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326 F.2d 433
Application of John J. SCOTT (three cases).
Patent Appeals Nos. 7079-7081.
United States Court of Customs and Patent Appeals.
January 23, 1964.
Edwin R. Hutchinson, Calvin H. Milans, Hutchinson & Milans, Washington, D. C., Rufus M. Franklin, Allan R. Redrow, Worcester, Mass., Morton Company, Alvin Guttag, John W. Malley, Cushman, Darby & Cushman, Washington, D. C., for appellant.
Clarence W. Moore, Washington, D. C. (Jere W. Sears, Washington, D. C., of counsel) for the Commissioner of Patents.
Before WORLEY, Chief Judge, and MARTIN, SMITH, and ALMOND, Judges.
ALMOND, Judge.
1
These three appeals are from the decisions of the Board of Appeals refusing claims on three patent applications.
2
The three applications have a common inventor and relate to a method of synthesizing metal1 carbides by the reaction of metal oxide ore and coke in an electric arc furnace. The primary difference between the three cases is the metal employed. In No. 7079, the application2 is concerned with improvements in producing zirconium carbide. In No. 7080, the application3 relates to a process of making boron carbide. In No. 7081, the application4 relates to a process of making titanium carbide. Because the melting points of the various metals are different, the rate of addition of the raw materials differs slightly in each case.
3
The issue is whether the differences between the claimed invention and the invention disclosed in the prior art patent improved upon are such that the invention as a whole would be obvious to one of ordinary skill in the art.
4
Appellant's process involves a conventional electric arc furnace in which two electrodes are inserted vertically toward the bottom of the furnace. A "bridge" of carbon is placed to conduct the electricity which flows down one electrode, across the bridge, and up the other electrode. A gap is set between each electrode and the carbon bridge across which an arc is struck. The granulated mixture of reactants, metal oxide and coke, is exposed to the electric arc in such a manner as to form solid incandescent ingots of metal carbide at each arc-producing electrode. As the reaction proceeds and more metal carbide is formed, the electrodes are raised so as to maintain an arc between the electrodes and the ingots. The metal carbide conducts electricity, so the current continues to flow as the electrodes are raised. As the raw materials are consumed, more of the mixture is added to keep the ends of the electrodes covered at all times and thereby keep air away from the zone of reaction of the arcs. The rate of addition of the mixture is 0.4 to 0.8 lbs. per kilowatt hour in No. 7079; 0.8 to 1.2 lbs. per KWH in No. 7080, and 0.5 to 0.75 lbs. per KWH in No. 7081.
5
An illustrative claim is claim 1 of No. 7080 which reads:
6
"1. The process of synthesizing boron carbide by the reaction of boron oxide ore and coke in an electric arc furnace while maintaining reducing conditions at the zones of reaction, which comprises forming in an electric arc furnace having vertically moveable electrodes a furnace bottom of refractory oxide material, placing a mass of carbon above said bottom at the eventual locus of each electrode, forming a bridge of carbon above said bottom electrically connecting said masses, maintaining said bridge of carbon at all times during the process, placing said electrodes at said loci in electrical contact with said masses of carbon and energizing said electrodes at from 50 to 150 volts, maintaining during the process a mixture of said boron oxide ore and coke around the bottoms of said electrodes and forming thereby as many distinct ingots of boron carbide as there are electrodes one ingot under each electrode, feeding said mixture of boron oxide and coke to around the bottoms of said electrodes at the rate of from 0.8 to 1.2 lbs. of mixture per KWH of electrical energy energizing said electrodes, and maintaining the said ingots clear of each other whereby the path of the electric current after the process has been started is always from one electrode to another electrode, via first an arc, then through a boron carbide ingot synthesized by the process, then through one of said masses of carbon, then through the bridge, then through another of said masses of carbon, then through another boron carbide ingot synthesized by the process, then by an arc to another electrode, and building up the boron carbide ingots synthesized by the process under the electrodes without the formation of any considerable pool of molten boron carbide as the electrodes gradually rise during the process by reason of the energization of the electrodes at 1 KWH for each 0.8 to 1.2 lbs. of mixture fed."
7
Each of the claims in each of the appeals is rejected as being unpatentable over a single prior art patent:
Ridgway 2,285,837 June 9, 1942
8
The specification in each of the applications recognizes the Ridgway patent, points out its alleged shortcomings, and purports to define improvements over the Ridgway process.
9
Ridgway discloses a method of synthesizing carbides of the same metals in an electric arc furnace by reacting metal oxides with coke. Ridgway was aware of the problem of contaminating the metal carbides with metal oxides and nitrides if air were permitted access to the arc. Therefore, the furnace in Ridgway is deep and narrow to keep out air and adding hydrocarbon oils to the mix is suggested to augment gas evolution as an aid in scavenging the flue-like furnace to keep out air.
10
The temperatures employed in Ridgway are such that the metal carbide is formed in a molten pool under the two electrodes rather than in solid ingots. While a bridge of carbon is placed under the electrodes at the start of the process to electrically join them, the molten pool that is formed in operation is conductive and obviates the need for a carbon bridge. Presumably, the initial carbon bridge is consumed in forming the carbide or else is dissolved in the molten pool.
11
There seems to be no dispute as to what the differences are between the present claims and the Ridgway process. They are: (1) appellant maintains a bridge of carbon electrically connecting the two ingots throughout the process; (2) appellant claims a specific rate of feed of the mixture of coke and metal oxide and (3) the claims recite "without the formation of any considerable pool of molten * * * carbide."
12
The examiner challenged the statement that no pool is formed in appellant's process, and was unconvinced by affidavits which were submitted to show that no substantial pool is formed. The Board of Appeals disagreed with the examiner and conceded that pool formation does not occur in appellant's process. Nevertheless, the board was of the opinion that whether or not a pool is formed depended on the rate at which the raw materials are fed to the furnace and that the claimed feed rate could be used by the operator of the Ridgway process. The board found that the presence of individual ingots and the absence of a pool are "the inherent result of the positive procedural details recited and are not in themselves procedural aspects of the process." Since Ridgway forms a bridge of carbon in starting the furnace, the board appears to have considered that the bridge would inherently be maintained if a pool were not formed. The sole difference over the Ridgway patent, in the board's view, is in the claimed feed rate of mixture, since the other differences are the result of the proper feed rate. The board said:
13
"* * * While the feed rate is not given, there is no basis to assume that, in operating within the purview of the Ridgway patent, the production of independent ingots under each electrode formed by sintering rather than melting without the formation of a substantial pool would not inherently be produced by the operator of the Ridgway process. We are accordingly in agreement with the Examiner that the limitations with respect to the formation of distinct ingots without the formation of a pool of the molten carbide, do not constitute features which distinguish over the process of Ridgway, and the rejection will accordingly be sustained."
14
Appellant contends that Ridgway is limited to a molten product which lies in a pool at the bottom of the furnace, that the carbon bridge is dissolved in the molten pool and that the product is solidified as a single ingot from the molten pool. In contrast, according to appellant, solid ingots are formed under each electrode in appellant's process and the formation of a molten pool must be avoided. The disclosure teaches the maximum and minimum limits for the size of the carbon bridge as a function of electrode diameter and specifies the critical limits of feed rate. Appellant argues that the Ridgway furnace was impractical and the Ridgway process, by the terms of the patent, cannot be carried out in arc furnaces of conventional design.
15
It is clear from a reading of the Ridgway patent that the process there disclosed produces only a molten pool of metal carbide and not separate solid ingots. Even assuming the board's analysis is correct and that the only procedural distinction is in the feed rate, we are of the opinion that this difference is not obvious to one of ordinary skill in the art. Appellant determined that if the feed rate were maintained within critical limits, solid ingots would result. That the feed rate is critical is evident from the statement, repeated in each of the three applications, that
16
"Probably the most important single consideration in the operation of the furnace is the control of the process of reaction and incipient fusion that makes it possible to grow ingots without at any time forming a molten pool of product in the bottom of the furnace. This process is controlled by feeding the raw materials to the furnace at a predetermined rate."
17
Since Ridgway lacked any conception of forming solid ingots, there is nothing to suggest the critical feed rate in the patent. Appellant found that the Ridgway process did not solve the problem of contamination of the metal carbide because the pool caused "reoxidization of the carbide resulting in a low grade product." As stated in each of the three specifications: "By avoiding the formation of any substantial pool of molten carbide, the process herein described is a much more practical arc furnace method of making [metal] carbide and produces a better product." There was no challenge below to this allegation of improved results over the Ridgway process. Whether it be the result of a different feed rate, as suggested by the board, or a different power level, as suggested by the solicitor, there is no question that the results obtained by the instant process are superior to those of the patent. Variations in the feed rate or in the power level of Ridgway could be made within the invention there described, but when an entirely different and improved product is obtained by using different conditions from those disclosed in the patent, it would appear that a new patentable invention has been made.
18
While the claimed limitation of "maintaining said bridge of carbon at all times during the process" might of necessity occur if the temperature or feed rate were obvious to the operator of the Ridgway furnace, it is still a difference between the subject matter claimed and the prior art and it cannot be ignored. The statute requires these differences to be considered as one skilled in the art would consider them. It does not seem likely that one skilled in the art would consider maintaining a carbon bridge to be obvious in the Ridgway process, because it would be impossible to keep the carbon bridge from dissolving in the molten pool.
19
It would appear that the only fundamental difference between the Ridgway process and appellant's process is that appellant operates at a lower temperature to obtain a solid metal carbide rather than a liquid. We cannot say that it would be obvious to create this lower temperature by using a different kind of furnace in which electrode diameter and carbon bridge cross-section have a specific relationship and operating under precisely controlled conditions defined in the claims to produce a more satisfactory product than heretofore obtained. To operate the Ridgway process at such a low temperature that the metal carbide remains solid goes directly contrary to the teachings of the patent. Since improved results are obtained by virtue of the differences over the conditions in Ridgway which are defined in the claims on appeal, we cannot agree with the board that the operator of the Ridgway process would inherently produce independent ingots.
20
For the foregoing reasons, the decisions of the Board of Appeals are reversed.
21
Reversed.
Notes:
1
For our purposes here, the element boron will be considered a metal
2
Serial No. 717,374, filed February 25, 1958
3
Serial No. 717,452 filed February 25, 1958
4
Serial No. 717,494 filed February 25, 1958
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566 S.W.2d 565 (1978)
NATIONAL LLOYDS INSURANCE COMPANY, Petitioner,
v.
George McCASLAND, Respondent.
No. B-6969.
Supreme Court of Texas.
May 10, 1978.
*566 Haley, Fulbright, Winniford, Bice & Davis, Maurice G. Walton and Sherwin A. Winniford, Waco, for petitioner.
J. C. Jacobs, Corsicana, for respondent.
GREENHILL, Chief Justice.
This is a suit to recover on a fire insurance policy issued by National Lloyds Insurance Company [hereinafter "National Lloyds" or "the company"]. National Lloyds defended the suit by alleging that the policy was void because the value of the insured property had been willfully or fraudulently misrepresented, in violation of the policy provisions. The trial court upheld jury findings that such misrepresentation had occurred, and judgment was rendered for the company. The court of civil appeals reversed and remanded the case, holding that, because National Lloyds had not complied with the requirements of Article 21.35 of the Texas Insurance Code, there was no admissible evidence to support the jury findings. 553 S.W.2d 6.
National Lloyds has appealed to this court, urging that the court of civil appeals erred in basing its judgment on Article 21.35. One reason asserted for such error is that any complaint arising under that statute had been waived. We agree with this contention and reverse the judgment of the court of civil appeals. Because that court did not pass on a point of error concerning the factual sufficiency of evidence, the cause is remanded to the court of civil appeals.
Before the facts of this case are reviewed, a brief look at Article 21.35 of the Texas Insurance Code is in order. That statute reads in pertinent part as follows:
Except as otherwise provided in this code, every contract or policy of insurance issued or contracted for in this state shall be accompanied by a written, photographic or printed copy of the application for such insurance policy or contract, as well as a copy of all questions asked and answers given thereto.
A number of Texas cases have construed this statute and its predecessors, and the law is now well settled that failure to comply with the statute renders evidence of representations made in applying for insurance inadmissible into evidence. Johnson v. Prudential Insurance Co., 519 S.W.2d 111 (Tex.1975); Harris v. Allstate Insurance Co., 249 S.W.2d 669 (Tex.Civ.App.Texarkana 1952, writ ref'd.). There are also a number of decisions indicating that the statute was intended to be mandatory. American Surety Co. v. West State Bank, 4 S.W.2d 312, 313 (Tex.Civ.App.Waco 1928, writ ref'd); Southwestern Surety Insurance Co. v. Hico Oil Mill, 229 S.W. 479, 482 (Tex.Com.App.1921, jdgmt. adopted); American Indemnity Co. v. Baldwin Motor Co., 19 S.W.2d 848, 849 (Tex.Civ.App.Texarkana 1929, writ dism'd.). The cases have not, however, directly addressed the problem of a total failure to object to evidence, on the basis of the statute, at any stage of the trial court proceedings. This is the question presently before us.
The fire insurance policy involved in this case covered a frame house in the rural community of Chatfield, Texas. The house sold for $500 in August of 1974. On May 19, 1975, the house was conveyed by general warranty deed to J. Tobin Moore. The consideration recited in the deed was a Vendor's Lien note in the amount of $11,500, executed by Moore in favor of George McCasland. This note was additionally secured by a deed of trust from Moore to McCasland, and the deed of trust required Moore to obtain fire insurance on the property. McCasland instructed Moore to insure the property for at least $11,500, the amount of McCasland's interest as mortgagee. Moore contacted an agent of National Lloyds, and a fire insurance policy in the *567 amount of $12,500 was issued on the property. The policy, which was also dated May 19, 1975, named Moore as the insured and provided that any loss would be payable to McCasland, as mortgagee, to the extent of his interest at the time of the loss. It is undisputed that no application for insurance was attached to this policy.
The house was completely destroyed by fire in June of 1975, and McCasland made demand upon National Lloyds for payment of $11,500 under the policy. National Lloyds denied liability on the basis of a policy provision stating, "This entire policy shall be void if ... the insured has willfully concealed or misrepresented any material fact or circumstance concerning this insurance, or the subject thereof..." The Company took the position that the house had been fraudulently or intentionally overvalued, and no proceeds were paid on the policy. McCasland then filed this suit.
The trial was to a jury, and National Lloyds introduced testimony designed to show that Moore and McCasland had intentionally overvalued the property when application for insurance was made. None of this testimony was objected to by McCasland as being inadmissible under Article 21.35 of the Texas Insurance Code. Sixteen special issues were submitted to the jury, and all were answered favorably to National Lloyds.
Broadly summarized, the jury found that when Moore made application for the insurance policy in question, he grossly overvalued the actual cash value of the property and falsely represented its value to be $12,500; that Moore knew he had grossly overvalued the property and had made a false representation; that he intended National Lloyds' agent to rely on his false representation and gross overvaluation; that National Lloyds' agent did so rely and would not have written the policy except for the false representation and gross overvaluation. The jury also found, in Special Issues 12 and 14, that George McCasland was aware (a) that the value of the property would be falsely represented and (b) that the property would be grossly overvalued, when application for insurance was made. In Special Issues 13 and 15, the jury found that McCasland intended that the false representation and gross overvaluation be relied upon by National Lloyds' agent in issuing the policy.
McCasland objected to the submission of issues 12 through 15 on the grounds that there was no evidence or insufficient evidence to support jury answers thereon. McCasland renewed his "no evidence" and "insufficient evidence" objections in his motion for judgment notwithstanding the verdict; and, following the trial court's rendition of judgment in favor of National Lloyds, he made similar points in his motion for new trial. Again, none of these motions or points mentioned the inadmissibility of evidence under the Texas Insurance Code.
McCasland brought five points to the court of civil appeals. Four of them again urged that there was no evidence to support the jury verdict.
In his discussion of these points, McCasland made two arguments. First he asserted that there was simply no evidence that McCasland, the mortgagee, was involved in any false representations or gross overvaluation of the property. Second, he argued for the first time that because no application for insurance was attached to the policy, all of the evidence supporting the jury verdict was inadmissible under Article 21.35. The court of civil appeals expressly overruled McCasland's first argument and held that the evidence, if admissible, constituted some evidence to support the jury findings.
The court of civil appeals agreed, however, with McCasland's second theory that "evidence of Moore's misrepresentations was not admissible on the trial as a matter of law." The court recognized that McCasland had raised Article 21.35 for the first time on appeal; but because the statute was viewed as being mandatory, the court concluded that McCasland's "no evidence" objections were sufficient to preserve his complaint under the statute. We disagree.
The Texas Rules of Civil Procedure, and a great number of Texas cases, describe certain *568 requirements for the preservation of error on appeal.
There are two places at which a waiver might apply. The first is a failure to object when the evidence was introduced. The second is a failure to call the trial judge's attention to the matter in a motion for new trial. National Lloyds' argument before this court is not directed toward the first; and this opinion will deal only with the second.
When the error complained of relates to the admission of evidence, the cases have clearly held that the error must be raised in a motion for new trial. Garrett v. Standard Fire Insurance Co., 541 S.W.2d 635, 638 (Tex.Civ.App.Beaumont 1976, writ ref'd n.r.e.); Goldring v. Goldring, 523 S.W.2d 749, 753 (Tex.Civ.App.Fort Worth 1975, writ ref'd n.r.e.); Allandale Nursing Home, Inc. v. John Bremond Co., Inc., 514 S.W.2d 958, 959 (Tex.Civ.App.Austin 1974, writ ref'd n.r.e.); Zeek v. Gaddy, 287 S.W.2d 490, 492 (Tex.Civ.App.Austin, 1956, writ ref'd n.r.e.). While it is true that McCasland did not directly urge to the court of civil appeals that the trial court erred in admitting evidence, his complaint was that the trial court erred in basing its judgment on evidence that should have been held inadmissible. In either type of complaint, the trial court must have had some opportunity to rule on the admissibility of evidence before the question of such admissibility can become a ground of complaint on appeal. This result is clearly dictated by the Texas Rules of Civil Procedure.
