the morning of February 27, 2004 and what was learned as a result of his first interview with Brewton.
Defendants place great emphasis on the fact that even prior to the confinement now determined by the Court to be relevant for purposes of the instant motions, Detective Hovington had learned, through credible sources, that Regan was out of jail on parole on the date that the phone call to Brewton was made. Defendants are correct that, based upon this fact alone, a police officer could have reasonable cause to believe that Brewton provided false information regarding the identity and location of the caller. But this fact alone is insufficient to raise an inference that Brewton knowingly misidentified the identity or location of the caller. What's more, there were other facts known to Detective Hovington at that very same moment which increased the likelihood that Brewton was unaware that Regan had been released from prison: (1) Regan had actually been in prison as recently as one month prior to the date of the alleged phone call, and, (2) harmoniously, Brewton's DIR expressly indicated a lack of certitude regarding Regan's jail status while believing Regan was in prison, she said she "[did] not know when he gets out."
Although the facts surrounding Detective Hovington's first interview of Brewton are muddled at best, Detective Hovington's version of the interview standing by itself underlines the absence of probable cause to believe Brewton had knowingly provided false information. Specifically, Detective Hovington admitted in his deposition that, after his first interview with her (again, the relevant time frame for this analysis), he believed Brewton's story was inconsistent; but that he did not then believe that she was lying, that is, knowingly supplying false information, viz.:
Q: How long was that initial interview?
A: The initial interview with Ms. Brewton was approximately ten to 15 minutes.
Q: What happened after the interview?
A: I left the room. I told her that I would be back.
Q: Was there a reason why you left the room at that point?
A: Yes.
Q: What was the reason?
A: It was a mental strategy that we use or I use.
. . .
When we feel that we have inconsistencies in stories from, whether it be a complainant or alleged perpetrator, and we're interviewing them in the room, we tend to leave the room to give that particular person time to think or to go over what they've just conversed with me....
. . .
Q: So, in essence at that point you believed Ms. Brewton was lying?
A: Not lying, inconsistencies with the story.
(Hovington Dep. at 57:15-59:4.)[12] In any event, the overall ambiguity surrounding what actually took place at the precinct is sufficient to preclude summary judgment on plaintiff's false arrest claims. These are precisely the type of he-said-she-said determinations best left to a jury. Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997) ("Where the question of whether an arresting officer had probable cause is predominantly factual in nature, as where there is a dispute as to the pertinent events, the existence vel non of probable cause is to be decided by the jury.").
b) Qualified Immunity
Even though Detective Hovington is not entitled to summary judgment on Brewton's false arrest claim because material questions of fact exist as to probable cause, he may still avoid liability and trial under the doctrine of qualified immunity. Qualified immunity shields a police officer from liability for damages if he can demonstrate that there was "arguable probable cause" for the arrest. Escalera, 361 F.3d at 743. "Arguable probable cause exists `if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.'" Id. (quoting Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir.1991)). As with the probable cause inquiry, the Court's focus is on the facts known to the officer at the time of the arrest. See, e.g., Comett u. Brown, No. 04-CV-0754 (DGT)(LB), 2007 WL 2743485, at *8 (E.D.N.Y. Sept. 17, 2007).
In this case, at the time of the arrest, Detective Hovington did not have any information to support an inference that Brewton knew Regan was out of jail at the time of the phone call and, thus, knowingly provided false information in her DIR. Based on even Detective Hovington's version of the facts and information available at the time of Brewton's confinement deemed by the Court to be the "arrest" relevant on these motions, a jury could find that it was not objectively reasonable for Detective Hovington to believe probable cause existed or that officers of reasonable competence could not disagree as to the absence of probable cause. Therefore, Detective Hovington's motion for summary judgment, including on the ground that he is entitled to qualified immunity, is denied.
3. Failure to Intervene
Brewton seeks to hold Detective Manns liable because he did not intervene to prevent her arrest. The law is well settled that a police officer "has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers." O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.1988). Failure to intervene to prevent an unlawful arrest can be grounds for liability under 42 U.S.C. § 1983. Id. As with other § 1983 claims, however, in order to recover against a defendant on this ground, a plaintiff must first overcome the hurdle of qualified immunity. Ricciuti, 124 F.3d at 129. A police officer may obtain summary judgment on qualified immunity grounds if he "show[s] that the only result a fair jury could reach is that reasonably competent police officers, faced with the information available to the nonintervening officer at the time of the arrest, could disagree about the legality of the arrest." Id.
Applying these principles, Detective Manns is entitled, at minimum, to qualified immunity. Detective Manns's role in Brewton's encounter with Detective Hovington and the criminal justice system was limited to listening to the voice message at Brewton's apartment, informing her of her right to report any harassment, and directing her to Officer Marrone to complete the DIR. He played no part in Detective Hovington's investigation, and thus had no basis to doubt that Detective Hovington had probable cause to arrest Brewton. Further, the undisputed facts demonstrate that Detective Manns did not even arrive at the 100th precinct until after Brewton was placed under formal arrest. Accordingly, the motion of Detective Manns for summary judgment is granted and the claims against him are dismissed.
4. Claims against the New York Police Department
Brewton has also named the New York Police Department as a defendant in this suit. The capacity of a city agency "to sue or be sued shall be determined ... by the law of the state where the court is located." See Fed.R.Civ.P. 17(b)(3). Pursuant to the New York City Charter, "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law." N.Y. City Charter, Ch. 17, § 396. It is thus "well established that a plaintiff's legal claims against the New York City Police Department must be addressed in a lawsuit against the City of New York." Escobar v. City of New York, No. 1:05-cv-3030-ENV CLP, 2007 WL 1827414, at *4 (E.D.N.Y. June 25, 2007) (citing Nance v. NYC. Police Dep't No. 06-CV-306, 2006 WL 1027128, at *2 (E.D.N.Y. Jan. 30, 2006); Piferrer v. New York City Police Dep't, No. 98-cv-191, 1999 WL 169505, at *1 (E.D.N.Y. Mar. 3, 1999); and Bailey v. New York City Police Dep't, 910 F.Supp. 116, 117 (E.D.N.Y.1996)). Accordingly, even assuming, arguendo, that Brewton is successful in her false arrest claims, the NYPD is not amenable to suit for the acts of its police officers. Summary judgment on behalf of the NYPD is granted and plaintiff's claims, to the extent they are brought against the NYPD, are dismissed.
5. Municipal Liability
All of Brewton's claims brought directly against the City of New York must also be dismissed. It is blackletter law that a municipality may not be held liable for its employees' constitutional violations under a respondeat superior theory. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Rather, it is only when "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. "[T]o hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983).
Brewton's attempts to meet these criteria are unavailing. As an initial matter, her wholly conclusory claim that the NYPD has a "well documented history of poorly trained officers who conduct illegal arrests" is altogether insufficient to establish municipal liability. See Porter v. City of New York, No. 1:03 CV 6463(ENV)(LB), 2007 WL 1791149, at *7 (E.D.N.Y. June 19, 2007) (unsupported allegations regarding ACS policy are insufficient to establish municipal liability). Brewton's other claim, that the City of New York may be held liable because of its "fail[ure] to train its police officers with regard to N.Y.C.P.L. 140.10," is similarly deficient. Not only is this statute inapplicable to this case, but Brewton's claims are once again doomed by" her failure to produce any proof whatsoever to support her basic allegation that the City of New York fails to properly train its officers. See Id. at *7. Given plaintiff's unmitigated failure to adduce any evidence to establish the existence of a municipal custom or policy, summary judgment in favor of the City is granted.
6. Gender Discrimination
Brewton also purports to bring claims under the Fourteenth Amendment alleging that she was discriminated against on the basis of gender and deprived of the right to equal protection. The Equal Protection Clause of the Fourteenth Amendment directs, in essence, that similarly situated individuals be treated alike. Cleburne v. Cleburne Living Ctr, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). To establish an equal protection violation, a plaintiff must prove purposeful discrimination directed at an identifiable or suspect class. See Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). A plaintiff also must demonstrate that similarly situated people were treated differently. See Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir.1994).
Here, Brewton has not provided any evidence of conduct on the part of defendants that was directed at an identifiable or suspect class, or that similarly situated people were treated differently. Her discrimination claims are therefore dismissed.
7. Intentional Infliction of Emotional Distress
In order to make a showing of intentional infliction of emotional distress, a plaintiff must demonstrate that: (1) defendant's conduct toward plaintiff was so outrageous and shocking that it exceeded ail reasonable bounds of decency as measured by what the average member of the community would tolerate; (2) plaintiff suffered severe emotional distress; (3) defendant's conduct caused such distress; and (4) defendant acted either (a) with the desire to cause such distress to plaintiff, (b) under circumstances known to defendant which made it substantially certain that that result would follow, or (c) recklessly and with utter disregard of the consequences. See Bender v. City of New York, 78 F.3d 787, 790 (2d Cir.1996). "New York sets a high threshold for conduct that is `extreme and outrageous' enough to constitute intentional infliction of emotional distress." Id. Emotional distress is severe when it is of such intensity and duration that no reasonable person should be expected to endure it.
Interpreting the facts in the light most favorable to Brewton, the Court concludes that defendants' alleged conduct is not the type of "extreme and outrageous" conduct sufficient to sustain a claim of intentional infliction of emotional distress. See Kirk v. Metropolitan Transp. Authority, No. 99 Civ. 3787 RWS, 2001 WL 258605 at *8 (S.D.N.Y. Mar. 14, 2001) (granting summary judgment in favor of defendants on intentional infliction of emotional distress claim where plaintiff alleged that officer treated him roughly, over-tightened his handcuffs, falsely accused him of a crime and threatened him with prosecution: "Although the acts [that the defendant police officer] is alleged to have committed certainly crossed the line of acceptable police practice, as fairly typical examples of excessive force, they do not rise to the level of `outrageous' such as to support an IIED claim."); c.f. Mejia v. City of New York, 119 F.Supp.2d 232, 284-87 (E.D.N.Y.2000) (finding triable issue of fact as to existence of extreme and outrageous conduct where, in addition to allegedly using excessive force, arresting officer, who lacked probable cause to arrest, subjected pregnant suspect to ethnic slurs, told her that her unborn child and other children would be taken away from her, and had her strip searched). Nor is Brewton's alleged harm, i.e., that she was upset and crying during the arrest and now fears that the police will not help her, sufficiently serious to support such a claim. Summary judgment is thus appropriate on this basis alone.
In any event, to the extent that Brewton contends she suffered emotional distress as a result of the false arrest, her claim is encompassed entirely within other available tort remedies and is thus precluded under New York law. In Fischer v. Moloney, 43 N.Y.2d 553, 373 N.E.2d 1215, 402 N.Y.S.2d 991 (1978), the New York Court of Appeals suggested in dictum that the tort of intentional infliction of emotional distress may not be used where there is substantial overlap of that tort with other traditional torts: "[I]t may be questioned whether the doctrine of liability for intentional infliction of extreme emotional distress should be applicable where the conduct complained of falls well within the ambit of other traditional tort liability." Id. at 557-58, 373 N.E.2d 1215, 402 N.Y.S.2d 991. To date, the Second Circuit has recognized, but has not resolved, whether a claim for intentional infliction of emotional distress is truly barred as a matter of law when the underlying conduct is actionable under another theory of tort liability. See Bender, 78 F.3d at 791-92 (finding it unnecessary to resolve this state law issue).
Notwithstanding, relying on Fischer, state courts and federal district courts applying New York law have consistently held that the tort of intentional infliction of emotional distress may not be used as a substitute for an available traditional tort theory. See, e.g., Worytko v. County of Suffolk, No. 03-CV-4767 (DRH)(ARL), 2007 WL 1876503, at *5-6 (E.D.N.Y. June 28, 2007) (dismissing in part plaintiff's claims for intentional infliction of emotional distress as duplicative of her claims for false arrest to the extent that plaintiff alleged that she suffered emotional distress from the arrests and their aftermath); Leonard v. Reinhardt, 20 A.D.3d 510, 799 N.Y.S.2d 118 (2d Dep't 2005) ("the cause of action alleging intentional infliction of emotional distress should have been dismissed as duplicative of the cause of action alleging malicious prosecution and assault and battery"). In accordance with these decisions, because the conduct comprising Brewton's intentional infliction of emotional distress claim is encompassed entirely within her state law claims for false arrest and malicious prosecution, this cause of action must be dismissed for it does not lie as a matter of state law.[13]
8. Malicious Prosecution
"The elements of a malicious prosecution claim are: (1) the commencement or continuation of a criminal proceeding by the defendant against plaintiff; (2) the proceeding terminated in favor of the plaintiff; (3) lack of probable cause for commencing or continuing the action; and (4) the defendant acted with malice." Rothstein v. Carriere, 373 F.3d 275, 282 (2d Cir.2004); Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir.1994). The law in this Circuit is clear that an adjournment in contemplation of dismissal defeats a malicious prosecution claim because such a disposition is not a favorable termination. Rothstein, 373 F.3d at 287. About this fact, there is no dispute Brewton's criminal case was adjourned in contemplation of dismissal on June 30, 2004 and, ultimately, dismissed on December 29, 2004. Accordingly, summary judgment in favor of defendants on this claim is granted.[14]
Conclusion
For the foregoing reasons, Detective Dwight Hovington's motion for summary judgment dismissing Brewton's claim under 42 U.S.C. § 1983 for false arrest is denied. The balance of Detective Hovington's motion for summary judgment is granted. The motions of the other defendants for summary judgment are granted in their entirety.
As to the claims surviving summary judgment, the parties are directed to contact Magistrate Judge Mann forthwith to schedule a final pretrial conference and the entry of a final pretrial order. Trial will commence with jury selection on June 23, 2008.
SO ORDERED.
NOTES
[1] Detective Manns filed a separate motion for summary judgment, which incorporates the arguments set forth in the City Defendants' motion and provides additional bases for granting summary judgment as to him.
[2] Brewton and Detective Manns had ended their relationship approximately one year prior to this incident. They had not spoken thereafter until Brewton called him in connection with what she perceived to be Regan's threatening phone call.
[3] Brewton and Detective Manns disagree on much of the details of this encounter. For example, Brewton contends that she called an official police phone number and asked to speak to Detective Manns, while Detective Manns testified at his deposition that Brewton called him on his cell phone. Brewton also claims that Detective Manns came to her apartment in uniform, while Detective Manns maintained that he was off duty and not in uniform at the time.
[4] Brewton accuses Detective Hovington of lying about the results of his computer search. In support of her allegation, she claims that she searched the NYPD records herself and found a complete history of her domestic violence reports against Regan, which she apparently attached to her affidavit. The City Defendants did not attach a printout of Detective Hovington's search result.
[5] Brewton objects to the Court's consideration of Detective Hovington's investigation notes on hearsay grounds. To the extent that the police report contains Detective Hovington's personal observations, the report itself is admissible as a public record pursuant to Fed.R.Evid. 803(8). Parsons v. Honeywell, 929 F.2d 901, 907 (2d Cir. 1991). To the extent that the report contains statements that Owens made to Detective Hovington, there is no double-hearsay problem, because, as discussed infra, the statements are being offered and considered only to demonstrate what information was known by Detective Hovington at the time Brewton was arrested not whether that information was accurate. See Mroz v. City of Tonawanda, 999 F.Supp. 436, 462 (W.D.N.Y.1998) ("An officer may rely on hearsay information in his determination of probable cause if there [is] a reasonable basis to credit the information."). The Court will not consider, however, the Owens affidavit submitted on reply simply to bolster Detective Hovington's report or offer an independent factual basis for relief not previously offered. Submission of an affidavit on reply for such purposes is inappropriate. See Aurora Loan Sen's., Inc. v. Posner, Posner & Assocs., P.C., 513 F.Supp.2d 18, 20 (S.D.N.Y.2007) (striking portions of reply affidavit and attached exhibits, finding that the proponent of the documents "was aware of and in possession of these documents at the time they filed for summary judgment, and [] therefore could have included them in its papers").
[6] Brewton contends that this conversation never took place. Indeed, notwithstanding Detective Hovington's testimony, Brewton maintains that Regan was incarcerated on the date of the phone call.
[7] In her opposition, Brewton submitted the complete transcripts from her own deposition and the depositions of Detective Manns and Detective Hovington. Brewton also submitted her own affidavit.
[8] Brewton's argument on this point is nonsensical. According to Brewton's own deposition testimony, she only called her mother after she was informed that she was being placed under arrest. Brewton's argument that she was arrested as retribution for her mother's call to internal affairs is, therefore, disturbingly meritless. In any event, a police officer's subjective motivations are irrelevant to the probable cause inquiry. See Macon, 472 U.S. at 470-71, 105 S.Ct. 2778.
[9] Notably, the City Defendants omit any reference to the statute's knowledge requirement in their briefing to this Court, stating only that "Penal Law § 240.50(3) prohibits [g]ratuitously reporting] to a law enforcement officer or agency ... (c) false information relating to an actual offense or incident or to the alleged implication of some person therein.'" (City Def.'s Br. at 9 (italics in brief; not in original).)
[10] As defendants correctly point out, probable cause is a defense to false arrest if there was probable cause to arrest under any statute, not only the statute that the arrestee was subsequently charged with. It is, though, a point of law without a factual anchor. Defendants have not pointed to any other statute under which there might have been probable cause to arrest Brewton, and the Court is aware of none.
[11] To be clear, the Court does not find that Brewton was arrested at this point. Police stations are secure and dangerous places. While interviewing Brewton with respect to her police report, Detective Hovington could have lawfully required her as a mere complainant to remain in the interview room and not wander about the stationhouse unescorted. On the other hand, he may have intended to confine her in furtherance of her formal arrest on a criminal charge. For purposes of defendants' summary judgment motions, however, the latter must be presumed since it is the version most favorable to the nonmovant.
[12] Likewise, that Detective Hovington spoke with Regan and believed his statement that he did not call Brewton does not add to the requisite showing of probable cause. As an initial matter, it was unreasonable for Detective Hovington to blindly credit Regan where, as here, Regan's motives to lie were patent. Brewton's arrest arose out of Detective Hovington's investigation into Regan's alleged unlawful conduct. Certainly, had Regan been harassing Brewton and/or violating a protective order, he had every reason to deny making the phone call. See Jovanovic v. City of New York, No. 04 Civ. 8437(PAC), 2006 WL 2411541, at *7 (S.D.N.Y. Aug. 17, 2006) (holding that when circumstances call a victim's veracity into doubt "[an] officer has a duty to assess the reliability of the victim and... to investigate the allegations and corroborate them," before his statement can serve as a basis for probable cause); Misiretta v. Prokesch, 5 F.Supp.2d 128, 133 (E.D.N.Y.1998) (holding that police officer had duty to assess the reliability of a victim's statement when there exists a prior relationship between the victim and the alleged perpetrator). Moreover, even if Detective Hovington had reasonably credited Regan when he denied making the call, there still appears no basis to conclude that Brewton possessed the requisite scienter as a result of his conversation with Regan absent testimony that Regan also informed him that he had told Brewton that he was out of jail or had conveyed information to Detective Hovington that could have led a reasonable police officer to conclude that Brewton had to be aware Regan was out of jail. No such claim is made.
[13] Moreover, Brewton's pendent state law claims for intentional infliction of emotional distress and false arrest both appear to be barred by the applicable statute of limitations. New York General Municipal Law §§ 50-i, 50-e requires that a plaintiff file a notice of claim with respect to her state law claims within ninety days after the claim arose and commence the action within one year and ninety days from the date the cause of action accrued. See Lieber v. Village of Spring Valley, 40 F.Supp.2d 525, 533 (S.D.N.Y.1999). New York Civil Practice Law and Rules § 215(3) fixes a one-year statute of limitations for intentional torts. The instant action was filed on July 28. 2005, more than one year and five months after Brewton's claims accrued, on February 27, 2004. See Covington v. City of New York, 1999 WL 739910, *5 (S.D.N.Y. Sept. 22, 1999) (intentional infliction of emotional distress claim accrued on date of arrest); Rowe v. City of Rochester, No. 00-CV-6333 CJS, 2002 WL 31974537 (W.D.N.Y. Dec. 23, 2002) ("the New York statute of limitations for claims of false arrest and false imprisonment require that the suit be brought within one year after the arrest"). Accordingly, even if Brewton had complied with the notice of claim requirements (a fact not evident from her complaint or the motion papers), her state law claims for intentional infliction of emotional distress and false arrest would still be barred by the applicable statute of limitations.
[14] At a pre-motion conference before this Court, held on February 20, 2007, the parties agreed to submit a joint stipulation dismissing the claim of malicious prosecution, but have yet to do so.
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266 F.2d 72
Edmond C. FLETCHER, Petitioner,v.Honorable Albert V. BRYAN, a Judge of the United StatesDistrict Court for the Eastern District of Virginia.
No. 7782.
United States Court of Appeals Fourth Circuit.
Argued April 14, 1959.Decided April 20, 1959.
Edmond C. Fletcher, pro se.
Before HAYNSWORTH, Circuit Judge, and BOREMAN, District Judge.
PER CURIAM.
1
By a petition filed November 7, 1958, the petitioner sought a writ of mandamus, directed to the defendant, requiring the defendant to recognize Fletcher as a duly licensed attorney enrolled and qualified to practice in the United States District Court for the Eastern District of Virginia, to vacate certain prior orders of the District Judge with reference to Fletcher's status as a member of the Bar of that Court and to produce for review and consideration the records of the proceedings conducted before the late Judge Way in April and June 1933 in Case No. 5783 in the District Court for the Eastern District of Virginia, which resulted in an order disbarring the defendant from further practice as an attorney in that Court.
2
Upon motion, Fletcher was duly enrolled as an attorney qualified to practice in the District Court for the Eastern District of Virginia on January 5, 1931. He was a resident of the District of Columbia, in which a proceeding to disbar him from practice in the Supreme Court of the District of Columbia was commenced. An order of disbarment entered in that proceeding was affirmed by the Court of Appeals of the District of Columbia, sitting en banc, on February 6, 1933. Fletcher v. Laws, 62 App.D.C. 40, 64 F.2d 163. There followed the proceedings before Judge Way, resulting in an order of disbarment to practice as an attorney in the District Court for the Eastern District of Virginia. In the intervening years Mr. Fletcher has sought, by various proceedings, to obtain a revocation of the order of disbarment and to have all reference to it expunged from the records of the several courts before which he has brought the matter for consideration. A direct attack upon the order by petition to expunge was heard by Judge Hutcheson, but was unsuccessful. In late 1947 and in 1948 Mr. Fletcher undertook to act as an attorney of record for a litigant in the District Court for the Eastern District of Virginia and was cited for contempt. He appealed from the order adjudging him guilty of contempt, in the course of which he again attacked the validity of the original order of disbarment, but the judgment was affirmed after consideration had been given in this Court to Mr. Fletcher's contentions regarding the validity of the order of disbarment. Fletcher v. United States, 4 Cir., 174 F.2d 373. Later, Mr. Fletcher filed a motion in the District Court for an order vacating the disbarment order of June 20, 1933; a denial of that motion was affirmed by this Court, In re Fletcher, 4 Cir., 221 F.2d 477. By other collateral proceedings, Mr. Fletcher has sought to attack the disbarment order. Fletcher v. Bryan, 4 Cir., 175 F.2d 716; In re Fletcher, 4 Cir., 216 F.2d 915; Fletcher v. Norfolk Newspapers, 4 Cir., 239 F.2d 169.
3
The present petition was considered by the Court as submitted for consideration without a hearing, and was denied. Fletcher v. Bryan, 4 Cir., 261 F.2d 238. Thereafter Mr. Fletcher moved to vacate that opinion and the formal decree entered in accordance with the opinion upon the ground, among others, that he was entitled to a hearing, whereupon an order granting a rehearing was entered. Objection having been received to participation in the rehearing of judges who had participated in earlier proceedings, Mr. Fletcher agreed and consented that the hearing in the instant proceeding should be conducted by a Court composed of two judges only, and a hearing was held by the designated judges in accordance with Mr. Fletcher's wish and consent. At the hearing Mr. Fletcher was fully heard, both upon his objection to the opinion and order previously filed and entered in this proceeding as well as upon the merits of his petition for a writ of mandamus.
4
Upon consideration of the petition, it is the opinion of the Court that it should be dismissed.
5
The contention is made that the petition for writ of mandamus cannot be denied, but must be granted, and that the power of the Court is limited to the entry of an appropriate order enforcing, or quashing, the writ after its issuance and the receipt of objections from the defendant. There seems no doubt, however, that Mr. Fletcher is not entitled continually to litigate and relitigate the same question which has been so many times adjudicated. When it appears upon on the face of the petition, in light of all of the prior proceedings in this and other courts, that he seeks only a relitigation of previously settled matters, it should be dismissed. Nevertheless, we granted a hearing, here, have fully heard the petitioner and are still confirmed in our first conclusion.
6
Mr. Fletcher contends that this Court cannot take judicial notice of previous proceedings in this and other courts involving Mr. Fletcher and the selfsame issue he now tenders, his particular objection being that the disbarment order entered in 1933 has not been formally introduced in evidence in this proceeding. Doubtless, during a trial, the preferred procedure would be to formally introduce the records of the other proceedings which were pertinent to the inquiry, but where the other proceedings are those in which the same party litigated, or sought to litigate, the same issue he tenders here, the Court may certainly notice the previous proceedings and thus avoid the necessity of taking evidence which could only establish what the Court already knows from an examination of its own records. See Alexander v. Hillman, 296 U.S. 222, 56 S.Ct. 204, 80 L.Ed. 192; Freshman v. Atkins,269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193; De Bearn v. Safe Deposit & Trust Co., 233 U.S. 24, 34 S.Ct. 584, 58 L.Ed. 833; Dimmick v. Tompkins, 194 U.S. 540, 24 S.Ct. 780, 48 L.Ed. 1110; National Fire Ins. Co. of Hartford v. Thompson, 281 U.S. 331, 50 S.Ct. 288, 74 L.Ed. 881; Fletcher v. Young, 4 Cir., 222 F.2d 222; Mann v. Peoples First Nat. Bank & Trust Co., 4 Cir.,209 F.2d 570; Ellis v. Cates, 4 Cir., 178 F.2d 791; Fletcher v. Bryan, 4 Cir., 175 F.2d 716.
7
Petition dismissed.
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354 F.Supp. 810 (1973)
Joseph A. D'AMBRA and Constance C. D'Ambra
v.
UNITED STATES of America.
Civ. A. No. 4619.
United States District Court, D. Rhode Island.
February 16, 1973.
*811 *812 Girard R. Visconti, Providence, R. I., for plaintiffs.
Lincoln C. Almond, U. S. Atty., Providence, R. I., for defendant.
OPINION
PETTINE, Chief Judge.
This is an action brought under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) by Constance C. D'Ambra and her husband Joseph A. D'Ambra for injuries sustained by plaintiff wife and losses incurred by plaintiff husband as a result of the shock and physical manifestations thereof suffered by Constance D'Ambra from witnessing her infant son of four years, Gregory Allen D'Ambra, being struck and killed by a United States mail truck.
Jurisdiction of this Court is predicated on 28 U.S.C. §§ 1346(b), 1402(b). The plaintiffs reside and all the operative facts occurred in the state of Rhode Island. Therefore, Rhode Island law must be applied in order to determine the substantive rights of the parties. 28 U.S.C. § 1346(b); Landon v. United States, 197 F.2d 128 (2nd Cir. 1952); Jones v. United States, 265 F. Supp. 858 (S.D.N.Y.1967); Mormino v. United States, 249 F.Supp. 981 (D.Mo. 1966); Reuter v. United States, 110 F. Supp. 366 (D.Pa.1953).
The defendant has moved to dismiss this case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a cause of action. The facts in the instant case, stipulated to by the parties, are the findings of fact made by this Court in Joseph A. D'Ambra v. United States of America, C.A. No. 4545 (March 17, 1972). That case determined that the mail truck driver was guilty of negligence and both Gregory and his mother were free of contributory negligence. This finding of liability was affirmed by the First Circuit Court of Appeals in D'Ambra v. United States, No. 72-1205 (October 24, 1972).
The facts follow: Mr. Gaston Payette, the driver of the United States mail truck, struck Gregory D'Ambra on Hawthorne Street, a wide-paved road in an average urban residential neighborhood. Both sides of this street are lined by one-family houses.
Just previous to the accident, Mrs. D'Ambra and her children were visiting her next door neighbor at No. 20 Hawthorne Street. The two mothers and their six children went to the front of the house to check the lawn mower which would not operate. While on the front lawn, they saw the mail truck at No. 1 Hawthorne Street, and when it reached No. 5 five of the youngsters, including Gregory, ran to it. Gregory returned, *813 however, and started playing in the driveway between No. 20 and No. 22. Therefore, when Mr. Payette reached address No. 5, four children, ranging in age from four to eight years, came to the right side of his truck and asked for mail.
While the truck was stopped at No. 7, Gregory ran to the street entrance of the driveway between No. 20 and No. 22, and ran out at or about the time Mr. Payette started to drive the truck from No. 7. The left front of the truck struck Gregory.
The line of vision between Mr. Payette and the driveway where Gregory was playing was at all times clear and unobstructed.
Although Mr. Payette denied seeing the two mothers, the two mothers and their six children on the lawn of No. 20 were almost in his direct line of vision. And when he was parked at No. 7, the two mothers were in talking distance.
Mrs. D'Ambra testified, and I so find, that she heard a thump and saw Gregory go under the front wheel of the mail truck. She screamed, but the truck did not stop, and she witnessed the rear wheel of the truck also pass over her son.[1]
The question of recovery by a bystander mother for the negligent infliction of mental harm is of first impression in this jurisdiction. On the basis of a close examination of Rhode Island precedent, I do not find that such an action is precluded. Rather, in order to determine whether there is such a cause of action, I find that a policy analysis is demanded by the Rhode Island opinions.
The seminal Rhode Island case, Simone v. Rhode Island Co., 28 R.I. 186, 66 A. 202 (1907) rejected the impact rule, which was then the law of the overwhelming majority of jurisdictions.[2] The court held that when a person was physically endangered by the acts of a defendant, even though no physical impact resulted, that person could recover for the fright experienced from the defendant's negligence, when that fright is followed by physical ills or gives rise to nervous disturbances which in turn lead to physical ills.
In reaching its conclusion, the court soundly refuted the "impossibility of administration" policy arguments of Spade v. Lynn & Boston R. Co., 168 Mass. 285, 47 N.E. 88 (1897), the leading case adopting the impact rule. The Simone court, with insight, wrote:
"It is always a question, frequently of much difficulty, to be decided in the particular case, whether the injury for which damages are sought is the proximate result of the act or acts complained of. But when it is admitted, as it is in Spade v. Lynn & Boston R. Co., supra, that in a large class of cases there may be injuries of the most serious character directly resulting from the negligence of the defendant, as a proximate cause, for which the law will afford no remedy because of some probable difficulty or occasional injustice in the administration of a more liberal rule, it appears to us that the conclusion is quite illogical and is a pitiful confession of incompetence on the part of courts of justice." Simone v. Rhode Island Co., supra, 66 A. at 206.
*814 The Simone court, considering in a practical common sense way the inextricable intertwining of mental and physical processes, also anticipated the recognition of modern medicine that all emotional disturbances have physical ramifications. See Comment: Negligently inflicted Mental Distress: The Case for an Independent Tort, 59 Geo.L. J. 1237, 1259 (1971). The court thus quoted with approval such statements as the following:
"`The mind and body operate reciprocally on each other. Physical injury or illness sometimes causes mental disease. A mental shock or disturbance sometimes causes injury or illness of body, especially of the nervous system. Now, if the fright was the natural consequence of . . . the circumstances of peril and alarm in which defendant's negligence place plaintiff, and the fright caused the nervous shock and convulsions and consequent illness, the negligence was the proximate cause of those injuries. [Purcell v. St. Paul City Ry. Co., 48 Minn. 134, 138, 50 N.W. 1034.]'" Simone v. Rhode Island Co., supra, 66 A. at 207.
Simone therefore established the negligent infliction of mental distress as an independent cause of action. Its rejection of the impact rule does not imply, however, an automatic extension of the protection of tort law to bystander mothers who are not themselves physically imperilled. See Barber v. Pollock, 104 N.H. 379, 187 A.2d 788 (1963) [refusing to so extend Chiuchiolo v. New England Wholesale Tailors, 84 N.H. 329, 150 A. 540 (1930)]; Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969) [refusing to extend Battalla v. State, 10 N.Y.2d 237, 219 N. Y.S.2d 34, 176 N.E.2d 729 (1961)].
To the contrary, there is one Rhode Island case which must be fully discussed before this Court can finally conclude that Rhode Island law does not preclude the action before it.
Bedard v. Notre Dame Hospital, 89 R.I. 195, 151 A.2d 690 (1959) held that the custody of a minor child is a legally protected interest, that recovery can be had for mental anguish caused by the wrongful detention of a two year old child by the defendant, but reaffirming Simone v. Rhode Island Co., supra, found that recovery for such mental anguish is only allowed when there is concomitant or subsequent physical manifestations of the psychic injury. What must be determined is the effect on the instant case, of the following cursory dicta of Bedard:
"It is generally held that a parent is not entitled to recover for mental distress and anxiety on account of an injury to his child unless the injury is a willful or malicious one. 39 Am.Jur., Parent and Child § 80, p. 726. In McGarr v. National & Providence Worsted Mills, 24 R.I. 447, 53 A. 320, 60 L.R.A. 122, the court in effect stated that the jury was not at liberty to consider the fact that the plaintiff had been deprived of the comfort and society of the child and that the jury could not consider any physical or mental suffering or pain which may have been sustained by the parent by reason of the injury to the child. That case involved an action of trespass on the case for negligence and therefore differs materially from the instant case which alleges a willful invasion of plaintiff's legally protected interest of custody." Id. at 692.
I cannot consider the above dicta as controlling in this case. The citation of the "black letter law" rule which usually denies recovery for mental distress suffered by a parent because of injuries to the child unless such injuries are intentionally caused is merely a statement of the weight of authority, referred to only in passing by a court concerned with an intentional tort. This casual statement cannot be extrapolated into a bar under Rhode Island law against all recovery by parents for mental distress on behalf *815 of their child in all conceivable circumstances.
Furthermore, the citation of McGarr v. National & Providence Worsted Mills, supra, by the Bedard court was made only to distinguish McGarr from the case before it. The Bedard court was not engaged in an evaluation of the precedential weight of McGarr, since noting the disparities between the two cases was sufficient support for the conclusion that the older case was not controlling. The Bedard court thus failed to recognize that the subsequent Simone case vitiated the authority of McGarr.
I therefore conclude that recovery by a bystander parent for the negligent infliction of mental harm is not foreclosed by Rhode Island law. I further find that the lesson of Simone is that the issue of recovery for mental distress deserves careful analysis of the policy questions and a realistic appraisal of the practical problems in extending liability. This conclusion is supported by the policy analysis approach used in two very recent Rhode Island cases which promulgated new rules of tort law.
Ritter v. Narragansett Electric Co., 283 A.2d 255 (R.I.1971) adopted the doctrine of strict liability in tort when the plaintiff sustains injuries from a defective product while using it in a way for which it was intended. The Ritter court, concurred with the statement of Justice Roberts in Miller v. Preitz, 422 Pa. 383, 420, 221 A.2d 320, 339 (1966) that "The matter is solely one of policy . . ." and should be approached without reference to contract law. It added that the adoption of § 402A of the Restatement would serve "to promote the cause of justice in these cases." Id. 283 A.2d at 261.
And after an exhaustive study of precedent and legal commentary, Wilkinson v. Vesey, 295 A.2d 675 (R.I.1972) rejected the majority view that a plaintiff in a malpractice action must provide expert testimony as to the community standard of revelation as to hazards attendant to treatment when he bases recovery on the absence of informed consent.
Before proceeding to the merits of the case, this Court must add, however, that it has great regard for the responsibility it bears in determining state law. Since this is a Federal Tort Claims action over which the federal courts have exclusive jurisdiction, 28 U. S.C. § 1346(b), the plaintiff has no recourse to the state courts for a determination of the existence of a cause of action. To shirk our duty of considering whether a cause of action lies would deprive the plaintiff of her only forum.
Yet, this Court is not unmindful of the long span of time since the Rhode Island courts last considered the issue of the negligent infliction of mental distress in Simone. Nor is it unaware of the diversity of opinions and the profound philosophical differences involved in the current debate over the issue of whether a bystander parent should be allowed to recover for the negligent infliction of psychic harm, such that two of the most respected courts in the country, the highest courts of New York and California, have reached opposite conclusions.[3] Given the controversial nature of the issue at bar today, this Court well realizes that the Rhode Island Supreme Court may disagree with whatever decision it reaches. However, neither this thought nor the difficulty of the task excuses decision, for:
"In the absence of a state court ruling, our duty is tolerably clear. It is to decide, not avoid, the question." Daily v. Parker, 152 F.2d 174, 177 (7th Cir., 1945)
As noted by a distinguished commentator:
"When the rights of a litigant are dependent on the law of a particular state, the court of the forum must do its best (not its worst) to determine *816 what that law is. It must use its judicial brains, not a pair of scissors and a paste pot. Our judicial process is not mere syllogistic deduction, except at its worst. At its best, it is the wise and experienced use of many sources in combinationstatutes, judicial opinions, treatises, prevailing mores, custom, business practices; it is history and economics and sociology and logic, both inductive and deductive." Corbin, the Laws of the Several States, 50 Yale L.J. 762, 775-76 (1941) quoted in H. Hart and H. Wechsler, The Federal Courts and the Federal System 630 (1953). See also, Clark, State Law in the Federal Courts: The Brooding Omnipresence of Erie v. Tompkins, 55 Yale L.J. 267 (1946).
These views of the function of a federal court in determining state law have been endorsed by federal courts. Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 851 (2nd Cir. 1967); also Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967).
Therefore, impelled by my conception of the duty of this Court and by the example of the Rhode Island Supreme Court in the Simone, Ritter, and Wilkinson cases, I turn to the merits of the issue before me.
The passage of sixty-five years since the rendering of Simone has seen the development of a society educated in psychology, with the average layman appreciative of the debilitating effects of psychic damage. In the same time interval our society has grown increasingly complex, competitive, and stressful. Not every psychic injury negligently inflicted is entitled to the protection of the law.[4]
The concept of "duty" is the traditional terminology in tort law which denotes that the relationship of plaintiff and defendant is such that, the defendant is obligated to exercise care toward the plaintiff or, in other words, that he is obliged "to conform to the legal standard of reasonable conduct in the light of the apparent risk." Prosser, The Law of Torts at 331 (3rd ed. 1964). On the meaning of duty, Dean Prosser has written:
"The statement that there is or is not a duty begs the essential question whether the plaintiff's interests are entitled to legal protection against the defendant's conduct. It is therefore not surprising to find that the problem of duty is as broad as the whole law of negligence, and that no universal test for it has ever been formulated. * * * But it should be recognized that `duty' is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." (footnotes omitted) (emphasis added). Id. at 332-333.
The elasticity of the concept of duty is well illustrated in this area of tort law. Courts historically have evinced great caution in extending the umbrella of the law to encompass recovery for mental distress based on a negligence action. As a result confusion abounds because of the various doctrines developed in order to determine liability.
The most conservative rule, that requiring physical impact, was embraced in a classic case in 1897. Spade v. Lynn & Boston R. Co., supra; see also Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354 (1896). Since then the rule has become so attenuated that even the most minor contacts have sufficed. See Prosser, The Law of Torts at 350, 351 (3rd ed. 1964) and cases cited therein. The majority of jurisdictions now reject the prerequisite of contemporaneous impact *817 before allowing recovery, see Recent Cases: Negligence, 18 Buff.L.Rev. 201, 204.
For most of the jurisdictions that have repudiated the impact doctrine, rules that revolve around the physical endangerment of the plaintiff have developed. Some permit recovery when the plaintiff was in fear of his own safety, even when he may have feared also for the safety of his children. See, e. g., Penick v. Mirro, 189 F.Supp. 947 (D.Va.1960); Barber v. Pollock, supra. Others arrive at the same result by permitting a cause of action if the plaintiff was within the zone of danger. See, e. g., Bowman v. Williams, 164 Md. 397, 165 A. 182 (1933); Hopper v. United States, 244 F.Supp. 314 (D.Colo.1965). However, a few courts have held that a plaintiff cannot recover for physical injuries solely due to fear for the safety of others even if he was in the zone of physical danger. Strazza et al. v. McKittrick et al., 146 Conn. 714, 156 A.2d 149 (1959); Klassa v. Milwaukee Light Co., 273 Wis. 176, 77 N.W.2d 397 (1956).
Two jurisdictions have adopted a negligence approach.[5] Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968) held that negligence principles are applicable in determining the existence of a cause of action when a bystander parent witnesses the death or injury of his child. Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970) espoused a negligence approach in the case of a homeowner who suffered mental distress, when a flood, caused by an overflowing culvert clogged by the state's carelessness, seriously damaged his newly built house.
Commentators have long proposed such a utilization of the traditional rules of negligence law to determine liability for the non-intentional infliction of mental injury. See H. W. Smith, Relation of Emotions to Injury and Disease: Legal Liability for Psychic Stimuli, 30 Va.L.Rev. 193 (1943-1944); Prosser, The Law of Torts at 353-354 (3d ed. 1964); Comment: Negligently Inflicted Mental Distress: The Case for an Independent Tort, 59 Geo.L.Rev. 1237 (1970-71); Recent Cases: Negligence, 18 Buff.L.R. 201 (1968-1969); Bystander's Recovery for Psychic Injury, 32 Albany L.Rev. 489 (1968). The refusal of the overwhelming majority of jurisdictions to adopt a negligence doctrine and to maintain instead bright line rules has been based on policy considerations.
The policy grounds most often mentioned are the unforeseeability of the injury, disproportionate liability in relation to culpability, burdensome liability on the tort feasor, the danger of fraudulent claims, and unlimited liability because of no clear-cut stopping point in allowing such recovery. See the classic case of Waube v. Warrington, 216 Wis. 603, 258 N.W. 497 (1935); see also Resavage v. Davies, 199 Md. 479, 86 A.2d 879 (1952); Barber v. Pollock, supra; Jelley v. LaFlame, 108 N.H. 471, 238 A. 2d 728 (1968); Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E. 2d 419 (1969).
*818 These policy reasons will be examined with the following caution in mind:
"In any discussion of the denial of a right of action on the ground of public policy, it must be borne in mind that the general theory upon which the common law is based is that there is a remedy for every wrong, and in any case in which A is shown to have committed a wrongful act as a proximate result of which B has suffered damage, there is a very strong presumption in favor of a right of action by B against A. If B's right to maintain such an action is denied on the ground of public policy, such policy must be made very clearly to appear and must be strongly grounded on considerations of public welfare." Archibald H. Throckmorton, Damages for Fright, 34 Harv.L.R. 260, 264 (1920-21).
The danger of fraudulent claims as a ground for precluding an action based on mental injury has long been rejected by Rhode Island law. To cite once more the eloquent words of Simone:
"But when it is admitted . . . that in a large class of cases there may be injuries of the most serious character directly resulting from the negligence of the defendant, as a proximate cause, for which the law will afford no remedy because of some probable difficulty or occasional injustice in the administration of a more liberal rule, it appears to us that the conclusion is quite illogical and is a pitiful confession of incompetence on the part of courts of justice." Simone v. Rhode Island Co., supra, 66 A. at 206.
The danger of fraudulent claim argument is even less tenable today since medical proof of psychic injuries is now available. Comment: Negligently Inflicted Mental Distress: The Case for an Independent Tort, 59 Geo.L.Rev. 1237, 1259 (1970-71). The "sifter" established under Simone to ferret out the claims most amenable to fraud is the requirement that no recovery can be had for mental distress that has not manifested itself in physical symptoms.
The other policy considerations which must be investigated are the allegations of disproportionate, burdensome, and unlimited liability. Whether liability is disproportionate and burdensome is dependent on whether an assessment of the criticism of unlimited liability discloses that such a fear is justified.
The problem of unlimited liability has been cogently expressed in Tobin v. Grossman, supra, 301 N.Y.S.2d at 560, 249 N.E.2d at 423:
"The final and most difficult factor is any reasonable [degree of] circumspection, within tolerable limits required by public policy, of a rule creating liability. Every parent who loses a child or whose child of any age suffers an injury is likely to sustain grievous psychological trauma, with the added risk of consequential physical harm. Any rule based solely on eyewitnessing the accident could stand only until the first case comes along in which the parent is in the immediate vicinity but did not see the accident. Moreover, the instant advice that one's child has been killed or injured, by telephone, word of mouth, or by whatever means, even if delayed, will have in most cases the same impact. The sight of gore and exposed bones is not necessary to provide special impact on a parent. Again, the logical difficulty of excluding the grandparents, the relatives, or others in loco parentis, and even the conscientious and sensitive caretaker, from a right to recover, if in fact the accident had the grave consequences claimed, raises subtle and elusive hazards in devising a sound rule in the field."
Tobin seems concerned about two cutting off points: first, at what spatial and time point the parent's right to recovery *819 is barred, even though emotional trauma that leads to physical ills may be suffered; second, at what degree of relationship is liability barred.
Dillon v. Legg, supra, 69 Cal. Rptr. at 80, 441 P.2d at 920, whose criteria the Tobin court found inadequate, set out the following guidelines for assessing the foreseeability of the injury:
"In determining, in such a case, whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following:
(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.
(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.
(3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship."
For reasons which will be fully explicated below, this Court, unlike the court in Tobin, believes that the criteria set forth in Dillon for evaluating the foreseeability of the injury sufficiently serve to define the parameters of the cause of action, with one additional prerequisitethat the presence of the parent must also be foreseeable.
Foreseeability of injury presumes the foreseeability of the presence of the parent. Physical Injury Caused by Emotional Trauma, 73 Dick.L.Rev. 350, 359 (1968-69). Although the Dillon opinion does indicate the assumption of this premise, it does so in a cursory statement:
"Surely, the negligent driver who causes the death of a young child may reasonably expect that the mother will not be far distant and will upon witnessing the accident suffer emotional trauma." Id. 69 Cal.Rptr. at 81, 441 P.2d at 921.
This Court deviates from the rule of Dillon in that it does not think that the presence of the parent can be presumed. Rather, a foreseeability analysis is necessary, for as one classic case has stated:
"The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension." Palsgraf v. Long Island R. R. Co., 248 N.Y. 339, 162 N.E. 99, 100 (1928).
In Palsgraf, the issue presented was whether liability should be imposed for injury to a plaintiff who stood outside any zone of apparent danger and to whom harm could not reasonably have been foreseen. In the instant case the situation is the converse. Once presence of the parent at the accident or within the immediate vicinity is established, the shock and trauma of a parent who sees his child killed or injured is easily foreseeable. It is the presence of the parent that may or may not be foreseeable, and that therefore, may or may not be within the "range of apprehension."
The Dillon criteria, admittedly arbitrary, define the outside limitations of the cause of action. See Prosser, supra, at 354. Such restrictions are necessary in order to avoid unlimited liability for it is foreseeable that the injury or death of a child will have an impact on a parent, whether or not he or she contemporaneously experiences the accident. However, as discussed above, the indispensable further prerequisite for the creation of a cause of action is the foreseeability of the presence of the plaintiff.
*820 Foreseeability of the presence of the parent can be evaluated by studying such factors as:
(1) the age of the child;[6]
(2) the type of neighborhood in which the accident occurred;
(3) the familiarity of the tortfeasor with the neighborhood;
(4) the time of day; and
(5) all other circumstances which would have put the tortfeasor on notice of the likely presence of a parent.
Where the cause of action is circumscribed by the Dillon criteria and the requirement of the foreseeability of plaintiff's presence, unlimited liability, and therefore burdensome and disproportionate liability, is unlikely.
This conclusion is reinforced by the fact that the spectre of burdensome and unlimited liability has not been borne out in the two jurisdictions that have utilized the negligence approach in assessing these mental distress claims England and California.
Thus Bourhill v. Young [1943] A.C. 92 (1942) denied recovery to a pregnant fishwife, standing on the far side of a tramway car, who was about 45 feet from the site of the accident at issue. She could not see the accident; rather she was startled by the sound of the collision, and had a stillborn baby a month later. Recovery was denied on the ground that the risk of injury to this woman was so remote that it was not reasonably foreseeable by the defendant.[7]
And the California case law has demonstrated a very close adherence to the criteria set out in Dillon, supra. Of the four cases that have arisen since the rendering of the Dillon opinion, three cases have denied liability.
It has been held that where the plaintiff-wife did not see her injured husband until she was summoned to the emergency room of the hospital, no liability would lie for her emotional distress. Deboe v. Horn, 16 Cal.App.3d 221, 94 Cal.Rptr. 77 (1971).
Wynne v. Orcutt Union School District, 17 Cal.App.3d 1108, 95 Cal.Rptr. *821 458 (1971) found that there was no actionable claim where the parents were complaining of nervous shock due to their son's teacher's disclosure to his classmates, who in turn relayed the information to him, that he had a fatal disease. The court stated:
". . . the facts at bench did not fit the personal-injury mold of Dillon. No accident occurred. No injury to the child is alleged. No breach of a duty to the child is pleaded. A fortiori, no breach of duty to the parents occurred." Id. at 459.
And Capelouto v. Kaiser Foundation Hospitals, 98 Cal.Rptr. 631 (Cal.App. 1971) denied recovery to parents for the emotional distress suffered as a result of their observing the lengthy unfolding of the symptoms of salmonella infection, contracted by their infant as a newborn because of the defendant hospital's negligence. The court stressed that Dillon involved a single traumatic accident, contemporaneously observed.
The sole case permitting recovery, Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (1969) extended the Dillon rule to a parent who was not an eye-witness to the accident. The plaintiff's thirteen year old son was buying gunpowder and was grievously injured when it exploded. His right hand, right wrist and a part of his right forearm were amputated and his right eye was seriously injured. His mother was said to have appeared moments later.
Undoubtedly the mother was met by a bloody and shocking scene. However, unless there were facts other than those stated in the opinion, I believe the case was wrongly decided. The Archibald court failed to examine the question of the foreseeability of the presence of the plaintiff mother, except to casually note that a tortfeasor who causes injury to a child may reasonably expect the mother to be close by. To my mind, the nearby presence of the mother of a thirteen year old boy who is buying gunpowder is not reasonably foreseeable. So even in this case, if the court had studied the foreseeability of the presence of the plaintiff, the case may well have been decided otherwise.
I therefore find that the public policy arguments are not persuasive. I am also convinced that the above described negligence standards would serve to promote justice.
The analysis of the Tobin court, which denies all recovery on the ground that such an "indirect harm from the loss or injury of loved ones" is part of the "risk of living and bearing children," (Tobin, supra, 301 N.Y.S.2d at 561, 249 N.E.2d at 424) imposes the assumption of risk doctrine, which has been called the equivalent of a plaintiff's strict liability [Calabresi and Herschoff, Toward a Test for Strict Liability in Torts, Yale L.J. 1055, 1065 (May 1962)], on all these cases. The more appropriate and relevant approach in order to effect justice is to ask whether the defendant or the plaintiff should more properly pay the costs of plaintiff's injuries. When it is foreseeable to the defendant that the plaintiff may well experience the shock of seeing an accident involving his child, he has the obligation of exercising reasonable care to avoid the infliction of psychic injury, and a breach of such obligation should result in his bearing of liability.[8]
I concur with the statement of Hopper v. United States, supra, 244 F.Supp. at 318 that in cases such as the one at bar:
"[W]e should not close our minds and that is what we do when we adopt a rule that persons suffering fright from witnessing injury to another are invariably beyond the risk."
This Court is furthermore persuaded that the law in this area is evolving towards the application of the principles of negligence law. As has already been *822 mentioned, the post-Dillon case of Rodrigues v. State, supra, held that negligence principles should be applied to determine whether recovery should be allowed for mental distress suffered as a result of the careless destruction of property.
Although Schurk v. Christensen, 80 Wash.2d 652, 497 P.2d 937 (1972) in a five to three decision found the case before it inappropriate for a deviation from the traditional rule requiring the endangerment of the plaintiff in order to recover for the negligent infliction of mental harm, the court took care to stress that it was not holding that
". . . the strict application of the general rule against recovery for mental anguish and distress in tort liability cases should not be reexamined." Id. at 940.
And when the Supreme Court of Maine rejected the impact rule, instead of jumping to the next notch on the "evolutionary" scale and requiring imperilment of the plaintiff the court instead stated:
"[W]e adopt the rule that in those cases where it is established by a fair preponderance of the evidence there is a proximate causal relationship between an act of negligence and reasonably foreseeable mental and emotional suffering by a reasonably foreseeable plaintiff, such proven damages are compensable . . . ." Id. 269 A.2d at 121.
On the basis of the above discussion, I do not find that public policy justifies the preclusion of the cause of action for the negligent infliction of mental harm on a bystander parent. Instead, I hold that the creation of such a cause of action is in the interest of justice. This Court therefore adopts the rule and rationale of the Dillon opinion and adds the requirement of the foreseeability of the parent's presence.
Of course, it must be stressed that the Court today has decided only that on the basis of the facts before it; that is, where there is an eyewitness parent, there may be a cause of action. This Court cannot speculate as to the further factual patterns which may arise. The law is an evolving process. The details of a new cause of action can only be worked out as the courts confront different factual situations and develop experience in the application of a new rule of law. This Court trusts that evolutionary process.
Applying the law to the facts of the case at bar, I find a cause of action has been stated.
The accident occurred in a residential neighborhood. Moreover, the driver was familiar with the neighborhood. The children who surrounded the mail truck asked for their parents' mail, an objective indication that they lived in the neighborhood. Gregory, who had been part of this group but broke away to play by himself, was only four years old and not reasonably to be expected to be far from his mother. Furthermore, prior to the children's running to the mail truck, Mr. Payette had an unobstructed view of the two mothers with their six children. Although he denied seeing them, such a sizable grouping on a front lawn, including, presumably, clamoring children, would reasonably have been expected to be noticed by the average man. In any event, if the presence of the plaintiff was indeed unknown, it was foreseeable.
Since the plaintiff mother was but across the street and an eyewitness to the accident, psychic injury was also foreseeable.
The motion to dismiss this action is therefore denied.
NOTES
[1] Counsel have agreed to rest on the transcript of the first trial for the determination of facts relevant to the instant motion.
[2] Only six jurisdictions had previously overruled the doctrine of impact:
Purcell v. St. Paul City R. Co., 48 Minn. 134, 50 N.W. 1034 (1892); Mack v. South Bound R. Co., 52 S.C. 323, 29 S.E. 905 (1897);
Gulf, etc., R. Co. v. Hayter, 93 Tex. 239, 54 S.W. 944 (1900);
Watson v. Dilts, 116 Iowa 249, 89 N.W. 1068 (1902);
Stewart v. Arkansas Southern R. Co., 112 La. 764, 36 So. 676 (1904);
Kimberly v. Howland, 143 N.C. 398, 55 S.E. 778 (1906).
See A. H. Throckmorton, Damages for Fright, 34 Harv.L.Rev. 260, 265 n. 28 (1920-1921).
[3] Dillon v. Legg, 68 Cal.2d 728, 69 Cal. Rptr. 72, 441 P.2d 912 (1968); Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S. 2d 554, 249 N.E.2d 419 (1969).
[4] Smith argues that if "all negligent invasions of mental tranquility were actionable without proof of physical injury or disability" that it would encourage neuroses in the population. He suggests conditioning people to be tougher, by "pampering the psyche less." H. Smith, Relation of Emotions to Injury and Disease: Legal Liability for Psychic Stimuli, 30 Va.L.Rev. 193, 288 n. 128.
[5] Although the Supreme Court of Maine in Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117 (1971) rejected the impact rule, seemingly in favor of negligence principles in a case where a man was made sick by finding a prophylactic in his soda bottle, the court added the ambiguous caveat:
"In applying this rule, however, we recognize that it must be so limited within the bounds of foreseeability as to preclude a host of false and groundless claims." Id. at 121.
Therefore, Maine has not been counted as a jurisdiction which would apply negligence principles to the recovery of a bystander parent for psychic injuries suffered by witnessing injury to his child.
Rodrigues v. State, infra, stated negligence principles should be applied to determine whether plaintiffs could recover for the mental distress suffered when their home was negligently damaged. Presumably, negligence principles would also be applied if plaintiff's children were injured or killed negligently. Therefore, Hawaii has been included as a jurisdiction which would apply negligence principles to the recovery of a bystander parent for mental distress.
[6] On this issue Smith long ago wrote:
"The true question is whether D knows or should anticipate that P will be an involuntary witness of the primary negligence and thereby be subject to an unreasonable risk of injury through psychic stimuli. * * * That the parent of an immature child under seven years of age is likely to be near at hand hovering over her `chick' is something a reasonable actor should foresee whereas he can hardly anticipate parental presence if the offspring is more mature. If D's negligence injures a child of any age in his own yard or house, the likelihood that relatives may witness the episode would seem to be a foreseeable risk."
H. Smith, Relations of Emotions to Injury and Disease: Legal Liability for Psychic Stimuli, 30 Va.L.Rev. 193, 239 n. 152 (1943-44).
[7] Admittedly, the state of British law as to recovery for bystander parents has been cloudy since King v. Phillips, 1953, 1 QB 429 denied recovery to a mother who heard a scream and looking from an upstairs window saw her child's bicycle underneath a taxi. See Negligence and the Infliction of Emotional Harm: A Reappraisal of the Nervous Shock Cases, 35 U.Chi.L.Rev. 512, 524-525 (1968).
Yet a more recent case, Boardman v. Sanderson [1964] 1 W.L.R. 1317 (1964) allowed recovery to a father in the following circumstances. Both father and son were passengers in the defendant's car. The defendant asked the father to go into a garage and pay a bill. In the interim, while backing up his car, the defendant negligently ran over the child's foot. Hearing the child's screams, the father ran out, saw the child's foot trapped underneath the wheel and tried to release it.
Lord Justice Omerod commented:
"It is clear that a duty was owed by the defendant not only to the infant but also to near relatives of the infant who were, as he know on the premises, within earshot, and likely to come upon the scene if any injury or ill befell the infant." Id. at 1322.
From knowledge of the presence of the parent, it is only a short step to foreseeability of the presence of the parent.
[8] Pursuant to 28 U.S.C. § 2674, the United States is not liable for punitive damages. Since damages for psychic injury are solely compensatory, this cause of action is permissible against the United States.
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[Cite as Lingenfelter v. Lingenfelter, 2015-Ohio-4002.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
JASON LINGENFELTER C.A. No. 14AP0005
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
NICHOLE LINGENFELTER COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellant CASE No. 12-DR-0288
DECISION AND JOURNAL ENTRY
Dated: September 30, 2015
MOORE, Judge.
{¶1} Defendant-Appellant Nichole Sorenson, formerly known as Nichole Lingenfelter
(“Wife”), appeals from the judgment of the Wayne County Court of Common Pleas. We
reverse.
I.
{¶2} Wife and Jason Lingenfelter (“Husband”) were married on April 15, 2000. Two
children were born of the marriage, K.L. and S.L. On June 27, 2012, Husband filed for divorce.
The parties entered into stipulations with respect to many issues, but were unable to reach an
agreement concerning several areas, including the amount of equity in the marital home, how to
allocate the parties’ debts, the precise details of the shared parenting plan, and spousal support.
{¶3} The matter proceeded to a hearing before a magistrate over the course of two
days: July 30, 2013, and October 10, 2013. At the end of the first day of the hearing, the
magistrate met with the attorneys. Their discussion was recorded. Toward the end of the
2
discussion, the magistrate interjected: “I know [Husband’s] mom and dad by the way just so
you know that. I know Dave and Alice Lingenfelter. I’ve known them for 35 years. In fact *
* * my [former] secretary is the niece of Alice.” Shortly thereafter, one of the attorneys alerted
the magistrate to the fact that they were still on the record and being recorded. Almost
immediately, the transcribed testimony ended.
{¶4} No motion to disqualify was filed between the first day and second day of the
hearing or in the two weeks pending issuance of the decision. The magistrate issued a decision
October 25, 2013. While not necessarily indicative of bias, in his decision, the magistrate did
find on more than one occasion that Husband’s testimony was more credible than Wife’s on
issues of fact. Additionally, the magistrate seemed extremely bothered by Wife’s testimony
regarding her job search and expressed his belief that she was not adequately pursuing
employment. For the most part, the magistrate’s decision was favorable to Husband’s position.