At the time of the trial in question Rule 320[1] provided that "Each motion for new trial ... shall specify each ground on which it is founded, and no ground not specified shall be considered." In addition, Rule 374 stated, "A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required, shall be considered as waived." As noted above, McCasland's motion for new trial contained no assignment which in any way urged error on the ground of Article 21.35 of the Texas Insurance Code. There were adequate objections that there was no evidence, or that the evidence had insufficient probative weight to support a judgment against McCasland; but such objections are simply too broad to encompass a narrow complaint that evidence was inadmissible under a given statute. This result is also dictated by the Texas Rules of Civil Procedure, as well as by a number of cases.
Rule 321 expressly provides,
Each ground of a motion for new trial... shall briefly refer to that part of the ruling of the court, charge given to the jury, or charge refused, admission or rejection of evidence, or other proceedings which are designated to be complained of, in such way as that the point of objection can be clearly identified and understood by the court. (Emphasis added).
Rule 322 goes on to provide that "Grounds of objection couched in general terms .. shall not be considered by the court." This court has held on a number of occasions that when a motion fails to present a question in such a way that the trial court can clearly identify and understand it, the complainant is not entitled to raise the question in the court of civil appeals. Meyer v. Great American Indemnity Co., 154 Tex. 408, 279 S.W.2d 575, 579 (1955); Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407, 409 (1943). Further, when error is urged on one basis in the trial court, and on an entirely new and different basis in the court of civil appeals, the latter ground of complaint is not properly preserved for review. Southwest Title Insurance Co. v. Plemons, 554 S.W.2d 734 (Tex.Civ.App. Dallas 1977, writ ref'd n.r.e.); Krottinger v. Marchand, 252 S.W.2d 217 (Tex.Civ.App. Fort Worth 1952, no writ); Dorsey v. *569 Younger Brothers, Inc., 216 S.W.2d 294 (Tex.Civ.App.Galveston 1948, no writ).
In the present case, neither McCasland's motion for new trial, nor any of the other objections he presented to the trial court, in any way indicated to the court, or led the court to understand, that his ground of complaint lay in Article 21.35 of the Texas Insurance Code. His complaint under that statute was therefore waived, and the court of civil appeals erred in considering it. Because the court's judgment of reversal was directly based on such consideration, the error was reversible.
The harmful effect of the court's consideration of Article 21.35 is further demonstrated by National Lloyds' remaining points of error. The company urges that it has a defense to Article 21.35 by virtue of being a "Lloyds plan" insurance company. While we need not pass on this contention, the points do demonstrate the dangers of considering matters for the first time on appeal. The question of the company's status as a Lloyds plan company was in no way developed in the trial court.
The judgment of the court of civil appeals is reversed. Because the court did not address McCasland's fifth point of error, which urged that the evidence was factually insufficient to support the trial court judgment, the case is remanded to the court of civil appeals. Stanfield v. O'Boyle, 462 S.W.2d 270, 272-3 (Tex.1971).
NOTES
[1] All the references to Rules are to Texas Rules of Civil Procedure (1976). It should be noted that Rule 320 was amended, and Rule 374 was repealed, effective January 1, 1978.
Under the amended Rule 324, "a motion for new trial shall not be a prerequisite to the right to complain on appeal ...." We note, without comment, that the amended rule also provides that: "Notwithstanding the forgoing, it shall be necessary to file a motion for new trial in order to present a complaint which has not otherwise been ruled upon." The admissibility of the evidence in question, not objected to, had not been previously ruled upon.
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Filed 8/18/20 P. v. Sease CA3
NOT TO BE PUBLISHED
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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C090338
Plaintiff and Respondent, (Super. Ct. Nos. 18F4329,
17F1012)
v.
SHANNON DEANN SEASE,
Defendant and Appellant.
In case No. 17F1012 (the 2017 case), a jury found defendant Shannon Deann
Sease guilty of elder abuse and misdemeanor animal cruelty. In August 2017, the trial
court suspended imposition of sentence and placed defendant on formal probation for
three years. The court imposed a $600 restitution fine; a $600 probation revocation fine,
suspended unless probation was revoked; a $80 court security fee; a $60 criminal
conviction assessment; and $780 in other costs.
In case No. 18F4329 (the 2018 case), defendant pled no contest to first degree
residential burglary and admitted violating probation in the 2017 case. In September
1
2018, the trial court revoked and reinstated probation in the 2017 case; suspended
imposition of sentence in the 2018 case; and placed defendant on formal probation for
three years in the 2018 case. The court imposed a $300 restitution fine; a $300 probation
revocation fine, suspended unless probation was revoked; a $40 court security fee; a $30
criminal conviction assessment; a $39 crime prevention fee; and $780 in other costs.
In August 2019, after a contested hearing, the trial court sustained allegations that,
beginning in the fall of 2018 and continuing into March 2019, defendant violated
probation by failing to report to the probation department and failing to provide a valid
residential address.
The trial court concluded defendant “manipulate[d] [p]robation to get away with
as much as [she] could” and “lie[d] under oath” when she testified at the hearing. The
trial court addressed defendant: “I can detect a person’s lies . . . if they are really bad at
it, and you are bad at it.”
Regarding the 2018 case, the trial court revoked probation and declined to
reinstate it, noting defendant was on probation at the time she committed the burglary in
the 2018 case, and imposed an aggravated term of six years. Regarding the 2017 case,
the trial court revoked probation and imposed a consecutive term of one year (one-third
the middle term) for the elder abuse offense and a concurrent jail sentence for the
misdemeanor offense. Thus, the aggregate term was seven years.
As for costs, regarding the 2018 case, the trial court explained that the $40 court
security fee and the $30 criminal conviction assessment “remain[ed],” as did the $300
restitution fine, while the stay on the probation revocation fine was “lift[ed].” Further,
the trial court imposed a parole revocation fine of $300, stayed pending successful
completion of parole and “permanently stay[ed] the $780 fine” and the “$39 fine.”
Regarding the 2017 case, the trial court noted the $600 restitution and $600
probation revocation fines imposed by a different judge, and stayed $300 of each of those
$600 fines, while lifting the stay on the probation revocation fine (leading to a $300
2
probation revocation fine). The trial court imposed a $300 parole revocation fine, which
the abstract of judgment notes was stayed. The trial court “permanently stay[ed] the
$780 felony fine,” and stayed the court security and criminal conviction assessment as to
“one of” defendant’s two convictions in the case (leading to a $40 court security fee and a
$30 criminal conviction assessment).
Defendant timely appealed.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and requesting that this court review the record to
determine whether there are any arguable issues on appeal. (People v. Wende (1979)
25 Cal.3d 436.) Defendant was advised of her right to file a supplemental brief within 30
days of the date of filing of the opening brief.
Defendant filed a supplemental brief, arguing the trial court was “very harsh” in
“not believ[ing]” defendant, because defendant “did in fact keep in touch regularly with
probation by checking in by telephone contact.” Defendant presents explanations for the
“reasons why [she] had allegedly violated [her] probation term[s]” and provides facts that
were not specifically introduced at the contested hearing.
Initially we must note we will not consider facts provided for the first time on
appeal. (See People v. Pena (1972) 25 Cal.App.3d 414, 421-422.)
To the extent defendant relies on the same argument she presented in the trial
court, no error occurred. Defendant’s testimony at the hearing regarding her efforts to
comply with the terms of her probation were directly contradicted by a probation official
who testified. The trial court disbelieved defendant, apparently in part due to her
demeanor. We will not second-guess the trial court’s credibility determination. (See
People v. Scott (2011) 52 Cal.4th 452, 493 [“a witness’s ‘demeanor is always relevant to
credibility’ ”]; People v. Lewis (2001) 26 Cal.4th 334, 359 [giving “proper deference” to
a credibility finding, because “reviewing court[s] . . . confront a cold record without the
3
trial court’s benefit of observing firsthand the appearance and demeanor of the
witness”].)
Further, the record is clear defendant was required to do more than maintain
telephone contact with probation; she was required to report in person. She failed to do
so, and we detect no error in the trial court’s rejection of the reasons defendant proffered
for that failure.
Having undertaken an examination of the entire record pursuant to Wende, we find
no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/
Robie, Acting P. J.
We concur:
/s/
Murray J.
/s/
Krause, J.
4
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994 P.2d 1090 (1999)
1999 MT 309
The ESTATE OF Dennis McCARTHY, M.D., Petitioner,
v.
MONTANA SECOND JUDICIAL DISTRICT COURT, SILVERBOW COUNTY, the Honorable John W. Whelan, Presiding, Respondent.
No. 98-651.
Supreme Court of Montana.
Argued March 23, 1999.
Submitted March 25, 1999.
Decided December 9, 1999.
Rehearing Denied March 16, 2000.
*1091 Larry E. Riley, Lucy T. France (argued); Garlington, Lohn & Robinson, Missoula, Montana, For Petitioner.
Leonard J. Haxby (argued); Haxby & Somers, Butte, Montana, For Respondent.
Justice KARLA M. GRAY delivered the Opinion of the Court.
¶ 1 This case originated in this Court on the application of the Estate of Dennis McCarthy, M.D. (the Estate), for a writ of supervisory control seeking relief from the order of the Second Judicial District Court, Silver Bow County, denying the Estate's motion for summary judgment. Having accepted supervisory control and heard oral arguments, we reverse the order of the District Court and remand for entry of summary judgment in the Estate's favor.
¶ 2 The issue before us is whether the District Court erred in concluding that § 27-2-205(2), MCA, is unconstitutional as applied in this case.
BACKGROUND
¶ 3 Richard Best (Best) was born prematurely on August 20, 1974. Dr. Dennis McCarthy (McCarthy) placed an umbilical vein catheter in Best shortly after his birth. Best subsequently developed liver problems.
¶ 4 On August 15, 1995, Best filed a complaint against the Estate alleging that McCarthy placed the umbilical catheterand injected fluidsinto Best's hepatic vein, thereby causing severe damage to his liver. The complaint further alleged that McCarthy's actions, as well as his underlying diagnosis, were negligent, constituted medical malpractice and resulted in injuries for which Best requested a variety of damages.
¶ 5 The Estate moved for summary judgment, asserting that Best's complaint was barred by the statute of limitations set forth in § 27-2-205(2), MCA. Best responded that the statute of limitations was unconstitutional because it violated his right to access to the courts guaranteed by Article II, § 16 of the Montana Constitution and his right to equal protection of the laws guaranteed by Article II, § 4 of the Montana Constitution. The District Court concluded that the statute, as *1092 applied to Best, violated his constitutional rights both to access to the courts and to equal protection of the laws, and denied the Estate's motion. The Estate subsequently petitioned for a writ of supervisory control, asserting that the District Court erred in concluding the statute was unconstitutional and in denying its motion for summary judgment on that basis.
STANDARD OF REVIEW
¶ 6 We review a district court's ruling on a summary judgment motion de novo, using the same Rule 56, M.R.Civ.P., criteria applied by that court. Ross v. City of Great Falls, 1998 MT 276, ¶ 9, 291 Mont. 377, ¶ 9, 967 P.2d 1103, ¶ 9. Typically, our review of a summary judgment ruling entails a determination of whether the party moving for summary judgment established the absence of genuine issues of material fact and entitlement to judgment as a matter of law. Ross, ¶ 10; Rule 56, M.R.Civ.P. Here, however, the parties do not dispute the material facts and, consequently, we review only whether the Estate was entitled to judgment as a matter of law. See, Ross, ¶ 10. The District Court's determination that the Estate was not entitled to judgment as a matter of law was based on its conclusion that the statute at issue violated Best's constitutional rights. Where the resolution of an issue involves questions of constitutional law, we review a district court's interpretation of the law to determine whether it is correct. See Connell v. State, Dept. of Social Services (1997), 280 Mont. 491, 494, 930 P.2d 88, 90.
DISCUSSION
¶ 7 Did the District Court err in concluding that § 27-2-205(2), MCA, is unconstitutional as applied in this case?
¶ 8 The Estate moved the District Court for summary judgment on the basis that, under the plain language of § 27-2-205(2), MCA, Best's complaint alleging medical malpractice was not timely filed and his action is barred. The District Court denied the motion and the Estate asserts that the District Court erred. As stated above, the party moving for summary judgment has the burden of establishing entitlement to judgment as a matter of law. A brief discussion of the evolution of Montana's medical malpractice statute of limitations insofar as it pertains to the present case will provide a helpful backdrop to our review of whether the Estate met its burden here.
¶ 9 At the time of Best's alleged injury in 1974, the applicable statute of limitations for a medical malpractice claim provided, in pertinent part, that an
[a]ction for injury or death against a physician or surgeon ... based upon such person's alleged professional negligence ... or for error or omission in such person's practice, shall be commenced within three (3) years after the date of injury or three (3) years after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury whichever occurs last, but in no case may such action be commenced after five (5) years from the date of injury.
Section 93-2624, R.C.M. (1947). Furthermore, § 93-2703, R.C.M. (1947), provided that, if a person entitled to bring an action was a minor at the time the cause of action accrued, the applicable statute of limitations would be tolled during the period of minority. Consequently, because Best was a minor at the time of his alleged injury, the three-year statute of limitations for his medical malpractice action would have been tolled until he reached majority. The above statutes subsequently were recodified at §§ 27-2-205 and 27-2-401, MCA, respectively.
¶ 10 In 1987, the Montana Legislature amended § 27-2-205, MCA, by adding the following provision:
Notwithstanding the provisions of 27-2-401, in an action for death or injury of a minor who was under the age of 4 on the date of his injury, the period of limitations in [a medical malpractice action] begins to run when the minor reaches his eighth birthday or dies, whichever occurs first, and the time for commencement of the action is tolled during any period during which the minor does not reside with a parent or guardian.
*1093 Section 27-2-205(2), MCA (1987). In enacting this subsection, the Legislature expressly provided for its retroactive application:
(1) An action referred to in 27-2-205(2) for injury or death occurring prior to October 1, 1987, must be commenced within 2 years after the effective date of this act or within the time limits in 27-2-205(2), whichever expires last.
(2) This act applies retroactively, within the meaning of 1-2-109, to causes of action that arose prior to October 1, 1987
1987 Mont. Laws Ch. 499, Sec. 2.
¶ 11 It is undisputed that Best was under the age of four at the time of his alleged injury, the injury occurred prior to October 1, 1987, and Best was 13 years old when the 1987 amendment to the medical malpractice statute of limitations took effect. Thus, pursuant to the amended statute, Best was required to bring his medical malpractice action within two years after October 1, 1987, in other words, no later than October 1, 1989. He did not file his complaint until August 15, 1995. Therefore, it appearsand, indeed, Best concedesthat the statute of limitations in § 27-2-205(2), MCA, bars Best's cause of action, entitling the Estate to summary judgment on that basis.
¶ 12 In response to the Estate's motion, however, Best assertedand the District Court agreedthat application of § 27-2-205(2), MCA, in this case would violate his constitutional rights to access to the courts and equal protection of the laws. Before addressing the court's conclusion that § 27-2-205(2), MCA, is unconstitutional on those grounds, we briefly set forth the principles which guide us in reviewing the constitutionality of statutes.
¶ 13 Statutes are presumed to be constitutional. Davis v. Union Pacific R. Co. (1997), 282 Mont. 233, 239, 937 P.2d 27, 30 (citation omitted). Consequently, a party challenging the constitutionality of a statute bears the heavy burden of proving it to be unconstitutional beyond a reasonable doubt. Davis, 282 Mont. at 239, 937 P.2d at 30. "`The question of constitutionality is not whether it is possible to condemn, but whether it is possible to uphold the legislative action....'" Davis, 282 Mont. at 240, 937 P.2d at 31 (quoting Fallon County v. State (1988), 231 Mont. 443, 445-46, 753 P.2d 338, 340). Consequently, every possible presumption must be taken in favor of the statute's constitutionality. Davis, 282 Mont. at 240, 937 P.2d at 31. With these principles in mind, we address Best's arguments regarding access to the courts and equal protection in turn.
A. Access to the Courts
¶ 14 Article II, § 16 of the Montana Constitution provides, in pertinent part, that
[c]ourts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character.
Best contends that this provision guarantees the right to access to the courts and that § 27-2-205(2), MCA, infringes on that right by requiring certain minors with medical malpractice causes of action to file their actions before they reach majority. He asserts that, under Montana law, a minor may not bring an action on his or her own behalf, but rather must have a parent, guardian or guardian ad litem file the action on the minor's behalf. Thus, according to Best, if a parent or guardian fails to timely preserve the minor's cause of action, the minor has no way of accessing the courts on his or her own behalf before being barred by the statute of limitations.