The trial court entered judgment that same day adopting the magistrate’s recommendations.
{¶5} At some point thereafter, Wife retained new counsel. Wife’s new counsel filed
objections to the magistrate’s decision, while at the same time requesting an extension of time
to file a memorandum in support of the objections and possibly amended objections once
counsel was in possession of the hearing transcript.
{¶6} The issue of the magistrate’s conflict of interest was not raised until January 8,
2014, when Wife’s new counsel filed a memorandum in support of objections and a motion to
disqualify the magistrate. Both filings alleged that the magistrate had a conflict of interest. The
trial court overruled Wife’s objections and denied her motion to disqualify the magistrate. The
trial court concluded that, “[t]he fact that [the magistrate] knows [Husband’s] parents does not
disqualify him without something more. Judges and magistrates often know people related to
3
litigants. There is nothing in the record to show that this had any bearing on the decision. In
any event, the issue should have been raised long ago.”
{¶7} Wife has appealed, raising four assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
MATTER OF LAW WHEN THE TRIAL COURT OVERRULED [WIFE’S]
MOTION TO DISQUALIFY THE MAGISTRATE.
{¶8} Wife asserts in her first assignment of error that the trial court abused its
discretion in denying Wife’s motion to disqualify the magistrate. Based upon the unique
circumstances of this case, we agree that the trial court abused its discretion in denying Wife’s
motion without having a hearing on her motion.
{¶9} “An independent, fair, and impartial judiciary is indispensable to our system of
justice. The United States legal system is based upon the principle that an independent,
impartial, and competent judiciary, composed of men and women of integrity, will interpret and
apply the law that governs our society. Thus, the judiciary plays a central role in preserving the
principles of justice and the rule of law.” Preamble of the Code of Judicial Conduct. With
respect to judicial disqualification, the Supreme Court of Ohio has stated that “‘[p]reservation of
public confidence in the integrity of the judicial system is vitally important,’ and ‘[a]n
appearance of bias can be just as damaging to public confidence as actual bias.’” In re
Disqualification of Burge,138 Ohio St.3d 1271, 2014-Ohio-1458, ¶ 9, quoting In re
Disqualification of Murphy,110 Ohio St.3d 1206, 2005-Ohio-7148, ¶ 6. Thus, the Code of
Judicial Conduct provides that “[a] judge shall disqualify himself or herself in any proceeding in
which the judge’s impartiality might reasonably be questioned[.]” Jud.Cond.R. 2.11(A).
4
Magistrates are judges within the meaning of the Judicial Code of Conduct. See Application of
the Code of Judicial Conduct. The comments to the rule advise that, “[a] judge should disclose
on the record information that the judge believes the parties or their lawyers might reasonably
consider relevant to a possible motion for disqualification, even if the judge believes there is no
basis for disqualification.” See Jud.Cond.R. 2.11, Comment 5.
{¶10} While the review of alleged judicial misconduct is outside the jurisdiction of this
Court, Hendy v. Wright, 9th Dist. Summit No. 26422, 2013-Ohio-5786, ¶ 7, this Court can
review properly raised challenges to a magistrate’s impartiality. See J.B. v. Harford, 9th Dist.
Summit No. 27231, 2015-Ohio-13, ¶ 36. The proper method to challenge a magistrate’s
impartiality is to file a motion for disqualification with the trial court. See id. Civ.R. 53(D)(6)
specifically provides that, “[d]isqualification of a magistrate for bias or other cause is within the
discretion of the court and may be sought by motion filed with the court.” A trial court abuses
its discretion if its decision is “unreasonable, arbitrary or unconscionable.” Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶11} In the context of judicial disqualification, the Supreme Court of Ohio has held that
“[t]he proper test for determining whether a judge’s participation in a case presents an
appearance of impropriety is * * * an objective one. A judge should step aside or be removed if
a reasonable and objective observer would harbor serious doubts about the judge’s
impartiality.” In re Disqualification of Farmer, 139 Ohio St.3d 1202, 2014-Ohio-2046, ¶ 7.
{¶12} Here, Wife’s new counsel did file a motion to disqualify the magistrate which the
trial court summarily denied stating: “The fact that [the magistrate] knows [Husband’s] parents
does not disqualify him without something more. Judges and magistrates often know people
related to litigants. There is nothing in the record to show that this had any bearing on the
5
decision. In any event, the issue should have been raised long ago.” In light of the record
before us, we are troubled by the trial court’s decision which appears not to have fully
considered the appearance of bias to a reasonable and objective observer as well as the factual
circumstances which may have necessitated the delay in filing the motion to disqualify.
{¶13} As noted above, at the end of the first day of the hearing, the magistrate asked
only the attorneys to stay in the courtroom and proceeded to engage them in a discussion that
was recorded. Towards the end of that discussion, the magistrate interjected: “I know
[Husband’s] mom and dad by the way just so you know that. I know Dave and Alice
Lingenfelter. I’ve known them for 35 years. In fact * * * my [former] secretary is the niece of
Alice.” Shortly thereafter, the recording abruptly ended after one of the attorneys alerted the
magistrate that he was still on the record. Wife’s new counsel pointed to this revelation by the
magistrate as evidence of a potential conflict of interest in both his objections to the
magistrate’s decision and the motion to disqualify. And while not specifically pointed to as
evidence of bias or of a conflict of interest, Wife’s new counsel did note in his objections to the
magistrate’s decision examples of the magistrate disapproving of Wife’s efforts to find a job
and of the magistrate forming an opinion of Wife prior to hearing her complete testimony.
During the same discussion at the end of the first day of the hearing, the magistrate stated with
respect to the issue of whether Wife was entitled to spousal support, “I am not impressed with
her. I really am not. I mean, she should have been out beating the bricks getting a job for the
last year[.]”
{¶14} Moreover, it is apparent from even a cursory review of the magistrate’s decision
that credibility played an important role in the magistrate’s factual findings. The decision is
notable for the number of negative references to Wife’s attempts at securing employment and
6
for the magistrate’s propensity for siding with Husband on issues of credibility. While this
could point to a reality that Husband’s testimony was in fact more credible than Wife’s, there
was very little in the way of concrete documentary or physical evidence to support one party’s
testimony over the other. So, the crediting of Husband’s testimony could also evidence bias on
the part of the magistrate based upon a lengthy and close relationship with Husband’s family.
{¶15} With respect to the trial court’s concern that the motion was untimely, under the
circumstances of this case, and absent additional information, we conclude the trial court abused
its discretion in denying the motion on that basis. Certainly, this Court does not encourage
litigants who believe that a magistrate may be biased to wait to file a motion to disqualify until
after the magistrate has issued an adverse decision. Doing so tends to lead a reviewing court to
question the motive behind filing the motion to disqualify. However, in this instance we
conclude there could be legitimate reasons why the motion to disqualify was not filed until after
the magistrate issued the decision.
{¶16} It is unclear from the record whether Wife’s counsel at the hearing ever disclosed
to Wife the magistrate’s relationship with Husband’s parents. Moreover, it is unclear if the
magistrate ever brought the issue to the attention of the parties. Accordingly, it is possible that,
when Wife retained new counsel in the beginning of November 2013, new counsel was not
aware of the potential bias issue either. At that point in time, absent being informed by Wife or
Wife’s former counsel, new counsel would have no way to know of the potential issue. The
transcript of the hearing was not filed until December 9, 2013. Therefore, new counsel might
not have discovered the issue until after December 9, 2013. Thus, we cannot say that new
counsel’s act of filing additional objections and the motion to disqualify on January 8, 2014,
7
inherently constituted an unreasonable delay or amounted to a forfeiture in light of the particular
circumstances of this case.
{¶17} Given the foregoing, we conclude the trial court abused its discretion in failing to
hold a hearing to evaluate the merits of the motion to disqualify the magistrate and the
reasonableness of the delay in filing the motion. While disqualification may not be ultimately
warranted, the record in this case raises numerous questions that are not answered. Absent
answers, there is evidence that could lead a reasonable and objective observer to “harbor serious
doubts about the [magistrate’s] impartiality.” In re Disqualification of Farmer, 139 Ohio St.3d
1202, 2014-Ohio-2046, at ¶ 7.
{¶18} Wife’s first assignment of error is sustained and the matter is remanded for a
hearing on her motion to disqualify.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
MATTER OF LAW WHEN THE TRIAL COURT USED THE DATE OF
SEPARATION AS OPPOSED TO THE STIPULATED TERMINATION DATE
OF THE MARRIAGE WHEN CALCULATING THE EQUITY IN THE
MARITAL HOME.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
MATTER OF LAW WHEN IT DETERMINED LENGTH AND AMOUNT OF
SPOUSAL SUPPORT AWARDED TO [WIFE].
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT CALCULATED
CHILD SUPPORT, FAILED TO MAKE A CHILD SUPPORT AWARD TO
[WIFE] AND NAM[ED] [HER] THE CHILD SUPPORT OBLIGOR.
{¶19} Wife argues in her second assignment of error that the trial court abused its
discretion when it used the date of the separation to calculate the equity in the marital home
instead of using the stipulated termination date. Wife argues in her third assignment of error
8
that the trial court erred in determining the amount and length of the spousal support award. In
her fourth assignment of error, Wife asserts that the trial court erred in failing to award her child
support and in making her the obligor.
{¶20} In light of our resolution of Wife’s first assignment of error, and the possibility
that a new hearing before a new magistrate will be required, we conclude that these remaining
assignments of error are not properly before us and we decline to address them at this time.
III.
{¶21} We sustain Wife’s first assignment of error and decline to address her remaining
assignments of error at this time. The judgment of the Wayne County Court of Common Pleas
is reversed and the matter is remanded for proceedings consistent with this opinion.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
9
Costs taxed to Appellee.
CARLA MOORE
FOR THE COURT
CARR, J.
CONCURS.
HENSAL, P. J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶22} I respectfully dissent from the majority’s sustaining of Wife’s first assignment of
error. However, because reversible error occurred in this case, I concur with the decision to
reverse the trial court’s judgment.
{¶23} As the majority notes, the magistrate disclosed to counsel at the end of the first
day of the hearing that he knew Husband’s parents. Despite this disclosure, however, Wife did
not move to disqualify the magistrate prior to the second day of the trial more than two months
later or prior to the magistrate issuing his decision. Under these circumstances, I do not believe
that it was unreasonable for the trial court to determine that this issue was not timely raised as it
is well established that a party should bring a potential error to the attention of the court at a time
it may be corrected rather than waiting to raise the issue after receiving an unfavorable decision.
See, e.g., State v. Zander, 9th Dist. Summit No. 24706, 2010-Ohio-631, ¶ 75 (“‘[A] defendant
must bring an alleged error to the attention of the trial court at a time when the error can be
corrected’ and ‘may not sit idly while hoping for a favorable jury verdict and only assert an
issue, capable of being remedied at the time of its occurrence, upon receiving an unfavorable
jury verdict.’”), quoting State v. Mills, 9th Dist. Summit No. 21751, 2004-Ohio-1750, ¶ 6.
10
{¶24} Nor do I think that a hearing was necessary in light of the arguments raised by
Wife in her motion to disqualify the magistrate. Notably, Wife never claimed in her motion to
disqualify the magistrate to be unaware of the potential conflict, instead merely asserting that the
record is silent as to whether or not she had knowledge of that fact. Absent at least the allegation
that Wife was actually unaware of the issue, it seems reasonable that the trial court would not
hold a hearing, especially given that the magistrate explicitly disclosed the issue to Wife’s
attorney on the record. While it is possible that Wife’s counsel never relayed this information to
her, there is no reason to presume that that was the case. 1 Furthermore, even assuming Wife’s
counsel did not relay this information to her, I do not understand why that would affect the
timeliness of her motion. Action or inaction by counsel does not generally reset the timing for
dispositive motions, nor does the retention of new counsel. Certainly, given the facts in this
case, the trial court could have treated the motion as timely and exercised its discretion
accordingly, including holding a hearing on the motion. However, these are discretionary
decisions, and I am cognizant that I must defer to the trial court’s decision absent an abuse of
discretion.
{¶25} Accordingly, I disagree with the majority’s conclusion that the trial court
committed reversible error when it denied Wife’s motion to disqualify the magistrate, and I
would overrule Wife’s first assignment of error.
{¶26} Nevertheless, I agree that this case should be reversed. The trial court failed to
determine whether the parties’ checking accounts were marital or separate property and did not
1
It is also possible Wife heard the exchange in the courtroom after the first day of trial.
Although the majority interprets the transcript to mean that Wife left after the hearing, the
transcript is silent on the issue. The transcript merely reflects that the trial court specifically
asked to speak directly to counsel about the settlement negotiations. It is unclear whether this
occurred in or outside the presence of the parties.
11
establish a value for them. “When a trial court fails to classify all of the parties’ property as
either marital or separate and then fails to value that property in its findings, an appellate court
cannot effectively review the accompanying entry.” Goebel v. Weling, 9th Dist. Summit No.
19385, 1999 WL 548969, *3 (July 28, 1999), quoting Shuman v. Shuman, 9th Dist. Summit No.
16836, 1995 WL 149155, *5 (Apr. 5, 1995). This is relevant in this case as the trial court used a
different date for valuing the debt on the marital home than it did for the remainder of the marital
assets. In order to review the court’s decision, we must have a complete picture of the marital
assets and their values. Therefore, I would reverse the trial court’s decision and remand for it to
determine whether the parties’ checking accounts were separate or marital property.
Accordingly, I concur in the reversal.
APPEARANCES:
NORMAN R. MILLER, JR., Attorney at Law, for Appellant.
ROSANNE K. SHRINER, Attorney at Law, for Appellee.
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531 P.2d 1007 (1975)
Bernice Q. GRANT, Plaintiff and Respondent,
v.
Harry H. Grant, Defendant and Appellant.
No. 12679.
Supreme Court of Montana.
Submitted November 20, 1974.
Decided February 19, 1975.
*1008 Small, Cummins & Hatch and Gregory A. Jackson, Helena, Gregory A. Jackson argued, and Carl A. Hatch appeared, Helena, for defendant and appellant.
Landoe & Gary, and Donald E. White, Bozeman, Joseph B. Gary argued, Bozeman, for plaintiff and respondent.
DALY, Justice.
This is an appeal from a divorce judgment entered September 10, 1973, in the district court, Gallatin County. The appeal is from that portion of the judgment awarding the wife alimony, child support, attorney fees and property.
The court awarded the wife a divorce and custody of four minor children; $100 per month alimony, $400 per month child support and $400 attorney fees. It further awarded the wife a lot owned jointly; one half interest in the back wages owed the husband by Intercounty Development Corporation; the 1970 Mercury automobile jointly owned, and an antique bar. The court ordered the husband to carry the necessary health and medical insurance for and on behalf of the wife and the minor children and to pay all future medical and dental expenses incurred by the wife and minor children. Husband was also ordered to pay the remainder of the debts and liabilities currently due and owing as a result of the marriage. The wife was awarded the personal possessions and household furnishings of the parties, together with personal possession of clothing of the minor children.
The record reveals that in 1971 husband earned $14,000 and in 1972 he earned $15,000. He is now employed at Employment Link and nets $660 per month. He claims he personally needs $100 per month for rent and $100 per month for food; and, that he is in need of a car for his employment; that in consideration of the amount of money he now makes, he is unable to pay all the family debts and still make the $500 per month alimony-child support payments. The husband also *1009 claims he lacks the necessary training and education to obtain a better paying job, and the job he now has is the best employment available to him at this time.
The wife has had several quarters of college, has been employed at various jobs and has been licensed as a nursing home administrator, such license has expired. She is not presently employed but is seeking employment that will net more than $300, the amount necessary for baby sitter fees.
Husband paid only $300 of the $500 alimony-child support payment for August and only $100 in September. On October 12, 1973, he filed notice of appeal of the final judgment. Contempt proceedings and an order to show cause were brought against the husband and set for hearing October 15, 1973. At the hearing testimony was taken and husband's counsel withdrew from the case. It was established that the wife has been given welfare assistance and charity from neighbors and friends. The husband maintained he could not pay $500 per month out of his income, with his obligations. The district judge at this point said: "I am ready to modify this decree right now." and then further said it would cost $1500 to reverse his court by appeal. A minute entry and order were entered October 15, 1973 holding husband in contempt and ordering him to purge himself by paying $250 on or before October 18, 1973 and a like sum on the first day of each month thereafter.
Husband retained new counsel October 24, 1973 and on that day the new counsel disqualified the presiding judge and filed notice of appeal of both the judgment of September 10 and October 15, 1973. Thereafter, on November 23, 1973, husband filed a petition with the court to clarify the judgment dated October 15, 1973. The disqualified judge called in a judge from another district on November 28, 1973 and that judge accepted jurisdiction on December 3, 1973.
Appellant husband brings this appeal from both judgments and presents these three issues for review:
1. Were the findings of the court regarding alimony, support, and property settlement justified by substantial evidence?
2. Did the court err in awarding plaintiff wife attorney fees?
3. Are the Montana statutes governing the award of alimony and attorney fees in divorce actions unconstitutional?
Rule 38, M.R.App.Civ.P., requires that when the state of Montana or its agencies or employees are not parties to a suit, the appellant must, upon filing the record, give immediate notice in writing to the Supreme Court of the existence of constitutional questions, specifying the section of the code or chapter of the session law to be construed so that the Court can notify the attorney general of the state of Montana. Failure to comply with this rule prevents the notice from being given the attorney general and therefore he has no opportunity to appear and defend the acts of the Montana legislature. Under these circumstances this Court will not proceed to answer the constitutional questions as Rule 38, M.R.App.Civ.P., was not followed.
The record in this case is not extensive and portrays the general problems found in divorce proceedings where there are minor children and not enough money to satisfy the needs of all parties and hence no solution is going to be entirely satisfactory to the parties inasmuch as such solutions under these conditions just do not exist.
We are bound in cases involving minor children to look for a solution which will serve their best interests, as is done in awarding custody in the first instance, section 91-4515, R.C.M. 1947. There are a number of reported cases concerning the same principle by this Court during 1974.
We find no abuse of the trial court's discretion in the first award of a *1010 dollar amount to the family of $500 per month based on the needs of four minor children. We also recognize that the father apparently cannot pay that amount at this time as the trial judge found in the second proceeding and reduced the amount to $250 per month for their support until further order of the court.
Therefore, we hold the original judgment entered September 10, 1973 to have been modified by the judgment entered October 15, 1973, which provides a monthly payment of $250 for the support of the minor children until a further order of the trial court, based on a change of circumstances from those that exist in the record before this Court. The wife is awarded $200 attorney fees for this appeal. In view of the financial condition of the parties, the district court shall schedule payment to conform to the ability of the husband to make suitable payments.
JAMES T. HARRISON, C.J., and JOHN C. HARRISON, HASWELL and CASTLES, JJ., concur.
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Case: 09-10706 Document: 00511018890 Page: 1 Date Filed: 02/02/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 2, 2010
No. 09-10706
Summary Calendar Charles R. Fulbruge III
Clerk
JOHNNY DEWAYNE LEWIS,
Plaintiff-Appellant
v.
STEVEN R. HEROD, Judge 91st District Court; RUSSELL D. THOMASON,
District Attorney, 91st District,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:09-CV-67
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Johnny Lewis, former Texas prisoner # 1558124, moves this court for leave
to proceed in forma pauperis (IFP) in his appeal from the district court’s denial
of his 42 U.S.C. § 1983 case against a Texas state court judge and a Texas
district attorney. The district court dismissed Lewis’s suit as frivolous and for
failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii), finding that
the judge and the district attorney were immune from Lewis’s suit.
*
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: 09-10706 Document: 00511018890 Page: 2 Date Filed: 02/02/2010
No. 09-10706
In his brief, Lewis argues that he lacks funds to pursue his appeal, but he
fails to brief any argument regarding the district court’s certification decision or,
in particular, its dismissal of his § 1983 lawsuit as frivolous and for failure to
state a claim upon which relief can be granted. Although we liberally construe
pro se briefs, see Haines v. Kerner, 404 U.S. 519, 520 (1972), even pro se litigants
must brief arguments in order to preserve them. Yohey v.Collins, 985 F.2d 222,
224-25 (5th Cir. 1993). By failing to discuss the district court’s rationale for
dismissing his complaint, Lewis has abandoned the issue, and it is the same as
if he had not appealed the judgment. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Because Lewis has failed to
demonstrate that he will raise a nonfrivolous issue on appeal, his motion to
proceed IFP is denied. See F ED. R. A PP. P. 24(a); Carson v. Polley, 689 F.2d 562,
586 (5th Cir. 1982). This appeal is without merit and is dismissed as frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5 TH C IR. R. 42.2.
Lewis has also filed a motion for the appointment of counsel. Lewis has
not met the requisite “exceptional” requirements for appointment of counsel,
Santana v. Chandler, 961 F.2d 514, 515 (5th Cir. 1992); Ulmer v. Chancellor, 691
F.2d 209, 213 (5th Cir. 1982), and his motion is denied. Lewis has filed a motion
for the discovery of evidence in another case. In light of the foregoing, this
motion is likewise denied.
Finally, this court’s dismissal of the instant appeal and the district court’s
dismissal each count as a strike for purposes of § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Lewis is warned that if he
accumulates three strikes, he will be barred from proceeding IFP in any civil
action or appeal filed while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See id.
MOTIONS DENIED; APPEAL DISMISSED; THREE STRIKES
WARNING ISSUED.
2
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343 F.3d 762
Robert G. HART, Plaintiff-Appellant,v.Kenneth HAIRSTON; Karl Thomas, Major; Jimmy D. Craig, Defendants-Appellees.
No. 02-50902. Summary Calendar.
United States Court of Appeals, Fifth Circuit.
September 9, 2003.
Rehearing Denied October 6, 2003.
Robert G. Hart, Gatesville, TX, pro se.
Charles Kenneth Eldred, Austin, TX, for Defendants-Appellees.
Appeal from the United States District Court for the Western District of Texas.
Before WIENER, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:
1
Plaintiff-Appellant Robert G. Hart, Texas prisoner # 769108, appeals from the district court's order granting the defendants' motion for summary judgment and dismissing his 42 U.S.C. § 1983 civil rights complaint for failure to state a claim on which relief can be granted. We granted Hart leave to proceed in forma pauperis ("IFP") after the district court had certified that his appeal was not taken in good faith.
2
Hart asserted that the defendants retaliated against him for exercising his First Amendment right to file a grievance and to complain to a prison administrator about the alleged misconduct of defendant Hairston. He alleged that, only days after making such complaints, Hairston filed a disciplinary report against Hart charging him with "knowingly making false statements for the purpose of harming another person." Hart maintained that defendant Thomas accepted the disciplinary charge, that he was convicted in a disciplinary proceeding over which defendant Craig presided, and that he was punished with 27 days of commissary and cell restrictions.
3
Section 1915(e)(2)(B)(ii), Title 28, permits a district court to dismiss a prisoner's IFP complaint "at any time if the court determines that — (B) the action or appeal — ... (ii) fails to state a claim on which relief may be granted[.]" We review a 28 U.S.C. § 1915(e)(2)(B)(ii) dismissal de novo, applying the standard used for FED. R. CIV. P. 12(b)(6). Black v. Warren, 134 F.3d 732, 734 (5th Cir.1998); see Harper v. Showers, 174 F.3d 716, 718 n. 3 (5th Cir.1999). "To test whether the district court's dismissal under § 1915[(e)(2)(B)(ii)] was proper, this Court must assume that all of the plaintiff's factual allegations are true." Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.1998). "The district court's dismissal may be upheld, `only if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations.'" Id. (citation omitted).
4
To the extent that the district court's order was based on the evidentiary submissions of the parties, we review de novo that court's order granting a party's summary-judgment motion. Whittaker v. BellSouth Telecomm., Inc., 206 F.3d 532, 534 (5th Cir.2000). Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits filed in support of the motion, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). The moving party bears the burden of showing the district court that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets the initial burden of showing that there is no genuine issue, the burden shifts to the nonmovant to set forth specific facts showing the existence of a genuine issue for trial. Rule 56(e).
5
"To state a valid claim for retaliation under section 1983, a prisoner must allege (1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation." Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir.1999). "The law of this circuit is clearly established ... that a prison official may not retaliate against... an inmate ... for complaining to a supervisor about a guard's misconduct." Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.1995); Jackson v. Cain, 864 F.2d 1235, 1248 (5th Cir.1989). Hart established a "chronology of events" showing retaliatory motive on the part of defendant Hairston, as the disciplinary charge filed by Hairston was accompanied by Hart's "letter of resolution" in which he accused Hairston of misconduct and lying. See Woods, 60 F.3d at 1166. The 27 days of commissary and cell restrictions that directly resulted constituted an "adverse act,"1 and causation was shown by the direct link between Hart's complaints and the punishment he received. See McDonald v. Steward, 132 F.3d 225, 231 (5th Cir.1998).
6
The defendants argue that the "adverse act" suffered by Hart was de minimis. Although we have not specifically addressed the quantum of injury necessary to constitute an "adverse act" for purposes of a retaliation claim, the penalties imposed on Hart do not qualify as "de minimis" under various standards cited by other circuits. See, e.g., Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th Cir.1999) ("action comparable to transfer to administrative segregation would certainly be adverse").
7
The defendants also argue that Hart failed to produce "competent summary judgment evidence" showing that his accusations against Hairston were not in fact false, which allegedly negated any "but for" causation with respect to Hairston's filing of the disciplinary report. It is true that a disciplinary report, like that filed against Hart, may be "probative and potent summary judgment evidence" to prove the allegations contained in it.2 See Woods, 60 F.3d at 1166. Hart, however, attached to his original complaint a signed declaration under penalty of perjury that "the foregoing is true and correct." On summary judgment, factual allegations set forth in a verified complaint may be treated the same as when they are contained in an affidavit. See Huckabay v. Moore, 142 F.3d 233, 240 n. 6 (5th Cir.1998); King v. Dogan, 31 F.3d 344, 346 (5th Cir.1994); 28 U.S.C. § 1746. In his verified complaint, Hart explicitly alleged that, on February 14, 2001, Hairston told him to lie to inspectors about the sanitization of pots and pans at the prison. It was this same allegation, as set forth in a February 15, 2001, "letter of resolution" to the prison's Food Service Director, that resulted in the filing of a disciplinary report against Hart. The verified allegation in Hart's complaint was competent summary-judgment evidence to counter the disciplinary report, and it created a genuine issue of material fact with respect to the issue of causation.
8
As Hart stated a cognizable retaliation claim against defendant Hairston, and genuine issues of material fact remain as to the various elements of this court's retaliation standard, the district court erred in granting the defendants' summary-judgment motion with respect to defendant Hairston. Furthermore, Hairston was not entitled to qualified immunity because, as noted above, the right to be free from retaliation of the sort alleged by Hart was "clearly established" by the 1980s, see Woods, 60 F.3d at 1164 & n. 12, and defendant Hairston's conduct, as alleged by Hart, was not objectively reasonable. See Petta v. Rivera, 143 F.3d 895, 899 (5th Cir.1998); Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Accordingly, with respect to Hart's retaliation claim against Hairston, we vacate and remand for further proceedings not inconsistent with this opinion.
9
Hart did not sufficiently establish the elements of a retaliation claim with respect to defendants Thomas and Craig. Their mere involvement in the disciplinary proceedings against him, without more, does not establish either retaliatory motive or causation. See Jones, 188 F.3d at 324-25. We affirm the granting of summary judgment with respect to defendants Thomas and Craig.
10
To the extent that the district court's order denied Hart's own motion for partial summary judgment, we likewise affirm, in that genuine issues of material fact remain.
11
VACATED AND REMANDED IN PART; AFFIRMED IN PART.
Notes:
1
The district court concluded that Hart had produced "no competent summary judgment evidence" to show that he actually suffered these sanctions. This was error. Hart submitted a declaration, sworn to "under penalty of perjury" in which he asserted that he in fact served the 27 days of commissary and cell restrictions. Under 28 U.S.C. § 1746, this is competent sworn testimony for summary-judgment purposesSee Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir.1988).
2
As neither Hart nor the appellees have addressed whether the subsequent overturning of the disciplinary conviction in this case rendered the disciplinary report ineffectual as summary-judgment evidence, we do not address this legal issue at this time
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127 F.Supp.2d 106 (2001)
Angela Maria Teixeira CARDOSO, Petitioner
v.
Janet RENO, Attorney General, U.S. Immigration and Naturalization Service, Steven Farquharson, District Director, and Gary Cote, Officer in Charge, Respondents.
No. 3:00CV2163(JBA).
United States District Court, D. Connecticut.
January 22, 2001.
*107 Michael J. Boyle, North Haven, CT, for Petitioner.
James K. Filan, Jr., U.S. Attorney's Office, New Haven, CT, for Respondents.
MEMORANDUM OF DECISION
ARTERTON, District Judge.
Petitioner Angela Cardoso ("Cardoso") seeks a writ of habeas corpus ordering the Immigration and Naturalization Service to conduct a bail hearing, alleging that her continued detention pending a final order of deportation pursuant to 8 U.S.C. § 1226(c) (INA § 236(c)) is violative of her Fifth Amendment rights to substantive and procedural due process. This case requires the Court to assess the constitutionality of a section of the immigration laws mandating detention of deportable aliens, even lawful permanent residents like Ms. Cardoso, pending a final order of deportation, without assessment of that alien's flight risk or potential for endangering the community. Numerous courts across the country have considered constitutional challenges to this mandatory detention provision, and have split on both the final issue of the statute's constitutional validity as well as the method of analysis. For the reasons that follow, this Court finds § 236(c) unconstitutional as applied to petitioner, and grants the petition.
I. Factual Background
In brief, petitioner is a native of Cape Verde who left that country along with her family when it was granted independence from Portugal, and immigrated to this country at the age of 9. She has lived in Waterbury, Connecticut, since that time, and has two minor U.S. citizen sons, ages 7 and 13. Her mother and three siblings are U.S. citizens, and her grandmother and stepfather are permanent residents. Ms. Cardoso was addicted to drugs, and in 1996, 1997, and 1998 had multiple convictions *108 for larceny in the sixth degree (Conn. Gen.Stat. § 53a-125b), as well as convictions for issuing a bad check, failure to appear, breach of the peace, and escape (when she walked away from a community/home-based drug-rehabilitation program). See Pet. Ex. B (list of convictions). According to petitioner's brief she has come to terms with her drug problem through a treatment program she completed while incarcerated, and has completed progressive levels of drug rehabilitation as well as a number of educational and social readjustment programs, including achieving her GED and completing a nurses' aide training program. She was taken into INS custody upon completion of her state sentence on Sept. 28, 2000, and has been detained by the INS at the York Correctional Institute in Niantic, Connecticut, since that time. The Board of Immigration Appeals (BIA) found her eligible for cancellation of removal under INA § 240A after the conviction on which "aggravated felon" status was based, was vacated by the state court, and a hearing on this discretionary relief, which could permit her to remain here as a permanent legal resident, is scheduled for January 24, 2000.
II. Statutory Provisions at Issue
Cancellation of Removal, INA § 240A(a), 8 U.S.C. § 1129b(a), replaces what was known as "Section 212(c) relief" under the previous immigration laws, and grants the Attorney General discretion to permit long-term permanent resident aliens with less serious criminal convictions to retain their permanent residence. Factors considered by the Immigration Judge (IJ) in deciding a § 240A application include the petitioner's family ties, length of residence and employment in the U.S., evidence of rehabilitation and criminal record, and other evidence of bad character or immigration violations. Under the immigration laws extant before 1996, a bond hearing was allowed to determine whether a deportable alien should be detained pending a final deportation order, including the completion of any proceedings related to discretionary relief. Congress then passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-298, which significantly altered the landscape of the immigration laws by making more offenses deportable offenses, and streamlining the process for deportation. Section 236(c) of the IIRIRA provides that:
(1) The Attorney General shall take into custody any alien who ... (B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii) [multiple crimes of moral turpitude], (A)(iii) ["Aggravated felony"], (B) ["Controlled substances"], (C) ["Certain firearm offenses"], or (D) ["espionage-related crimes"] of this title, ...
(2) Release The Attorney General may release an alien described in paragraph (1) only if the [alien has been admitted into the Witness Protection Program], ... and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.
8 U.S.C. § 1226(c) (emphasis added).
It is undisputed that Ms. Cardoso does not fall into the limited exception for participants in the Witness Protection Program, and therefore she has been held in custody since September 28, 2000 under the authority of § 236(c). As characterized by the INS, the mandatory detention provision applies an irrebuttable presumption that deportable aliens are either dangers to the community or flight risks, and the presumption is eminently reasonable as applied to the petitioner. Resp. Mem. in Opp. at 21. Petitioner asserts that her continued detention solely on the basis of this statutory presumption infringes her fundamental liberty right, and as a consequence, jeopardizes her chances of success at her § 240A hearing, as she is unable to adequately demonstrate the accuracy of her claim of rehabilitation without release into the community.
*109 III. Analysis
"It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." Reno v. Flores, 507 U.S. 292, 307, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). "[O]nce an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly." Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). Petitioner claims that the mandatory detention provision violates both the substantive and procedural components of the Fifth Amendment's Due Process clause, the procedural due process requirement of which prohibits the government from depriving an individual of life, liberty or property in an unfair manner, see Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and the substantive due process component of which precludes the government from engaging in conduct that "shocks the conscience," see Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), or interferes with rights "implicit in the concept of ordered liberty," see Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). Substantive due process protects an alien from governmental infringement upon certain "fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).
A. Substantive Due Process
Petitioner argues that a fundamental liberty interest is implicated by this statute, and that accordingly the Court should apply a strict scrutiny analysis, and require the infringement on a fundamental interest to be narrowly tailored to serve a compelling governmental interest. Pet. Mem. at 10. More particularly, the petitioner urges this Court to utilize the "excessiveness" test of United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), which is predicated upon the fundamental nature of the right to liberty. 481 U.S. at 750, 107 S.Ct. 2095. In support of her contention, petitioner relies on Doherty v. Thornburgh, 943 F.2d 204 (2d Cir. 1991), in which the Second Circuit held that aliens who have entered this country, even illegally, possess a substantive due process right to liberty during deportation proceedings. "We think that aliens do have a substantive due process right to be free from arbitrary confinement pending deportation proceedings." Id., 943 F.2d at 208-09. The Doherty court emphasized, however, that "this is a narrow right and that judicial review of alleged interference with the right by the federal government is limited." Id. at 208. Further, the Supreme Court has admonished federal courts that a due process analysis must always "begin with a careful description of the asserted right, for the doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field." Flores, 507 U.S. at 302, 113 S.Ct. 1439 (internal citations omitted). The Court must therefore determine whether the right asserted herea deportable alien's right to not be detained without opportunity to demonstrate that she is neither a danger to the community nor a risk to abscond pending a hearing on discretionary relief, in rebuttal of the presumption in the statute to the contraryis a fundamental liberty interest, in order to determine the appropriate standard of scrutiny.
A number of district courts examining the constitutionality of § 236(c) have applied the strict scrutiny and/or the Salerno test, either explicitly or implicitly concluding that the liberty interest at issue here is fundamental. See, e.g., Zgombic v. Farquharson, 89 F.Supp.2d 220, 234 (D.Conn. 2000) (applying compelling interests test because the right to freedom from bodily restraint is "the simplest example of [a fundamental] right"); Danh v. Demore, 59 F.Supp.2d 994, 1000 (N.D.Cal.1999) quoting Wong Wing v. United States, 163 U.S. *110 228, 238, 16 S.Ct. 977, 41 L.Ed. 140 (1896) ("all persons within the territory of the United States are entitled to the protection guaranteed by [the Fifth and Sixth] amendments,"); Martinez v. Greene, 28 F.Supp.2d 1275 (D.Colo.1998); Bouayad v. Holmes, 74 F.Supp.2d 471 (E.D.Pa.1999) (citing to the Supreme Court's statement in Foucha v. Louisiana that "[f]reedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause"), citing Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992); Small v. Reno, 127 F.Supp.2d 305 (D.Conn.2000), Ruling on Petition for Habeas Corpus dated Dec. 29, 2000 (lawful permanent resident whose application for discretionary relief was pending had fundamental liberty interest in an individualized bond determination).
Other district courts considering the validity of § 236(c) have found that the right to an individualized determination of flight risk or danger before being detained pending a final order of deportation is not fundamental. See, e.g., Sierra-Tapia v. Reno, No. 99-cv-986, 1999 WL 803898 (S.D.Cal. Sept. 30, 1999) (because petitioner not eligible for discretionary relief and would most likely be removed from the country, liberty interest not fundamental); Reyes v. Underdown, 73 F.Supp.2d 653 (W.D.La.1999); Diaz-Zaldierna v. Fasano, 43 F.Supp.2d 1114, 1118 (S.D.Cal.1999). The only Court of Appeals that has confronted this issue squarely, the Seventh Circuit, upheld § 236(c) on the grounds that a fundamental liberty interest was not implicated, where the petitioner was not eligible for any forms of discretionary relief and thus not entitled to remain in this country, although he could be at liberty in his native land. See Parra v. Perryman, 172 F.3d 954, 958 (7th Cir.1999).
After consideration of the diverse reasoning in the relevant case law and the parties' briefings and oral argument on the issue, the Court concludes that detaining Ms. Cardoso without allowing her a forum to demonstrate that the statutory presumption of dangerousness and flight risk is inapplicable to her implicates a fundamental liberty interest. As the Supreme Court has noted, freedom from restraint is one of "those fundamental rights and liberties, which are, objectively, deeply rooted in this Nation's history and tradition." Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Ms. Cardoso is a lawful permanent resident of this country who has not received an administratively final order of deportation; rather, she has the opportunity to demonstrate that clemency is warranted due to her family ties to this country and her alleged rehabilitation. While the government correctly points out that Doherty emphasized the narrow and limited nature of substantive due process rights held by aliens, the Court views that statement as a limitation on the circumstances in which such a right exists, not a shading on the extent or scope of that right once it is found to exist. As noted by the BIA itself, "[a] lawful permanent resident who commits a removable or deportable offense remains a lawful permanent resident until an administratively final order of removal or deportation deprives him of that status." In re Mendoza-Sandino, Interim Dec. 3426, 2000 WL 225840 (BIA 2000). Ms. Cardoso therefore retains whatever constitutionally-protected liberty interests flow from her status as a lawful permanent resident, which includes the substantive due process right to be free of arbitrary confinement pending the completion of deportation proceedings. Doherty, 943 F.2d at 209.
The Court thus rejects the government's contention that the liberty interest at issue in this case is less than fundamental. First, the government's argument misconstrues the nature of the deference this Court must accord Congressional decisions on immigration matters. Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977), which employed the "facially legitimate and bona fide reason" standard, did *111 not involve detention or bodily restraint such as are at issue here, and which implicate quintessential notions of liberty. Rather, Fiallo articulated the deference to be given by federal courts to Congress' policy determination that natural mothers, not unwed natural fathers, should get the special preference immigration status accorded the child or parent of a U.S. citizen. In reaching the conclusion that this statutory preference violated no constitutional provisions the Supreme Court noted that it had "long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Id. at 791, 97 S.Ct. 1473. The case did not, however, address the means by which the government implemented this sovereign power, which is the focus of the challenge in the present case. See INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) ("The plenary authority of Congress over aliens ... is not open to question, but what is challenged here is whether Congress has chosen a constitutionally permissible means of implementing that power...."); see also Welch v. Reno, 101 F.Supp.2d 347, 354 (D.Md.2000) ("A distinction must be made between Congress' power over substantive immigration laws and its power to legislate rules implementing those laws.").
Second, the Court is unpersuaded that the "reasonable fit" standard of review articulated in Flores is appropriately applied to a statute that mandates indefinite detention of a lawful permanent resident alien who still possesses the right to consideration for continued permanent residence, despite having committed a deportable offense. Flores was brought as a facial challenge to a statute requiring the detention of juvenile aliens in state-run institutions prior to a determination of their deportability, denying them release into the custody of non-guardian strangers. The Flores Court distinguished this situation from cases asserting deprivations of "fundamental" liberty interests such a "freedom from physical restraint ... in the sense of ... a barred cell." 507 U.S. at 302, 113 S.Ct. 1439. The reasoning of the opinion in Flores flowed from the "novelty" of the right asserted in that case "the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution" and the recognized fact that "juveniles, unlike adults, are always in some form of custody." 507 U.S. at 302, 303, 113 S.Ct. 1439. In contrast, Ms. Cardoso, an adult lawful permanent resident of this country, asserts the most basic of the fundamental rights: the right to be free of arbitrary confinement, "arbitrary" being defined as "without consideration and regard for facts and circumstances." Black's Law Dictionary 104 (6th Ed.1991). Indeed, Justice O'Connor's concurrence makes clear the distinction between the Flores juveniles and Ms. Cardoso:
A person's core liberty interest is also implicated when she is confined in a prison, a mental hospital, or some other form of custodial institution, even if the conditions of confinement are liberal. This is clear beyond cavil, at least where adults are concerned .... The institutionalization of an adult by the government triggers heightened, substantive due process scrutiny.
Id., 507 U.S. at 315, 113 S.Ct. 1439 (O'Connor, J., concurring). Accordingly, Flores does not require the application of a lower standard of review in this case.
The Court also declines to accept the government's argument that this statutory mandatory detention passes constitutional muster because Ms. Cardoso has the metaphorical keys to her own release. Utilization of this supposed "key" would require Ms. Cardoso to submit to deportation, thus relinquishing the very right she is entitled to advance to pursue her application for continued permanent residence in this *112 country. See, e.g. Small, Ruling at 34. But see Parra v. Perryman, 172 F.3d at 957; Doherty, 943 F.2d at 212 (fact that alien could be released if he agreed to deportation is relevant to constitutional analysis). The alien in Parra had been convicted of an aggravated felony, and thus his removal was "overwhelmingly likely"; the Seventh Circuit noted that his brief did not "even hint at a substantive argument that he is entitled to remain in the United States." Id. at 956. The question was then simply where Parra "passe[d] the time while waiting for the order to become final." Id. In Doherty, the issue was the constitutional validity of eight years of detention without release on bail pending deportation, under a statutory regime that allowed release on bail at the discretion of the Attorney General. 943 F.2d at 208. The Second Circuit concluded that the decision to deny bail for eight years did not violate substantive due process because he presented "an exceptionally poor bail risk," and attributed to Doherty himself the primary responsibility for the length of his detention. Although the Doherty court utilized the "keys to his own cell" metaphor, it did so only in the context of an illegal alien, who would not have been held in such lengthy detention absent his own efforts to forestall his inevitable deportation out of this country. 943 F.2d at 212.
In the present case, deeming Ms. Cardoso to have the keys to her own cell would be, in effect, requiring her to relinquish her statutory eligibility to apply for cancellation of removal, with the result that a formal deportation order would issue and she would be forced to either leave behind her U.S. citizen children, or require them to leave their homeland and accompany her to a foreign land. While such a choice may be Ms. Cardoso's lot if she is denied cancellation of removal, the Court declines to attach any constitutional significance to the fact that Ms. Cardoso could end her mandatory detention if she abandoned her claim to § 240A relief, and moved to the final order stage where, ironically, release is available. See 8 U.S.C. § 1231(a)(3).
Because Ms. Cardoso still might avoid deportation by prevailing at her § 240A hearing, her case is distinguishable from those involving aliens who are virtually certain to be deported such that § 236(c) was held not to infringe any fundamental rights. See Parra, 172 F.3d at 958; Avramenkov v. INS, 99 F.Supp.2d 210, 216 (D.Conn.2000) (finding no significant liberty interest implicated by continued detention where statute eliminated § 212(c) relief for offense and "[p]etitioner is almost certainly going to be removed from the country"); Reyes, 73 F.Supp.2d at 658 (petitioner statutorily ineligible for relief from removal).
The government argues that Ms. Cardoso's likelihood of success at her hearing is remote, given the nature of her convictions and her false responses to questions on her Application for Naturalization. See Resp. Mem. at 16-17. While the fact that discretionary relief is available does bear on the determination of the nature of the right at issue, see Szeto v. Reno, 2000 WL 630869 (N.D.Cal. May 5, 2000) (because petitioner had "non-frivolous argument that he will ultimately prevail on his claim that he should not be removed," mandatory detention violated fundamental right to liberty), the potential outcome of a § 240A application does not. Such an approach, in this Court's view, conflates two different questions, and collapses an alien's constitutional claim to be free of unreviewed mandatory detention pending deportation into a determination of the merits of the removal proceedings against him or her. The nature of the liberty interest affected by § 236(c) is not the substantive right to remain in this country, but rather Ms. Cardoso's right to rebut the purpose for her automatic detention while the ultimate question of her removability is being decided. See Bouayad, 74 F.Supp.2d at 475.
The liberty interest in non-arbitrary detention which Ms. Cardoso seeks to protect is relatively modest: she is not *113 claiming a fundamental liberty interest to remain in this country or even a fundamental liberty interest in being released on bail. Rather, she simply seeks the opportunity to demonstrate that the statutory presumption of community danger or flight risk is arbitrary as applied to her. See Danh, 59 F.Supp.2d at 1003. Because only the means of implementing Congress' sovereign power to admit or exclude aliens is at issue here, and petitioner may be eligible to retain her permanent resident status, the Court accordingly rejects the government's exhortation to utilize a lower standard than strict scrutiny in assessing § 236(c)'s constitutionality.
Having found that Ms. Cardoso has a fundamental right to not be detained without some individualized determination of her flight risk and dangerousness pending the outcome of her § 240A hearing, which is not provided by the mandatory detention requirement of § 236(c), the Court next considers whether such infringement is sufficiently narrowly tailored to compelling governmental purposes by employing the Salerno analysis. That test asks whether the statute is regulatory, rather than punitive, and whether it appears excessive in relation to the purpose behind the statute. Salerno, 481 U.S. at 747, 107 S.Ct. 2095. See Martinez, 28 F.Supp.2d at 1281; Danh, 59 F.Supp.2d at 999; Van Eeton, 49 F.Supp.2d at 1190; Small, Ruling at 24-25.
Because the power to deport necessarily includes the power to detain, at least for some period of time, like the Bail Reform Act analyzed in Salerno, the detention mandated by § 236(c) is clearly regulatory and not punitive in nature. See Carlson v. Landon, 342 U.S. 524, 537, 72 S.Ct. 525, 96 L.Ed. 547 (1952) ("Deportation is not a criminal proceeding and has never been held to be punishment."). In determining next whether the statute is excessive, i.e., not narrowly tailored, the Court relies on the legislative history of § 236(c), which outlines the following governmental purposes for the statute: 1) protecting the public from potentially dangerous criminal aliens; 2) preventing aliens from absconding during removal proceedings; 3) correcting procedures under which twenty percent of criminal aliens released on bond did not report for deportation hearings; and 4) restoring public faith in the immigration system. See S.Rep. No. 104-48, 1995 WL 170285 at 1-6, 9. These goals are indubitably legitimate governmental objectives. See Salerno, 481 U.S. at 747, 107 S.Ct. 2095 (preventing danger to the community is legitimate regulatory goal); Rogowski, 94 F.Supp.2d at 184 (goals of § 236(c) are "reasonable and legitimate").
The same legislative history, however, reveals the gap between the these decidedly legitimate goals and the means chosen to achieve them. A closer analysis of legislative history cited by the government, which for the most part describes Congress' desire to expedite the removal of criminal aliens and strengthen the laws providing for deportation, reveals that illegal immigration was the focus of Congress' ire. See 142 Cong. Rec. S3329, 1996 WL 174902 (daily ed. Apr. 15, 1996) (remarks of Sen. Abraham) ("Mr. President, those who refuse to play by the rules who come here illegally become, as a result, a burden on our society, and it should not be tolerated. The illegal immigration is a betrayal of our long tradition of welcoming those who play by the rules. If the Federal Government did its job of keeping out, tracking down, and expelling illegal aliens, we would not have an immigration problem that confronts America today."); Sen. Jud. Comm. Rep. No. 104-249 at 7, 1996 WL 180026 ("Aliens who violate U.S. immigration laws should be removed from this country as soon as possible") (emphasis added); S.Rep. No. 104-48 at 3, 1995 WL 170285 ("Congress should consider requiring the detention of all criminal aliens who are in the country illegally pending deportation, and prohibit the INS from releasing such criminal aliens on bond while providing them with work permits.") (emphasis *114 added); 142 Cong. Rec. S11506, 1996 WL 565563 (daily ed. Sept. 27, 1996) (remarks of Sen. Hatch) (detention of criminal aliens is important "if we are going to fight and win this battle with regard to illegal immigration.") (emphasis added).
Further, that part of the legislative history which explicitly addressed the subject of aliens convicted of crimes, rather than aliens whose presence in this country was unlawful, does not reflect consideration of deportable permanent legal resident aliens eligible for discretionary relief from deportation. For instance, a Senate Report entitled "Criminal Aliens in the United States" reports that "[o]ver 20 percent of nondetained criminal aliens fail to appear for deportation proceedings," S.Rep. No. 104-48, 1995 WL 170285 (Ap.7, 1995), and that "[t]hrough 1992, nearly 11,000 criminal aliens convicted of aggravated felonies (which are particularly serious crimes) failed to appear for deportation hearings." Id. As noted in Rogowski, this twenty percent abscondment rate means that "[e]ighty percent do not abscond." 94 F.Supp.2d at 185. Nor does the statistic regarding aliens convicted of "particularly serious crimes" reflect a careful analysis of aliens in petitioner's situation, such that the statute could be considered `narrowly tailored' to such aliens, since unlike petitioner, aggravated felons are not even eligible for discretionary relief. As for future dangerousness, the statistic regarding recidivism quoted in Senator Abraham's remarks on the floor as support for the mandatory detention provision, see 141 Cong. Rec. S7803, 7823, was based on a sample composed of almost 95 percent illegal immigrants. See Countywide Criminal Justice Coordination Comm., Criminal Aliens in the Los Angeles County Jail Population, Final Report Nov. 1990 (noting that 116 of inmates in sample were permanent residents, while 1,625 were illegal entrants).
The above legislative history does not support the government's claim that the statute meets the second prong of the Salerno test. None of the statistical conclusions cited refer to aliens in the circumstances of petitioner lawful permanent residents who are not yet subject to an administratively final order of removal and who are eligible for discretionary relief. By including aliens in the position of Ms. Cardoso within the reach of the mandatory detention provision, without record of any specific consideration of and factual basis for such inclusion, and absent any statutory provision for individualized assessment as to whether the presumptive need for detention applies, the means chosen by Congress to achieve its valid regulatory goals works a deprivation on Ms. Cardoso's fundamental liberty right that is excessive in relation to the purpose for that deprivation. As the Small court reasoned, applying a presumption of flight risk to aliens such as Ms. Cardoso is, in fact, counter-intuitive, because as her last opportunity to remain lawfully in the United States, Ms. Cardoso has every incentive to attend the § 240A hearing at which her removability will be determined. See Small, Ruling at 27.
The Court recognizes that the government's interest in preventing aliens with felony convictions from absconding or committing further crimes is compelling, and perhaps some permanent resident aliens faced with removal and a § 240A hearing would nonetheless "jump bond" if released. But given that a fundamental right is involved, § 236(c) sweeps too broadly, because denying individual bond hearings imputes a generalized intent to abscond or endanger society to all deportable aliens, regardless of their circumstances, the nature of their crime, or the potential that they may be allowed to remain in this country permanently. Petitioner's detention under this generalized assumption is arbitrary, in that it is without regard to her circumstances, in light of the lack of any consideration of lawful permanent residents with a chance at discretionary relief, and whether they present similar flight or recidivism risks in the legislative history. *115 See Carlson, 342 U.S. at 538, 72 S.Ct. 525 ("Of course purpose to injure could not be imputed generally to all aliens subject to deportation.").
The government's position that the fact of the petitioner's alien status combined with her criminal convictions is a sufficient predictor of future criminality and abscondment risk that obviates the need for any further protections is substantially undermined by the Second Circuit's recognition of aliens' substantive due process rights, and the regulatory, non-punitive purpose of the detention at issue. It is further undercut by the absence of any durational restrictions on petitioner's mandatory detention. Congress, while intending speedy hearings and an expedited removal process, failed to include any express time limitations in § 236(c). The length of Ms. Cardoso's detention depends solely on bureaucratic happenstance or vagaries of scheduling her hearing on discretionary relief and appeals, unfettered by any statutory timelines. The government maintains the indefinite detention under § 236(c), as a practical matter, has an endpoint because once the deportation processing is completed and a final order is issued, the alien is entitled to a bond hearing under § 241(a) if not removed in 90 days. See 8 U.S.C. § 1231(a)(3). The most that this "endpoint" to mandatory detention seems to demonstrate, however, is the inadequate tailoring of § 236(c) to its purported purpose, because, illogically, aliens with a final order of removal who thus present far more of a flight risk may be considered for release on bond, but those with great incentives to appear before an immigration judge to show their worthiness to remain in this country, may not.
The Court thus concludes that the irrebuttable presumption of flight and danger risk resulting in this blanket rule of detention as applied to petitioner under § 236(c) is excessive in relation to the governmental purposes of limiting abscondment of deportable criminal aliens and preventing future danger to the community. All of the interests advanced by the government as justifying the infringement on petitioner's fundamental liberty interests can be satisfied by conducting individualized bail hearings that carefully assess the petitioner's risk of flight and criminal recidivism. See Baidas v. Jennings, 123 F.Supp.2d 1052, 1061 (E.D.Mich.1999); see also Welch, 101 F.Supp.2d at 356.
The government offers no justification for requiring the blanket rule over individualized determinations for aliens of Ms. Cardoso's status, other than deference to Congressional decisions on immigration policy, and its insistence that petitioner has no fundamental liberty interest, which the Court has rejected for the reasons discussed above. Ms. Cardoso is clearly not entitled as a matter of constitutional right to the full panoply of safeguards given criminal defendants, and Congress certainly could place timing and procedural restrictions on such individualized determinations, such as imposing the burden of proof on the alien to rebut a presumption of dangerousness or abscondment risk, or limiting the government's proof necessary for detention to merely a preponderance of the evidence, or requiring such hearings to be held only after a reasonable time period for conducting INS administrative proceedings. Such statutory tailoring might very well pass constitutional muster, for "Congress regularly makes rules [for aliens] that would be unacceptable if applied to citizens." Doherty, 943 F.2d at 209. But a Congressional enactment may not infringe upon petitioner's fundamental liberty interest without narrowly tailoring the means to achieve the compelling purpose for such infringement.
In summary, the Court concludes that Ms. Cardoso has a fundamental liberty interest in not being detained without some individualized determination of her flight risk and dangerousness, while she remains a permanent legal alien with § 240A relief still available to her, and is not yet subject to an administratively final *116 order of removal. Applying the Salerno analysis, the Court finds that § 236(c) detention is regulatory in nature, but as applied to petitioner it is excessive in relation to its purposes, which purposes could be achieved by an individual bond hearing while simultaneously protecting her fundamental liberty right. The Court accordingly holds that the statute is unconstitutional as applied to petitioner, a lawful permanent resident who may still be entitled to remain in this country, and who cannot be required to relinquish her opportunity to apply for discretionary relief by agreeing to deportation in order to be free from custody.
B. Procedural Due Process
The petitioner also contends that § 236(c) does not survive procedural due process scrutiny because the private interest is fundamental, the risk of erroneous deprivation is high, and the government's burden is slight, compared to the rights at stake. Mem. in Supp. at 12, citing Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The Court agrees with the government that this aspect of Ms. Cardoso's claim is simply her substantive due process argument recast in "procedural due process" terms. See Flores, 507 U.S. at 308, 113 S.Ct. 1439. While Ms. Cardoso does seek additional procedural protections, in the form of an individualized bail hearing, the terminology of the remedy she seeks does not convert her claim into a procedural one. As the Supreme Court has held, "procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property," Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Procedural due process protections are designed to help ensure accuracy in the truth finding process, and so are shaped to minimize substantively unfair or mistaken deprivations of life, liberty, or property by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests. Fuentes v. Shevin, 407 U.S. 67, 81, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). Ms. Cardoso, in contrast, does not argue that the INS was mistaken in applying § 236(c) to her or in detaining her; instead, she challenges the substantive constitutional underpinnings of the statute pursuant to which the government acted. In other words, it is the deprivation itself that is at issue here the deprivation of the opportunity to challenge the statutory presumption. Without a substantive right, a deprivation resulting from the irrebuttable presumption in § 236(c) cannot be "mistaken," because the statutory presumption requiring her detention would be substantively valid.
Counsel for petitioner acknowledged at oral argument that Ms. Cardoso's constitutional claim stands or falls on the Court's resolution of the substantive due process question. As the Court has already found the statute unconstitutional on substantive due process grounds, the Court declines to revisit the question in the guise of a procedural due process claim. Procedural process protects different interests than are at stake in the instant case, and conflating the substantive and procedural analysis will provide no further remedy to petitioner.
The Court acknowledges that other district courts have disposed of similar procedural due process challenges to § 236(c) differently. Courts finding a violation of substantive due process almost invariably find a procedural violation as well, reasoning that the importance of the private interest weighs heavily in the Mathews balancing test. See, e.g., Koita v. Reno, 113 F.Supp.2d 737, 741 (M.D.Pa.2000). Courts going the other way on the substantive due process question have correspondingly found that the private interest is exceedingly limited, and outweighed by the government's interest, see, e.g., Reyes, 73 F.Supp.2d at 658, or have concluded that since the alien has no substantive rights, the absence of any procedural protections *117 poses no constitutional problem. See Galvez, 56 F.Supp.2d at 648. In this Court's view, petitioner's constitutional challenge to § 236(c) is, at bottom, a substantive due process challenge, not a procedural claim, and the Court respectfully disagrees with those courts that have found to the contrary. See, e.g., Zgombic, 89 F.Supp.2d at 234 (holding that § 236(c) survived strict scrutiny on substantive due process grounds, but concluding that petitioner had a distinct procedural due process right to a hearing). The Court accordingly denies the petition, to the extent it is predicated on the procedural due process claim.
IV. CONCLUSION
Ms. Cardoso's fundamental liberty interests are unconstitutionally infringed by § 236(c), in that the statute is excessive in relation to its regulatory goals of preventing flight and protecting the community from future crimes. While she has no absolute right to liberty or to remain in this country, substantive due process requires an individualized hearing on the necessity of detaining petitioner pending the completion of her § 240A proceedings. Petitioner has no separate procedural due process right to such a hearing, however. Accordingly, the Court GRANTS Ms. Cardoso's Petition for a Writ of Habeas Corpus on substantive due process grounds, and orders the respondents to afford the petitioner an immediate bond hearing.
IT IS SO ORDERED.
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54 Cal.3d 308 (1991)
815 P.2d 341
285 Cal. Rptr. 268
RICHARD H. LUBETZKY, Petitioner,
v.
THE STATE BAR OF CALIFORNIA, Respondent.
Docket No. S013552.
Supreme Court of California.
August 30, 1991.
*311 COUNSEL
Greines, Martin, Stein & Richland and Kent L. Richland for Petitioner.
Diane C. Yu, Starr Babcock, Marie M. Moffat and Robert P. Heyman for Respondent.
OPINION
THE COURT.
Petitioner was denied admission to practice law after a hearing panel of the State Bar determined that he had "not proven that he is possessed of good moral character" within the meaning of rule X of the Rules Regulating Admission to Practice Law in California. The review department affirmed that ruling without dissent, two members abstaining. *312 Our review of the entire record persuades us that the evidence does not support the findings of the hearing panel as to petitioner's moral character. We therefore decline to accord those findings any weight. Instead, we conclude in light of our own independent evaluation of the evidence that petitioner presented a strong prima facie case that he is of sufficiently good moral character to be admitted to practice law. Because we are persuaded that the State Bar's evidence failed to rebut that prima facie case, we find that petitioner has sustained his burden of proof on the issue of moral character and direct that he be certified as qualified for admission to practice law.