¶ 15 A determination regarding the constitutionality of a statute begins with an analysis of the particular rights involved and the corresponding level of scrutiny to apply to the legislation. Wadsworth v. State (1996), 275 Mont. 287, 302, 911 P.2d 1165, 1173. We review the constitutionality of statutes under one of three recognized levels of scrutinystrict scrutiny, middle-tier scrutiny and the rational basis test. Davis, 282 Mont. at 241-42, 937 P.2d at 31-32. Strict scrutiny is the most stringent standard and it is applied when the challenged legislation infringes on a fundamental right or discriminates against a suspect class. Davis, 282 Mont. at 241, 937 P.2d at 31. Middle-tier scrutiny is used only in limited circumstances where the right at issue has some origin in *1094 the Montana Constitution but is not a fundamental right. Davis, 282 Mont. at 241, 937 P.2d at 31. Finally, the rational basis test is applied when the right under examination is not fundamental and does not warrant middle-tier scrutiny. Davis, 282 Mont. at 241-42, 937 P.2d at 32.
¶ 16 Best concedes that the rational basis test applies here. A statute is constitutional under the rational basis test if the objective of the statute is legitimate and bears a rational relationship to the classification used by the legislature. Davis, 282 Mont. at 242, 937 P.2d at 32 (citation omitted).
¶ 17 According to the legislative history, the Montana Legislature amended § 27-2-205(2), MCA, in 1987 to address concerns regarding escalating medical malpractice insurance premiums and corresponding increases in the cost of medical care. See Hearings on H.B. 344 Before the Senate Judiciary Committee, 50th Legislature (1987). The purpose of the amendment was to shorten the limitation period for the medical malpractice actions of certain minors to allow for more certainty and predictability in the assessment of risk by insurance providers. Hearings on H.B. 344 Before the Senate Judiciary Committee, 50th Legislature, Ex. No. 4, Pt. A (Mar. 18, 1987). Under the prior statute of limitations and the provision tolling the limitations period for minors until they reach majority, health care providers and their insurers potentially could be at risk for lawsuits resulting from injuries incurred during infancy for nearly 20 years. As a result of this extended period of exposure, insurance carriers charged increasingly high premiums in order to generate sufficient reserves to guarantee that any liability from such lawsuits could be covered. Hearings on H.B. 344 Before the Senate Judiciary Committee, 50th Legislature, Ex. No. 4, Pt. C (Mar. 18, 1987). This escalation in insurance rates, in turn, resulted in health care providers either increasing the costs of medical services or ceasing to provide certain services. Hearings on H.B. 344 Before the Senate Judiciary Committee, 50th Legislature, Ex. B (Feb. 9, 1987).
¶ 18 The Legislature responded to these concerns by amending the medical malpractice statute of limitations for certain situations. It tailored the amendment to affect only actions for injuries incurred between birth and age four, which was considered the age range most affecting the costs of insurance coverage. Hearings on H.B. 344 Before the Senate Judiciary Committee, 50th Legislature, Ex. No. 4, Pt. A (Mar. 18, 1987). Furthermore, the Legislature provided that the limitations period for those minors be tolled until the age of eight, as proponents of the amendment testified that most injuries incurred by minors under the age of four are discovered by the time the minor reaches the age of eight. Hearings on H.B. 344 Before the Senate Judiciary Committee, 50th Legislature, p. 2 (Mar. 18, 1987). Thus, the amendment reduced the length of potential liability exposure for such injuries while still providing a sufficient period of time for most injuries to be discovered and acted upon.
¶ 19 Ensuring the availability and affordability of health care services, as well as reducing the costs of medical malpractice insurance, are legitimate legislative objectives. See, e.g., Linder v. Smith (1981), 193 Mont. 20, 26, 629 P.2d 1187, 1190. Furthermore, the classification created by the Legislatureminors injured between birth and age fouris narrowly defined to affect only those minors whose injuries raise the greatest concerns regarding extended liability exposure for medical malpractice. We conclude that the classification of minors in § 27-2-205(2), MCA, is rationally related to a legitimate legislative objective and, therefore, passes the rational basis test.
¶ 20 In support of his argument that § 27-2-205(2), MCA, violates Article II, § 16 of the Montana Constitution, Best relies on several cases from other jurisdictions holding that similar medical malpractice statutes of limitation pertaining to minors violated state constitutional access to court provisions. See Strahler v. St. Luke's Hosp. (Mo.1986), 706 S.W.2d 7; Barrio v. San Manuel Div. Hosp., Magma Copper (1984), 143 Ariz. 101, 692 P.2d 280; Sax v. Votteler (Tex.1983), 648 S.W.2d 661. We observe, however, that the constitutionality of the statute of limitation at *1095 issue in these cases was not reviewed under the rational basis test.
¶ 21 In Strahler, the Missouri Supreme Court held that, although the legislative purpose of the statute was legitimate, that purpose did not justify the severe interference on minors' access to the courts; the statute was arbitrary, unreasonable and unduly burdensome. Strahler, 706 S.W.2d at 11-12. The Arizona Supreme Court expressly refused to apply the rational basis test in reviewing the state's medical malpractice statute of limitations because the open courts provision in Arizona's constitution contains an express and fundamental right to recover damages for negligence. Barrio, 692 P.2d at 283. Finally, in Sax, the Texas Supreme Court held that, to establish the statute of limitations did not impermissibly infringe on a minor's rights under the state's open courts constitutional provision, the state must show that the legislative basis for the statute outweighed the denial of the constitutional right. Sax, 648 S.W.2d at 665-66. In contrast, the rational basis test applicable to our review of Montana's statute requires only that the classification created by the statute bear a rational relationship to a legitimate legislative purpose. Therefore, the cases cited by Best holding similar medical malpractice statutes of limitation unconstitutional under more stringent standards of review are not persuasive.
¶ 22 We conclude that § 27-2-205(2), MCA, does not violate Article II, § 16 of the Montana Constitution.
B. Equal Protection
¶ 23 The District Court also concluded that § 27-2-205(2), MCA, violates Best's right to equal protection of the laws guaranteed by Article II, § 4 of the Montana Constitution, because it treats minors with a cause of action for medical malpractice differently than minors with causes of action for other torts by not allowing the statute of limitations to be tolled during the period of minority. Again, Best concedes that the appropriate level of scrutiny for an equal protection analysis in this case is the rational basis test. He argues that the District Court correctly determined that there is no rational relationship between the classification created by the statute and the legislative goal. We concluded above, however, that the classification of minors with medical malpractice causes of action for injuries incurred between birth and age four is rationally related to the Legislature's legitimate objective of reducing health care costs and malpractice insurance premiums.
¶ 24 In urging us to conclude that § 27-2-205(2), MCA, violates equal protection under the rational basis test, Best again cites several cases from other jurisdictions which have held that similar statutes of limitations violate minors' rights to equal protection of the laws. See Carson v. Maurer (1980), 120 N.H. 925, 424 A.2d 825; Schwan v. Riverside Methodist Hosp. (Ohio 1983), 452 N.E.2d 1337; Lyons v. Lederle Laboratories (S.D. 1989), 440 N.W.2d 769; Torres v. County of Los Angeles (1989), 209 Cal.App.3d 325, 257 Cal.Rptr. 211. These cases, however, do not support his argument. Carson, for example, is inapplicable here because the New Hampshire Supreme Court expressly refused to apply the rational basis test and applied a more stringent middle-tier scrutiny in holding that the statute of limitations at issue violated minors' rights to equal protection. Carson, 424 A.2d at 830-31.
¶ 25 In Lyons, the South Dakota Supreme Court applied the rational basis test and held that, although the medical malpractice crisis provided the state legislature with a legitimate objective in enacting the statute of limitations at issue, the classification of minors of certain age within the statute was not rationally related to that objective. Lyons, 440 N.W.2d at 771-72. Specifically, the court stated that it "fail[ed] to perceive any rational basis for assuming that medical malpractice claims will diminish simply by requiring that suits be instituted at an earlier date." Lyons, 440 N.W.2d at 771. Thus, the Lyons court perceived that the legislative objective in enacting the statute of limitations as it pertained to minors was to reduce the number of medical malpractice cases filed by plaintiffs who were minors at the time of their injury. This is not the same objective sought by the Montana Legislature in amending § 27-2-205(2), MCA.
*1096 ¶ 26 As discussed above, the Montana Legislature sought to reduce the costs of medical malpractice insurance by reducing the time period in which certain actions must be filed, thereby reducing the uncertainty of potential future losses which had increased insurance premiums. See Hearings on H.B. 344 Before the Senate Judiciary Committee, 50th Legislature, (1987). Thus, the objective was to provide for more certainty in risk assessment rather than to reduce the overall number of claims. Indeed, the Legislature attempted to preserve as many claims as possible by pinpointing only those injuries incurred between birth and age four and allowing those minors until the age of eight to file actions because most of these causes of action are discovered within that time frame. Lyons is distinguishable on this basis.
¶ 27 In Schwan, the Ohio Supreme Court also held a similar statute of limitations violated equal protection, concluding under the rational basis test that the classification of minors under the age often was not sufficiently related to the objective of the statute and that "it is the age of majority which establishes the only rational distinction." Schwan, 452 N.E.2d at 1339. However, the court provided no discussion of the statute's legislative history and virtually no analysis of why the statute failed the rational basis test. In light of its limited rationale, Schwan simply is not persuasive.
¶ 28 Finally, in Torres, the California Court of Appeals held that a statute which provided that the limitations period on a minor's medical malpractice action began to run from the date of the alleged wrongful act, while the limitations period for adults began to run from the dateor the discoveryof the resulting injury, violated minors' rights to equal protection of the laws. Torres, 257 Cal.Rptr. at 217. The Torres court did not address the issue before us here namely, whether a statute providing that a limitations period could run during the time a plaintiff is a minor violates equal protectionand, as a result, Torres is inapplicable to the present case. Moreover, in a case addressing the issue raised here by Best, the California Court of Appeals held that a statute requiring a minor under the age of six to bring a medical malpractice action within three years or prior to his or her eighth birthday did not violate a minor's right to equal protection of the laws. See Kite By and Through Black v. Campbell (1983), 142 Cal.App.3d 793, 191 Cal.Rptr. 363, 366-67, overruled on other grounds by Young v. Haines, 41 Cal.3d 883, 226 Cal.Rptr. 547, 718 P.2d 909 (1986).
¶ 29 Best has presented no persuasive argument or authority supporting his contention that § 27-2-205(2), MCA, is not rationally related to a legitimate governmental objective and, therefore, he has not met his burden of establishing that the statute is unconstitutional beyond a reasonable doubt. See Davis, 282 Mont. at 239, 937 P.2d at 30. We conclude that § 27-2-205(2), MCA, does not violate Best's right to equal protection of the laws.
¶ 30 We hold that the District Court erred in concluding that § 27-2-205(2), MCA, is unconstitutional as applied in this case. Consequently, as discussed above, § 27-2-205(2), MCA, required Best to bring his medical malpractice action no later than October 1, 1989, and he did not file his complaint until August 15, 1995. As a result, the Estate is entitled to summary judgment on the basis that Best's cause of action is barred by the statute of limitations.
¶ 31 Reversed and remanded for entry of an order granting summary judgment to the Estate.
J.A. TURNAGE, C.J., JIM REGNIER, W. WILLIAM LEAPHART, and JAMES C. NELSON, JJ., concur.
Justice WILLIAM E. HUNT, Sr., dissenting.
¶ 32 The legislature amended § 27-2-205, MCA, in 1987, limiting minors' access to courts in medical malpractice cases in response to a perceived medical malpractice crisis in the State of Montana. The gist of this "crisis" was that Montana's insurance rate's were too high and there was supposedly an enormous increase in physicians carrying no insurance. The question the legislature's amendment raises is, if a minor has no standing to bring his own claim, and the statute of limitations runs before he attains *1097 the age of majority, when is he to bring a claim on his own behalf?
¶ 33 A statute limiting non-fundamental rights must pass the rational basis test, and I fail to see how a statute limiting minors from pursuing valid claims against potentially negligent medical professionals is reasonably related to the legislature's purported intent of reducing the cost of medical malpractice premiums.
¶ 34 I agree with the District Court that the result of the legislature's amendments is that § 27-2-205(2), MCA, violates equal protection as guaranteed by Article II, Section 4, of the Montana Constitution. The minor statute of limitations treats minor victims of medical negligence differently than adult victims of the same negligent act as well as treating them differently than minor victims of other torts. Sections 27-2-205, 401, MCA. Other jurisdictions have found that such statutory provisions violate equal protection.
¶ 35 The South Dakota Supreme Court found that "an arbitrary classification of minors who have medical malpractice claims as opposed to minors with any other kind of tort claims" violated minors' constitutional rights because there was no "rational basis for assuming that medical malpractice claims will diminish simply by requiring that suits be instituted at an earlier date". Lyons v. Lederle Labs. (S.D.1989) 440 N.W.2d 769, 771.
¶ 36 The majority attempts to distinguish the Lyons decision on the basis that the intent of South Dakota's statute is different from Montana's. They assert that the intent behind the South Dakota law was to reduce the number of malpractice claims filed by plaintiffs who were minors at the time of their injury, while the Montana Legislature's intent was to "reduce the costs of medical malpractice insurance by reducing the time period in which certain actions must be filed, thereby reducing the uncertainty or potential future losses which had increased insurance premiums." Such a distinction is an act of hair splitting.
¶ 37 The overall intent of both statutes was to reduce the number of malpractice claims and therefore reduce the cost of malpractice insurance. There is no rational relationship for treating certain minors differently than other minors, or differently than adults in the same situation, as a means to lower malpractice insurance premiums. The discrimination is simply not rationally related to such a goal. The number of valid claims by minors barred by the statute seems hardly significant enough to reduce the overall cost of malpractice insurance.
¶ 38 The California Court of appeals struck down a statute similar to those of Montana and South Dakota, stating:
[s]uch a classification `must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.'... The fact that such discrimination against minors would bar some meritorious claims and thereby reduce total malpractice liability is not enough to justify it. If claims are reduced in an arbitrary manner, the classification scheme denies equal protection of the law.
Torres v. County of Los Angeles (1989), 209 Cal.App.3d 325, 257 Cal.Rptr. 211, 217 (citation omitted). Again, the majority attempts to distinguish the court's holding in Torres. They insist that the decision is not persuasive because Torres addressed a statute allowing the limitations period on a minor's medical malpractice claim to run from the date of the alleged wrongful act, while the limitations period for an adult ran from the date, or the discovery, of the injury. In contrast, the Montana statute allows the limitation period to run during the time a plaintiff is a minor. The difference is academic. Both statutes in question treat minors differently than adults in the same situation, namely when they are victims of medical malpractice, and therefore violate minors' rights to equal protection.
¶ 39 The District Court could find no rational basis for treating children differently under the statute of limitations and found the statute unconstitutional. I would hold the same.
Justice TERRY N. TRIEWEILER joins in the foregoing dissent.
| {
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Filed 9/18/14 In re H.Q. CA2/3
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 THREE
In re H.Q. et al., Persons Coming Under the B252497
Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. CK41441)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.Q.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County, Amy M.
Pellman, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
_________________________
INTRODUCTION
Mother E.Q.’s youngest two children, H.Q. (born in 2001) and Bianca (born in
2003), were already dependents of the juvenile court when the court sustained a
subsequent petition (Welf. & Inst. Code, § 342)1 and removed them from mother’s
custody (§ 361). Mother appeals challenging the sufficiency of the evidence to support
the jurisdiction and disposition orders. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Viewing the evidence according to the usual rules (In re Kristin H. (1996)
46 Cal.App.4th 1635, 1649), it shows that mother has had difficulty supervising,
controlling, and protecting her many children. In 2010, mother hurt her back at work and
is seeking workers’ compensation. After that, she claims, her children ceased listening to
her. With prodding from the social worker, mother listed her medications, which
included two opiates, one anti-inflammatory drug, one antibiotic, one anti-nausea drug,
and a muscle relaxant.
This family has been the subject of at least 11 referrals between January 2000 and
February 2013 for a wide variety of issues, including general neglect and physical abuse
in that, among other things, mother’s companion left firearms and ammunition in the
children’s reach; mother and her companion were trafficking in drugs in the children’s
presence; cocaine and methamphetamines were left within the children’s reach; and
mother’s older children abused drugs. Mother’s children have been declared dependents
of the court on at least three earlier occasions.
In May 2012, the juvenile court sustained a petition pursuant to section 300,
subdivisions (b) and (j) and took jurisdiction over four of mother’s minor children,
including H.Q. and Bianca.2 The court removed a sibling from mother’s care but allowed
1 All further statutory references are to the Welfare and Institutions Code.
2 Neither mother’s older children, nor any of the fathers, is a party to this appeal.
2
H.Q. and Bianca to remain with her under the supervision of the Department of Children
and Family Services (the Department). The girls received Wraparound services.
The girls apparently complied and made some progress with the wraparound
services. However, toward the end of 2012, they reverted to their old ways, were not
following household rules. They were disrespectful to, and bullied mother. The social
worker reported that the girls were “often” disheveled and left the house without
mother’s permission or knowledge. At the social worker’s next unannounced visit, the
house was filthy and had a foul odor. Eleven-year-old H.Q. was not home and neither
mother nor Bianca knew where she was. The social worker discovered foot-high
marijuana plants belonging to mother’s adult son E. growing in the backyard. Mother
reported being “ ‘so overwhelmed [she did not] know what to do.’ ”
On February 27, 2013, the Department received a referral alleging H.Q. and
Bianca had been exposed to emotional abuse. An investigation indicated that the children
were exposed to E.’s drug use and to domestic violence. Mother was aware that drugs
and drug paraphernalia were within the children’s reach. The social worker concluded
that the children “are very protective of their brother and . . . they may have minimized
the domestic violence incident because they did not want him to leave the home.”
Mother appeared afraid of E.. Despite mother’s promises, the social worker doubted
mother would be able to keep E. out of her home. Mother’s failure to control and
supervise her children endangered their emotional and physical well-being, the
Department reported.
In March 2013, a drug test revealed that mother had high levels of amphetamines
and methamphetamines, which are not associated with any of her prescription
medications, but are associated with crystal methamphetamine.
The Department filed a subsequent petition alleging four counts under section 300,
subdivision (b). In particular, as amended, count b-4 alleges “On or about 2/27/13 and
other occasions [sic] the []children H[.]Q[.] & Bianca R[.] were exposed to a violent
confrontation between the adult sibling [E.] L[.] and his girlfriend in which the [E. L[.]
punched, kicked, slapped and called disparaging names to his girlfriend. Further, on
3
prior occasions, the []children . . . were exposed to violent confrontations between the
adult sibling [E/] L[.] and his girlfriend. Such violent altercation(s) on the part of the
child’s/children’s adult brother [E/] L[.] endangers the []children’s physical and
emotional health and safety and places the []children at risk of physical and emotional
harm, damage and danger. In addition Mother . . . allowed the adult brother to remain in
the home [and] subject the children to violent and frequent altercations. . . .” The
children were detained.
H.Q. stated to the Department that “ ‘We were taken away because of the
violencia domestica. It is my brother’s fault. I saw him hitting his girlfriend and she hit
him and once bit him. He would yell at her [and] call her “bitch.” I saw him hit her and
push her all the time. He would punch her in the arm, back and face. My mom would
tell him to stop but he would not.’ ” Bianca stated, “ ‘[E.] and his girl would fight. I saw
them do it 3 or 4 times in front of me and their baby in our house. He did violencia
domestica in front of me and my sister and my mom. He would not listen to my mom,
when she told him to stop.’ ” Daughter Joana L. stated “ ‘According to my mom [E.] is
an Angel and can do no wrong. Yeah, he would beat on his girl and my mom did
nothing.’ ” Bianca’s father stated, “ ‘It hurts her to kick him out. That boy is golden. He
beats his girlfriend and my daughters are taken away.’ ”
Mother moved to a new residence. Pursuant to juvenile court orders, the
Department investigated mother’s new place and whether E. had access to mother’s
home. The investigating social worker observed . eating and “simply hanging out at his
Mother’s residence.” Mother reported she had difficulty keeping E. out of her home
because she was his mother and her children disobey her. The social worker concluded
that mother did not have the knowledge or ability to protect the children as she continued
to allow E. in the home. Also, the social worker believed someone, presumably E., was
smoking marijuana outside the home during the visit. Mother missed a random drug test
and tested positive twice in July 2013 for methamphetamines and amphetamines. The
Department recommended not returning the children to mother’s care.
4
The juvenile court sustained all four of the subsequent petition’s counts and
declared H.Q. and Bianca described by subdivision (b) of section 300. The court then
ordered the children removed from mother’s custody (§ 361, subd. (b)) and awarded
mother reunification services while maintaining wraparound services. Mother’s timely
appeal followed.
CONTENTIONS
Mother contends there is insufficient evidence to support the order sustaining the
subsequent petition and removing the children from her custody.
DISCUSSION
1. Substantial evidence supports the juvenile court’s finding Bianca and H.Q. are
defined by section 300, subdivision (b).
When a child has already been declared a dependent of the juvenile court and the
social services agency learns of new facts or circumstances, other than those under which
the original petition was sustained, sufficient to declare the child to be described by
section 300, the agency must file a subsequent petition. (§ 342.)
As the order sustaining a petition must be supported by a preponderance of the
evidence (In re Heather A. (1996) 52 Cal.App.4th 183, 193), so too must the order
sustaining a subsequent petition be supported by a preponderance of the evidence. (§ 342
[“All procedures and hearings required for an original petition are applicable to a
subsequent petition filed under this section.”].) On appeal, we are guided by the
substantial-evidence standard: “We review the record to determine whether there is any
substantial evidence, contradicted or not, which supports the court’s conclusions.”
(In re Kristin H., supra, 46 Cal.App.4th at p. 1649.)
Subdivision (b) of section 300 authorizes dependency jurisdiction when “[t]he
child has suffered, or there is a substantial risk that the child will suffer, serious physical
harm or illness, as a result of the failure or inability of his or her parent . . . to adequately
supervise or protect the child . . . .” (Italics added.) The juvenile court here sustained
count b-4 alleging, as facts different from those in the original petition, that the children
5
were exposed to violent confrontations, on February 27, 2013 and on other occasions,
between E. and his girlfriend and that mother allows E. to remain in the family home.
Mother admits the evidence supports the finding under count b-4. Her brief
admits that “the girls were exposed to some domestic violence between E. and his
girlfriend” and acknowledges In re Heather A., supra, 52 Cal.App.4th 183, which stated
that “domestic violence in the same household where children are living is neglect; it is a
failure to protect [the children] from the substantial risk of encountering the violence and
suffering serious physical harm or illness from it. Such neglect causes the risk.” (Id. at
p. 194, italics added.)
Mother contends that she did not perpetrate and was not a party to the violence.
However, mother need not have been the perpetrator for the children to be described by
section 300, subdivision (b). “[D]omestic violence in the . . . household where [the]
children are living” is sufficient. (In re Heather A., supra, 52 Cal.App.4th at p. 194,
italics added.)
Mother argues that she acted protectively “as she tried to stop the violence” by
calling the police and wraparound services. Yet, the record shows that in the same
statement in which mother reported she told E. to stop his violent behavior, she went on
to declare, “ ‘[b]ut that girl stabbed her finger nail in his [E.’s] back and he had skin
hanging. He had to defend himself.’ ” (Italics added.) In other words, mother also
justified her son’s violence as necessary. That mother told E. to stop his violent conduct
is laudable, but it does not negate the fact that the children were exposed to domestic
violence that places them at risk of serious physical harm or illness.
Relying on In re Daisy H. (2011) 192 Cal.App.4th 713, mother argues she has
moved to a new residence and E. “no longer live[s] with her.” She observes E. only
visited alone “and there were no reports of him perpetrating any domestic violence in
Mother’s new residence” with the result there is no evidence that the children are still at
risk of harm from his domestic violence.
Daisy H. stated, “[p]hysical violence between a child’s parents may support the
exercise of jurisdiction under section 300, subdivision (b) but only if there is evidence
6
that the violence is ongoing or likely to continue and that it directly harmed the child
physically or placed the child at risk of physical harm.” (In re Daisy H., supra,
192 Cal.App.4th at p. 717, italics added.) In Daisy H., the evidence was insufficient to
support a finding that past or present domestic violence between the parents placed the
children at a current substantial risk of physical harm because the father had pulled the
mother’s hair and choked her “seven years before the petition was filed.” (Ibid., italics
added.) Daisy H. is distinguished on its facts.
Ample fresh evidence supports the juvenile court’s finding true the allegations of
count b-4 that E.’s violence is likely to continue and that mother is unable to protect the
children from him. Although mother has moved to a new residence and she claims E. no
long lives with her, the evidence supports the juvenile court’s implied conclusion
otherwise. During a visit to mother’s new residence, the social worker found E. eating
and “hanging out.” Even if E. no longer lives with her, mother admitted she has
difficulty preventing him from coming over and that he disobeys her orders. E. is an
adult whom she fears and adores. Mother defends his violence while ignoring the risk
that the violence poses for her other children. In short, the evidence shows that mother is
either unwilling or unable to keep E. and his violence away from the children or the
family home.
As a preponderance of the evidence supports the court’s findings under
section 300, subdivision (b) based on count b-4, we need not address the sufficiency of
the evidence to support findings as to the remaining three counts concerning mother’s
drug abuse, E.’s cultivation and abuse of drugs in the children’s presence, or mother’s
allowing Bianca’s father access to the children when he has a longstanding history of
violent crimes, possessing firearms, and drug trafficking. “Section 300, subdivisions (a)
through (j), establishes several bases for dependency jurisdiction, any one of which is
sufficient to establish jurisdiction. (§ 300.)” (In re Dirk S. (1993) 14 Cal.App.4th 1037,
1045; see, e.g., In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) There being
substantial evidence to support the court’s finding as to section 300, subdivision (b) based
7
on count b-4, the preponderance of the evidence supports the jurisdictional findings and
order sustaining the subsequent petition.
2. Substantial evidence supports the removal order.
Section 361, subdivision (c)(1) reads in relevant part, “A dependent child may not
be taken from the physical custody of his or her parents or guardian or guardians with
whom the child resides at the time the petition was initiated, unless the juvenile court
finds clear and convincing evidence . . . [¶] (1) There is or would be a substantial danger
to the physical health, safety, protection, or physical or emotional well-being of the minor
if the minor were returned home, and there are no reasonable means by which the minor’s
physical health can be protected without removing the minor from the minor’s parent’s or
guardian’s physical custody.”
“Before the court may order a child physically removed from his or her parent, it
must find, by clear and convincing evidence, that the child would be at substantial risk of
harm if returned home and that there are no reasonable means by which the child can be
protected without removal. [Citations.] The jurisdictional findings are prima facie
evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The
parent need not be dangerous and the child need not have been actually harmed for
removal to be appropriate. The focus of the statute is on averting harm to the child.
[Citations.] In this regard, the court may consider the parent’s past conduct as well as
present circumstances. [Citation.]” (In re Cole C. (2009) 174 Cal.App.4th 900, 917;
In re John M. (2012) 212 Cal.App.4th 1117, 1126.) Although in the juvenile court, clear
and convincing evidence of abuse or neglect is necessary to remove a child from a
parent’s physical custody, on appeal, we apply the substantial-evidence standard of
review to determine whether there was clear and convincing evidence supporting the
removal order. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)
Mother contends there is no evidence of “potential harm” to the children if they
are returned to her custody and the juvenile court should have resolved any doubt in favor
of family preservation services. Mother observes that the girls both wanted to visit her
and were “suffering greatly in foster care.”
8
Substantial evidence supports the removal order under section 361, subdivision
(c)(1). Mother overlooks the fact that the girls were already dependents of the court for a
year before the filing of the section 342 petition. The juvenile court sustained not only an
original petition but the subsequent petition also. This constitutes prima facie evidence
that the children cannot safely remain in her home. (§ 361, subd. (c)(1).) In addition,
family preservation clearly did not work. The family had been receiving such services
since the original petition was sustained. Yet, that disposition plan appeared not to be
effective. The girls responded for a short period and then reverted back to their old ways,
disregarding mother’s rules, acting disrespectfully to, and bullying, mother. Mother was
unable to protect the children; she even admitted she was overwhelmed. The girls were
“often” disheveled, frequently absent from the house without mother’s permission or
even her knowledge, and were exposed to mother’s excessive drug use. It was during the
period of wraparound services that mother permitted marijuana to grow in the back yard,
allowed drug paraphernalia in the home, permitted Bianca’s father to have access to the
children, defended E.’s right to engage in domestic violence in front of the girls, and
allowed E. to “hang[] out” in her new home. Substantial evidence supports the juvenile
court’s finding that the children cannot be safely returned to mother’s care, and that there
are no reasonable means by which the children’s physical health could be protected
without removing them from mother’s physical custody. (§ 361, subd. (c)(1).)
9
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KLEIN, P. J.
KITCHING, J.
10
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541 U.S. 985
TALIANOv.MITCHELL, WARDEN.
No. 03M64.
Supreme Court of United States.
April 19, 2004.
1
Motions to direct the Clerk to file petitions for writs of certiorari out of time denied.
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NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
RICHARD A. MCGEE,
Petition,er,
vi -
DEPARTMENT OF THE AIR FORCE,
Resp0nden,t.
2009-3263
Petition for review of the Merit Systems Protection
B0ard in CHO752080403-l-1.
ON MOTION
ORDER
Upon consideration of Richard A. McGee’s motion for
leave to file his brief out of time,
IT ls ORDERED THAT:
(1) The motion is granted
(2) The respondent should calculate its brief due date
from the date of filing of this order.
MCGEE V. AIR FORCE
SEP 2 1 2010
Date o
ccc Lawrence J. Fle1ning, Esq.
Leslie Cayer Ohta, Esq.
s20
2
F0R THE CoURT
/sf J an H0rbaly
J an Horb aly .
Clerk
"as22E“§'§E.l"§n§~¢'@r°“
SEP 21 3919
JAN HORBALY
CLERK
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-6769
FEDERICO J. HEADLEY,
Plaintiff - Appellant,
versus
MICHAEL A. SHUPE, Corrections Institution
Operation Officer of Buckingham Correctional
Center; MAEBELLE HOLMAN-BROWN, Postal Assis-
tant of Buckingham Correctional Center,
Defendants - Appellees.
Appeal from the United States District Court for the Western Dis-
trict of Virginia, at Roanoke. James C. Turk, District Judge.
(CA-96-936)
Submitted: November 6, 1997 Decided: November 25, 1997
Before WIDENER and LUTTIG, Circuit Judges, and BUTZNER, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Federico J. Headley, Appellant Pro Se. Mark Ralph Davis, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals the district court's orders denying his
motion to recuse and motion for a temporary restraining order. We
dismiss the appeal for lack of jurisdiction because the orders are
not appealable. This court may exercise jurisdiction only over
final orders, 28 U.S.C. § 1291 (1994), and certain interlocutory
and collateral orders, 28 U.S.C. § 1292 (1994); Fed. R. Civ. P.
54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).
The order here appealed is neither a final order nor an appealable
interlocutory or collateral order.
We dismiss the appeal as interlocutory.* We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
*
We also note that to the extent Appellant appeals the denial
of his temporary restraining order, it is moot.
2
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123 Cal.App.2d 753 (1954)
RUTH G. DAVIS, Respondent,
v.
WAYNE G. DAVIS, Appellant.
Civ. No. 19813.
California Court of Appeals. Second Dist., Div. Two.
Mar. 9, 1954.
John E. Sisson for Appellant.
Jerrell Babb for Respondent.
FOX, J.
Plaintiff and defendant were married in April, 1940. In October, 1951, plaintiff sued for divorce upon the grounds of extreme cruelty and desertion, seeking also the custody of their two children then 4 and 6 years of age, an order for their support, and an award to her of all the community property. Defendant filed an answer in propria persona in which he denied all of plaintiff's allegations except that he was an able-bodied man regularly employed, that the parties had two minor children, and that plaintiff was a fit and proper person to have their custody. This answer was prepared by counsel for plaintiff in accordance with defendant's directions as an accommodation to him since he desired to represent himself but did not know how to draw an answer. At the trial defendant acted as his own attorney, examining and cross-examining witnesses. He also testified. While he did not seriously contest the divorce, he did discuss with the court the property, its acquisition and character, encumbrance and income; also, his own and his wife's earnings, being respectively approximately $425 and $235 per month, and the amount to be paid for the support of the children. The testimony disclosed that all the property of the parties had been acquired since their marriage as a result of their earnings. In response to inquiries from the court, defendant stated he understood what community property is. He conceded the 1947 Plymouth car he drove and the six unit apartment house, which he valued at $32,500 and on which they owed $6,778, was community property. Plaintiff occupies one of these units. One other unit is furnished. The income of $360 per month is required to operate the property, pay taxes and upkeep, and make the monthly payments. Defendant claimed, however, as his separate property, two savings accounts totaling $2,140 and a cashier's check for $1,259.94. He contends these sums represented his share of certain funds which he and his wife had previously divided. He asserted she had spent her share. Plaintiff countered with the claim that *755 the funds were required for her and the children to live on and to replace furniture defendant had disposed of. Defendant also had a television and some workshop tools and equipment. Plaintiff had a television, and a 1950 Chrysler which, however, was not fully paid for.
The court granted plaintiff an interlocutory decree of divorce on the ground of extreme cruelty, awarded custody of the children to her with right of reasonable visitation on the part of defendant, ordered him to pay $50 a month for the care and maintenance of each child, and found all the above mentioned property to be community. In disposing of the property the decree provides that the apartment house, subject to the indebtedness, the furniture, the Chrysler and the television in plaintiff's possession shall go to her, while the savings accounts, the cashier's check, the Plymouth, workshop tools and equipment, and the television in defendant's possession shall go to him.
Thereafter defendant employed an attorney. A motion for a new trial was made supported by an affidavit of defendant in which he charged the attorney for plaintiff induced him not to procure legal representation by pointing out the lack of necessity therefor and the great expense thereof. He further claimed he had an agreement with plaintiff's attorney that the trial would be upon the desertion cause of action. Counsel for plaintiff denied these charges. He is supported by the affidavits of plaintiff, Doris Bailor and John E. Miller. As newly discovered evidence, defendant attached to his affidavit a photostat of the deed by which the apartment house property was acquired, showing it to be in the names of plaintiff and defendant "as joint tenants." In ruling on the motion for a new trial the judge filed a memorandum which, inter alia, stated: "The court finds the charges made by defendant against plaintiff's attorney, Mr. Babb, to be untrue." The court did, however, under the authority of section 662, Code of Civil Procedure, revise the disposition of the community property, so as to award to plaintiff an undivided two-thirds interest (instead of all) in the apartment house property and to defendant an undivided one-third interest therein. The motion for a new trial was thereupon denied. Defendant appeals from the judgment and the order denying his motion.
Defendant contends that (1) he was prevented from having a full and complete adversary proceeding upon the merits; *756 (2) the judgment is contrary to the law; and (3) the trial court abused its discretion.