I. Introduction
(1) By State Bar rule, an applicant for admission to practice "shall have the burden of proving that he or she is possessed of good moral character."[1] "Pursuant to this rule the applicant must initially furnish enough evidence of good moral character to establish a prima facie case, and the [State Bar] then has the opportunity to rebut that showing with evidence of bad character. [Citation.]" (Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 449-551, fn. 1 [55 Cal. Rptr. 228, 421 P.2d 76] (Hallinan); accord, Hightower v. State Bar (1983) 34 Cal.3d 150, 155 [193 Cal. Rptr. 153, 666 P.2d 10]; Hall v. Committee of Bar Examiners (1979) 25 Cal.3d 730, 734 [159 Cal. Rptr. 848, 602 P.2d 768]; Bernstein v. Committee of Bar Examiners (1968) 69 Cal.2d 90, 95 [70 Cal. Rptr. 106, 443 P.2d 570].) If the State Bar is unable to rebut the applicant's prima facie case, then the applicant has carried his or her burden of proof. If the State Bar presents sufficient evidence to rebut the prima facie case, then the applicant must introduce further evidence of good moral character or discredit the State Bar's evidence. Although we give "great weight" to the findings of the hearing panel on review, they are not binding on us. "We examine the evidence and make our own determinations as to its sufficiency...." (Hightower v. State Bar, supra, 34 Cal.3d at pp. 155-156; see also Kwasnik v. State Bar (1990) 50 Cal.3d 1061, 1068-1069 [269 Cal. Rptr. 749, 791 P.2d 319].)
The charges levelled against petitioner by the State Bar centered on two related matters: (1) an alleged misuse of the judicial process by filing civil suits against former friends for the purpose of harassing them, and (2) the accusation that petitioner was responsible for the mystifying appearance of over one hundred sexually obscene postcards and letters anonymously mailed to Robert Friedman, a former friend of petitioner and his chief accuser at the hearing, and to Friedman's mother, the Friedmans' family *313 physicians, and an art gallery where Robert Friedman falsely claimed to be employed.
Except for a lawsuit filed by petitioner in 1975 against one Arguimbau, a college classmate and friend with whom he had a falling out, the bulk of the litigation filed by petitioner arose out of his short-lived friendship with Friedman, a relationship that began in 1982 when Friedman began sharing an apartment with Robin Spivack, a friend and former law school classmate of petitioner. The rise and fall of the friendship was punctuated by the appearance of the anonymous mail beginning with a mildly obscene note to Robin Spivack following her eviction of Friedman from the apartment in the wake of a series of bizarre acts and gradually became a torrent of sexually explicit postcards, often cobbled together from fragments of newspaper and typescript or handwriting. As a kind of counterpoint to the obscene mail, some of the participants in the affair began to receive annoying hang-up telephone calls sometimes as many as 20 a day originating roughly coincidently with the obscene mail. Robin Spivack, petitioner, and Robert Friedman all reported being telephonically harassed.
Apart from one item, little if any of the evidence offered by the State Bar inculpated petitioner as the source of the obscene mail. But that one item was troubling the tip of a fingerprint discovered on the obverse side of a piece of "scotch" tape used to bind a fragment of newspaper to the face of one of the obscene postcards, a print identified as and conceded to be petitioner's. Other than this item, much of the evidence presented at the hearing pointed to someone else as the figure behind the obscene mail pointed, in fact, to the principal recipient, Robert Friedman himself. Moreover, the implications of the fingerprint were undercut by a wealth of evidence of bizarre conduct by Friedman, conduct similar to that with which petitioner was charged; by the admission in a secretly recorded telephone conversation that Friedman was responsible for the hang-up calls; and by petitioner's innocent explanation of the fingerprint, supported by expert testimony and demonstrative evidence. Finally, petitioner's authorship of the postcards was not easily reconciled with the considerable evidence of his good character evidence that he is conscientious, moderate in expression, and seemingly devoted to the welfare of others.
Our independent review of this record convinces us that the State Bar's rebuttal evidence to petitioner's prima facie case is insufficient to sustain the conclusion of the hearing panel that he lacks good moral character.
II. The Evidence
Petitioner's evidence at the moral character hearing established that he graduated cum laude from the University of California at Los Angeles *314 (UCLA) in 1974. While an undergraduate, petitioner was active in consumer affairs; he founded and served as the first director of the university's Consumer Protection Project, co-authored a consumer rights handbook published by the university, and taught a consumer rights course. He received several awards and citations for his work in this area. Following graduation, petitioner worked full time in a law firm as a paralegal and researcher while attending night law school classes from 1975 to 1978. (2)(See fn. 2.) In 1979, he began attending law school full time, graduating in 1980.[2] In 1985, petitioner joined a Southern-California-based consumer group known as CALJUSTICE (an acronym for Consumer Advocates for Legal Justice), an organization seeking reform of the attorney disciplinary process, including its removal from the hands of the State Bar. According to evidence in the record, petitioner has been a visible advocate for change in the attorney disciplinary system, having served as board chair and president of CALJUSTICE since 1986 and having appeared on behalf of that organization before several state legislative committees, the State Bar Board of Governors, and other forums in support of attorney disciplinary reform. Petitioner has contributed these efforts on behalf of the organization on an uncompensated, volunteer basis.
In support of his good character, petitioner presented testimony, declarations, and letters of support from several persons three attorneys, a state senator, colleagues in the consumer protection movement, former teachers and college administrators, schoolmates and neighbors attesting to his good moral character. All offered unqualified praise of petitioner, including his honesty, integrity, reliability and altruistic nature. These included the former president and cofounder of CALJUSTICE (who described petitioner as "the finest human being I ever met" and "beyond reproach"); an attorney active in discipline reform who formerly served on the State Bar's Public Protection Committee (who stated, "If I wanted to see somebody be an attorney, it would be [petitioner] because of his integrity"); an attorney who had represented petitioner in past litigation (who described petitioner as "honest to the spirit, not only the letter, of what he says" and who "wish[ed] there were more attorneys out there with [petitioner's] moral character"); another attorney for whom petitioner had worked as a paralegal and researcher (who thought petitioner "would make an excellent attorney"); and *315 other law graduates and friends of petitioner who testified along similar lines. (3)(See fn. 3.) In short, petitioner met his threshold burden of demonstrating prima facie his good moral character.[3]
The State Bar's case-in-rebuttal proceeded along three lines, all of which together with a fourth were adopted and relied upon by the hearing panel. Before taking up the chief issue the central puzzle of the obscene mail we consider the three other grounds relied on by the hearing panel.[4] The panel determined that: (1) litigation commenced by petitioner in the past indicated, in its words, "a pattern of harassment on the part of petitioner in using the courts and the judicial process for personal reasons"; (2) petitioner omitted from his bar examination application certain litigation in which he had participated until notified of the omission by State Bar officials; and (3) petitioner showed a "lack of respect for the law and for the legal canons of ethics" by tape-recording two telephone conversations with Robert Friedman without Friedman's knowledge or consent. As we shall see, all three grounds are questionable; none standing alone would suffice to establish petitioner's bad moral character; and together they fail to rebut petitioner's prima facie case of good moral character.
A.
The "pattern" of litigation harassment. In its decision, the hearing panel noted that a defamation action filed by petitioner against Robert Friedman and others was dismissed by the trial court on privilege grounds, a result upheld by the Court of Appeal.[5] The panel then recounted petitioner's small *316 claims proceeding against one of Friedman's codefendants in the defamation action, in which petitioner had sought damages and a statutory fine following the codefendant's failure to attend a noticed deposition including petitioner's subsequent (and unsuccessful) petition to the superior court seeking review of the adverse small claims ruling.[6]
(4) To the hearing panel, petitioner's conduct in these two matters bore similarities to the 1975 defamation action against his former friend, Arguimbau. And despite recognition of the fact that petitioner was represented by counsel in all but the small claims proceeding and that 13 years had passed since the first suit was instituted, it "seemed" to the panel that these lawsuits "showed a pattern of harassment on the part of [petitioner] in using the Courts and the judicial process for personal reasons." The panel failed altogether, however, to identify the similarities between the 1975 and the 1983 lawsuits on which it relied. In addition, its conclusion on this point suffers from a lamentable absence of precision. The panel did not specifically find a pattern of harassment in petitioner's use of the courts it only concluded that one "seemed" to exist. Nor did it purport to find that any of the actions lacked merit or were brought for an improper purpose.
In analogous areas, we have required a heightened showing of misconduct by a litigant or attorney as a condition of penalizing resort to the judicial process. In In re Marriage of Flaherty (1982) 31 Cal.3d 637 [183 Cal. Rptr. 508, 646 P.2d 179], we formulated a strict standard for imposing sanctions for prosecuting frivolous appeals defined to include those taken to harass an opponent noting that sanctions "should be used most sparingly to deter only the most egregious conduct." (Id. at p. 651.) In Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863 [254 Cal. Rptr. 336, 765 P.2d 498], we adopted a modified Flaherty standard "whether any reasonable attorney would have thought the claim tenable" as the standard under which the probable cause element of malicious prosecution actions is to be tested. As in Flaherty, we were motivated in part by a concern to avoid "a serious chilling effect on the assertion of litigants' rights [of access]." (Id. at p. 885, quoting Flaherty, supra, 31 Cal.3d at p. 650.)
*317 Given these expressed concerns, we are reluctant to credit so tentative a finding of moral turpitude based on undisclosed grounds as that reached by the hearing panel in this case. Especially where important policies favoring unfettered access to the courts are implicated, a more carefully articulated assessment of the evidence, leading to precisely formulated findings, is demanded. We therefore decline to adopt the findings of the hearing panel with respect to this charge against petitioner.
(5) Turning to the record itself and evaluating the evidence independently, we conclude that it falls short of sustaining a determination that petitioner's resort to the courts discloses a pattern of groundless litigation designed to harass others. At the outset, we are unpersuaded that the Arguimbau suit shares sufficient similarities with the Friedman litigation to constitute a "pattern." True, both were defamation actions brought against former friends of petitioner after a falling out. Beyond that, however, the similarities end.
More importantly, we find little in the record to warrant a conclusion that any of the lawsuits on which the hearing panel relied qualify as frivolous. As noted, in all of these proceedings except the small claims action, petitioner was represented by counsel. Each of the lawyers who represented petitioner in the Arguimbau and Friedman lawsuits appeared at the hearing and testified that in counsel's opinion the suit had merit; petitioner obtained a favorable settlement in the Arguimbau matter, the small claims action was authorized by statute, and the authority upon which petitioner's defamation complaint against the Friedmans was dismissed was subsequently questioned by another division of the Court of Appeal.[7]
Although the lawsuits do petitioner no particular credit, neither do they reveal anything more than a trait for combativeness that many clients expect in lawyers. It is true that the Friedman litigation appears to have been aggressively pursued by petitioner, but the case was aggressively fought by the attorney for the Friedmans as petitioner's former litigation attorney *318 testified. The record, moreover, suggests that petitioner believed his standing as a consumer advocate and would-be attorney might be jeopardized if the Friedmans' allegations were permitted to go unchallenged. In short, the record does not disclose any basis upon which we can reasonably conclude that the lawsuits were improper, especially when evaluated in light of the maxim that all reasonable doubts in admission proceedings are to be resolved in favor of the applicant.[8]
We have previously found an applicant's participation in five lawsuits to be so "relatively insignificant" as to merit no more than a footnote. (Hall v. Committee of Bar Examiners, supra, 25 Cal.3d 730, 733, fn. 2.) Standing alone, these incidents are insufficient to sustain a finding of bad moral character. (Cf. Hallinan, supra, 65 Cal.2d at p. 464 et seq. [repeated fistfights insufficient to support exclusion].)
B.
Omissions in bar examination applications. Under this heading, the hearing panel found that petitioner failed to list on his bar examination applications the Friedman lawsuits and the action against the Regents until these omissions were brought to his attention by the State Bar. Petitioner's explanation was that he had submitted a complete list of litigation in his original "long form" application in 1980, the first time he took the bar examination; that he had subsequently filed "short form" applications each time he took the bar examination; that he had failed to disclose the Friedman litigation under the mistaken belief that he had included it in one of the previous short form applications he submitted (he filed 12 such forms over the years); and that he had not listed the Regents suit after being advised by a State Bar official that he need not include a matter ordered sealed by the court. It is undisputed that on passing the bar examination and being asked by the State Bar to submit an updated long-form application, petitioner did so in 1988, disclosing all of the litigation in which he had been involved, including the Regents matter, and that this disclosure occurred before petitioner was notified that the State Bar intended to institute moral character proceedings against him.
The hearing panel found petitioner's explanation that he had overlooked the Friedman litigation unconvincing "because [petitioner] appeared to be *319 otherwise meticulous in dealing with details." We are not informed by its decision, however, what the panel made of these omissions it made no finding that they constituted acts of moral turpitude. Presumably the panel inferred that petitioner's failure to disclose the lawsuits until asked by the State Bar to submit an updated long-form application was accompanied by an intention to conceal the fact of the litigation from the State Bar.
The evidence, however, undermines such an inference. It discloses correspondence in 1986 between petitioner, the State Bar, and the Friedmans' attorney in which petitioner noted the restraining order he had obtained against Robert Friedman and his subsequent defamation action against the Friedman family. The record includes a reply from the State Bar's executive director inviting petitioner to provide any additional information regarding the Friedman litigation and the underlying controversy when he had passed the bar examination. Thus, in 1986 petitioner certainly knew that the State Bar was aware of the Friedman litigation since he had discussed it with them in correspondence. He would thus have had no discernible reason to fail to disclose the litigation in his application in the hope of concealing it from the State Bar.
(6) We have distinguished between affirmative misstatements intended to place an applicant at an advantage and the unintentional nondisclosure of information which, under the circumstances, is not morally significant. (Hallinan, supra, 65 Cal.2d at p. 473 [failure to disclose arrests de minimus in light of disclosure of several other arrests]; Greene v. Committee of Bar Examiners, supra, 4 Cal.3d 189, 194 [unintentional failure to disclose prior bar examination applications and prior law school attendance not grounds for exclusion].) Given the circumstances of record, notably the absence of any apparent motive on the part of petitioner to lie about the matter, the failure to include the litigation appears to us to qualify as the sort of "unintentional nondisclosure of a relatively unimportant matter" which does not justify exclusion from the bar. (Greene, supra, at p. 194.)
C.
Unconsented taping of telephone conversations. As part of an effort to impeach Robert Friedman's testimony, petitioner's counsel offered into evidence a cassette recording of two telephone conversations between petitioner and Friedman during which they discussed the obscene mail, the hang-up calls, and related matters. These conversations were tape-recorded by petitioner without Friedman's knowledge. Their contents are unquestionably probative on the issue of Friedman's role in the postcard affair they inculpate Robert Friedman as the source of the hang-up calls and establish *320 that he invented the names of two fictitious Los Angeles art galleries that he said had received obscene postcards.[9]
According to petitioner, Friedman had admitted to him that he (Friedman) was responsible for the hang-up calls, but had threatened to blame petitioner for them if denounced. Petitioner further testified that before deciding to make the recordings, he researched the legal aspects of the unconsented recording of telephone calls, checked with a police detective investigating the Friedman matter and a county prosecutor (both of whom, he testified, advised him of its legality under certain circumstances), and concluded that a recording of a telephone conversation with Friedman without his knowledge, if undertaken with certain safeguards, would not be unlawful under the circumstances.
(7) Rather than assess the substantive evidential value of the content of the cassette recordings in assisting it in resolving the pivotal issue in the case, the hearing panel instead seized on the fact that the tape recordings were made without Friedman's knowledge as an additional basis on which to fault petitioner's character.[10] It ruled that the making of the cassette revealed another character defect a "lack of respect for the law" and furnished an additional ground on which to deny petitioner admission.
Of all the evidentiary uses to which the tape recordings and their contents might have been put, the hearing panel's seems the most dubious.[11] Accepting *321 as reasonable petitioner's uncontradicted testimony that he believed that Friedman was himself the source of the hang-up calls, the taping episode falls within an exception to the general statutory criminalization of unconsented telephone recordings. Although Penal Code section 632 makes the recording of a confidential telephone conversation without the consent of all parties a criminal offense, Penal Code section 633.5 exempts from the sweep of the statute an undisclosed recording by one of the parties of a conversation "reasonably believed to relate to the commission by another party [to the conversation] of [certain enumerated crimes] ... or a violation of section 653m." Penal Code former section 653m, subdivision (b), in turn, made it a misdemeanor to telephone anyone "with intent to annoy ... and without disclosing [the caller's] identity ... whether or not conversation ensues...."
Several decisions of the Court of Appeal have examined the relationship between Penal Code sections 632 and 633.5. All have concluded correctly that the latter exempts from the former an unconsented recording made with the requisite reasonable belief although the recording fails to capture the anticipated evidence (People v. Parra (1985) 165 Cal. App.3d 874, 880-881 [212 Cal. Rptr. 53]) or the initial purpose of the recording is self-protection rather than to gather evidence for use in a criminal prosecution (People v. Ayers (1975) 51 Cal. App.3d 370, 377 [124 Cal. Rptr. 283]). (See also People v. Montgomery (1976) 61 Cal. App.3d 718, 731 [132 Cal. Rptr. 558]; People v. Strohl (1976) 57 Cal. App.3d 347 [129 Cal. Rptr. 224].) In light of our conclusion that the tape recordings were made by petitioner under the reasonable belief that the conversations with Friedman would relate to hang-up calls, the evidence fails to support a finding of moral turpitude with respect to these incidents.[12]
*322 D.
(8) The obscene mail. This brings us to what, by any account of the matter, is the hinge of the case: the charge that petitioner authored and mailed literally scores of obscene postcards to Robert Friedman and others. As noted, petitioner's defense to this charge was that Friedman, the State Bar's chief witness, was himself the offender and had framed petitioner, acting out of a combination of vindictiveness and a need for attention.
On a cold record, Friedman is not a convincing witness. The hearing panel itself conceded that his testimony was substantially "impeached and discredited." The State Bar admitted as much in its brief before the review department. Witness after witness testified to Friedman's bizarre behavior, and much of the evidence pointed to him as the source of the hang-up calls, including his own admission in one of the recorded telephone conversations. Other testimony suggested that his modus operandi included the use of anonymous postcards and obscene telephone messages; one witness testified convincingly to circumstances suggesting that Friedman had contrived to frame her by making it appear (falsely) that she was responsible for painting obscene graffiti on the wall of a building in which she and Friedman had apartments.
Yet even in the face of the admission by Friedman that he was the source of the hang-up calls, other evidence that he had lied under oath, and the hearing panel's own conclusion that his credibility had been destroyed, the panel found that Friedman "did not appear capable of composing [an] obscene post card," and found it incredible that he could have mailed obscene material to his mother.[13]
Absent the evidence of petitioner's fingerprint, it is unlikely that the hearing panel would have concluded that the State Bar's case-in-rebuttal on the postcard charge had been made out; indeed, it is unlikely that moral character proceedings would have been brought against petitioner at all. It is easy and tempting in the face of a record as dauntingly ambiguous as this one to make too much of the fingerprint evidence, to make it, in the words *323 of the State Bar, the "smoking gun" inculpating petitioner irrefutably.[14] The significance of this almost theatrical piece of physical evidence, however, must be evaluated in the context of the entire case.
Petitioner's explanation of the appearance of his fingerprint on one of the cards was, again, that Friedman had framed him, either by showing him the postcard before it was mailed, by arranging to obtain a piece of tape from petitioner bearing his fingerprint, or by retrieving the card from the addressee (a Los Angeles art gallery with which Friedman had a family connection) and then showing it to petitioner. Petitioner offered expert testimony to make this account plausible, including the results of a microscopic examination of the postcard by a questioned documents analyst. The expert testified that his examination revealed the presence of debris beneath the tape, damage to one of the taped corners of the card, newsprint on the tape mucilage, and a "double" print image all features consistent with the conclusion that the tape had at some time been lifted.[15]
In addition, petitioner offered demonstrative evidence to support his theory. This consisted of expert testimony and the physical results of an experimental replication of the process by which, in examining the postcard, tape, and newsprint, the telltale print might have been deposited. The expert's testimony and the demonstrative evidence at least show the plausibility of petitioner's theory. That is, the evidence demonstrates that the postcard could have been examined in the manner described by petitioner, and that such an examination could have left a fingerprint like the one on the actual postcard without leaving evidence of tampering visible to the unaided eye.[16]
The hearing panel, however, assessed neither the probative value of the expert's findings of physical evidence of tampering nor the effect of the experimental results on the question whether petitioner sent the postcards. *324 Instead, it rejected petitioner's account on the ground that, had Friedman shown him the card before mailing it, petitioner would have noticed that it bore no postmark.[17] Given the state of the record, however, this manner of assessing the evidence was short of satisfactory.
It is true that someone scrutinizing a postal item for clues to its origin might be expected to notice the absence of a cancellation mark. But it is also not uncommon to receive items in the mail bearing neither a cancellation nor other evidence of mailing. Although probative on the issue of who was responsible for the mailings, the fact that petitioner did not notice the absence of a postal cancellation[18] is not, as the hearing panel seems to have reasoned, conclusive on the question. We are not convinced that the failure to observe that the postcard bore no cancellation ipso facto discredited petitioner's explanation of the fingerprint, and led inexorably to the conclusion that petitioner was responsible for the mailings. At the least, the hearing panel should have provided some account of the substantial evidence pointing to the opposite conclusion.
Apart from the fingerprint, there is virtually no evidence to inculpate petitioner as the author of the obscene mail; indeed, as noted, there is much evidence in the record pointing to someone else. It is not, of course, the province of the fact finder in this proceeding to determine who was responsible vel non for the obscene mail; it is enough that our independent review of the entire record leaves us with reservations short of being persuaded that petitioner was responsible for the obscene mail. That charge not being sustained by the evidence, and the remaining allegations against petitioner either being likewise unsustained or, where sustained, not being evidence of bad moral character, we conclude that the State Bar's case-in-rebuttal failed to rebut petitioner's prima facie case of good moral character.
III. Conclusion
It is ordered that the Committee of Bar Examiners certify petitioner Richard H. Lubetzky to this court as a person qualified to be admitted to practice law.
*325 Our order is effective upon finality of this decision in this court. (See Cal. Rules of Court, rule 953(a).)
NOTES
[1] Rule X, section 1(a), Rules Regulating Admission to Practice Law in California.
[2] Between 1980 and 1987, petitioner took the California Bar Examination 13 times before passing in June 1987. In other words, except for 1985, applicant took the bar examination every time it was offered for six years. This may be a record, but of course it is not fatal or even relevant to the decision whether petitioner should be denied admission to practice on moral character grounds. (Cf. Hightower v. State Bar, supra, 34 Cal.3d at p. 153 [applicant who had taken bar seven times ordered admitted over claims of misconduct].)
[3] Our decisions in admission cases accord "significant weight" in making a prima facie case to testimonials from attorneys on an applicant's behalf. (Kwasnik v. State Bar, supra, 50 Cal.3d at p. 1068; see also Pacheco v. State Bar (1987) 43 Cal.3d 1041, 1053 [239 Cal. Rptr. 897, 741 P.2d 1138]; Greene v. Committee of Bar Examiners (1971) 4 Cal.3d 189, 192 [93 Cal. Rptr. 24, 480 P.2d 976]; Bernstein v. Committee of Bar Examiners, supra, 69 Cal.2d at p. 96; Hallinan, supra, 65 Cal.2d at p. 453.)
[4] The hearing panel in this case consisted of two members, a volunteer attorney and a public (nonattorney) panelist. A third panelist the principal referee resigned before the hearings were completed and did not participate in the decision.
[5] The bulk of the litigation in which petitioner had participated consisted of two core suits and satellite proceedings. In 1975, petitioner filed a defamation action against Arguimbau. The case was settled, Arguimbau agreeing to pay a small sum as part of the settlement agreement and executing a promissory note; petitioner later successfully filed suit to enforce the note. The so-called Friedman litigation began in 1983 and eventually encompassed three suits an action to restrain Robert Friedman from physically interfering with petitioner; a second suit against Friedman, his parents and others for defamation and related claims arising out of the postcard incidents and allegations that petitioner was responsible for the mailings; and an ancillary small claims proceeding against a friend of Friedman for damages and a statutory fine following her failure to attend a deposition in the second Friedman action. In addition, petitioner had filed an action against the University of California (in which the Regents were the nominal defendants) seeking to have corrected certain of his records while a student at UCLA. The record in that proceeding was ordered sealed by the superior court.
In finding a pattern of harassment, the hearing panel relied only on the Arguimbau suit and the Friedman litigation.
[6] In the small claims action, petitioner proceeded under Code of Civil Procedure section 1992, which provides: "A witness disobeying a subpoena also forfeits to the party aggrieved the sum of five hundred dollars ($500), and all damages which he may sustain by the failure of the witness to attend, which forfeiture and damages may be recovered in a civil action."
[7] The record indicates that the Friedman defamation action was dismissed on the ground that an allegedly false police report concerning petitioner made by the Friedmans was absolutely privileged under former Civil Code section 47, subdivision 2, a ruling which the Court of Appeal affirmed, relying on Williams v. Taylor (1982) 129 Cal. App.3d 745 [181 Cal. Rptr. 423]. Petitioner's litigation attorney in the Friedman case testified at the hearing that as a result of the Court of Appeal's ruling, he wrote a law review article arguing the case for a contrary rule of qualified privilege. Another division of the Court of Appeal has recently adopted such a view, citing with approval counsel's law review article. (See Fenelon v. Superior Court (1990) 223 Cal. App.3d 1476, 1482, fn. 8 [273 Cal. Rptr. 367] [citing Ablon, Williams v. Taylor: Communications to Police with Absolute Immunity: Revenge Courtesy of Civil Code Section 47(2) (1986) 18 U. West L.A.L.Rev. 51].) Although we express no opinion on the merits of the controversy, this account is a forceful reminder of "the evolutionary potential of legal principles." (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 886.)
[8] The hearing panel's conclusion that petitioner used the courts for "personal reasons" is also puzzling. The bulk of civil proceedings brought by individuals would qualify for reprimand under this rubric. Although inartfully phrased, we surmise that the thrust of the panel's finding is that the two lawsuits filed by petitioner against erstwhile friends demonstrated a practice of harassing others by bringing groundless litigation. This is simply another way of asserting that petitioner's claims were meritless, a conclusion we consider and reject in the main text.
[9] Friedman admits in one tape recording to making hang-up calls to Robin Spivack, his former roommate. This was corroborated by telephone records admitted into evidence. The admission is relevant to the question of who mailed the obscene postcards in light of a consistent link between the two; hang-up calls and anonymous mailings began almost simultaneously after Spivack evicted Friedman from the apartment the two had shared, and several of those who received obscene mail also received hang-up calls. In addition, there was evidence that Friedman had left obscene messages on petitioner's telephone answering machine, the contents of which were similar to messages on some of the postcards. Thus, a finding that Friedman was the source of the hang-up calls would lay the groundwork for an inference that petitioner was not the author of the postcards.
In addition, Friedman's portrayal of himself as a victim of an obscene mail campaign is undercut by proof that he fabricated the names of two nonexistent galleries he said had received obscene mail addressed to him.
[10] So explosive were the contents of the tape recordings that Robert Friedman threatened to leave the witness stand and the hearing room if the panel permitted the tape to be played. The panel declined petitioner's request to permit the tape to be played and Friedman to be cross-examined as to its contents. It did admit into evidence transcripts of the two taped conversations.
[11] Petitioner challenges the hearing panel's findings based on the cassette recordings, on due process grounds, arising from the lack of notice that his conduct in making the tapes would form the basis for a separate finding of bad moral character. (See Rose v. State Bar (1989) 49 Cal.3d 646 [262 Cal. Rptr. 702, 779 P.2d 761]; Gendron v. State Bar (1983) 35 Cal.3d 409 [197 Cal. Rptr. 590, 673 P.2d 260]; Woodard v. State Bar (1940) 16 Cal.2d 755 [108 P.2d 407].) We do not reach the issue in light of our conclusions that petitioner's conduct fell within the exception of Penal Code section 633.5 and that the circumstances under which the tape recordings were made do not show bad moral character.
[12] In its brief, the State Bar disclaims any reliance on what it terms the hearing panel's "gratuitous reference" to the tape recordings as a ground for the panel's conclusion regarding petitioner's moral character. The use of the tapes is not so easily dismissed, however. Its opinion plainly discloses that the hearing panel regarded the finding that petitioner had violated a criminal statute as "further evidence," as the panel put it, of petitioner's "lack of respect for the law," a matter it felt "impelled to raise" on its own even though the State Bar's charges against petitioner did not include the taping episodes.
The tape recordings and the findings regarding their making were thus integral to the panel's overall assessment of petitioner's character as one who "broke the law" in the very process of seeking to demonstrate his moral fitness to practice. Although we cannot say to what extent the conclusion that petitioner violated a criminal statute under such circumstances affected the panel's evaluation of the evidence surrounding the charges against him, we are persuaded that it must have had a powerful effect on the panel's estimate of petitioner's character; we cannot simply ignore it, as the State Bar implicitly asks us to do.
[13] The first conclusion appears rooted in the testimony of Friedman's mother that her son suffered from a learning disability; it was undermined, however, by the testimony of a former roommate of Friedman and by the expert testimony of a handwriting analyst. The second conclusion is perhaps simply a blind refusal to pursue the dynamics of Friedman's personality to their conclusion; certainly there is nothing inherently "incredible" in the sense that it can be ruled out a priori in the idea.
[14] The State Bar's questioned documents expert testified that she examined between 75 and 80 of the postcards and developed 49 prints; only one was petitioner's.
[15] If credited, this evidence would support petitioner's testimony that he had at some point inspected the postcard and, examining it in an attempt to determine if any clue to its origin could be gleaned from the newsprint taped to it, had lifted the tape with the tip of his index finger, leaving the telltale print. Petitioner testified that he and Friedman sometimes exchanged postcards each had received in the mail and discussed them in an attempt to ferret out their source. Although petitioner admitted that he could not specifically recall examining the card bearing his fingerprint, he testified that it was typical of those Friedman had shown him that had scraps of newspaper taped to them, and that he had examined these specimens in the hope of identifying the sender.
[16] The State Bar offered the testimony of its own expert who originally identified petitioner's fingerprint on the postcard to refute the account of petitioner's analyst. She testified that she observed no evidence of tampering with the tape or newsprint. She admitted, however, that her original examination of the postcard had been made to identify the fingerprint, and had not been conducted with petitioner's theory in mind; her subsequent examination undertaken to disprove petitioner's theory had consisted of an unaided visual examination.
[17] The panel also rejected petitioner's alternative theory that Friedman might have retrieved the postcard from the gallery to which it was mailed and then showed it to petitioner.