[1] In support of his first point defendant says: that "he was lulled into a situation of not procuring legal counsel, and further, that the trial proceeded upon a basis contrary to his understanding of the agreement made by such attorney (Mr. Babb) with him prior to the trial." This argument is based wholly upon his own affidavit. The simple answer to it is that the trial court found defendant's charges against Mr. Babb "to be untrue," and such finding on conflicting affidavits is binding on appeal. (Warren v. Warren, 120 Cal.App.2d 396, 400 [261 P.2d 309].)
[2] Defendant argues that the judgment is contrary to the law because the court found the real property to be community although the deed to him and his wife was "as joint tenants." There can be no doubt that the property was purchased from community earnings. In such circumstances it is the intention of the parties rather than the form of the conveyance that determines the character of the property. (Tomaier v. Tomaier, 23 Cal.2d 754, 757 [146 P.2d 905]; Faust v. Faust, 91 Cal.App.2d 304, 308 [204 P.2d 906]; Perkins v. West, 122 Cal.App.2d 585, 589 [265 P.2d 538].) [3] Defendant told the court that he understood what community property is. He then stated three times that the real property is community. This clearly justifies an inference that he intended this property to be so classified. Plaintiff also considered it to be community. Such evidence furnishes ample support for the court's finding on this issue and is binding on appeal. (DeBoer v. DeBoer, 111 Cal.App.2d 500, 505 [224 P.2d 953].)
[4] Defendant insists the savings accounts and the cashier's check represent his "one-half interest of already mutually divided community," and is therefore his separate property. Plaintiff denied that she and defendant shared their joint bank account equally through the years and declared she had to use the particular money she drew out of the account for family needs. Under such circumstances the court was not required to find these funds were the separate property of defendant.
[5] Defendant also contends that the interlocutory decree is contrary to the law and in excess of the court's jurisdiction in that it undertakes to make a present award of the community property to the respective parties. While the court drew the conclusion that certain property "should be *757 awarded" to the plaintiff and other property to the defendant, the decree uses the present tense in specifying how the property is to be divided. It appears, however, that the trial judge intended to provide that the property should be awarded to the respective parties in a particular manner but that this should be effective only upon the entry of the final decree. The interlocutory decree specifically provides that at the time of entering the final decree "the court shall grant such other and further relief as may be necessary to a complete disposition of this action." The part of the decree relating to the award of the property must be read in conjunction with the italicized provision, supra. When so read, the result is that the interlocutory decree determines "the manner in which the community property is to be assigned at the time of the entry of the final decree. The language in the interlocutory decree purporting to make a final disposition of the community property will be disregarded as surplusage." (Johnston v. Johnston, 106 Cal.App.2d 775, 781-782 [236 P.2d 212]; Webster v. Webster, 216 Cal. 485, 493 [14 P.2d 522].) While this court could modify the decree and affirm it as modified (Slavich v. Slavich, 108 Cal.App.2d 451, 457 [239 P.2d 100]; Dowd v. Dowd, 111 Cal.App.2d 760, 765 [245 P.2d 339]), it is not necessary to take this action when the decree is considered in its entirety (Lo Vasco v. Lo Vasco, 46 Cal.App.2d 242, 247 [115 P.2d 562]).
Although defendant says the trial court abused its discretion he fails to point out any particular item in support thereof. Our examination of the record does not disclose any basis for his complaint.
There is no appeal from an order denying a motion for a new trial. (Blair v. Williams, 109 Cal.App.2d 516, 521 [240 P.2d 1043].) The appeal from the order is dismissed. The judgment is affirmed.
Moore, P. J., and McComb, J., concurred.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
CURTIS BENN, §
§
Defendant Below- § No. 400, 2014
Appellant, §
' §
V. § Court Below—Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § in and for New Castle County
§ Cr. ID No. 1207012970
Plaintiff Below- §
Appellee. §
Submitted: December 22, 2014
Decided: January 23, 2015
Before STRINE, Chief Justice, HOLLAND, and VALIHURA, Justices.
O R D E R
This 23rd day of January 2015, upon consideration of the appellant's
Supreme Court Rule 26(c) brief, the State's response, and the record below, it
appears to the Court that:
(1) On June 14, 2013, the appellant, Curtis Benn, pled guilty to Sex
Offender Unlawful Sexual Conduct with a Child and Failure to Properly Register
as a Sex Offender. On July 26, 2013 Benn filed a pro se motion to withdraw his
guilty plea. On October 4, 2013 and February 7, 2014, the Superior Court ordered
a psychiatric evaluation of Benn to determine his mental competency to enter a
guilty plea. Through new counsel, Benn filed a motion to withdraw his guilty plea
on March 17, 2014.
(2) After a hearing on June 27, 2014, the Superior Court denied Benn’s
motion to withdraw his guilty plea. The Superior Court proceeded to sentence
Benn as follows: (i) for Sex Offender Unlawful Sexual Conduct with a Child,
effective July 15, 2012, one year, eleven months, and eighteen days of Level V
incarceration (time served); and (ii) for Failure to Properly Register as a Sex
Offender, two years of Level V incarceration, suspended for two years of Level IV
probation, suspended after six months for eighteen months of Level III probation.
This is Benn’s direct appeal.
(3) On appeal, Benn’s counsel (“Counsel”) filed a brief and a motion to
withdraw under Supreme Court Rule 26(c) (“Rule 26(c)”). Counsel asserts that,
based upon a complete and careful examination of the record, there are no arguably
appealable issues. By letter, Counsel informed Benn of the provisions of Rule
26(c) and provided Benn with a copy of the motion to withdraw and the
accompanying brief. Counsel also informed Benn of his right to identify any
points he wished this Court to consider on appeal. Benn has raised several issues
for this Court’s consideration. The State has responded to the issues raised by
Benn and asked this Court to affirm the Superior Court's judgment.
(4) When reviewing a motion to Withdraw and an accompanying brief
under Rule 26(c), this Court must: (i) be satisfied that defense counsel has made a
conscientious examination of the record and the law for arguable claims; and (ii)
must conduct its own review of the record and determine whether the appeal is so
totally devoid of at least arguably appealable issues that it can be decided without
an adversary presentation.1
(5) The issues Benn raises on appeal may be summarized as follows: (i)
the Superior Court erred in denying his motion to withdraw his guilty plea because
DNA evidence proved he was innocent, he had a history of mental illness and was
on prescription medication at the time of his guilty plea, a mental competency
evaluation should have been performed before his guilty plea, he wanted to be
home with his sick mother, and his counsel coerced him into accepting the plea;
(ii) there were multiple hearing dates and postponements of his trial dates in
Violation of his due process rights; and (iii) his counsel was ineffective.
(6) We review the denial of a motion to withdraw a guilty plea for abuse
of discretion.2 The defendant bears the burden of showing a fair and just reason to
permit withdrawal of his plea.3 In evaluating whether to grant a motion to
withdraw a guilty plea, the Superior Court must address: (i) whether there was a
procedural defect in taking the plea; (ii) whether the defendant voluntarily entered
the plea; (iii) whether the defendant had a basis to assert legal innocence; (iv)
1 Penson v. Ohio, 488 US. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).
2 Chavous v. State, 953 A.2d 282, 285 (Del. 2008).
3 Super. Ct. Crim. R. 32(d).
whether the defendant had adequate legal counsel; and (V) whether granting the
motion would prejudice the State or unduly inconvenience the court.4
(7) The transcript of the hearing on Benn’s motion to withdraw his guilty
plea reflects that the Superior Court properly considered all five factors in denying
the motion. As the Superior Court recognized, Benn’s claims of innocence,
coercion, and dissatisfaction with counsel were contrary to his representations
during the guilty plea colloquy. The transcript of the plea colloquy reflects that
Benn told the Superior Court it was his decision to plead guilty to Unlawful Sexual
Conduct with a Child and Failure to Properly Register as a Sex Offender, nobody
was forcing him to plead guilty, he understood that he was waiving trial and
appellate rights, he was guilty of both of the offenses, he and his counsel reviewed
the Truth-In-Sentencing Guilty Plea form line by line, he was satisfied with his
counsel, and he had no complaints or problems to raise with the Superior Court.
Benn is bound by his answers during the guilty plea colloquy absent clear and
convincing evidence to the contrary.5 V
(8) Contrary to Benn’s contention, DNA evidence ruling him out as a
contributor to semen found on his stepdaughter’s blanket does not prove he was
innocent of exposing himself to his stepdaughter (the conduct identified in the re-
4 Scarborough v. State, 938 A.2d 644, 649 (Del. 2007).
5 Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
indictment for the charge of Sex Offender Unlawfill Sexual Conduct with a Child)
or Failure to Properly Register as a Sex Offender. As to Benn’s mental health, the
Superior Court noted that although the Delaware Psychiatric Center (“DPC”)
indicated it was difficult to evaluate someone’s past mental competence, the DPC
did not believe Benn’s psychiatric symptoms or cognitive limitations unduly
influenced his decision to enter a guilty plea. Benn indicated in the Truth-In-
Sentencing Guilty Plea form that he had never been a patient in a mental hospital
and that he was not under the influence of alcohol or drugs. There is no clear and
convincing evidence that Benn’s mental health or prescription medications made
him incapable of entering a knowing, intelligent, and voluntary guilty plea. We
therefore conclude that the Superior Court did not err in denying Benn’s motion to
withdraw his guilty plea.
(9) Benn next claims that multiple hearing dates and postponements of his
trial dates violated his due process rights. A voluntary guilty plea constitutes a
waiver of any alleged errors or defects occurring before the entry of the plea.6
Because the record reflects that Benn’s guilty plea was voluntary, he waived
claims based on errors occurring before the entry of his plea. Finally, Benn claims
his counsel was ineffective. We will not consider ineffective assistance of counsel
6 Downer v. State, 543 A.2d 309, 312-13 (Del. 1988).
claims for the first time on direct appeal when those claims have not been decided
on the merits by the Superior Court.7
(10) This Court has reviewed the record carefully and has concluded that
the remainder of Benn’s appeal is wholly Without merit and devoid of any arguably
appealable issue. We also are satisfied that Benn’s counsel has made a
conscientious effort to examine the reCord and the law and has properly determined
that Benn could not raise a meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AF FIRlVIED. The motion to Withdraw is moot.
BY THE COURT:
JAM
ustice
7 Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
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946 F.2d 1544
Brockv.Chevron USA
NO. 90-3854
United States Court of Appeals,Fifth Circuit.
OCT 18, 1991
Appeal From: E.D.La., 750 F.Supp. 779
1
VACATED.
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677 So.2d 938 (1996)
STATE of Florida, Appellant,
v.
Mark Warren JACKSON, Appellee.
No. 95-03015.
District Court of Appeal of Florida, Second District.
July 24, 1996.
*939 Robert A. Butterworth, Attorney General, Tallahassee, and Kimberly D. Nolen, Assistant Attorney General, Tampa, for Appellant.
Daniel M. Hernandez of Daniel M. Hernandez, P.A., Tampa, for Appellee.
PER CURIAM.
The state appeals the trial court's order dismissing seven felony charges against *940 Mark Warren Jackson, the appellee. We reverse the dismissal of the racketeering charge but affirm the dismissal of the remaining charges.
The state filed an information against appellee charging him with one count of organized fraud, in violation of section 817.03(4)(a), Florida Statutes (1993); one count of racketeering, in violation of section 895.03, Florida Statutes (1993); ten counts of the offense of conduct of financial transaction involving proceeds of unlawful activity, in violation of section 896.101(2); four counts of first degree grand theft, in violation of section 812.014(2)(a), Florida Statutes (1993); six counts of second degree grand theft, in violation of section 812.014(2)(b), Florida Statutes (1993); and three counts of third degree grand theft, in violation of section 812.014(2)(c), Florida Statutes (1993). Appellee filed a motion to dismiss the racketeering charge on the basis that the state failed to allege the enterprise element of this crime. Appellee also filed a motion to dismiss six of the other remaining counts on the basis of the statute of limitations. The trial court granted the motions to dismiss and the state filed a timely notice of appeal.
We find no reversible error in regard to the dismissal of the charges based on the statute of limitations and, accordingly, affirm the trial court's order granting that motion to dismiss. We do, however, find that the trial court erred in dismissing the racketeering charge and, therefore, we reverse the order granting the other motion to dismiss.
The appellee's motion to dismiss the racketeering charge was based on the assertion that the state failed to plead a prima facie showing of the existence of an enterprise as required by section 895.03.
The state in count II of the information alleged that appellee:
[B]etween on or about January 26, 1988, and continuing through on or about January 1, 1993, in the Fifth, Sixth, Seventh, Tenth, Twelfth, and Thirteenth Judicial Circuits of Florida, to-wit: Citrus, Pinellas, Pasco, Volusia, Polk, Sarasota, and Hillsborough Counties, did unlawfully, intentionally, and knowingly, while employed by or associated with an enterprise as defined by Section 895.02(3), Florida Statutes, to-wit: Caribbean Gulf Investment Corporation, Mark W. Jackson, P.A., Capitol Media, Inc., Comsouth Financial Corporation, Corporate Land Acquisition, Inc., Capitol Recovery Corporation, Stingray's of Tampa, Inc., Jackson and Pritchard, P.A., GB Capitol Corporation, Malibu's, and others known or unknown, did conduct or participate directly or indirectly, in such enterprise through a pattern of racketeering activity within the meaning of Florida Statute 895.02(1) and 895.02(4), by committing crimes chargeable by indictment or information under Chapter 812, Florida Statutes, and further the said MARK WARREN JACKSON did unlawfully, willfully, and knowingly engage in a pattern of racketeering activity as defined by Florida Statute 895.02(4)....
The information then set forth twenty-five predicate incidents.
The charging documents indicate that Mr. and Mrs. Wysocki, the victims, gave the appellee, an attorney, the authority to manage their financial affairs. Appellee, over a period of years, allegedly converted the victims' assets, consisting mainly of mortgages held for other individuals. The state alleged in the affidavit for the arrest warrant that appellee established an enterprise consisting of his law firm and other corporations which he controlled to conceal and use for his benefit the proceeds he obtained unlawfully from the victims.
The Florida RICO (Florida Racketeer Influenced and Corrupt Organization) Act, at section 895.03(3), Florida Statutes (1993), states: "It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering or the collection of an unlawful debt."
The RICO statute states: "`Enterprise' means any individual, sole proprietorship, partnership, corporation ... or group of individuals associated in fact although not a legal entity; and it includes illicit as well as licit enterprises and governmental, as well as other, entities." § 895.02(3), Fla.Stat. (1993).
*941 An enterprise is characterized by three elements: (1) a structural organization that exists separately from the pattern of racketeering activity; (2) continuity of structure and personnel; and (3) a showing of a shared purpose. Flanagan v. State, 566 So.2d 868 (Fla. 2d DCA 1990), citing Boyd v. State, 578 So.2d 718 (Fla. 3d DCA), rev. denied, 581 So.2d 1310 (Fla.1991).
The issue in the instant case is whether the entities alleged by the state to be the RICO enterprise are sufficiently separate from the appellee. We hold that they are.
An individual defendant cannot constitute the "enterprise" for RICO purposes. Day v. State, 541 So.2d 1202 (Fla. 2d DCA 1988), rev. denied, 545 So.2d 869 (Fla.1989). That is, a defendant cannot commit a RICO offense by participating with an enterprise consisting of only the defendant. Masonoff v. State, 546 So.2d 72 (Fla. 2d DCA), rev. dismissed, 553 So.2d 1166 (Fla.1989). In order to satisfy the "enterprise" element of a RICO charge, the state must allege the defendant acted in concert with another person, organization or entity. Day, 541 So.2d at 1203. See Holley v. State, 564 So.2d 595 (Fla. 2d DCA 1990) (one person acting alone cannot be an enterprise for RICO purposes absent proof he used a business entity as a conduit for criminal activity).
This court in Masonoff noted that the RICO statute's definition of enterprise included a sole proprietorship, but concluded that in order to be considered an enterprise the sole proprietorship must be sufficiently separate from the sole proprietor. Masonoff held that since the sole proprietorship had no employees other than the defendant himself it was not sufficiently separate so as to qualify as an enterprise under the RICO statute. In deciding the question of what is a sufficiently separate entity so as to constitute an enterprise, this court adopted the Seventh Circuit's analysis expressed in McCullough v. Suter, 757 F.2d 142 (7th Cir.1985).
The Seventh Circuit in McCullough stated that if a man has employees or associates the enterprise is distinct from him, and it then makes no difference what legal form the enterprise takes. The important factor is that the enterprise be either formally (as when there is incorporation) or practically (as when there are other people other than the proprietor working in the organization) separate from the defendant. McCullough, 757 F.2d at 144. If a "one-man band" incorporates, it gets legal protection from the corporate form such as limited liability, and it is this type of legal shield for illegal activity that RICO tries to pierce. McCullough, 757 F.2d at 144. See also Fleischhauer v. Feltner, 879 F.2d 1290 (6th Cir.1989), cert. denied, 493 U.S. 1074, 110 S.Ct. 1122, 107 L.Ed.2d 1029 (1990)(no merit to defendant's argument that enterprise was not sufficiently distinct from him because he owned 100% of corporations).
Applying this analysis to the instant case, appellee's law firm and the seven other corporations set out in the charging documents were sufficiently separate from appellee so as to constitute an enterprise under the RICO statute. Masonoff, 546 So.2d at 75. While the charging documents do not allege that appellee associated with another human being, they indicate that he associated with a number of separate and identifiable entities through which he conducted his criminal activity. See Day, 541 So.2d at 1203. Since the charging document made a prima facie showing of the enterprise element, it was error for the trial court to dismiss the RICO charge, and we, accordingly, reverse and remand for further proceedings consistent herewith. See State v. Whiddon, 384 So.2d 1269 (Fla.1980).