[18] Or more precisely, petitioner did not testify, some six years after the event, to having examined a specific postcard and to having noticed the absence of a cancellation stamp. Petitioner's testimony was vague as to his recollections surrounding the postcard. This is not surprising given the passage of six years; a less equivocal recollection might have been less convincing.
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548 U.S. 917 (2006)
BANEGAS-HERNANdEZ
v.
UNITED STATES.
No. 05-11215.
Supreme Court of United States.
June 26, 2006.
Certiorari denied.
| {
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} |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0367n.06
Case No. 11-6431 FILED
Apr 12, 2013
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
JOHN C. ELLIOTT, ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
Defendant-Appellant. )
)
BEFORE: BATCHELDER, Chief Judge; DAUGHTREY and ROGERS, Circuit Judges.
ALICE M. BATCHELDER, Chief Judge. Appellant John Elliott was charged in eight
counts of a multi-count, multi-defendant indictment for wire fraud. He pled guilty to one count of
conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1343, and was sentenced to 200 months
in prison. On appeal, he challenges the procedural and substantive reasonableness of his sentence.
We affirm the judgment of the district court.
I.
Appellant John Elliott and several coconspirators discovered a way to pass bad personal
checks as traveler’s checks at Target, Walmart, Meijer, and Kohl’s stores. From February 2008
through December 2010, the group hit stores in fifteen different states and stole $218,816.68.
To effect the fraud, one of the conspirators would obtain bad personal checks, usually in his
own name or the name of another conspirator, although in one instance stolen checks were used.
The individual would then go to a retail store, usually Target (Target thefts accounted for $170,000
No. 11-6431, United States v. Elliott
of the losses), and fill a cart with just under $400 worth of merchandise. Next he would look for an
inexperienced cashier and trick that cashier into processing the personal check as a traveler’s check.
So long as the check was for under $400, it would clear the system as a traveler’s check without any
security processing, resulting in a receipt indicating a cash transaction. The conspirator could then
either keep the goods or return them at another store for cash. The goal was to obtain enough funds
for the group’s members to support their individual drug habits.
The scheme was extraordinarily successful. The total figure presented by the government
from the stores’ loss reports suggests that the group must have successfully used the scheme close
to 550 times over a couple of years. But it did not always work, and one botched attempt is
particularly relevant to this appeal. In March 2010, Elliott took a new coconspirator, Brian Hancock,
with him to Target to pass checks. Elliott had checks in the name of another member of the group,
Troy Watts, but Hancock, attempting to use the checks and identity card of one David Owens, was
detained in the store. Seeing this, Elliott fled. Before being apprehended and detained by police,
Elliott managed to contact Watts and convince him to tell the police that he had given Elliott
permission to use the checks. Watts did so and Elliott was released. Hancock, on the other hand,
was arrested under his assumed identity–as it turned out, the real David Owens had an outstanding
arrest warrant. Elliott, of course, knew Hancock was not Owens but did not provide this information
to the police.
Eventually the group ran out of luck. In November 2010, Target reported the scheme to the
Secret Service, and by the end of the month, the Secret Service had identified several of the
coconspirators. Elliott came in contact with the agent in charge of the case during an investigatory
2
No. 11-6431, United States v. Elliott
sting near the end of November. On December 6, he agreed to meet with the agent but did not
appear at that time for an interview, nor was the agent able to conduct any successful interview until
February 11, 2011. Elliott signed a written confession at that time, and in June pled guilty to one
count of conspiracy to commit wire fraud. Also in June, Elliott tried to meet with the agent to
provide additional information, but the agent refused, later noting at sentencing that by that point he
“didn’t need any information from Mr. Elliott.”
At sentencing, the district court determined that the base level for the offense was 7. The
court then added 12 levels for the amount of the loss resulting from the wire fraud scheme, 2 levels
for the number of victims, 2 levels because Elliott had relocated to a different jurisdiction to avoid
law enforcement, 4 levels for Elliott’s managerial role in the scheme, and 2 levels for obstruction
of justice because Elliott had actively deceived the police with regard to the scheme. The court
denied Elliott’s request for a 3-level reduction for acceptance of responsibility, and arrived at an
adjusted offense level of 29. Finally, the court concluded that Elliott’s criminal history category as
calculated by the Probation Officer substantially underrepresented the seriousness of his criminal
history, and departed upward one offense level, for a final offense level of 30. The court imposed
a sentence of 200 months’ incarceration. Elliott’s appeal challenges only the substantive and
procedural reasonableness of his sentence.
II.
We review the reasonableness of sentencing decisions using an abuse of discretion standard.
United States v. O’Georgia, 569 F.3d 281, 287 (6th Cir. 2009). Reasonableness has “both
substantive and procedural components.” Id. Elliott brings six claims, challenging: (1) the
3
No. 11-6431, United States v. Elliott
procedural reasonableness of the one-level upward departure based on the inadequacy of Elliott’s
criminal history score, (2) the procedural reasonableness of the two-point enhancement for
obstruction of justice, (3) the procedural reasonableness of the court’s refusal to grant a downward
departure for Elliott’s medical condition and substance abuse, (4) the procedural reasonableness of
the district court’s acceptance of responsibility analysis, (5) the substantive reasonableness of the
district court’s § 3553(a) analysis of Elliott’s history and characteristics, and (6) the substantive
reasonableness of the sentence taken as a whole. We consider each of these claims in turn.
We will find a decision procedurally reasonable if “the district court committed no significant
procedural error, such as . . . failing to adequately explain the chosen sentence–including an
explanation of any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51
(2007). In addition, a district court must have “explain[ed] ‘its reasoning to a sufficient degree to
allow for meaningful appellate review.’” United States v. Vowell, 516 F.3d 503, 510 (6th Cir. 2008)
(quoting United States v. Trejo-Martinez, 481 F.3d 409, 412-13 (6th Cir. 2007)). If counsel fails to
raise an objection at the sentencing hearing after being asked whether he has any objections that have
not previously been raised in the proceeding, the claim is reviewed only for plain error. See United
States v. Bostic, 371 F.3d 865, 870-71 (6th Cir. 2004); United States v. Vonner, 516 F.3d 382, 391-
92 (6th Cir. 2008) (noting that plain-error review applies on appeal to arguments that defendant
“never presented to the district court, even after being invited to do so through the Bostic question”).
III.
Elliott first argues that, in departing upward based on the inadequacy of Elliott’s criminal
history score, the district court did not properly apply U.S.S.G. § 4A1.3. The upward departure was
4
No. 11-6431, United States v. Elliott
made sua sponte by the district court, and Elliott’s counsel declined to object to it when prompted
at the end of the sentencing hearing. Indeed, in response to the district court’s question, Elliott’s
counsel said, “Your Honor, as far as Bostic, I would ask the Court to make a finding that the entry
of the plea was timely under the policies of this Court. . . . [A]s far as the sentence itself, I have no
requests.” Because counsel did not object, under Bostic, we review Elliott’s challenge to the upward
departure, to the extent that it is based on insufficiency of district court findings, only for plain error.
See Vonner, 516 F.3d at 391.
An upward departure may be warranted where “the defendant’s criminal history category
substantially under-represents the seriousness of the defendant’s criminal history or the likelihood
that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1); United States v. Thomas, 24
F.3d 829, 833 (6th Cir. 1994). The Sentencing Guidelines application notes explain that “the nature
of the prior offenses rather than simply their number is often more indicative of the seriousness of
the defendant’s criminal record.” U.S.S.G § 4A1.3, App. Note 2(B).
Elliott argues that the district court did not make sufficient findings to explain the upward
departure under this rule because the court’s explanation focused only on the number of prior
offenses. The Presentence Investigation Report found that Elliott had a criminal history score of 17,
four points higher than the threshold for criminal history category VI. The court expressly noted
that it “looked at the nature of the offenses that have been committed” and not “merely to the number
of past criminal convictions.” The court also stated that the varied “nature of the convictions” is
indicative of someone who “commits every type of offense that he can commit at a particular time.”
But the district court also reasonably focused on the number of prior offenses and the
5
No. 11-6431, United States v. Elliott
likelihood of recidivism. At the age of 28, Elliott had forty-seven adult convictions, twenty-four
juvenile offenses, and thirty additional arrests. That averages to over four convictions a year since
he was 18, better than seven arrests a year, and close to four convictions a year since he was 10.
After noting these numbers, the district court concluded that there was more than a 99% chance of
recidivism, and thus an upward adjustment was appropriate. This is a correct application of the law.
Thomas, 24 F.3d at 833 (“An unusually high likelihood of recidivism is also a valid factor upon
which to base an upward departure.” (citing U.S.S.G. § 4A1.3, cmt. (backg’d))). Even the Morgan
decision, on which Elliott heavily depends for his argument, acknowledges that an upward departure
may be warranted for either the seriousness of defendant’s criminal conduct or for a high rate of
recidivism. United States v. Morgan, 54 F. App’x 421, 424 (6th Cir. 2002).
Elliott also argues that the upward departure is procedurally unreasonable because there is
insufficient evidence to justify the upward departure. In support of this argument, Elliott notes that
most of his prior convictions were for driving infractions and disorderly conduct (accounting for 34
of his 47 convictions), most were non-violent (he has one conviction for choking a victim), and only
one was a felony. The somewhat benign nature of these previous offenses is reflected in Elliott’s
criminal history score of 17, which is only 4 points higher than the threshold level for Category VI
despite the very high number of convictions.
It is true that Elliott does not have a record of violent crime, but that is beside the point. The
district court made its decision based on the extensiveness of his record and the likelihood of
recidivism. Elliott maintains that an upward departure is appropriate only when the criminal history
score is “a multiple of the Category VI threshold of 13,” but this is simply not true. See, e.g., United
6
No. 11-6431, United States v. Elliott
States v. Sanders, No. 11-5772, 2012 WL 4477528, *3 (6th Cir. Sept. 28, 2012) (finding a three-
level upward departure was reasonable when the defendant had a criminal history score of 25);
United States v. Christoph, 904 F.2d 1036, 1042 (6th Cir. 1990) (noting that an upward departure
was reasonable when the defendant had a criminal history score of 17), superseded by statute on
other grounds, see United States v. Williams, 940 F.2d 176, 181 n.3 (1991).
The district court’s decision to depart upward by one level was not erroneous.
IV.
Elliott next challenges the two-level increase he received for obstruction of justice. The
obstruction-of-justice increase is based on Elliott’s actions in March of 2010, when he successfully
convinced the police to release him from custody after Hancock was detained. It was not until nine
months after Elliott evaded police detection that the broader scheme was uncovered. The district
court found that Elliott’s statements to police were purposeful and materially false, and that they
significantly impeded the investigation into his offense. Elliott makes two arguments here: (a) that
the court failed to explain its reasoning and did not address his objection, and (b) that there was
insufficient evidence to support the decision. Our review of the district court’s decision is not
limited to plain error because Elliott contested the obstruction of justice increase at sentencing.
A two-level increase for obstruction of justice is appropriate if two factors are met. First, the
defendant must have “willfully obstructed or impeded, or attempted to willfully obstruct or impede,
the administration of justice[.]” U.S.S.G. § 3C1.1. This includes obstructive conduct prior to the
start of the investigation if it is “purposefully calculated, and likely, to thwart the investigation.” Id.
at n.1. Further, if the obstructive conduct is simply a “false statement, not under oath, to law
7
No. 11-6431, United States v. Elliott
enforcement officers” (as it is here), the standard is a bit higher. Id. at n.5(B). To constitute
obstructive conduct, a false statement must be “materially false” and must have “significantly
obstructed or impeded” the investigation or prosecution. Id. at n.4(a). Second, the obstructive
conduct must be related to the “offense of conviction and any relevant conduct.” Id. at § 3C1.1.
That the defendant’s conduct was “purposefully calculated” to “thwart the investigation” is
clear from the factual context. Elliott blatantly deceived the police by lying to them and convincing
Watts to back up his story. That statement was “materially false.” That this “significantly impeded”
the investigation is likewise clear since the police believed Elliott’s story, let him go, and the
conspiracy was not uncovered until several months later.
Elliott’s primary objection at trial and on appeal is that the obstruction was not related to the
“instant offense.” Elliott’s brief suggests that the obstruction must have been related to the Secret
Service investigation into the particular federal crime with which Elliott was charged. He points to
some confusion in the record about whether–but for Elliott’s deception–the police would have
contacted the Secret Service (which handled the federal investigation) in March when Elliott was
detained briefly and released. But the district court rightly notes that this is “not dispositive.” It does
not matter whether the police would have contacted the Secret Service because the statute requires
only that the obstructive conduct relate to the “instant offense.” See United States v. Walker, 119
F.3d 403, 407 (6th Cir. 1997) (“[T]his circuit has given a broad reading to the ‘instant offense’
language.”); United States v. Nesbitt, 90 F.3d 164, 169 (6th Cir. 1996) (“[T]his conduct was related
to the ‘instant offense’ in that it was intended to impede the same government investigation that
eventually resulted in [defendant’s] plea bargain and conviction.”); United States v. Crousore, 1 F.3d
8
No. 11-6431, United States v. Elliott
382, 385 (6th Cir. 1993) (“Therefore, the test is not whether the false statement was about the actual
crime charged, but whether it was made during the investigation, prosecution, or sentencing of the
‘instant offense.’”). The “instant offense” here is the wire fraud scheme, in its entirety.
The district court correctly noted that Elliott “prevented the Springdale Police Department
from learning the true nature of the criminal activity” and “had the intent to prevent law enforcement
authorities from discovering the scope and the nature of the conspiracy.” This had a significant
impact–he was successful enough in impeding the police through his false statements that he and his
coconspirators were able to continue to operate for nine more months. The false statement Elliott
made to police in March of 2010 was related to, and obstructed, the investigation into the instant
offense of passing bad checks as travelers’ checks.
The court adequately explained its reasoning here and there is sufficient evidence to support
its conclusion. The district court’s ruling was procedurally reasonable.
V.
Elliott’s next claim is that the district court’s decision was procedurally unreasonable because
it failed to consider Elliott’s medical condition and substance abuse as possible reasons for a
downward departure. This claim has no basis in the record. And because, as the government’s brief
correctly notes, Elliott never requested a downward departure based on his medical conditions and
substance abuse, we review for plain error. Elliott’s counsel did mention both as reasons for giving
a sentence on the lower end of the advisory range. And the court did address these arguments; it
simply did not find them credible. The district court noted that the sentence must account for
Elliott’s need for medical care, corrective treatment, and treatment for drug abuse. But the court also
9
No. 11-6431, United States v. Elliott
noted that “not all of his criminal history can be attributed to drug use” and that Elliott seemed to
exhibit a disregard for the illegality of his conduct. Both rehabilitation and punishment were
necessary. In pursuit of the former, the district judge made sure that Elliott was enrolled in an
intensive drug treatment program, and that he would receive both a medical assessment and a mental
health assessment.
We find no plain error here.
VI.
Elliott next argues that the district court committed procedural error by misapplying the
acceptance-of-responsibility guidelines. Elliott requested a three-level reduction for acceptance of
responsibility, but U.S.S.G. § 3E1.1(b) does not permit a three-level reduction without the
acquiescence of the government, which did not support the reduction here. Although the PSR
recommended a reduction, the court refused to grant one because Elliott had not “truly admitted his
activities or the scope of the conspiracy” and had denied his role in “[t]he actions that were taken
by other individuals” in the case.
We review for clear error the district court’s decision to deny this reduction. United States
v. Smagola, 390 F. App’x 438, 444 (6th Cir. 2010); U.S.S.G. § 3E1.1, cmt. n. 5. The burden is on
the defendant to “clearly demonstrat[e],” by a preponderance of the evidence, “acceptance of
responsibility for his offense.” Id. at § 3E1.1(a). This includes “truthfully admitting the conduct
comprising the offense” and “truthfully admitting or not falsely denying any additional relevant
conduct.” Id. at cmt. n. 1(A). In addition, “a defendant who falsely denies, or frivolously contests,
relevant conduct that the court determines to be true has acted in a manner inconsistent with
10
No. 11-6431, United States v. Elliott
acceptance of responsibility.” Id.
The district court’s denial is grounded in the defendant’s denial of the scope of his
participation in the conspiracy, and other relevant conduct. Throughout the sentencing hearing,
Elliott contested the government’s assertion that he was the ringleader of the conspiracy, and
contested the total amount stolen (admitting only to the amount of loss resulting from his own
bounced checks). Elliott continued to contest both claims in the face of overwhelming evidence.
For instance, defense counsel admitted that several other defendants had “acknowledged in their plea
agreements that they were recruited or taught in some fashion how to do these things by Mr. Elliott,”
and that defense counsel had “no evidence to offer contra to that” but insisted on objecting anyway.
Similarly, although “all of the other defendants have conceded the amount of loss to be the
$218,816.68 figure,” Elliott’s defense counsel continued to object to it “solely for purposes of
appeal.” Both his leadership role and the amount stolen are relevant to the offense. The court
emphasized that because of these objections, the government was forced to “present a substantial
amount of testimony” to show that Elliott “was, in fact, responsible for all aspects of the conspiracy”
in order to prove his leadership role and to show that he was responsible for the complete sum.
Elliott’s rebuttal is inadequate. First, it is true that Elliott took the initiative by contacting
the federal agent, signing a written confession, and later pleading guilty. But none of this rebuts the
reasoning of the district court, which found Elliott’s level of cooperation inadequate. Second, Elliott
claims that the district court’s ruling means that he must “accept the government’s every proposed
adjustment, no matter how unsupported.” This is simply another way of claiming that his
contentions were not “frivolous” under the statutory definition. Here, his role in the scheme and the
11
No. 11-6431, United States v. Elliott
amount of loss resulting from the conspiracy he led both constitute relevant conduct that Elliott had
no factual basis for contesting. Finally, Elliott’s brief argues that his objections were not “a denial
of relevant conduct” but merely a “denial of the legal characterization of that conduct.” This was
simply not the argument made by Elliott’s counsel at the sentencing hearing.
The district court did not clearly err in finding that Elliott did not merit a reduction for
acceptance of responsibility.
VII.
Fifth, Elliott argues that his sentence is substantively unreasonable because the district court
ignored his history and characteristics, a relevant 3553(a) factor. 18 U.S.C. 3553(a). Specifically,
Elliott alleges that the district court ignored his bipolar disorder, his struggles with schizophrenia,
and his substance abuse.
A sentence will be substantively unreasonable if “the district court selects the sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors
or gives an unreasonable amount of weight to any pertinent factor.” United States v. Sexton, 512
F.3d 326, 332 (6th Cir.2008) (citation and quotation marks omitted). We review a challenge to the
substantive reasonableness of a district court’s sentencing determination under the abuse-of-
discretion standard. United States v. O’Georgia, 569 F.3d at 287.
As we have already explained, the court did consider both Elliott’s mental health and drug
abuse in its sentencing decision. And the court expressly considered Elliott’s history and
characteristics. The court found that while some of Elliott’s past offenses could be attributed to his
drug dependency and medical condition, others could not. The court gave a higher sentence because
12
No. 11-6431, United States v. Elliott
of punitive and recidivist concerns. But the court also recommended that Elliott participate in an
intensive drug treatment program, that he receive a medical and mental health assessment, and that
he be closely monitored for drug use during his supervised release. In other words, it weighed
Elliott’s history of repeated criminal offenses against his history of mental health disorders and drug
abuse and addressed both in pronouncing sentence. Like the defendant in United States v. Ely,
Elliott “does not identify any argument that he raised and the district court failed to address, but
instead asks us to balance the factors dif[f]erently than the district court did. This is simply beyond
the scope of our appellate review. . . .” Ely, 468 F.3d 399, 404 (6th Cir. 2006) (emphasis in original).
This claim of error is meritless.
VIII.
Elliott’s final argument is a catch-all cumulative substantive-reasonableness claim. In
essence, Elliott contends that his sentencing included many “close calls”–such as the criminal history
upward departure, the obstruction of justice enhancement, denial of acceptance of responsibility, and
Elliott’s substance abuse–that, taken together as the “totality of the circumstances,” resulted in a
substantively unreasonable sentence.
The mere fact that a series of sentencing decisions–none of which is itself erroneous– results
in a harsher sentence does not make the sentence unreasonable. Elliott offers no additional
arguments here to persuade us that these decisions, taken together, result in an unreasonable
sentence. We find no abuse of discretion here.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
13
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803 F.2d 719
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.JULIUS H. GRAVES, Petitioner-Appellantv.UNITED STATES OF AMERICA, Respondent-Appellee.
No. 86-3180.
United States Court of Appeals, Sixth Circuit.
Sept. 17, 1986.
1
BEFORE: KENNEDY, MARTIN, Circuit Judges, and PECK, Senior Circuit Judge
ORDER
2
The petitioner moves for counsel on appeal from the district court's order denying his motion to vacate. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the petitioner's informal brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
3
The petitioner was charged in Akron, Ohio district court with conspiring to commit, aiding and abetting, and committing armed bank robbery. After both sides had presented their evidence at trial, the petitioner changed his plea to no contest and was sentenced to ten years imprisonment.
4
The petitioner's motion to vacate alleges that there was false information in the presentence report. The report contained a reference to a juvenile robbery conviction which the petitioner alleges was obtained without representation of counsel. Also, the report contained a statement that the petitioner was the leader of an armed robbery operation. These statements allegedly violated the petitioner's due process rights.
5
The district court held that it had not relied upon this information in the presentence report in sentencing petitioner. The court stated that it based its decision upon the evidence presented at trial before the petitioner changed his plea. Because there was no reliance on the presentence report, the court held that there was no due process violation. United States v. LeBlanc, 762 F.2d 502, 505 (6th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 156 (1985). We agree with the conclusion of the district court.
6
The motion for counsel is denied. The order of the district court is affirmed under Rule 9(d)(3), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.
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101 Ga. App. 851 (1960)
115 S.E.2d 576
JONES
v.
THE STATE.
38102.
Court of Appeals of Georgia.
Decided June 1, 1960.
Rehearing Denied June 21, 1960.
*853 William Hall, John L. Westmoreland, Grigsby H. Wotton, for plaintiff in error.
Paul Webb, Solicitor-General, A. Paul Cadenhead, E. L. Tiller, contra.
GARDNER, Presiding Judge.
1. It is contended generally by the plea in abatement that because Mr. Cadenhead, an attorney of the Atlanta bar employed by the office of the Solicitor to help with the investigation and subsequent proceedings relating to dishonesty among public officials and related matters, appeared in the grand jury room at the time an indictment against this defendant and Brinson, a public official, for the offense of cheating and swindling was being considered, Cadenhead not being sworn and not being an authorized person to be present in the grand jury room at that time, the indictment was void and accordingly there could be no offense of embracery committed in connection with such void indictment. Cadenhead was not present in the grand jury room when the grand jury returned the indictment in this case.
*854 The question is directed not to the legality of the indictment on which this defendant was tried in this case, but the legality of a former indictment as to which it is alleged that the defendant embraced certain jurors. As to perjury, it has been held that, so long as there is pending a proceeding over which the court has jurisdiction as to the subject matter, the fact that the alleged perjury was committed in a case which stated no cause of action and was subject to general demurrer did not keep it from being a judicial proceeding so as to be the foundation for the perjury charge. Williford v. State, 56 Ga. App. 40 (192 S. E. 93). As to the crime of embracery itself, it may be committed by approaching a prospective juror who has been neither sworn nor empaneled in the case, and who may never have anything to do with the case in which he is attempted to be influenced. Martin v. State, 43 Ga. App. 287 (158 S. E. 635). Code § 26-4702 makes embracery the crime of attempting "to influence a jury corruptly to one side." The jury is no less a jury because, as to one of the defendants, the indictment it returns is subject to be quashed. The grand jury is no less constituted as such, the indictment is no less returned, and the case is no less pending until disposed of, because there was an error in the proceedings which, if urged on the trial of the indictment, would preclude conviction under that indictment. Embracery as defined in our Code section may be perpetrated by attempting to influence a grand juror, although no indictment was returned, and even perhaps by influencing him on a matter before the grand jury which did not include the finding of a true bill. It cannot be said that this defendant is not charged with influencing "a jury" unless this grand jury was so constituted as not to be a legal grand jury, and the question is not whether it is a good indictment, but whether it is a legally constituted grand jury.
Special grounds 9 and 11 of the motion for a new trial are also without merit for the same reason.
2. On consideration of the demurrers it is noted that the indictment charged the defendant with the offense of embracery in that "Edward Westlake then and there being a grand juror and foreman of the grand jury sworn and serving at the March-April *855 term, 1959, of Fulton Superior Court, and said grand jury then and there having under consideration a special presentment against accused and J. W. Brinson, Jr., charging accused and said Brinson with the offense of cheating and swindling the State of Georgia, accused did wilfully and feloniously, by offer and promise of money to said grand juror and foreman; by attempting to procure the said grand juror and foreman to take money; and by persuasions and entreaties, attempt corruptly to influence the said grand juror and foreman to the side of the accused, and to use his power, authority, and influence as foreman and as a grand juror in favor of the accused." The general demurrer is based on the proposition that the Code section refers only to traverse juries, and the special demurrer here insisted on is addressed to the underlined language on the ground that it is ambiguous and indefinite.
(a) It is generally accepted that the crime of embracery relates to attempts to influence grand jurors as well as traverse jurors. 18 Am. Jur. 617, § 7; U. S. v. Russell, 255 U. S. 138 (41 S. Ct. 260, 65 L. Ed. 553); 3 Wharton, Criminal Law (1957 Ed.) § 1282. The offense of embracery is of common-law origin, as is the institution of the grand jury, and, while there are no crimes in Georgia except those made so by statute, it is nevertheless permissible, where the language of the statute does not change the common-law intendment of the crime, to look to the meaning of the words employed as they existed in order to determine the definition of words employed by the statute. Accordingly, it is no ground of demurrer that the crime is alleged to have been perpetrated as to a grand juror.
(b) It is ordinarily sufficient to describe the offense in the language of the Code. Code § 27-701. The words here objected to are in the language of Code § 26-4702. It is charged specifically that the crime was committed by offering money, and by attempting to procure the foreman of the grand jury to take money; accordingly, the addition of the words "and by persuasions and entreaties," which must be taken to refer to the attempt to procure a money transaction, is not so vague and ambiguous as to vitiate the indictment. The trial court did not err in overruling the demurrers to the indictment.
*856 3. Under Code § 27-1201 a change of venue should be granted by the trial court "if from the evidence submitted the court shall be satisfied that an impartial jury cannot be obtained to try the case." Under Code § 38-1708, where the question under examination is one of opinion, any witness may swear to his opinion or belief, stating his reasons; if the issue shall be to the existence of a fact, opinions generally are inadmissible. On the hearing of evidence regarding the possibility of obtaining an impartial jury the fair-trial issue relates to a future thing; being an issue which only the future can determine absolutely, it is necessarily a matter of opinion at the time when the testimony is being heard. In Broxton v. State, 24 Ga. App. 31 (2) (99 S. E. 635) it was held: "Evidence that the defendant would receive a fair and impartial trial in the county wherein the alleged crime was committed was relevant, to throw light upon the state of the public mind." That opinion evidence is generally considered on this issue see Douberly v. State, 184 Ga. 573 (1) (192 S. E. 223); Nickles v. State, 89 Ga. App. 538 (1) (80 S. E. 2d 97). If it is relevant to show that the defendant may obtain a fair trial, it is also relevant when offered to show that he may not obtain a fair trial, when the facts upon which the opinion is based are stated. It was accordingly error for the trial court, in considering the 12 affidavits offered by the defendant for this purpose, to sustain an objection to that part of each which set forth that the witness, because of the facts stated, was of the opinion that the defendant could not obtain a fair trial because the prospective jurors "who have been summoned and will be impaneled to try him have been so exposed to the adverse, unfavorable and antagonistic newspaper articles, radio reports, television reports, and television moving pictures, and the general discussions caused thereby . . . that they would not yield readily to the testimony and evidence in the case." This is true even though the court would not be in any way bound by the opinions so expressed, but he should have considered them as relevant to the issue. However, since the court did take into consideration the facts on which such opinions were based, and since his decision was amply supported by the evidence, the judgment refusing to change the venue of the trial was not error.
*857 4. (a) Error is assigned on the overruling of the motion for a new trial consisting of the general grounds and sixteen special grounds.
The defense moved to continue the case on the ground that the defendant was first indicted for this offense under indictment 77427, and that he was forced to trial on a Tuesday under indictment 77502 which had been returned only on a previous Friday; that there was a variance between the two indictments and he was accordingly not ready to go to trial under indictment 77502 although he would have been ready and would have had, under the rules of court, to go to trial under indictment 77427. The judgment of the trial court overruling the motion for a continuance is excepted to both directly in the bill of exceptions and as a special ground of the motion for a new trial. The only changes made by the second indictment were (a) an allegation that the date of the offense was April 11, rather than March 11, 1959, and (b) that the special presentment then pending was "against accused and J. W. Brinson, Jr." rather than against the "accused." It was not shown that four days was an insufficient length of time to prepare a defense as against these two changes in an indictment as to which counsel stipulated they were otherwise ready for trial. The court did not abuse his discretion in overruling the motion. Code § 81-1419; Harris v. State, 119 Ga. 114 (45 S. E. 973).
(b) An assignment of error on a judgment of the trial court refusing to change the venue is not a proper ground of a motion for a new trial. Waters v. State, 158 Ga. 510 (123 S. E. 806).
(c) The general grounds and special grounds 6 and 12 of the amended motion for a new trial deal with the defense of entrapment and contend that the conviction was erroneous because the defense was sustained as a matter of law. The witness James Moore testified that he was a friend of the defendant; that he talked with the defendant on March 9, and learned that the defendant was being investigated by the grand jury; that he had read some of it in the newspaper before then; that J. W. Brinson was present and the witness asked him if he thought there was any chance he might be able to get out of the thing in any way and Brinson replied: "If we could find anybody we knew *858 on the grand jury we might be able to find some way." The defendant said Brinson had a copy of the grand jury list in his car. While Brinson was gone the defendant told Moore if there was any possible way he could get out of it he would like to do it no matter what the cost. Moore, after examining the list, said he thought he knew a friend of the foreman Westlake. The defendant said, "You had better call him up but I will have to tell you what to tell him. Tell your friend not to mention anyone's name. Ask him if he can soft pedal the whole situation that is before the grand jury." Moore then contacted Sanders and said: "I have this friend of mine in trouble and I was wondering if you thought it would be advisable to maybe feel Westlake out and see what he thought about it." He then testified: "He said he didn't believe that Westlake would accept anything, that he didn't know whether he would bring pressure but he wouldn't accept any money . . . When he said he wouldn't accept any money, I didn't tell Mr. Sanders about any money being involved. I did mention the name of my friend here." Sanders reported to Moore "that Mr. Westlake decided everybody before the grand jury was a bunch of criminals and that he was going to be a Sir Galahad and so forth and wasn't going to think about any legitimate businessman . . . but Mr. Westlake sounded like he might change his mind about putting everybody in jail and all." Moore testified: "In that initial meeting, there was nothing said about trying to give anybody any money or any presents or anything other than to see if he could get fair treatment before the grand jury . . . All my activities in this matter were acts of friendship in trying to help a friend. . . I had not told Mr. Sanders up to that time to offer Mr. Westlake any money or presents or anything other than to appeal to him only on a friendship basis."
Moore had a second conference with Sanders who "made the statement that he didn't see the need of talking to Mr. Westlake further, and at that time the whole thing was forgotten." Moore reported this conversation to Jones and any idea of influencing Westlake in their favor, whether innocently or corruptly, was then abandoned and Moore went to Nassau for a two-week vacation.
*859 Edward Westlake testified that at the time he had the conversation with Sanders he was told by Sanders that Moore "represented a number of people who were greatly concerned by the way the State investigations were turning out, and that these people were afraid of their possible personal involvement in these cases. He said they were so desperate that they were willing to do anything to head off the State investigation or to get me to act favorably or vote favorably in their behalf. He said that figures anywhere from five thousand to a hundred thousand dollars had been mentioned . . . among these individuals being H. Candler Jones. I told him that some testimony had already come out in the grand jury about Mr. Jones." Westlake also made it clear to Sanders that he intended to do his duty as a grand jury foreman in accordance with his oath. He returned home and transcribed the conversation as he remembered it, but said nothing to anyone about it for almost a month. Eventually he decided to report the conversation to the Fulton County Solicitor-General. After considerable consultation, Westlake was advised to see if he could establish a direct contact with Moore to see "whether they wished to continue this bribery attempt." He called Moore several times but the latter was out of the city. He finally spoke to him the Tuesday after Moore's return to the city on Monday, identified himself, and said he would like to talk for about thirty minutes if possible. No one connected with the prosecution intended at any time to accept a bribe, their negotiations and discussions being solely to bring about the commission of the crime of embracery by the defendant. The meeting between Moore and Westlake was arranged as outlined above and after preliminary sparring for about an hour, which Westlake testified was "to see who would mention the business at hand first, and I outwaited him," Moore suggested that the State investigations were a mess. Westlake agreed. Moore said he was interested only in the defendant, and that he had told Jones that Dave Sanders was a mutual friend. Westlake said he was glad Sanders was out of it. Moore asked what it would take to help Mr. Jones in this matter. Westlake said his vote was not decisive, the man who could do some good would be Mr. Webb "who perhaps we *860 could get to work favorably for us," and Moore then asked: "What do you think it would take, one, two, three, four, five?" meaning thousands of dollars. Westlake said he "thought it would take a great deal more than that to take care of both Mr. Webb and me because after all our necks would be stuck way out"; for Moore to see what Mr. Jones was willing to do and then contact him again. Moore also swore: "Up to that time, Candler Jones knew nothing of anything that I was doing or that I was talking to anybody or was going to talk to anybody about it."
Westlake testified that he continued to encourage Moore; that he would reassure Moore whenever it appeared that the latter lost confidence in the deal going through; that he told Moore, and later Jones, that the plan was satisfactory with Mr. Webb, who was willing to go along because he and Mr. Cadenhead were at outs with each other. On cross-examination he stated that at Jones' request he asked Mr. Webb to call Mr. Jones' attorney; that the call was in regard to turning over some documents and not specifically to reassure Mr. Jones, but "I think also it probably would have reassured Mr. Jones." In his statement, the defendant said that the arrangement between himself and Westlake was that if Webb was in on the deal he was to call his attorney regarding the documents; that Mr. Webb called him directly and he was thereby led to believe that the solicitor was working with him. No further testimony was offered by the State as to this telephone conversation. As to Westlake's conversation with the defendant, he testified "[Jones] said that he wanted to be sure before he paid out any money that like any other good business man he would get what he was paying for. He said it wouldn't do him any good if these indictments were merely put off for another thirty days and went before the next grand jury, he wanted to be sure that these indictments or this indictment would not recur at the next grand jury, that it could be quashed completely. I said I thought it could. I said Mr. Webb will cooperate on that. And the reason I told him that Mr. Webb would cooperate on that was because of the previous conversation which I had with Mr. Moore that we would try to see if *861 Mr. Webb wouldn't cooperate in helping quash this indictment, and I said I didn't know specifically what Mr. Webb can do or will do." On cross-examination he testified as to the conversation of March 11: "As far as I was concerned and as far as the man who had the contact with me, Mr. Sanders, the matter was a closed book. And it stayed a closed book between me and Sanders, and has stayed a closed book between me and Sanders. And I stated when Mr. Moore and I first talked it was a game of cat and mouse between us as to which one would broach the subject first and I outwaited him . . . It is substantially correct that Mr. Moore said to me that I was foreman of the grand jury but that Mr. Webb is Solicitor and what about Mr. Webb in this situation and I said to Mr. Moore that I thought I could handle Mr. Webb and that he would join in it . . . I called at his office and said that the least we would take for this window contract was $10,000; I told him that is the least we would take. I didn't tell him anybody was `we', but I think he understood. And whether he thought `we' was me and Paul Webb, I don't know what he thought; I suppose he did. And I would say that is what I intended him to think by what I told him . . . I told Mr. Jones that Mr. Webb could take care of this pending indictment and I said I didn't know exactly how he could nor was I particularly interested in how he could but I knew he could. And Mr. Jones told me at that meeting at Hastings he was not interested in temporary relief, and I assured him that as far as the March-April grand jury was concerned that he would get relief there and told him that I thought Mr. Webb could handle it as a closed thing."
The incidents leading up to the deposit of the bribe money in a telephone booth by this defendant on April 11, 1959, pursuant to the arrangements made with Westlake, fall naturally into two divisions. First, the defendant and Moore procured Sanders to talk to Westlake; this talk resulted in a repudiation by Westlake so explicit that all parties thereto considered the incident at an end. Whatever Sanders may have inferred, and whatever he actually said to Westlake, the evidence is undisputed that he was cautioned by Jones not to use his name, and *862 he was not authorized by Jones or Moore to mention any sum of money. The act of sending Sanders to talk to Westlake was undoubtedly in the nature of a "feeler", but it was not embracery for the reason that no offer or attempt was made at that time, certainly none sanctioned by the defendant, to enter into any agreement, whether corrupt or not. Sanders did state on his own initiative that many people were involved of whom Jones was one, and that there was money to be made, but he made no offer under the State's version of the affair. The testimony of the defense does not of course go even this far, as they contend that the conversation as authorized by Jones was with a view to calling Westlake's attention to the fact that innocent business men whose names were unfairly bandied about in the investigation would receive undue injuries to their reputations. The "persuasions" mentioned in Code § 26-4702 are insufficient to make out the crime under this record as of March 11, 1959. Therefore, no crime had been committed as of that date and the defendants had abandoned any intent they might have had to commit this particular crime.
Secondly, it is undisputed that the first move which led to the commission of this crime was initiated at a conference in the office of the Solicitor-General on April 1, 1959, over three weeks later. Pursuant thereto, Westlake informed Moore that he wanted to talk with him. Since the men had never met, did not know each other, and had had no prior contact other than through the mediation of Sanders, it cannot be seriously disputed that this meant and was intended to mean to Moore that Westlake was interested in further discussion of the names then being investigated by the grand jury, including especially Candler Jones. Moore would not know whether the interest was in the interests of fair play; whether it was corrupt, motivated by the desire to take a bribe, or was a pretense of corruption made for the purpose of exposure. But there is no scintilla of doubt that both men understood the situation. They "sparred" for an hour, and Westlake described himself as outwaiting his opponent by which he meant outwitting him. His preliminary words were such as to convince Moore that his purpose *863 in arranging the meeting was to receive money. He eventually outlined the manner in which this could be done by inventing the procedure of "handling" the solicitor, without which, under the undisputed evidence, the crime would not have been committed, since Jones' interest was not to block this particular grand jury investigation so much as to assure himself that it would not be renewed at the next term. It is implicit in the testimony that Mr. Webb's complicity was to be signalized by a call from his office to the defendant's attorneys giving a stated message. There is no evidence that this call was made. However, the defendant stated that it was made directly to him and this statement stands undenied. Entrapment is generally recognized as a defense where the defendant is solicited or enticed into committing a crime which he would not otherwise have committed. Osborne v. State, 92 Ga. App. 518 (88 S. E. 2d 862). "Entrapment exists where the idea and intention of the commission of a crime originates with an officer of the State, and he, by undue persuasion, incitement, and deceitful means, induces the defendant to commit an act . . . which the defendant would not have committed except for the conduct of such officer." Sutton v. State, 59 Ga. App. 198 (3) (200 S. E. 225). It occurs when the criminal conduct is "the product of the creative activity" of law enforcement officials. Sherman v. U. S., 365 U. S. 369 (78 S. Ct. 819, 2 L. Ed. 2d 848). Where officers suspect a person of being systematically guilty of a certain type of offense, such as selling illegal liquor, the setting of a trap by proposing to such person that he sell to the decoy is not generally considered entrapment in the sense that it may be used as a legal defense for the reason that a part of the law-enforcement process involves the apprehension and removal of known criminals. A different situation is presented where a man is persuaded into committing a crime in the first instance. As was stated in Butts v. U. S., 273 F. 35, 38: "The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it. . . It is unconscionable, contrary to public policy and to the established law of the land to punish a man for the commission *864 of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of if the officers of the law had not inspired, incited, persuaded and lured him to attempt to commit it." We do not insist in this case that the record shows the defendant never thought of committing the crime until the idea was placed in his mind by the foreman of the grand jury, nor is such a conclusion necessary. Granted that Jones displayed a willingness to corrupt; granted that if Westlake had not refused to proceed at the first meeting between him and Sanders these initial negotiations might well have led to the same conclusion and he would, under those facts, have been properly convicted; yet, the fact remains that this was not the case, and any criminal enterprise lodged in the defendant's thoughts was abandoned before it had an opportunity to come to fruition.
The carefully laid plans of the prosecution to bring about the commission of this crime are indicative of its lack of faith in the strength of its original case against this defendant, the suppression of which this crime was committed to accomplish. The presence of the representatives of the media for the dispensation of news on the scene of the place selected by the prosecution for the commission of the crime tends to discredit the motives of the prosecution as being for the prevention of crime and to bring about punishment for its commission. On the contrary, a desire to stage a sensational crime for publicity purposes is reflected.
That this was a trap set by the highest law-enforcement officers of the State of Georgia in Fulton County cannot be denied. The State's contention is that it by-passes the defense of entrapment because the scheme originated in the mind of the defendant and not with them. However, a careful analysis of this evidence is insufficient to support the State's theory in this respect. Pursuant to a well laid plan they renewed negotiations with Moore, whom they knew to be active on behalf of the defendant. In the original negotiations the defendant had neither made, proposed, nor authorized any corrupt offer. The first offer to corruption of which the defendant had knowledge came from the prosecution. Every objection and obstacle which the *865 defendant foresaw was met and solved by the prosecution. The media in this locality for the dispensation of news were kept informed of every progressive step that the prosecution was able to make toward the ultimate springing of the trap. Their knowledge of the time and place of the ultimate incident was such as to indicate that the whole drama was staged primarily for their benefit. They were able to take up strategic positions where they could make motion pictures of the crime while it was in the process of being committed, as well as in its earlier stages. In this case the prosecution went further and participated more in bringing about the commission of the crime by the defendant than in any case we have been able to find anywhere in the United States where the defense of entrapment was not upheld. This court is of the opinion that the conduct of the prosecution in this case falls far short of the high standard that must be set by law-enforcement officers in the administration of justice on behalf of the sovereign State of Georgia, and we cannot approve it.
The defense of entrapment being complete, and the evidence not otherwise authorizing conviction, the trial court erred in denying the motion for new trial.
(d) The remaining grounds of the amended motion for a new trial are either controlled by what has been held in the foregoing division of this opinion, or they are otherwise without merit.
Judgment reversed. Townsend and Carlisle, JJ., concur.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 3 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
In re:
No. 02-4045
YOLETTE MARIE PRATT,
(D.C. No. 2:01-CV-908-C)
(D. Utah)
Petitioner - Appellant.
ORDER AND JUDGMENT *
Before EBEL, LUCERO and HARTZ, Circuit Judges.
On August 16, 2001, Pratt and her husband filed a petition for bankruptcy
under Chapter 7 in the United States Bankruptcy Court for the District of Utah.
(Aplt. App. at 1.) After Pratt’s husband appeared at the first scheduled creditors’
meeting but she did not, the Chapter 7 Trustee bifurcated Pratt’s case from that of
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
her husband and filed a recommendation with the bankruptcy court that her case
be dismissed pursuant to Bankruptcy Court Local Rule 2003-1(a). 1 (Id. at 53C.)
On October 24, 2001, Pratt objected to the bifurcation and dismissal at a
hearing before U.S. Bankruptcy Court Judge Judith A. Boulden. (Id. at 89–95.)
At the hearing, Pratt claimed that she thought she could not bring children to the
creditors’ meeting and, consequently, her duties as a mother of four young
children, including a nursing infant, prevented her from attending. (Id. at 91–92.)
Pratt also explained that she lacked adequate transportation to attend the meeting,
which was held more than 40 miles from her home. (Id.; Aplt. B. at 12.) After
observing to Pratt’s attorney that “[i]f there is some enormous impediment to the
debtor attending you could have filed a motion to excuse,” Judge Boulden
overruled the objection and entered an order dismissing Pratt’s case on November
1, 2001. (Aplt. App. at 61, 93.)
Pratt failed to appeal Judge Boulden’s order of dismissal within 10 days,
but on November 14, 2001 she petitioned the United States District Court for the
District of Utah for a writ of mandamus. (Id. at 64.) In her petition, Pratt argued
that it was an “abuse of power” for Judge Boulden to dismiss her case, and she
1
Rule 2003-1(a) reads in part: “The debtor and the debtor’s attorney are
required to appear at any properly scheduled or continued meeting of creditors.
Failure of a debtor or a debtor’s attorney to appear shall result in a voluntary case
being dismissed. In a joint case where only one spouse appears, the case shall be
bifurcated and the appropriate dismissal entered.”
-2-
sought both to have Judge Boulden’s order of dismissal vacated and to have the
bankruptcy court ordered to adopt and submit to the district court for approval “a
more equitable local rule containing clear standards for excusing debtors for their
failure to attend meetings of creditors.” (Id. at 64–67, 102.)
On January 31, 2002, the district court denied Pratt’s petition for a writ of
mandamus, and Pratt now appeals the district court’s decision. For substantially
the reasons given by the district court, we AFFIRM the district court’s denial of a
writ of mandamus.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
-3-
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330 U.S. 552 (1947)
KOTCH ET AL.
v.
BOARD OF RIVER PORT PILOT COMMISSIONERS FOR THE PORT OF NEW ORLEANS ET AL.
No. 291.
Supreme Court of United States.
Argued February 5, 6, 1947.
Decided March 31, 1947.
APPEAL FROM THE SUPREME COURT OF LOUISIANA.
*553 M.A. Grace and Charles A. O'Niell, Jr. argued the cause and filed a brief for appellants.
Arthur A. Moreno argued the cause for appellees. With him on the brief was Selim B. Lemle.
MR. JUSTICE BLACK delivered the opinion of the Court.
Louisiana statutes provide in general that all seagoing vessels moving between New Orleans and foreign ports must be navigated through the Mississippi River approaches to the port of New Orleans and within it exclusively by pilots who are State officers.[1] New State pilots *554 are appointed by the governor only upon certification of a State Board of River Pilot Commissioners, themselves pilots.[2] Only those who have served a six-month apprenticeship under incumbent pilots and who possess other specific qualifications may be certified to the governor by the board.[3] Appellants here have had at least fifteen years experience in the river, the port, and elsewhere, *555 as pilots of vessels whose pilotage was not governed by the State law in question.[4] Although they possess all the statutory qualifications except that they have not served the requisite six months apprenticeship under Louisiana officer pilots,[5] they have been denied appointment as State pilots. Seeking relief in a Louisiana state court, they alleged that the incumbent pilots, having unfettered discretion under the law in the selection of apprentices, had selected, with occasional exception, only the relatives and friends of incumbents; that the selections were made by electing prospective apprentices into the pilots' association, which the pilots have formed by authority of State law;[6] that since "membership . . . has been closed . . . to all except those having the favor of the pilots" the result is that only their relatives and friends have and can become State pilots.[7] The Supreme Court *556 of Louisiana has held that the pilotage law so administered does not violate the equal protection clause of the Fourteenth Amendment, 209 La. 737, 25 So.2d 527. The case is here on appeal from that decision under 28 U.S.C. § 344 (a).
The constitutional command for a state to afford "equal protection of the laws" sets a goal not attainable by the invention and application of a precise formula. This Court has never attempted that impossible task. A law which affects the activities of some groups differently from the way in which it affects the activities of other groups is not necessarily banned by the Fourteenth Amendment. See e.g., Tigner v. Texas, 310 U.S. 141, 147. Otherwise, effective regulation in the public interest could not be provided, however essential that regulation might be. For it is axiomatic that the consequence of regulating by setting apart a classified group is that those in it will be subject to some restrictions or receive certain advantages that do not apply to other groups or to all the public. Atchison, T. & S.F.R. Co. v. Matthews, 174 U.S. 96, 106. This selective application of a regulation is discrimination in the broad sense, but it may or may not deny equal protection of the laws. Clearly, it might offend that constitutional safeguard if it rested on grounds wholly irrelevant to achievement of the regulation's objectives. An example would be a law applied to deny a person a right to earn a living or hold any job because of hostility to his particular race, religion, beliefs, or because of any other reason having no rational relation to the regulated activities. See American Sugar Rfg. Co. v. Louisiana, 179 U.S. 89, 92.
*557 The case of Yick Wo v. Hopkins, 118 U.S. 356, relied on by appellants, is an illustration of a type of discrimination which is incompatible with any fair conception of equal protection of the laws. Yick Wo was denied the right to engage in an occupation supposedly open to all who could conduct their business in accordance with the law's requirements. He could meet these requirements, but was denied the right to do so solely because he was Chinese. And it made no difference that under the law as written Yick Wo would have enjoyed the same protection as all others. Its unequal application to Yick Wo was enough to condemn it. But Yick Wo's case, as other cases have demonstrated, was tested by the language of the law there considered and the administration there shown. Cf. Crowley v. Christensen, 137 U.S. 86, 93, 94; Gundling v. Chicago, 177 U.S. 183; New York ex rel. Lieberman v. Van de Carr, 199 U.S. 552; Engel v. O'Malley, 219 U.S. 128, 137. So here, we must consider the relationship of the method of appointing pilots to the broad objectives of the entire Louisiana pilotage law. See Grainger v. Douglas Park Jockey Club, 148 F. 513, and cases there cited. In so doing we must view the appointment system in the context of the historical evolution of the laws and institution of pilotage in Louisiana and elsewhere. Cf. Otis Co. v. Ludlow Mfg. Co., 201 U.S. 140, 154; Jackman v. Rosenbaum, 260 U.S. 22, 31; Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 428-430. And an important factor in our consideration is that this case tests the right and power of a state to select its own agents and officers. Taylor v. Beckham, 178 U.S. 548; Snowden v. Hughes, 321 U.S. 1, 11-13.
Studies of the long history of pilotage reveal that it is a unique institution and must be judged as such.[8] In *558 order to avoid invisible hazards, vessels approaching and leaving ports must be conducted from and to open waters by persons intimately familiar with the local waters. The pilot's job generally requires that he go outside the harbor's entrance in a small boat to meet incoming ships, board them and direct their course from open water to the port. The same service is performed for vessels leaving the port. Pilots are thus indispensable cogs in the transportation system of every maritime economy. Their work prevents traffic congestion and accidents which would impair navigation in and to the ports. It affects the safety of lives and cargo, the cost and time expended in port calls, and, in some measure, the competitive attractiveness of particular ports. Thus, for the same reasons that governments of most maritime communities have subsidized, regulated, or have themselves operated docks and other harbor facilities and sought to improve the approaches to their ports, they have closely regulated and often operated their ports' pilotage systems.[9]
The history and practice of pilotage demonstrate that, although inextricably geared to a complex commercial economy, it is also a highly personalized calling.[10] A pilot does not require a formalized technical education so much as a detailed and extremely intimate, almost intuitive, knowledge of the weather, waterways and conformation of the harbor or river which he serves. This seems to be particularly true of the approaches to New Orleans through the treacherous and shifting channel of the Mississippi River.[11] Moreover, harbor entrances *559 where pilots can most conveniently make their homes and still be close to places where they board incoming and leave outgoing ships are usually some distance from the port cities they serve.[12] These "pilot towns" have begun, and generally exist today, as small communities of pilots, perhaps near but usually distinct from the port cities.[13] In these communities young men have an opportunity to acquire special knowledge of the weather and water hazards of the locality and seem to grow up with ambitions to become pilots in the traditions of their fathers, relatives, and neighbors.[14] We are asked, in effect, to say that Louisiana is without constitutional authority to conclude that apprenticeship under persons specially interested in a pilot's future is the best way to fit him for duty as a pilot officer in the service of the State.
The States have had full power to regulate pilotage of certain kinds of vessels since 1789 when the first Congress decided that then existing state pilot laws were satisfactory and made federal regulation unnecessary. 1 Stat. 53, 54 (1789), 46 U.S.C. § 211; Olsen v. Smith, 195 U.S. 332, 341; Anderson v. Pacific Coast S.S. Co., 225 U.S. 187. Louisiana legislation has controlled the activities and appointment of pilots since 1805 even before the Territory was admitted as a State.[15] The State pilotage system, as it has evolved since 1805, is typical of that which grew up *560 in most seaboard states and in foreign countries.[16] Since 1805 Louisiana pilots have been State officers whose work has been controlled by the State.[17] That Act forbade all but a limited number of pilots appointed by the governor to serve in that capacity. The pilots so appointed were authorized to select their own deputies.[18] But pilots, and through them, their deputies, were literally under the command of the master and the wardens of the port of New Orleans, appointed by the governor. The master and wardens were authorized to make rules governing the practices of pilots, specifically empowered to order pilots to their stations, and to fine them for disobedience to orders or rules. And the pilots were required to make official bond for faithful performance of their duty. Pilots' fees were fixed;[19] ships coming to the Mississippi were required to pay pilotage whether they took on pilots or not.[20] The pilots were authorized to organize an association whose membership they controlled in order "to enforce the legal regulations, and add to the efficiency of the service required thereby."[21] Moreover, efficient and adequate *561 service was sought to be insured by requiring the Board of Pilot Commissioners to report to the governor and authorizing him summarily to remove any pilot guilty of "neglect of duty, habitual intemperance, carelessness, incompetency, or any act or conduct . . . showing" that he "ought to be removed." La. Act No. 113, § 20 (1857). These provisions have been carried over with some revision into the present comprehensive Louisiana pilotage law. 6 La. Gen. Stat., tit. 59, cc. 6, 8 (1939). Thus in Louisiana, as elsewhere, it seems to have been accepted at an early date that in pilotage, unlike other occupations, competition for appointment, for the opportunity to serve particular ships and for fees, adversely affects the public interest in pilotage.[22]
*562 It is within the framework of this long-standing pilotage regulation system that the practice has apparently existed of permitting pilots, if they choose, to select their relatives and friends as the only ones ultimately eligible for appointment as pilots by the governor. Many other states have established pilotage systems which make the selection of pilots on this basis possible.[23] Thus it was noted thirty years ago in a Department of Commerce study of pilotage that membership of pilot associations "is limited to persons agreeable to those already members, generally relatives and friends of the pilots. Probably in pilotage more than in any other occupation in the United States the male members of a family follow the same work from generation to generation."[24]
*563 The practice of nepotism in appointing public servants has been a subject of controversy in this country throughout our history. Some states have adopted constitutional amendments[25] or statutes[26] to prohibit it. These have reflected state policies to wipe out the practice. But Louisiana and most other states have adopted no such general policy. We can only assume that the Louisiana legislature weighed the obvious possibility of evil against whatever useful function a closely knit pilotage system may serve. Thus the advantages of early experience under friendly supervision in the locality of the pilot's training, the benefits to morale and esprit de corps which family and neighborly tradition might contribute, the close association in which pilots must work and live in their pilot communities and on the water, and the discipline and regulation which is imposed to assure the State competent pilot service after appointment, might have prompted the legislature to permit Louisiana pilot officers to select those with whom they would serve.
The number of people, as a practical matter, who can be pilots is very limited. No matter what system of selection is adopted, all but the few occasionally selected must of necessity be excluded. Cf. Olsen v. Smith, supra, 344, 345.[27] We are aware of no decision of this Court holding *564 that the Constitution requires a state governor, or subordinates responsible to him and removable by him for cause, to select state public servants by competitive tests or by any other particular method of selection. The object of the entire pilotage law, as we have pointed out, is to secure for the State and others interested the safest and most efficiently operated pilotage system practicable. We cannot say that the method adopted in Louisiana for the selection of pilots is unrelated to this objective. See Olsen v. Smith, supra; cf. Carmichael v. Southern Coal Co., 301 U.S. 495, 509-510. We do not need to consider hypothetical questions concerning any similar system of selection which might conceivably be practiced in other professions or businesses regulated or operated by state governments. It is enough here that considering the entirely unique institution of pilotage in the light of its history in Louisiana, we cannot say that the practice appellants attack is the kind of discrimination which violates the equal protection clause of the Fourteenth Amendment.
Affirmed.
MR. JUSTICE RUTLEDGE, dissenting.
The unique history and conditions surrounding the activities of river port pilots, shortly recounted in the Court's opinion, justify a high degree of public regulation. But I do not think they can sustain a system of entailment for the occupation. If Louisiana were to provide by statute in haec verba that only members of John Smith's family would be eligible for the public calling of pilot, I have no doubt that the statute on its face would infringe the Fourteenth Amendment. And this would be true, *565 even though John Smith and the members of his family had been pilots for generations. It would be true also if the right were expanded to include a number of designated families.
In final analysis this is, I think, the situation presented on this record. While the statutes applicable do not purport on their face to restrict the right to become a licensed pilot to members of the families of licensed pilots, the charge is that they have been so administered. And this charge not only is borne out by the record but is accepted by the Court as having been sustained.[1]
The result of the decision therefore is to approve as constitutional state regulation which makes admission to the ranks of pilots turn finally on consanguinity. Blood is, in effect, made the crux of selection. That, in my opinion, is forbidden by the Fourteenth Amendment's guaranty against denial of the equal protection of the laws. The door is thereby closed to all not having blood relationship to presently licensed pilots. Whether the occupation is considered as having the status of "public officer" or of highly regulated private employment, it is beyond legislative power to make entrance to it turn upon such a criterion. The Amendment makes no exception from its prohibitions against state action on account of the fact that public rather than private employment is affected by the forbidden discriminations. That fact simply makes violation all the more clear where those discriminations are shown to exist.
It is not enough to avoid the Amendment's force that a familial system may have a tendency or, as the Court puts it, a direct relationship to the end of securing an efficient pilotage system. Classification based on the purpose *566 to be accomplished may be said abstractly to be sound. But when the test adopted and applied in fact is race or consanguinity, it cannot be used constitutionally to bar all except a group chosen by such a relationship from public employment. That is not a test; it is a wholly arbitrary exercise of power.
Conceivably the familial system would be the most effective possible scheme for training many kinds of artisans or public servants, sheerly from the viewpoint of securing the highest degree of skill and competence. Indeed, something very worth while largely disappeared from our national life when the once prevalent familial system of conducting manufacturing and mercantile enterprises went out and was replaced by the highly impersonal corporate system for doing business.
But that loss is not one to be repaired under our scheme by legislation framed or administered to perpetuate family monopolies of either private occupations or branches of the public service. It is precisely because the Amendment forbids enclosing those areas by legislative lines drawn on the basis of race, color, creed and the like, that, in cases like this, the possibly most efficient method of securing the highest development of skills cannot be established by law. Absent any such bar, the presence of such a tendency or direct relationship would be effective for sustaining the legislation. It cannot be effective to overcome the bar itself. The discrimination here is not shown to be consciously racial in character. But I am unable to differentiate in effects one founded on blood relationship.
The case therefore falls squarely within the ruling in Yick Wo v. Hopkins, 118 U.S. 356,[2] not only with relation *567 to the line of discrimination employed, but also in the fact that unconstitutional administration of a statute otherwise valid on its face incurs the same condemnation as if the statute had incorporated the discrimination in terms. Appellants here are entitled, in my judgment, to the same relief as was afforded in the Yick Wo case.
MR. JUSTICE REED, MR. JUSTICE DOUGLAS and MR. JUSTICE MURPHY join in this dissent.
NOTES
[1] A ship entering the Mississippi River from the Gulf of Mexico is piloted the twenty mile distance from the mouth of the river to "Pilot Town" by one of a group of pilots specially familiar with the "entrance" to the Mississippi through the so-called "passes." La. Acts 1880, No. 99, § 2, La. Acts 1908, No. 55, § 1, La. Acts 1910, No. 26, § 1, 6 La. Gen. Stat. §§ 9141, 9163 (1939). Between Pilot Town and New Orleans, a distance of approximately ninety miles, ships are piloted exclusively by so-called river port pilots. La. Acts 1908, No. 54, § 1, 6 La. Gen. Stat., tit. 59, c. 8 (1939). By an amendment in 1942 the exclusive jurisdiction of the river port pilots was extended to the piloting of seagoing vessels within the port of New Orleans. La. Acts 1942, No. 134, 6 La. Gen. Stat. § 9155 (Supp. 1946). Appellants here sought appointment as river port pilots.
[2] Sections 2 and 3 of the Act of 1908 provided for the appointment and commissioning of twenty-eight pilots by the governor and prescribed that thereafter there should not be less than twenty. 6 La. Gen. Stat. §§ 9155, 9156 (1939).