Affirmed in part; reversed in part; and remanded.
SCHOONOVER, A.C.J., and FULMER and WHATLEY, JJ., concur.
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28 N.J. Super. 178 (1953)
100 A.2d 291
RUBEN VENETSKY AND MIRIAM VENETSKY, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
WEST ESSEX BUILDING SUPPLY CO., INC., A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued October 26, 1953.
Decided November 5, 1953.
*181 Before Judges CLAPP, GOLDMANN and EWART.
Mr. Benjamin Gittleman argued the cause for appellants.
Mr. Francis F. Welsh argued the cause for respondent.
The opinion of the court was delivered by EWART, J.A.D.
A chronology of the events leading up to the controversy presented by this appeal is as follows:
January 22, 1953 Eliza Gottsleben died a widow and intestate, resident at and seized of title to premises known as 81-83 West Kinney Street, Newark, N.J. She left her surviving as her only heirs-at-law and next-of-kin three children, viz., Clarence Fred Gottsleben, a son; Joseph William Gottsleben, a son; and Elsie May Day, a daughter, all of whom were of full age. No administration has ever been taken out on her estate.
January 26, 1953 By deed of this date, "Clarence F. Gottsleben and Mildred Grace Gottsleben, his wife" conveyed all of their right, title and interest in and to the premises in question to Joseph W. Gottsleben. The deed was recorded January 30, 1953 in Book 3106 of Deeds for Essex County, page 158. The deed recited that he was one of the heirs-at-law of Eliza Gottsleben who died January 22, 1953.
*182 February 9, 1953 By deed of this date, recorded March 5, 1953 in Book 3113 of Deeds for Essex County at page 480, Elsie May Day and Osborne Harold Day, her husband, conveyed all of their right, title and interest in and to the premises in question to Joseph W. Gottsleben.
February 16, 1953 An agreement in writing was entered into on this date between Joseph William Gottsleben, single man, as seller, and plaintiff Ruben Venetsky as buyer, by the terms whereof the seller agreed to sell and convey to the buyer by deed of bargain and sale, but free from all encumbrances, on or before March 15, 1953, title to the premises in question for a price of $5,000. The contract of sale contained the following recitals:
"Being the same premises conveyed to Eliza Gottsleben by deed dated October 26th, 1948 and recorded in Book S 112; Pages 147-148.
The said Eliza Gottsleben died a widow and intestate on January 22nd, 1953 leaving her surviving three children, Elsie May Day, Clarence F. Gottsleben and Joseph William Gottsleben. The said Elsie May Day and Clarence F. Gottsleben have conveyed their interest in the above described property to Joseph William Gottsleben."
And the contract of sale contained an express representation that all debts of the estate of Eliza Gottsleben had been paid; that the seller would execute an affidavit of title in the customary form; and a covenant that in the event it should afterwards appear that there were debts against the estate of Eliza Gottsleben, the seller would be personally liable for the payment thereof.
March 9, 1953 By bargain and sale deed bearing this date, Joseph William Gottsleben, unmarried, conveyed to the plaintiff Ruben Venetsky, title to the premises in question, which deed was duly recorded on the same day in Book 3114 of Deeds for Essex County, page 300. The deed contained the following recital:
"Being the same premises conveyed to Eliza Gottsleben by deed dated October 26th, 1948 and recorded in Book S 112; pages 147-148.
*183 The said Eliza Gottsleben died a widow and intestate on January 22nd, 1953, leaving her surviving three children, Elsie May Day, Clarence F. Gottsleben and Joseph William Gottsleben. The said Elsie May Day and Clarence F. Gottsleben have conveyed their interest in the above described property to Joseph William Gottsleben."
On the same date as the deed last mentioned, and simultaneous with the execution thereof, Joseph William Gottsleben executed a long conventional form of affidavit of title in which is traced step by step the devolution of title to the premises in question, commencing with the deed from Munn to Ashfield in 1919 and continuing the same down into Eliza Gottsleben; stating the date of death of Eliza Gottsleben and the fact that she died a widow and intestate, leaving her surviving as her only heirs-at-law her three children as aforesaid, including "Clarence F. Gottsleben"; stating the conveyance by Clarence F. Gottsleben et ux., to deponent Joseph William Gottsleben, and the conveyance by Elsie May Day et vir., to Joseph William Gottsleben, giving the dates of the deeds and the books and pages where recorded as above set forth; stating that title to the said premises was free and clear of all encumbrances, including judgments; that all debts of Eliza Gottsleben had been paid in full and that there were no federal estate taxes or transfer inheritance taxes due upon her estate; stating and agreeing that deponent would obtain a New Jersey inheritance tax waiver as promptly as possible and attend to recording the same in the Essex County Clerk's office at his own expense; agreeing that in the event any estate or inheritance taxes should thereafter be levied or become due, or should debts upon the estate of Eliza Gottsleben be thereafter made to appear, that is, debts that would be a lien on the premises in question, that the deponent would save Ruben Venetsky harmless from the same and be personally liable for the payment thereof; stating that the matters and facts alleged in the affidavit were within the personal knowledge of deponent and that the affidavit was made to induce Ruben Venetsky to accept a deed for title to said premises and to pay the agreed consideration therefor.
*184 It further appeared that settlement under the contract was made March 9, 1953 and that the plaintiff Ruben Venetsky at that time paid the balance of the consideration price to Joseph William Gottsleben, the total payments, after necessary adjustments, amounting in the aggregate to $5,079.11.
Subsequent to the closing of title on March 9, 1953, the purchaser Venetsky ascertained that on October 1, 1952 final judgment was entered in the Superior Court in favor of defendant West Essex Building Supply Co., Inc., against "Fred Gottsleben and Mildred G. Gottsleben, his wife" in the amount of $1,394.91 plus costs. March 9, 1953 execution on said judgment was issued to the sheriff of Essex County pursuant to which the sheriff levied upon all of the right, title and interest of Fred Gottsleben and Mildred G. Gottsleben, his wife, in and to the premises in question, the levy having been made March 13, 1953.
May 26, 1953 The right, title and interest of Fred and Mildred G. Gottsleben in and to the premises in question were sold by the sheriff and purchased by the defendant.
On May 23, 1953 this suit was filed in the clerk's office of the Superior Court and in the complaint plaintiffs demand judgment that they hold the lands and premises in question free and clear of the lien of the aforesaid judgment against Fred and Mildred G. Gottsleben; that the aforesaid levy be set aside; and that the defendant be enjoined from proceeding with the sale of the premises. In short, plaintiff is demanding a declaratory judgment. Defendant's answer asserts that its judgment did constitute a first lien upon the right, title and interest of the defendant Fred Gottsleben; that plaintiff's acquisition of title was subject to the lien of defendant's judgment and, in effect, joins in the demand for a declaratory judgment.
At the trial of this matter before the court without a jury, a birth certificate was produced and revealed that "Clarence Fred Gottsleben," son of Henry and Eliza Gottsleben, was born at Newark on August 17, 1892. The proofs at the hearing also disclosed that Benjamin Gittleman, Esquire, an attorney at law, who had had upwards of 25 years' experience in *185 searching titles to real estate, had searched the title to the premises in question prior to making settlement on March 9, 1953; had secured county and tax searches and had likewise secured searches in the United States District and New Jersey Superior Courts against all of the names appearing in the chain of title for 20 years past, including the name "Clarence F. Gottsleben," but that no judgments or other liens were disclosed thereby. The certificate annexed to the search of the records in the United States District Court and New Jersey Superior Court bears date March 5, 1953.
On behalf of the defendant it was disclosed at the hearing that Clarence Fred Gottsleben was listed in the Madison telephone directory as "C.F. Gottsleben," residing on Noe Avenue in Chatham Township; that on August 14, 1952 he opened an account in the First National Bank of Madison in the name of "Mr. Fred Gottsleben, Noe Avenue, Chatham Township," and that he was known at the bank only by the name Fred Gottsleben. And it also appeared that since October 1949 he had been known to Theodore A. Hansen, a general contractor, as "Fred Gottsleben," who had introduced him to the defendant West Essex Building Supply Co., Inc., by that name. And it further appears that Fred Gottsleben purchased building material at the defendant's yard for which he gave a promissory note signed by himself and wife which formed the basis of the judgment secured by the defendant against him.
The record before us does not disclose that plaintiff Ruben Venetsky, or his attorney Benjamin Gittleman, who made and secured the title searches, had any prior acquaintance with the Gottsleben family.
On this state of proofs the trial court found that plaintiffs took a calculated risk in accepting a conveyance of title so soon after the death of Eliza Gottsleben; that plaintiff had failed to sustain the burden of proof, and that judgment should be entered in favor of the defendant and the complaint dismissed.
By statute judgments are made a lien upon real estate from the date of the entry of such judgment on the records *186 of the court, N.J.S. 2A:16-1, and where the judgment debtor acquires title subsequent to the entry of the judgment, the lien thereof attaches immediately upon acquisition of title by him. Camden County Welfare Board v. Federal Deposit Ins. Corp., 1 N.J. Super. 532 (Ch. Div. 1948).
And the statute further directs that the clerk of the Superior Court shall keep and maintain a book known as the civil judgment and order docket in which shall be entered an abstract of each judgment or order for the payment of money including, inter alia, the names at length of all parties to the judgment, the amount of damages and costs recovered, and the date of actual entry of the judgment. N.J.S. 2A:16-11. And the clerk is further directed by statute to keep and maintain suitable indices in alphabetical order of the judgment and order docket, and the record of all judgments, assignments thereof, etc. N.J.S. 2A:16-16. The purpose, of course, of these statutes is to give constructive notice to subsequent purchasers, encumbrancers and others who may deal with title to the real estate upon which the judgment constitutes a lien. This court will take judicial notice of the fact that the Russell Index System is used in the office of the Clerk of the Superior Court and that the record of judgments under that system are listed alphabetically, both with respect to the Christian or given names and with respect to the surnames of the parties to the suit resulting in a judgment.
At common law it was a well-established rule that the law knows but one Christian name and one surname and, with some qualification, that rule still prevails. Dilts v. Kinney, 15 N.J.L. 130 (Sup. Ct. 1835); Schaffer v. Levenson Co., 82 N.J.L. 61 (Sup. Ct. 1911); Yucker v. Morris, 85 N.J. Eq. 476 (Ch. 1915), reversed on other grounds 86 N.J. Eq. 181 (E. & A. 1916); 30 Am. Jur., Judgments, § 89; Anno., 122 A.L.R. 909.
It has long been settled that actions properly brought must be commenced and prosecuted in the proper Christian and surnames of the parties to the suit, and that the names of the parties must be stated with certainty and not merely *187 by the use of initials, excepting that under the statutes (Practice Act. Rev. 1874, page 598, § 28; Practice Act of 1903, § 27) in cases of parties described by initial letters in bills of exchange or promissory notes or other written instruments, suits may be brought against them in the names appearing in such instruments. Elberson v. Richards, 42 N.J.L. 69 (Sup. Ct. 1880); Dittmar Powder Mfg. Co. v. Leon, 42 N.J.L. 540 (Sup. Ct. 1880); Schaffer v. Levenson Co., supra; Yucker v. Morris, supra; In re Conde, 137 N.J.L. 589 (Sup. Ct. 1948); 1 Chitty on Pleading 256; R.R. 4:10-1. And to constitute notice to subsequent bona fide purchasers or encumbrancers, a judgment must be properly docketed by the correct Christian name and surname of the judgment debtor. Lembeck, etc., Brewing Co. v. Barbi, 90 N.J. Eq. 373 (Ch. 1919), affirmed 91 N.J. Eq. 533 (E. & A. 1920); Zimmer v. Dunlap, 99 N.J. Eq. 610 (Ch. 1926); Englese v. Hyde, 111 N.J.L. 1 (E. & A. 1933); Houser v. Childs, 129 Pa. Super. 565, 196 A. 547 (Super. Ct. 1938); Coral Gables, Inc. v. Kerl, 334 Pa. 441, 6 A.2d 275 (Sup. Ct. 1939); 13 N.J. Practice Series (Lieberman), § 1086, page 406; 30 Am. Jur., Judgments, §§ 83 and 91; 49 C.J.S., Judgments, § 465.
Where it is made to appear that one has acquired title to property and has paid a valuable consideration therefor, the purchaser is presumed to be a bona fide purchaser for value without notice until the contrary appears, and the burden of showing to the contrary rests upon the party alleging that title was acquired by the purchaser with notice of an outstanding equity or claim. Roll v. Rea, 50 N.J.L. 264 (Sup. Ct. 1888), affirmed 57 N.J.L. 647 (E. & A. 1895); McVoy v. Baumann, 93 N.J. Eq. 360 (Ch. 1922), affirmed 93 N.J. Eq. 638 (E. & A. 1922); Commonwealth Finance Corp. v. Schutt, 97 N.J.L. 225, 229 (E. & A. 1921); Eckman v. Beihl, 116 N.J.L. 308, 315 (Sup. Ct. 1936).
It has been suggested that Joseph W. Gottsleben, plaintiff's grantor, knew of the judgment against his brother, Clarence F. Gottsleben, and that such knowledge on the part *188 of Joseph could be charged against his grantee. The law is to the contrary. It is well settled in this State that a person may have the standing of a bona fide purchaser although he acquires title from one who is not a bona fide purchaser. Behn v. National Bank of N.J., 65 N.J.L. 591 (E. & A. 1900); Commonwealth Finance Corp. v. Schutt, supra, at page 229 (E. & A. 1921).
The trial court found that the plaintiff took a "calculated risk" when he acquired title so soon after the death of Eliza Gottsleben (a period of about a month and a half); that the failure of the plaintiff to appear as a witness and testify was not without significance, and that the plaintiff had failed to sustain the burden of proof and that therefore judgment should be entered in favor of defendant. We think the trial court fell into error in these rulings.
The only apparent calculated risks taken by plaintiff in acquiring title a month and a half after the death of Eliza Gottsleben, the former owner, were with respect to: (1) the possibility of a lien for federal estate tax; (2) possible lien for transfer inheritance tax; (3) the statutory lien for a year after her death of debts, if any, owing by her at death, and (4) the possibility of there being other heirs not disclosed by the affidavit of title furnished to the plaintiff as purchaser. There are no such items in controversy in this suit. It cannot be said that plaintiff, in acquiring title within a month and a half of the death of the former owner, took a "calculated risk" with respect to judgments against one or more of the heirs which a title search would have disclosed had the judgment been properly indexed and recorded.
Nor do we think any significance is to be attached to the failure of the plaintiff to testify in his own behalf. It was definitely established by the testimony of others at the trial that plaintiff had secured customary and adequate title searches before taking title and that he paid out a valuable consideration for the title. That created a presumption that he was a bona fide purchaser for value without notice and in the absence of proof to the contrary, there was no necessity for the plaintiff to testify.
*189 Nor do we think the trial court was correct in concluding that the plaintiff had failed to carry the burden of proof. The proofs before the court definitely established that plaintiff paid out upwards of $5,000 for title to the premises in question, after having secured customary and adequate title searches and an affidavit of title from one in a position to know at first hand the names of the heirs of Eliza Gottsleben. Under such circumstances, the law presumes the plaintiff was a bona fide purchaser for value and places upon the one attacking that presumption the burden of adducing proof to the contrary. There was no such contrary proof before the trial court.
There can be no dispute in this case but that the proper name of the judgment debtor was and is Clarence F. Gottsleben. It does appear that he maintained a bank account in the name of Fred Gottsleben; that he was introduced to defendant as Fred Gottsleben; and that he was apparently known in the neighborhood in which he lived as Fred Gottsleben, although it also appeared that his name was listed in the telephone directory as "C.F. Gottsleben." However, he conveyed his undivided interest in the premises in question to his brother, Joseph W. Gottsleben, by his correct name of "Clarence F. Gottsleben"; the contract of sale entered into between Joseph W. Gottsleben and the plaintiff on February 16, 1953 correctly recited the name of "Clarence F. Gottsleben" as one of the heirs of Eliza Gottsleben; and the affidavit of title furnished the plaintiff by Joseph Gottsleben at the time of settlement under the contract, viz., on March 9, 1953, sets forth the correct name as "Clarence F. Gottsleben."
There is nothing in the record before us to show that plaintiff had any actual notice of the judgment against "Fred Gottsleben" until a date subsequent to his having acquired title to the premises and having paid the consideration therefor. Nor is there anything in the record to show that he had knowledge of facts which should have put him on inquiry. Accordingly, it may be said on the basis of the record before us that plaintiff had neither actual nor constructive *190 notice of the judgment against Fred Gottsleben. A judgment indexed under a first name different and distinct from the real first name of the judgment debtor does not constitute a lien upon the debtor's real estate as against a subsequent purchaser or encumbrancer for value without notice. Lembeck, etc., Brewing Co. v. Barbi, supra; Zimmer v. Dunlap, supra; Englese v. Hyde, supra; Houser v. Childs, supra; Coral Gables, Inc. v. Kerl, supra; 30 Am. Jur., Judgments, §§ 83 and 91; 49 C.J.S., Judgments, § 465.
Judgments being indexed alphabetically in the office of the Clerk of the Superior Court, it is not to be supposed that a proper and adequate judgment search against Clarence F. Gottsleben would reveal a judgment against Fred Gottsleben.
Furthermore, to hold that a bona fide purchaser of real estate would take title thereto subject to a judgment theretofore entered against a former owner where the judgment was not indexed under the correct Christian name of such judgment debtor, would tend to destroy the value of the statutory system of recording land titles and liens and encumbrances thereon and to render titles to real estate most hazardous and uncertain. In the language of the court in Lembeck, etc., Brewing Co. v. Barbi, supra:
"An otherwise perfect chain of title search, based upon a search in the real names of the parties as they appear of record, would not be worth the paper it was written on, because you could never tell what outstanding deeds or incumbrances might exist of record affecting the premises in fictitious names.
To sustain the Brewing Company's mortgage as the prior lien would be to sustain the illogical and intolerable situation thus outlined, and would make ducks and drakes of the recording system in New Jersey. A search would be useless, and the result would be confusion and confusion worse confounded."
It is not questioned but that the defendant acted in good faith in taking its judgment against "Fred Gottsleben," the only name by which it knew its debtor. Nor is there anything in the record to overcome the presumption that the plaintiff acted in perfect good faith in acquiring title to the real estate in question and paying the consideration therefor in reliance upon the fact, disclosed in both the affidavit of *191 title furnished him and in the recorded deed from Clarence F. Gottsleben et ux., to Joseph W. Gottsleben, that the former owner against whom he needed to secure title searches was "Clarence F. Gottsleben" and not "Fred Gottsleben." As between the plaintiff who purchased and paid out upwards of $5,000 for the title, and thereby changed his position, and the defendant who had secured a judgment against "Fred Gottsleben" the preceding year, and who parted with nothing after the judgment debtor inherited upon the death of his mother an interest in the property in question, the equities are with the plaintiff.
At the argument of this appeal, counsel for defendant suggested that since the trial below he has come into possession of newly discovered evidence bearing on the question of alleged knowledge by plaintiff, prior to taking title to the premises in question, that the judgment debtor was commonly known as "Fred Gottsleben" and that, hence, the exercise of reasonable precaution by the purchaser would have required him to secure judgment searches against "Fred Gottsleben" before taking title. That is a question to which we cannot give consideration on the record before us, but to which the trial court may give consideration upon a proper application to that tribunal.
The judgment appealed from must be reversed for the reasons stated, but rather than to direct the entry of judgment in favor of plaintiff as we might do, R.R. 1:5-4, made applicable to the Appellate Division by R.R. 2:5, because of the matters stated in the paragraph next preceding, the cause is remanded for further proceedings in accordance with the conclusions here expressed.
Judgment reversed.
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651 S.E.2d 806 (2007)
MASSA
v.
The STATE.
No. A07A1019.
Court of Appeals of Georgia.
September 11, 2007.
*807 Alan Mullinax, Robert L. Waller III, Stone Mountain, Stephen W. Adkins, Jr., for appellant.
Shawn E. LaGrua, Solicitor-General, Paige E. Boorman, Mirna G. Andrews, Assistant Solicitors-General, for appellee.
*808 JOHNSON, Presiding Judge.
A jury found Michael Massa guilty of driving under the influence of alcohol to the extent he was a less safe driver. He appeals from the conviction, challenging the sufficiency of the evidence to support the verdict, and contending the trial court erred in denying his motion for a directed verdict of acquittal and in giving certain charges to the jury. The arguments present no basis for reversal, so we affirm.
1. The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction.[1] On appeal, we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence.[2] We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.[3]
So viewed, the evidence shows that a police officer was driving on the interstate highway around midnight when he noticed a pickup truck stopped about 40 feet off the highway's shoulder near a wooded area. He stopped his patrol car and walked over to investigate. He shined his flashlight at the car, and shouted to the driver. The driver started the car and began to drive away. The driver made two attempts to drive up the embankment, but was unsuccessful. The officer drew his gun, and the driver stopped the car. At the officer's command, the driver got out of the car and laid on the ground.
When other officers arrived on the scene, the officer made contact with the driver. The driver was identified as Massa. The officer noticed an odor of alcohol about Massa, and saw that Massa's eyes were bloodshot, glassy, and watery, and his face was flushed. Massa's speech was slurred and his reactions were slow. He was barely able to stand on his own, and the officer had to help him walk to the patrol car. When asked if he had been drinking, Massa said he had drunk a bottle of wine. The officer attempted to administer field sobriety tests, but Massa refused to submit to any tests. The officer noted that the ground was dry at the time of the encounter, and the tow truck driver had no difficulty towing Massa's truck from the grass back onto the roadway. A videotape of the roadside encounter was shown to the jury. The officer also testified that there were tire marks leading from the highway to Massa's truck. Massa refused to submit to a test of his breath at the police station.
Massa gave a different account of what happened, testifying that he only drank two glasses of wine, that he pulled off the highway because he had missed his exit and needed to check the directions. He added that he drove onto the grass because the shoulder was not wide enough to park upon safely. He said the embankment was not steep, but that he was unable to drive back onto the highway because the grass was damp from dew. Of course, this Court does not weigh the evidence or determine witness credibility.[4]
A defendant's refusal to submit to field sobriety tests is admissible as circumstantial evidence of intoxication and together with other evidence would support an inference that he was an impaired driver.[5] We note that
a conviction under OCGA § 40-6-391(a)(1) does not require proof that a person actually committed an unsafe act while driving; it only requires sufficient evidence to authorize a finding, beyond a reasonable doubt, that the defendant was operating or in physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe for him to *809 drive. Circumstantial evidence may be sufficient to meet this burden of proof.[6]
A person commits the offense of driving under the influence of alcohol (as charged here) when it appears that it is less safe for him to operate a motor vehicle than it would be if he were not so affected.[7] The evidence presented in this case was sufficient for a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.[8] Accordingly, the trial court did not err in denying Massa's motion for a directed verdict of acquittal.[9]
2. Massa contends the trial court erred in charging the jury on the purpose and reliability of horizontal gaze nystagmus (HGN) tests when, in this case, no HGN test was given. He concedes that the charge was a correct statement of the law, but urges that the charge was improper because it was not authorized by the evidence.
It is true that a jury charge must be adjusted to the evidence, apt, and a correct statement of the applicable law.[10] However, in order to have reversible error, there must be harm as well as error.[11] Assuming it was error to include an instruction on HGN tests when no such test was administered, it is not likely that the error contributed to the judgment in this case. Thus, reversal is not required.[12]
3. Massa also contends the trial court erred in giving the following charge:
The Defendant's refusal to submit to voluntary field sobriety evaluations does not support an inference that the Defendant was less safe to drive a motor vehicle. The results of field sobriety tests, however, in conjunction with other factors, including the physical appearance of the driver, red or glassy eyes, an unsteady stance, the presence of the odor of alcohol, the existence of an accident, and any inculpatory statements made by the driver or witnesses may form an appropriate basis for evaluation by an officer and ultimately a jury as to whether a driver was impaired by alcohol to the extent that it was less safe for him to drive.
(Emphasis supplied.)
Massa argues that the word "however" nullified the first part of the charge, that the charge as given implies that field sobriety tests were conducted in this case when they were not, and that the "existence of an accident" language suggests that there was an accident in this case, though there was not. While the language to which Massa objects perhaps should not have been made part of the charge, it is mere surplusage and "the charge as a whole cannot reasonably be said to have misled the jury as to the appropriate principle of law applicable to the case."[13] Moreover, Massa has failed to show what harm he suffered as the result of the giving of this particular jury instruction.[14] Thus, as with the charge challenged in Division 2, reversal is not warranted.[15]
Judgment affirmed.
PHIPPS and MIKELL, JJ., concur.
NOTES
[1] Worthington v. State, 257 Ga.App. 10, 570 S.E.2d 85 (2002).
[2] Id.
[3] Id. at 10-11, 570 S.E.2d 85.
[4] Mullady v. State, 270 Ga.App. 444, 606 S.E.2d 645 (2004).
[5] Hoffman v. State, 275 Ga.App. 356, 358(1) 620 S.E.2d 598 (2005).
[6] (Punctuation and footnote omitted.) Id.
[7] Fredericks v. State, 176 Ga.App. 40, 41(1), 335 S.E.2d 154 (1985).
[8] See Hoffman, supra.
[9] See Fredericks, supra.
[10] Marryott v. State, 263 Ga.App. 65, 69(5), 587 S.E.2d 217 (2003).
[11] Wicks v. State, 278 Ga. 550, 553(5), 604 S.E.2d 768 (2004).
[12] See Ross v. State, 192 Ga.App. 850, 851(2), 386 S.E.2d 721 (1989).
[13] (Citation, punctuation and footnote omitted.) Suter v. State, 259 Ga.App. 28, 29-30(2), 576 S.E.2d 10 (2002).
[14] See id. at 30, 576 S.E.2d 10.
[15] See generally id.
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95 F.3d 1167
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Robert TAYLOR, Petitioner,v.MERIT SYSTEMS PROTECTION BOARD, Respondent,andUnited States Postal Service, Intervenor.
No. 95-3569.
United States Court of Appeals, Federal Circuit.
Aug. 16, 1996.
Before LOURIE, Circuit Judge.
ON MOTION
ORDER
LOURIE, Circuit Judge.
1
The Merit Systems Protection Board moves for a 14-day extension of time, until August 9, 1996, to file a brief or a motion to remand the case. The Board states that the United States Postal Service consents. Robert Taylor submits an opposition.* The Board moves for leave to file a motion for remand out of time with motion for remand attached. The Board states that Taylor opposes for the same reasons he stated in the opposition to the motion for an extension of time.
2
Briefly, this petition for review stems from the restructuring the Postal Service implemented in 1992 and 1993. The case was stayed pending the resolution of Krizman v. Merit Sys. Protection Bd., 77 F.3d 434 (Fed.Cir.1996), and a companion case, Mueller v. Merit Sys. Protection Bd., 76 F.3d 1198 (Fed.Cir.1996). After Krizman and Mueller were decided, the Board moved for summary affirmance in this case based on Krizman and Mueller. The court denied the Board's motion and directed the Board to file its brief. The Board now concedes that the case must be remanded for further consideration of whether Taylor's Board appeal was timely filed.
3
Accordingly,
IT IS ORDERED THAT:
4
(1) The Board's motion for an extension of time is granted.
5
(2) The Board's motion for leave to file a motion for remand out of time is granted.
6
(3) The Board's motion for remand is granted.
*
The court notes that Taylor served his opposition on the court via facsimile without attaching a proper certificate of service and has not filed a hard copy of the motion. The Practice Note to Fed.Cir.R. 25 provides that facsimile transmissions will not be filed unless accompanied by a certificate of service that indicates that copies of the facsimile have been mailed to the court and the other parties by overnight delivery service. Nonetheless, the court has considered Taylor's response
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974 A.2d 1191 (2009)
COM.
v.
SEAWRIGHT.
No. 1178 WDA 2008.
Superior Court of Pennsylvania.
April 7, 2009.
Affirmed.
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99 F.3d 401
NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.UNITED STATES of America, Appellee,v.Junior M. RICKETTS, Defendant-Appellant.
No. 95-1036.
United States Court of Appeals, Second Circuit.
Dec. 12, 1995.
1
For defendant-appellant: Robert J. Boyle, Brooklyn, NY.
2
For appellee: Karen B. Shaer, Ass't U.S. Att'y, S.D.N.Y., New York, NY.
3
Present: McLAUGHLIN, LEVAL, Circuit Judges, PARKER, District Judge.*
4
This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York and was submitted.
5
ON CONSIDERATION WHEREOF, it is hereby ordered, adjudged, and decreed that the judgment of the district court be and it hereby is AFFIRMED.
6
Junior M. Ricketts, a Jamaican national who posed as a U.S. citizen, appeals from a judgment of sentence entered in the United States District Court for the Southern District of New York (Kimba M. Wood, Judge ). He had pled guilty to: (1) stealing more than $5,000 from a federally-funded local government agency, in violation of 18 U.S.C. § 666(a)(1)(A); (2) encouraging and inducing an illegal alien to enter the United states with false documents, in violation of 8 U.S.C. § 1324(a)(1)(D); fraudulently possessing and misusing an alien registration receipt card, in violation of 18 U.S.C. § 1546; and (4) transporting a youth in foreign commerce with intent that the youth engage in criminal sexual activity, in violation of 18 U.S.C. § 2423. Judge Wood sentenced Ricketts to 90 months' imprisonment and three years' supervised release. Judge Wood also ordered that he be deported if the Immigration and Naturalization Service ("INS") deemed him to be deportable.
7
On appeal, Ricketts contends that he received ineffective assistance of counsel at sentencing because his attorney did not object to a two-level upward adjustment for obstruction of justice pursuant to U.S.S.G. § 3C1.1. His argument is meritless. To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that his counsel's performance fell below an "objective standard of reasonableness" under "prevailing professional norms" and that, "but for counsel's unprofessional errors, the result of the proceeding would [probably] have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Rickets has not satisfied either prong.
8
Judge Wood imposed the obstruction adjustment because Ricketts had repeatedly lied to the court about his age and identity. For example, when Ricketts sought to withdraw his guilty plea to one of the charges, he represented that he was "an American" citizen. Soon thereafter, the presentence investigation revealed that Ricketts was using a false identity to conceal his status as an illegal alien. Ricketts was not--as he represented to the investigators, prosecutors and district court--Junior Mohammed Ricketts, a United States citizen born in Brooklyn, New York, on August 31, 1964. Rather, his true name was Junior Nathaniel Ricketts; he was born October 12, 1955, in St. Andrews, Jamaica; and he was residing illegally in the United States.
9
Ricketts' concealment of his true identity was indisputably material, meriting an obstruction adjustment. See U.S.S.G. § 3C1.1, comment. (n.5) ("material" information is information "that, if believed, would tend to influence or affect the issue under determination"); United States v. Rodriguez, 943 F.2d 215, 218 (2d Cir.1991). By concealing his status as a deportable alien, Ricketts obviously was attempting to influence his sentence. Had Judge Wood believed him, she doubtless would not have included a deportation provision in his sentence. See United States v. Biyaga, 9 F.3d 204, 205-06 (1st Cir.1993). Since any argument against imposing the obstruction adjustment would have been meritless, counsel's failure to object was not objectively unreasonable under prevailing professional norms, and any objection would not have affected Ricketts' sentence. See United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir.), cert. denied, 116 S.Ct. 330 (1995).
10
Accordingly, the judgment of sentence is AFFIRMED.
*
Of the United States District Court for the Southern District of New York, sitting by designation
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United States Court of Appeals
Fifth Circuit
FILED
June 21, 2005
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 04-60630
Conference Calendar
ERIC JONES,
Plaintiff-Appellant,
versus
DIANE PARKER, Executrix of the Estate of Barry Parker, deceased,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:96-CV-1-PA
--------------------
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Eric Jones, Mississippi prisoner # 45265, has filed a motion
for leave to proceed in forma pauperis (“IFP”) on appeal from the
summary-judgment dismissal of his action under 42 U.S.C. § 1983.
The district court denied Jones’s motion to appeal IFP and
certified that the appeal was not taken in good faith.
By moving to proceed IFP, Jones is challenging the district
court’s certification. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997). Because the merits of Jones’s appeal are
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-60630
-2-
“inextricably intertwined” with the district court’s
certification that the appeal was not taken in good faith, we
determine both issues, denying IFP and dismissing the appeal.
See id.
Jones argues that the district court failed to provide
reasons for its certification. Any deficiency in this regard,
however, was cured by the district court’s issuance of an amended
order setting forth its reasons. Jones was provided with an
opportunity to file a supplemental brief following the issuance
of the amended order, but he has not done so.
Jones argues, without citation to the record or to
authority, that the district court abused its discretion by
resolving issues rather than finding issues. He also contends
that the district court decided the case on the basis of
incorrect facts.
Jones’s appeal is without arguable merit and is therefore
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because the appeal is frivolous, it is DISMISSED. See
5TH CIR. R. 42.2.
The dismissal of Jones’s appeal by this court counts as a
strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th Cir. 1996). Jones has accumulated at
least two additional strikes based on the dismissal of a previous
civil rights complaint and appeal as frivolous. See Jones v.
Butler, No. 00-60598 (Apr. 12, 2001)(unpublished). Jones has now
No. 04-60630
-3-
accumulated at least three strikes for purposes of 28 U.S.C.
§ 1915(g). Accordingly, Jones is BARRED from proceeding in forma
pauperis 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 28 U.S.C.
§ 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C.
§ 1915(g) BAR IMPOSED.
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952 So.2d 1198 (2006)
RIGAU
v.
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES
No. 2D06-534
District Court of Appeal of Florida, Second District
December 1, 2006.
Decision without published opinion. Cert. denied.
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893 P.2d 1309 (1995)
The PEOPLE of the State of Colorado, Complainant,
v.
Donald Joseph VSETECKA, Attorney-Respondent.
No. 95SA105.
Supreme Court of Colorado, En Banc.
April 24, 1995.
*1310 Linda Donnelly, Disciplinary Counsel, John S. Gleason, Asst. Disciplinary Counsel, Denver, for complainant.
Dennis W. Hartley, Colorado Springs, for attorney-respondent.
PER CURIAM.
The stipulation, agreement, and conditional admission of misconduct between the assistant disciplinary counsel and the respondent was approved by an inquiry panel of the Supreme Court Grievance Committee, with the recommendation that the respondent receive a public censure. We accept the conditional admission and the inquiry panel's recommendation.
I
The respondent was licensed to practice law in Kansas in 1972, and was admitted to the Colorado bar in 1986. The conditional admission states that the respondent joined a law firm in 1986, and became a partner in 1988. He gave written notice of his intention to leave on April 1, 1992, and continued to work there until April 30.