The statement of the Louisiana court in this case that pilots so appointed are considered State officers has long been the established State rule. Williams v. Payson, 14 La. Ann. Rep. 7, 8 (1859); Louisiana v. Follett, 33 La. Ann. Rep. 228, 230 (1881); Levine v. Michel, 35 La. Ann. Rep. 1121, 1124 (1883).
From among the pilots the governor was required to appoint three River Port Pilot Commissioners. La. Acts 1908, No. 54, § 1, 6 La. Gen. Stat. § 9154 (1939).
[3] "Whenever there exists a necessity for more pilots . . . the . . . board of river port pilot commissioners shall hold examinations, under such rules and regulations, and with such requirements as they shall have provided, with the governor's approval, provided that no applicant shall be considered by said board, unless he submits proper evidence of moral character and is a voter of this state, and shall have served six months' apprenticeship in his proposed calling, and upon the certificate of the board to the governor that the applicant has complied with the provisions of this act, the governor may, in his discretion, appoint to existing vacancies." La. Acts 1908, No. 54, § 4. 6 La. Gen. Stat. § 9157 (1939).
[4] Appellants were licensed to pilot coastwise vessels to and through the port under federal law which excludes states from controlling pilotage of coastal shipping. Rev. Stat. §§ 4401, 4444, 46 U.S.C. §§ 215, 364. Also prior to the passage of La. Acts 1942, No. 134, they had piloted all classes of vessels within the port of New Orleans. That Act deprived appellants of authority to pilot within the port and conferred it exclusively upon State river port pilots. Thus appellants allege they have been deprived of an opportunity to make a living unless they can obtain appointment as river port pilots under the pilotage law.
[5] While the Act does not specifically require that the apprenticeships be performed under incumbent officer pilots, the State Supreme Court has so construed it.
[6] La. Rev. Stat. § 2707 (1869), reenacted in § 4 of La. Acts 1928, No. 198, 6 La. Gen. Stat. § 9149 (1939).
[7] Appellants' complaint was dismissed for failure to state a cause of action. Therefore we consider their allegations as facts for the purpose of this decision.
Appellants' prayer had sought an injunction against interference with their serving as pilots, and, in the alternative, sought mandamus to compel the Board to examine appellants as required by law and to certify them to the Governor. The Louisiana Supreme Court affirmed the trial court's refusal to compel the board to examine appellants because they did not possess the qualifications required to take examinations specifically, they had not served apprenticeships.
[8] See generally, Report of Departmental Committee on Pilotage (London, 1911); Pilotage in the United States, Special Agents Series, Department of Commerce (1917).
[9] See Cooley v. Board of Wardens, 12 How. 299, 308, 312, 316, 326; Ex parte McNiel, 13 Wall. 236, 238, 239.
[10] For an excellent description of a pilot's life and duty, see Kane, Deep Delta Country, c. 10 (1944).
[11] See Kane, op. cit. supra, note 10. See also Hearings before House Committee on the Merchant Marine and Fisheries on H.R. 9678, 64th Cong., 1st Sess., 106, 214, 229, 279 (1916) (compulsory barge pilotage).
[12] See Giesecke, American Commercial Legislation before 1789 (1910) 118; Kane, op. cit. supra, note 10.
[13] See Kane, op. cit. supra, note 10. A Louisiana statute provides that "no license shall be granted any person to keep a tavern . .. at the Balize, South West Pass or any other station for pilots, nor within three miles of such station, unless the person applying for such license shall be recommended in writing by a majority of the branch pilots." La. Rev. Stat. § 2704 (1869), 6 La. Gen. Stat. § 9166 (1939).
[14] See Kane op. cit. supra, note 10, 128; see also Pilotage in the United States, op. cit. supra, note 8, 8, 16.
[15] La. Acts (Territory of New Orleans) 1805, c. 24; see also Surrey, Commerce of Louisiana, 1699-1763, c. III (1916).
[16] Almost all the maritime states, some as colonies before the Revolution, adopted comprehensive pilotage laws which included unrestricted apprenticeship provisions. Mass. Laws, c. 13 (1783); Mass. Rev. Stat. c. 32, §§ 5-42 (1836); New York Laws, c. XVIII, §§ I, VII, X, XII (1819); Pa. Stats. at Large, c. 536, § VI (1767); N.J. Rev. Laws, tit. 37, c. 7, § 18 (1847); I Laws of Md. (Dorsey) c. 63, §§ 2, 20, 23 (1803); Code of Virginia, c. 92, §§ 4, 9 (1849); N.C. Rev. Stat. c. 88, §§ 1, 5, 14 (1837). See also Report of Departmental Committee on Pilotage, op. cit. supra, note 8, Part I.
[17] See note 2 supra.
[18] The 1805 Act required deputies to obtain a certificate from the master and wardens as a condition precedent to their appointment. But § 1 of La. Acts 1806, c. 26, gave pilots blanket authority to appoint their own deputies. Pilots were, however, made responsible for the neglect or misconduct of their deputies.
[19] La. Acts 1805, c. 24, § 20; La. Acts 1837, No. 106, § 9.
[20] La. Acts 1805, c. 24, § 17.
[21] Levine v. Michel, supra, at 1125; see also note 6 supra.
[22] See Kane, op. cit. supra, n. 10, at 126-128; all of the State and colonial statutes set out in note 10, supra, provided for limitation on the number of pilots and fixed the fees they might charge. This is generally true today. See n. 23 infra.
The Department of Commerce Report, supra, n. 8, at 28 observed that: "The formation of pilots' associations was largely a result of the intense competition that formerly prevailed among the pilots, . . . . Little effort was made to maintain definite pilot stations. Instead, the desire to be the first to speak a ship frequently led the pilots to cruise great distances from the port.
"One of the unfortunate results of the intense competition of pilots was the fact that frequently pilots could not be had when wanted, although they might be far out to sea in quest of business. Another drawback was that pilots unnecessarily exposed themselves to danger. And a third important disadvantage was that it made the earnings precarious; a pilot might earn a great deal this month and very little the next. . . .
"The pilots themselves were the first to see the disadvantages of the free or competitive system and to take steps toward the organization of associations. These associations soon developed into strong working combinations that eliminated competition and placed on an amicable basis matters that formerly produced much sharp rivalry.
"From the evidence at hand it would appear that the shipping interests as well as the insurance and commercial interests of the ports encouraged the pilots in the formation of these associations. The advantages of a well-organized pilotage system were as apparent to these interests as to the pilots themselves for the commerce of the port was not only facilitated and expedited but made much safer by reason of the better organization of the pilotage system, which came with the elimination of competition.
"Since associations have been formed along the present lines pilotage grounds have been established . . . These grounds are well known to mariners, who may safely count on finding there at practically all times and in all conditions of weather a pilot boat with a sufficient number of pilots aboard to accommodate any reasonable number of vessels that may come. There is little chance nowadays that a vessel will fail to find a pilot when needed. . . .
"Still another advantage of the present organization of pilotage systems is that it permits the maintenance of a central office which is in constant touch with the pilot boat and arranges for the rotation of pilots. The association generally employs an agent to look after the routine business of the office."
[23] See N.J. Laws 1898, c. 31, N.J. Stat. Ann. Title 12, c. 8 (1939); Pa. P.L. 542 of 1803, Pa. Stats. Ann. (Purdon) Title 55, c. 2 (1930); Md. Ann. Code (Flack), Art. 74 (1939); Del. Rev. Code, c. 35 (1935); Va. Code, c. 142 (1942); Ala. Laws, 1931, p. 154, Ala. Code, Title 38, c. 2 (1940); Ore. Comp. Laws Ann., Title 105, c. 2 (1940). See also note 16, supra.
[24] Pilotage in the United States, supra, note 8, p. 8.
[25] See e.g., Mo. Const., Art. 14, § 13 (1924).
[26] See e.g., Idaho Sess. Laws, 1915, c. 10, Idaho Code Ann., § 57-701 (1932); Fla. Laws, 1933, c. 16088, Fla. Stats. Ann. §§ 116.10, 116.11 (1943); Neb. Laws 1919, c. 190, § 6, Neb. Rev. Stat. § 81-108 (1943); Tex. Acts 1909, p. 85, Tex. Penal Code (Vernon) Arts. 432-438 (1938).
[27] In Olsen v. Smith, the constitutionality of a Texas statute forbidding all but pilots appointed by the governor to serve was challenged by one who had not been appointed and had been enjoined from serving as a pilot. Yick Wo v. Hopkins, supra, was relied on as authority for a contention that he had been denied rights protected by the Fourteenth Amendment including equal protection of the laws. Id. 334. But this Court in sustaining the constitutionality of the statute, did not specifically discuss the question here raised. Therefore we do not depend upon Olsen v. Smith as a necessarily controlling authority for our decision here.
[1] The record shows that in a few instances over a course of several years nonrelatives of licensed pilots have received appointment as apprentices and qualified. But the general course of administration has been that such appointments are limited to relatives.
[2] To like effect is Alston v. School Board of Norfolk, 112 F.2d 992; cf. Burt v. City of New York, 156 F.2d 791; Remedies for Discrimination by State and Local Administrative Bodies (1946) 60 Harv. L. Rev. 271.
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8 F.3d 27
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.Bryant M. LEWIS, Plaintiff-Appellant,v.Constance Berry NEWMAN, Director, Office of PersonnelManagement, Defendant-Appellee.
No. 92-15964.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 11, 1993.*Decided Sept. 7, 1993.
Before: PREGERSON, BRUNETTI and RYMER, Circuit Judges.
1
MEMORANDUM**
2
Bryant M. Lewis appeals pro se the district courts order granting summary judgment in favor of Constance Berry Newman, Director of the Office of Personnel Management in his combined handicap and employment discrimination action under the Federal Rehabilitation Act of 1973, 29 U.S.C. § 794 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.1 Lewis contends the district court erred by (1) finding that he was collaterally estopped from bringing his claim of handicap discrimination and (2) finding that he had failed to establish a prima facie case of discrimination based on handicap or his race, religion, national origin, color or retaliation for prior Equal Employment Opportunity activity. We have jurisdiction under 28 U.S.C. § 1291 and we affirm for the reasons stated in the district court order.2
3
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
Newman's motion to supplement the record on appeal with the addition of a transcript of the February 26, 1992 hearing on defendant's motion for summary judgment is denied as moot. The transcript is already part of the record on appeal
2
Because we conclude that Lewis's claims are without merit, we hold that the district court did not abuse its discretion by denying Lewis's motion to appoint counsel. See Johnson v. Department of Treasury, 939 F.2d 820, 824 (9th Cir.1991); Ivey v. Board of Regents of University of Alaska, 673 F.2d 266, 269 (1982) (three factors are relevant in determining whether to appoint counsel: "(1) the plaintiff's financial resources; (2) the efforts made by the plaintiff to secure counsel on his own; and (3) the meritoriousness of plaintiff's claim")
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269 P.3d 801 (2012)
126 Haw. 266
STEWART
v.
STATE FARM MUT. AUTO. CO.
No. 28598.
Intermediate Court of Appeals of Hawai`i.
February 10, 2012.
Summary dispositional order Affirmed.
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231 S.C. 42 (1957)
97 S.E.2d 76
J. J. FLEMING, Temporary Administrator of the Estate of Annie Mae Fleming, deceased, Plaintiff,
v.
ARKANSAS FUEL OIL COMPANY, Service Oil Company, Olan G. Martin and Joseph D. Martin, trading and doing business as Martin's Oil Company, Defendants, wherein Joseph D. Martin and Olan G. Martin, trading and doing business as Martin's Oil Company, is, Appellant, and Gladys F. Ball, Administratrix, de bonis non, of the Estate of Annie Mae Fleming, deceased, is, Respondent.
17269
Supreme Court of South Carolina.
March 7, 1957.
*43 Messrs. Carlisle, Brown & Carlisle, of Spartanburg, for Appellant.
Messrs. Williams & Justice and Edwin W. Johnson, of Spartanburg, for Respondent.
March 7, 1957.
STUKES, Chief Justice.
This is an action for damages for wrongful death. There was similar tragic result in the recent case of Bradley v. Fowler, 210 S.C. 231, 42 S.E. (2d) 234. It is alleged in the amended complaint that plaintiff's intestate died as the result of burns from an explosion when she lighted her *44 kerosene cook stove. As indicated in the caption, there are three defendants, all wholesalers or jobbers of kerosene, and it is alleged that Arkansas Fuel sold the product to Service Oil, which in turn sold to Martin's Oil Company which sold to a small retailer, Nelson's Grocery. The fluid was purchased at retail from Nelson, who was not made a defendant in the action.
It is further alleged in the complaint that the three defendants knew, or by the exercise of ordinary care should have known, that Nelson would sell the product to the public for use as kerosene and each of the defendants made their respective sales with the implied representation and warranty that the fluid was kerosene and conformed to the applicable laws of the State and the rules and regulations promulgated thereunder. In fact, the fluid was not kerosene as the defendants knew, or in the exercise of ordinary care should have known, but it was adulterated with gasoline, naphtha or other inflammable ingredients; it was the duty of the defendants to inspect and test products sold by them to determine the flash point, which is required, by statute and rules, for kerosene to be not less than 100 ° F. But the product here sold had a flash point of 84 ° F. which was inherently highly dangerous, and it was unlawful to sell it for kerosene. The injury was directly and proximately caused by the carelessness, negligence, wilfulness and wantonness of the three defendants, acting jointly and severally, and their agents, servants and employees.
The specifications of alleged negligence, etc., of the defendants are: (a) violation of the statute and rules with respect to the testing and sale of kerosene; (b) selling for kerosene what they knew, or should have known, was highly inflammable and dangerous when used as kerosene is used; (c) failing to properly test and safeguard kerosene; (d) failing to warn the retailer; (e) negligently failing to separate kerosene from highly inflammable products; (f) in delivering to the retailer as kerosene what defendants knew or should have known contained gasoline, etc.; and (g) *45 selling petroleum products without ascertaining their true nature.
It is seen that the action is principally based upon alleged violations of statutory duties. These are prescribed in Sec. 66-401 et seq. of the Code of 1952, with implementing rules and regulations. Sec. 66-415; rules, page 457 of Vol. 7 of the Code. Wholesalers and jobbers of petroleum products, which the defendants are, are subject to these statutes and rules.
The defendant, Martin's Oil Company, demurred to the amended complaint upon the ground that in it were improperly united a cause of action to recover punitive damages for the alleged wilfulness of the demurring defendant, which does not affect the other parties to the action; and a cause of action to recover punitive damages against the other defendants, jointly and severally, for their alleged joint and several wilfulness, which cause or causes of action does, or do, not affect the demurring defendant. At the same time the defendant, Martin's Oil Company, reserving its rights under its demurrer, moved for an order requiring the plaintiff to make the amended complaint more definite and certain by separately stating the causes of action as follows: (a) against Martin's Oil Company for the delicits alleged to have been committed by it; and (b) the cause of action against Martin's Oil Company and the other defendants jointly for the delicts alleged to have been committed by them. Further motion was made by Martin's Oil Company to require that the complaint be made more definite and certain by specifying the acts of negligence and wilfulness intended to be charged against each defendant severally, and those charged against any two or more of them jointly.
The demurrer was overruled upon the ground that the alleged breaches of duty are directed against all of the defendants, jointly and severally; and the delicts, which are principally statutory, are not peculiarly connected with any one defendant, but they are breaches of duty in which all of the defendants, as wholesalers and jobbers, have a common *46 culpability. Piper v. American Fidelity & Casualty Co., 157 S.C. 106, 154 S.E. 106, was distinguished because in that case the liability of the insurance company was limited to negligence by reason of the contract and statute there involved; here the action is solely in tort and proof of the allegations of the complaint would result in equal guilt of all of the defendants. The motions for orders requiring the amended complaint to be made more definite and certain were also denied, upon the ground that only one cause of action is alleged in the complaint, and it affects all of the defendants. Martin's Oil Company has appealed.
The case is controlled by the authority of Cabe v. Ligon, 115 S.C. 376, 105 S.E. 739, which was upon similar facts. It was likewise an action for death which was caused by the explosion of oil, allegedly defective. It was purchased from Ligon & Ledbetter who had, in turn, purchased it from Petroleum Oil Company, and they were sued jointly. It was alleged that death of the victim was caused by the joint, concurrent and several negligence of the defendants; and wilfulness, wantonness and recklessness were alleged. Each of the defendants demurred to the complaint upon the same grounds, which were that the complaint failed to state a cause of action as to each of them, as well as collectively, which was overruled. The grounds of demurrer are set out in the opinion and the second was that it appeared upon the face of the complaint that there was no joint liability of the defendants because there was no allegation that they acted in concert or collusion or through any conspiracy or agreement, and there was no allegation which would show joint liability. It appears that there was then a similar statute to that under which the present action is brought. The overruling of the demurrer was affirmed and it was said that where different persons owe the same duty, and their acts naturally tend to the same breach of that duty, the wrong may be regarded as joint, and both may be held liable.
The decisions which appellant has cited in the brief have been carefully considered and none of them impinges upon *47 the pointed authority of Cabe v. Ligon, supra, which we follow. Indeed, the leading case of Pendleton v. Columbia Ry., Gas & Elec. Co., 133 S.C. 326, 131 S.E. 265, cited by appellant, in which the action for actual and punitive damages was against two independent defendants (here three) upon their separate acts of negligence and wilfulness which cooperated to cause plaintiff's single injury, is in accord with the result of the Cabe case, and with this. The fifth syllabus of the report of the Pendleton case is: "A single injury, which is proximate result of separate independent acts of negligence of two or more parties, subjects tort-feasors, even in absence of community of design or concert of action, to liability which is both joint and several."
The principle of the Pendleton case was applied by District Judge Wyche in Copley v. Stone, D.C., 75 F. Supp. 203. Compare Fennell v. Woodward, 141 S.C. 173, 139 S.E. 383, and Martin v. Hines, 150 S.C. 210, 147 S.E. 870.
The exceptions are overruled.
Affirmed.
TAYLOR, OXNER and MOSS, JJ., and G. DUNCAN BELLINGER, A.A.J., concur.
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413 Ill. 382 (1952)
109 N.E.2d 196
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v.
MINNIE E. SMITH et al. (HAROLD HARRIS, Appellant.)
No. 32517.
Supreme Court of Illinois.
Opinion filed November 20, 1952.
*383 AARON SOBLE, of Chicago, for appellant.
ROBERT C. NELSON, State's Attorney, WALTER M. GIVLER, and WILBUR B. BRAZELL, all of Waukegan, and HAROLD J. CLARK, of Chicago, for appellee.
Cause transferred.
Mr. JUSTICE SCHAEFER delivered the opinion of the court:
The circuit court of Lake County entered a decree of foreclosure and sale in a tax foreclosure proceeding. At 9:30 A.M., on the day fixed for the sale, at the instance of Harold Harris, the appellant, who was a prospective bidder, an order was entered vacating the decree as to the property here involved. Later on the same day the property was sold to Harold J. Clark, the successful bidder, and another order was entered reinstating the decree as to that property. An order approving the sale was subsequently entered. Appellant then moved to set aside the order approving the sale insofar as it related to the property in question, and after a hearing that motion was denied. By this direct appeal, appellant seeks to review the order of the circuit court denying his motion to set aside the order approving the sale. It is unnecessary to pursue further the details of the controversy between the parties because the jurisdiction of this court upon direct appeal is challenged and we believe the challenge is well taken.
Jurisdiction is sought to be sustained upon the grounds that the State is interested and that the case is one relating to the revenue. Ill. Rev. Stat. 1951, chap. 110, par. 199.
The first of the asserted grounds of jurisdiction is clearly untenable. The interest of the State which justifies a direct appeal to this court must be substantial and not nominal. A pecuniary interest in the outcome of the litigation *384 is required. (Keplinger v. Lord, 357 Ill. 571.) No such interest is present. The tax liens foreclosed in this case were for the years 1934 to 1950, inclusive. During none of these years was a general property tax levied on behalf of the State of Illinois. The State can therefore have no possible financial interest in the outcome of this litigation.
Turning to the second ground upon which jurisdiction is predicated, it is settled that in order to give this court jurisdiction of a direct appeal on the ground that the cause is one relating to the revenue, the revenue must be involved directly, and not incidentally or remotely. (Mandrake v. Schlaeger, 393 Ill. 610; Woodmen of the World Life Ins. Society v. County of Cook, 381 Ill. 558; City of Chicago v. McDonough, 351 Ill. 200; People ex rel. Rexses v. Cermak, 317 Ill. 590; People v. Holten, 298 Ill. 225; Wells v. Rogers, 196 Ill. 292.) The standard to be applied in determining the existence of jurisdiction has frequently been stated in these narrow terms: "The question of revenue can be at issue only when some recognized authority of the State, or some of its political subdivisions authorized by law to assess or collect taxes, are attempting to proceed under the law, and questions arise between them and those from whom the taxes are demanded." (People ex rel. DeLeuw & Co. v. Village of Midlothian, 370 Ill. 223, 224. To the same effect, see Town of Thornton v. Winterhoff, 406 Ill. 113; Mandrake v. Schlaeger, 393 Ill. 610; City of Chicago v. McDonough, 351 Ill. 200; Reed v. Village of Chatsworth, 201 Ill. 480.) Applying this test to the present case, jurisdiction fails because there is here no controversy as to the amount of taxes due and unpaid, and no issue between a taxpayer and a governmental body. Jurisdiction has also been sustained where the question was whether a particular sum of money was, or was not, the revenue of the State or one of its subdivisions. (Heinrich v. Harrigan, 288 Ill. 170; People v. Holten, 259 Ill. 219.) *385 Again, the facts of this case fail to meet the standard, for there is here no dispute as to the status or the proper disposition of the proceeds of the sale.
As appellant points out, however, jurisdiction has several times been taken upon direct appeal from decrees entered in tax foreclosure actions. In some of these cases, as in People v. Taylorville Sanitary Dist. 371 Ill. 280, and People v. Anderson, 380 Ill. 158, the controversy concerned the status of the proceeds of a tax foreclosure sale and the relative priority of the liens of general taxes and of special assessments. In such cases the question was whether particular moneys were revenue or not, and on established principles jurisdiction existed. In other cases, People v. Thain, 392 Ill. 592; People v. Schwartz, 397 Ill. 279, no question as to the jurisdiction of this court upon direct appeal was raised or discussed. In People v. Mortenson, 404 Ill. 107, an appeal by the purchaser at a tax foreclosure sale from an order denying a petition for the issuance of a deed, it was stated, without citation or discussion, that both the revenue and a freehold were involved. Likewise, here, the question of jurisdiction was not raised, and the case involved and pertained to an interpretation of the Torrens Act.
In People v. Home Real Estate Improvement Corp. 379 Ill. 536, the appellants, interested school districts, appealed directly from a decree foreclosing the lien of general taxes, claiming that the price bid at the sale was inadequate. No question as to jurisdiction was raised by the parties, but the court of its own volition took note of its lack of jurisdiction, saying, (p. 539) "There is no dispute as to what part of the delinquent taxes would be payable to the school districts where collected. There is no dispute between a taxpayer and a municipality or other taxing body that has levied a tax. The question relating to the revenue can be at issue only when a recognized authority of the State, or someone acting in its behalf, or *386 some political subdivision thereof, authorized by law to assess and collect taxes, is attempting to proceed under the law, and questions arise between the taxing body and those from whom taxes are demanded."
It is clear from the authorities that because a controversy happens to arise in a tax foreclosure action, it does not follow that the revenue is involved in the direct and immediate sense necessary to support the juridiction of this court. Here the dispute is between Clark, the successful bidder at the sale, and the appellant, who seeks to supplant him in that role. In this controversy the revenue is not involved.
This court is without jurisdiction and the cause is transferred to the Appellate Court for the Second District.
Cause transferred.
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431 F.2d 729
TRANSPORT MANUFACTURING & EQUIPMENT COMPANY OF DELAWARE, Appellant,v.COMMISSIONER OF INTERNAL REVENUE, Appellee.
No. 19694.
United States Court of Appeals, Eighth Circuit.
September 15, 1970.
Guy A. Magruder, Jr., Kansas City, Mo., on brief for appellant.
Milan D. Karlan, Atty., Dept. of Justice, Washington, D. C., for appellee; Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson and Harry Baum, Attys., Washington, D. C., on brief.
Before BLACKMUN,* MEHAFFY and LAY, Circuit Judges.
PER CURIAM.
1
This is the second appeal involving the issue whether the petitioner suffered a deductible loss in 1956 upon the sale of certain trailers to Riss & Co., a corporation having substantially the same stockholders as the taxpayer. This court earlier remanded the issue to the Tax Court for a factual determination as to whether the taxpayer's adjusted losses arising from the sale are deductible. Transport Mfg. & Equip. Co. of Delaware v. Commissioner of Internal Revenue, 374 F.2d 173 (8 Cir. 1967). Upon remand the Tax Court of the United States, in an opinion written by Judge Forrester, T.C. Memo 1968-190, found that the sale of the trailers was not bona fide. The Tax Court held "that the difference between TM&E's basis in the trailers and the $34,500 received from Riss & Company represents a capital contribution to Riss & Company by the shareholders of TM&E."
2
On appeal the taxpayer urges that the findings of the Tax Court are not based upon the evidence and are clearly erroneous. It is likewise urged that the Tax Court applied the wrong legal standard in making its determination. We think that taxpayer misconstrues the Tax Court's application of the standards involved. On the basis of the findings made by the Tax Court as a trier of fact, we cannot say they are clearly erroneous. Upon review, we are satisfied there exists sufficient evidence and inference therefrom to support the Tax Court's finding that the trailers were not sold to Riss & Co. at fair market price. We think the Tax Court properly concluded that this sales price would not have been offered to unrelated third parties.1 This, as the Tax Court so reasoned, was persuasive indicia of bad faith and of a sale not bona fide.
3
On the basis of the evidence presented and the findings made by Judge Forrester, the judgment is affirmed.
Notes:
*
Mr. Justice Blackmun, who sat on this panel as a member of this Court before his elevation to the United States Supreme Court, did not participate in the consideration or decision of this case
1
Compare Judge Mehaffy's observation in Investors Diversified Services, Inc. v. Commissioner of Internal Revenue, 325 F.2d 341, 349 (8 Cir. 1963):
"It is axiomatic that purchase price is not necessarily the proper cost basis in transactions which are not conducted at arm's length or motivated by other peculiar considerations which influence the taxpayer who gives a price in excess of the fair market value."
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IN THE COURT OF APPEALS OF IOWA
No. 16-0194
Filed October 12, 2016
HERMAN CALAHAN a/k/a HERMAN CALLAHAN,
Plaintiff-Appellant,
vs.
JAMIE PHILBROOK,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, William C.
Ostlund, Judge.
Herman Calahan appeals the denial of his request for a jury trial and the
entry of judgment against him. AFFIRMED.
Herman Calahan, Otho, pro se appellant.
William Kevin Stoos of William Kevin Stoos, P.C., North Sioux City, South
Dakota, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
2
VAITHESWARAN, Judge.
Herman Calahan filed a negligence action against Jamie Philbrook for
personal injuries sustained in a car accident. The matter was initially scheduled
for a jury trial, notwithstanding the absence of a jury demand from either side.
The district court rescheduled the matter as a non-jury trial. At this juncture,
Calahan wrote to the court and demanded reinstatement of a jury trial. The
district court issued a notice scheduling the matter for a non-jury trial. Following
trial, the court determined Calahan “failed to provide proper evidence to establish
injuries and damages [were] the result of this accident.” The court entered
judgment in favor of Philbrook.
On appeal, Calahan contends (1) the district court abused its discretion in
denying him a jury trial, and (2) the district court’s findings are unsupported by
substantial evidence.
I. Iowa Rule of Civil Procedure 1.902 governs demands for jury trial. The
rule specifies a deadline for filing a demand. See Iowa R. Civ. P. 1.902(2) (“A
party desiring a jury trial . . . must make written demand therefor not later than
ten days after the last pleading directed to that issue.”). Failure to comply with
the timeliness requirement results in waiver of a jury trial. Iowa R. Civ. P.
1.902(1). A separate provision permits the district court to grant a jury trial
absent a demand “for good cause.” Iowa R. Civ. P. 1.902(4) (“Notwithstanding
the failure of a party to demand a jury in an action . . . the court, in its discretion
on motion and for good cause shown, but not ex parte, and upon such terms as
the court prescribes, may order a trial by jury of any or all issues.”).
3
Calahan correctly notes that we review a district court’s denial of a jury
trial for an abuse of discretion, whether the denial is based on timeliness or good
cause. Peoples Nat. Gas Co., Div. of UtilCorp United Inc. v. City of Hartley,
O’Brien Cty., 497 N.W.2d 874, 876 (Iowa 1993); Schupbach v. Schuknecht, 204
N.W.2d 918, 920 (Iowa 1973). We discern no abuse.
First, no timely jury demand was made; by the time Calahan wrote to the
court requesting a jury trial, the deadline had long since expired. Second,
Calahan made no showing of good cause to support his belated request. He
simply relied on the fact the matter was inadvertently scheduled for a jury trial.
II. This brings us to the district court’s determination that Calahan failed to
prove causation and damages. See Crow v. Simpson, 871 N.W.2d 98, 105
(Iowa 2015) (noting the plaintiff “bore the burden of proving that [the defendant’s]
negligence caused his harm”); Vossoughi v. Polaschek, 859 N.W.2d 643, 654 n.6
(Iowa 2015) (“The elements of any negligence claim are (1) existence of a duty,
(2) breach of that duty, (3) causation, and (4) damages.”). The record supports
this determination.
Calahan described his medical conditions but presented no evidence tying
the onset or exacerbation of those conditions to the accident, even after the court
gently prodded him to “connect the” injuries to the accident.1 Because the district
court’s findings were supported by substantial evidence, we affirm the court’s
judgment entry in favor of Philbrook. See Chrysler Fin. Co. v. Bergstrom, 703
1
Medical records he proffered were excluded on hearsay grounds. Calahan suggests
this and other rulings revealed bias against him. To the contrary, the district court
explained the rulings and exhibited extraordinary patience with both parties.
4
N.W.2d 415, 418 (Iowa 2005) (“The district court’s findings of fact have the force
of a special verdict and are binding on us if supported by substantial evidence.”).
AFFIRMED.
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