While still working for the firm, the respondent did not deposit in the firm's account a $183,000 fee that he earned as a member of the firm, but instead deposited it into his personal account. Under law firm policy, the respondent was entitled to all of the fee, but a dispute arose over the manner in which he handled it, and his responsibility for costs associated with the case that generated the fee. According to the partnership agreement, the respondent should have deposited the fee into the law firm's operating account rather than his personal account.
No agreement was reached on the disposition of the fee before the respondent left the law firm. Prior to settling the dispute with the firm, the respondent offered to pay $8,000 if the firm withdrew the request for investigation it had already filed which formed the basis of this disciplinary proceeding. As the respondent admits, this request violated DR 1-102(A)(5) (a lawyer shall not engage in conduct prejudicial to the administration of justice). People v. Bennett, 810 P.2d 661, 665-66 (Colo.1991) (requesting that client withdraw grievance filed against him violates DR 1-102(A)(5)); People v. O'Leary, 783 P.2d 843, 846 (Colo.1989) (lawyer's attempt to have client withdraw grievance complaint against lawyer to obtain funds held by the lawyer violated DR 1-102(A)(5) and (6)); People v. Goldberg, 770 P.2d 408, 410 (Colo. 1989) (asking former client that grievance charge be dismissed after settlement of civil action between attorney-respondent and client is reached violates DR 1-102(A)(5)).
The firm refused to withdraw the grievance complaint. In any event, once a request for investigation has been filed, nothing short of deliberate misrepresentation by the complaining witness could affect grievance proceedings once they have been initiated. See American Bar Association Standards for Imposing Lawyer Sanctions 9.4(c) (1991 & Supp.1992) (ABA Standards) (the withdrawal of the complaint against the lawyer is neither a mitigating nor an aggravating factor). After further negotiations, the respondent paid $8,000 anyway for his share of the law firm's capital expenses for the last two months he was with them.
The respondent has stipulated that his conduct also violated DR 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); and DR 1-102(A)(6) (a lawyer shall not engage in conduct that adversely reflects on the lawyer's fitness to practice law).
II
While still at the law firm, the respondent represented two clients even after it became clear that a conflict existed because one of the clients had a claim against the other. Nevertheless, the respondent continued to represent both clients until one client retained *1311 another lawyer, and he did not promptly withdraw from his representation of the other client even though the first client asked him to.
The respondent admits that his conduct violated DR 5-105(B) (a lawyer shall not continue multiple employment if the exercise of the lawyer's independent professional judgment in behalf of a client will be or is likely to be adversely affected by the lawyer's representation of another client, or if it would be likely to involve him in representing different interests, except to the extent permitted by DR 5-105(C)); and DR 2-110(B)(2) (a lawyer shall withdraw from employment if the lawyer knows or it is obvious that continued employment will violate a disciplinary rule).
III
In the conditional admission, the parties agreed that discipline in the range of public censure to a thirty-day suspension was appropriate. In approving the conditional admission, the inquiry panel recommended a public censure. At least a short period of suspension would ordinarily be warranted. See ABA Standards 4.32 (suspension is generally appropriate when a lawyer knows of a conflict of interest and does not disclose to the client the possible effect of the conflict and causes injury or potential injury to the client). The assistant disciplinary counsel indicates that the respondent's continued multiple representation caused no identifiable harm, although the potential for harm was present.
The complainant also stipulated that the respondent was cooperative during the disciplinary proceedings, a mitigating factor, id. at 9.32(e). Further, the respondent was candid with his partners about the legal fee that he deposited in his personal account, although his conduct breached the fiduciary duty he owed them.
Whether a public censure or short suspension is appropriate is a difficult question. The most significant factor in mitigation is the absence of any previous discipline in the respondent's twenty-two years of practice. We have concluded, therefore, that we will accept the stipulation, agreement, and conditional admission of misconduct, and the inquiry panel's recommendation.
IV
It is hereby ordered that Donald Joseph Vsetecka be publicly censured. It is further ordered that the respondent pay the costs of this proceeding in the amount of $98.51 within thirty days after the announcement of this opinion to the Supreme Court Grievance Committee, 600 Seventeenth Street, Suite 920-S, Denver, Colorado 80202.
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287 S.W.3d 556 (2008)
In re Larry Gene DUNKLIN, Surrender of Law License-Arkansas Bar No. 81051.
No. 08-1055.
Supreme Court of Arkansas.
September 18, 2008.
PER CURIAM.
On recommendation of the Supreme Court Committee on Professional Conduct, we hereby accept the sworn petition and voluntary surrender of law license of Larry Gene Dunklin, of Little Rock, Arkansas, to practice law in the State of Arkansas. Mr. Dunklin's name shall be removed from the registry of attorneys licensed by the State of Arkansas, and he is barred and enjoined from engaging in the practice of law in this state.
It is so ordered.
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549 F.2d 810
U. S.v.Porter
No. 76-2995
United States Court of Appeals, Ninth Circuit
1/10/77
1
D.Or.
AFFIRMED
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NO. 12-08-00458-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ROBERT L. CLARK,
APPELLANT ' APPEAL FROM THE 241ST
V. ' JUDICIAL DISTRICT COURT OF
THE CITY OF TYLER, GARY SWINDLE,
FRANK BREWER, DESTRY
WALSWORTH, BILL GOECKING,
MICHAEL MALONE, DARRELL ' SMITH COUNTY, TEXAS
GARDNER, TOMMY WHITWORTH,
JOHN BROWN, JEFF RACKLIFF,
AND JOHN RAGLAND
APPELLEES
MEMORANDUM OPINION
Robert L. Clark appeals the trial court’s summary judgment entered in favor of
the City of Tyler, Police Chief Gary Swindle, and Officers Frank Brewer, Destry
Walsworth, Bill Goecking, Michael Malone, Darrell Gardner, Tommy Whitworth, John
Brown, Jeff Rackliff, and John Ragland (collectively “Appellees”).1 Clark raises ten
issues on appeal. We affirm.
BACKGROUND
On May 22, 2006, Clark filed suit against Appellees alleging sixteen causes of
action arising from the revocation of his community supervision. On August 21, 2008,
Appellees filed both no evidence and traditional motions for summary judgment.
Pursuant to local rule, both motions contained notice that the submission date for the
motions was September 22, 2008.
In response, Clark filed a motion to recuse Judge Jack Skeen as the trial judge in
the case. The sole ground alleged in Clark’s recusal motion was that Judge Skeen was
“partial and/or bias [sic] in this case” due to his “close and/or working relationship with
1
Clark also sued a number of other governmental entities and individuals. These defendants were
severed from the suit against Appellees prior to this appeal. We do not consider Clark’s issues to the
extent they concern these severed entities.
the defendant(s),” resulting from his former position as the district attorney of Smith
County, Texas. Judge Skeen entered an order stating the reasons why he would not
recuse himself and referred the motion to Judge John Ovard, the regional presiding judge
of the First Administrative Judicial Region of Texas. Judge Ovard, without a hearing,
signed an order dated October 1, 2008, denying Clark’s motion to recuse.
On October 2, 2008, Clark filed his first amended petition. On October 15, 2008,
Judge Skeen entered orders granting Appellees’ no evidence and traditional motions for
summary judgment and a final judgment dismissing Clark’s suit. On October 17, 2008,
Clark filed a request for leave to respond to the two motions for summary judgment. On
October 29, 2008, Clark filed a motion for new trial, which was denied by operation of
law. Clark timely filed this appeal.
SUMMARY JUDGMENT
In his fourth issue, Clark argues that the trial court erred in granting Appellees’ no
evidence motion for summary judgment. In his fifth issue, Clark contends that the trial
court erred in granting Appellees’ traditional motion for summary judgment.2 In his
seventh issue, Clark argues that both Appellees’ traditional and no evidence motions are
insufficient as a matter of law as a result of his filing his First Amended Petition.3
Standard of Review
Because the grant of a summary judgment is a question of law, we review the trial
court’s summary judgment decision de novo. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). A no evidence motion for summary judgment must be
granted if, after an adequate time for discovery, (1) the moving party asserts that there is
no evidence of one or more essential elements of a claim or defense on which the adverse
party would have the burden of proof at trial, and (2) the respondent produces no
summary judgment evidence raising a genuine issue of material fact on those elements.
See TEX. R. CIV. P. 166(a)(i); Priddy v. Rawson, 282 S.W.3d 588, 593 (Tex. App.–
Houston [14th Dist.] 2009, pet. denied). A genuine issue of material fact exists if more
than a scintilla of evidence establishing the existence of the challenged element is
produced. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). Less than a
2
Clark’s fourth and fifth issues partially concern his lack of opportunity to conduct discovery in
this suit. To the extent necessary, we will consider this portion of Clark’s fourth and fifth issues in
conjunction with our consideration of his tenth issue.
3
We have construed Appellant=s statement of issues liberally in the interest of justice. See, e.g.,
Harris v. Tex. Dep’t Crim. Justice-Institutional Div., No. 12-03-00363-CV, 2004 WL 1192541, at *2 n.2
(Tex. App.–Tyler May 28, 2004, no pet.) (mem. op.).
scintilla of evidence exists when the evidence is so weak as to do no more than create a
mere surmise or suspicion of a fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742,
751 (Tex. 2003). More than a scintilla of evidence exists when the evidence rises to a
level that would enable reasonable and fair minded people to differ in their conclusions.
Id.
To be entitled to a traditional summary judgment, a defendant must conclusively
negate at least one essential element of each of the plaintiff’s causes of action or
conclusively establish each element of an affirmative defense. Priddy, 282 S.W.3d at
592. When reviewing a summary judgment, we “must examine the entire record in the
light most favorable to the nonmovant, indulging every reasonable inference and
resolving any doubts against the motion.” City of Keller v. Wilson, 168 S.W.3d 802,
824–25 (Tex. 2005). When a trial court’s order granting summary judgment does not
specify the ground or grounds relied on for the ruling, summary judgment will be
affirmed on appeal if any of the theories advanced are meritorious. State Farm Fire &
Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). When, as here, the trial court grants
both the no evidence and traditional motions for summary judgment, we first review the
grant of the no evidence summary judgment. Ridgway, 135 S.W.3d at 600.
Failure to Respond to No Evidence Motion for Summary Judgment
In their no evidence motion for summary judgment, Appellees alleged that Clark
(1) failed to state a claim for which the City’s governmental immunity had been waived
and (2) failed to assert a state claim against the officers. Clark did not file a response to
Appellees’ no evidence motion until October 17, two days after the court entered the
order granting their no evidence motion and entering a final judgment dismissing Clark’s
claims against Appellees.4
Texas Rule of Civil Procedure 166a(c) provides as follows:
The motion for summary judgment shall state the specific grounds therefor. Except on
leave of court with notice to opposing counsel, the motion and any supporting affidavits
shall be filed and served at least twenty-one days before the time specified for hearing.
Except on leave of court, the adverse party, not later than seven days prior to the date of
hearing may file and serve opposing affidavits or other written response.
TEX. R. CIV. P. 166a(c). “Summary judgment evidence may be filed late, but only with
leave of court.” Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). The
date of submission has the same meaning as the day of hearing under Texas Rule of Civil
Procedure 166a(c). Rorie v. Goodwin, 171 S.W.3d 579, 583 (Tex. App.–Tyler 2005, no
4
No summary judgment evidence accompanied Clark’s response.
pet.) (citing Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.
1998)). We do not consider an amended pleading filed without the court’s permission
after the summary judgment hearing. Mensa-Wilmot v. Smith Intern., Inc., 312 S.W.3d
771, 779 (Tex. App.–Houston [1st Dist.] 2009, no pet.).
As a result, we cannot consider Clark’s response to Appellees’ no evidence
motion. With regard to the first amended petition filed on October 2 that is the basis for
Clark’s seventh issue, we note that an amendment that is not timely and not allowed by
the trial court does not supersede the prior petition. See id. at 779–80. Thus, Appellees
were not required to amend or supplement their motions to address this claim. See id.
Because Clark did not timely produce summary judgment evidence raising a genuine
issue of material fact, we hold that the trial court properly granted Appellees’ no evidence
motion for summary judgment. See TEX. R. CIV. P. 166a(i) (trial court must grant no
evidence motion for summary judgment unless respondent produces summary judgment
evidence raising a genuine issue of material fact). Clark’s fourth issue is overruled in
part. Clark’s seventh issue is overruled with regard to his no evidence motion for
summary judgment.5
MOTION TO RECUSE
In his first and third issues, Clark contends that the trial judge took actions that
were improper because there had been no hearing on his motion to recuse. In his second
issue, Clark argues that the presiding judge abused his discretion by denying his motion
to recuse without holding a hearing. In his ninth issue, Clark contends that the presiding
judge did not have his trial court’s file before him when making his ruling on his motion
to recuse.
The Texas Rules of Civil Procedure provide that a judge shall recuse himself in
any proceeding in which “his impartiality might reasonably be questioned.” TEX. R. CIV.
P. 18b(2)(a); Woodruff v. Wright, 51 S.W.3d 727, 735–36 (Tex. App.–Texarkana 2001,
pet. denied). We review the denial of a motion to recuse for abuse of discretion. See
TEX. R. CIV. P. 18a(f); Vickery v. Vickery, 999 S.W.2d 342, 349 (Tex. 1999) (op. on
reh’g); Woodruff, 51 S.W.3d at 736. The test for abuse of discretion is not whether in
the opinion of the reviewing court the facts present an appropriate case for the trial
5
Because we have held that the trial court properly granted Appellees’ no evidence motion for
summary judgment, we need not reach Clark’s fifth issue concerning whether the trial court properly
granted Appellees’ traditional motion for summary judgment on the issue of limitations.
court’s action; rather, it is a question of whether the court acted without reference to any
guiding rules or principles. Id. The mere fact that a trial court may decide a matter
within its discretionary authority in a different manner than an appellate judge does not
demonstrate such an abuse. Id.
In Clark’s motion to recuse, he contended that the trial judge had developed a
close working relationship with Appellees during the time he was the District Attorney
for Smith County. Rule 18b(2)(a) states that “[a] judge shall recuse himself in any
proceeding in which his impartiality might reasonably be questioned.” TEX. R. CIV. P.
18b(2)(a). Clark’s basis for recusal is not valid. Cf. Keene Corp. v. Rogers, 863 S.W.2d
168, 172 (Tex. App.–Texarkana 1993, no writ) (trial judge not required to recuse self
when his son-in-law was a salaried associate of firm representing party to suit and who
had neither financial interest in firm or direct financial interest in outcome of case); cf.
also Liteky v. U.S., 510 U.S. 540, 542, 554–56, 114 S. Ct. 1147, 1151, 1157, 127 L. Ed.
2d 474 (1994); Hathorne v. State, 459 S.W.2d 826, 829 (Tex. Crim. App. 1970) (fact
that trial judge personally prosecuted appellant in past cases does not disqualify him from
presiding over trial where new offense is charged).6 Therefore, even assuming the trial
judge in the instant case had worked with Appellees on previous criminal cases, this
working relationship alone is not a ground for recusal.
Rule 18a’s mandate that a hearing be held on a motion to recuse is not triggered
unless the recusal motion states valid grounds for disqualification. See Texaco, Inc. v.
Pennzoil, Co., 729 S.W.2d 768, 855 (Tex. App.–Houston [1st Dist.] 1987, writ ref’d,
n.r.e.). As set forth above, Clark’s grounds for recusal are not valid. Consequently, the
presiding judge was not required to hold a hearing on Clark’s motion to recuse.
With regard to Clark’s contention that the presiding judge did not have the trial
court’s file before him when he issued his order denying the motion to recuse, we note
that we are required to indulge every reasonable presumption in favor of the judgment or
order of the trial court. See Rich v. Olah, 274 S.W.3d 878, 883 (Tex. App.–Dallas 2008,
no pet.). We will indulge no presumption against the validity of a court’s order. Id.; see
also Yorkshire Ins. Co. Ltd. v. Seger, 279 S.W.3d 755, 774 (Tex. App.–Amarillo 2007,
no pet.). “We will not find recusal appropriate solely on the basis of speculation
regarding facts that may or may not have been known by the presiding judge.” Id. There
is no evidence in the record before us that can serve to overcome the presumption that the
6
The procedures for recusal of judges set out in the Texas Rules of Civil Procedure are the same
procedures applied in criminal cases. See De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004).
presiding judge had the complete record before him when he signed the order denying
Clark’s motion to recuse. Accordingly, we hold that Clark has not demonstrated an abuse
of discretion by either Judge Skeen or Judge Ovard related to his recusal motion. Clark’s
first, second, third, and ninth issues are overruled.
CONSTITUTIONAL CLAIMS
In his sixth issue, Clark contends that the trial court deprived him of his
constitutional protections of procedural due process and substantive due process when it
entered the summary judgments against him. We disagree. The failure of a trial court to
adhere to a state statutory procedure, such as the Texas Rules of Civil Procedure, is a
violation of the statute, not a violation of constitutional rights. See Chavez v. State, 91
S.W.3d 797, 800 (Tex. Crim. App. 2002); see also Whatley v. Philo, 817 F.2d 19, 21 (5th
Cir. 1987) (state official’s violation of state law is matter of state law, not federal
constitutional law). As such, the trial court did not deprive Clark of the aforementioned
constitutional protections by its ruling pursuant to rule 166a(i). Moreover, the trial
court’s ruling did not violate state law. As set forth in our disposition of Clark’s issues
four, five, and seven, the trial court properly granted Appellees’ no evidence motion for
summary judgment. Clark’s sixth issue is overruled.
REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW
In his eighth issue, Clark contends that the trial court erred in failing to make
findings of fact and conclusions of law following the entry of its summary judgments.
Findings of fact and conclusions of law have no place in a summary judgment
proceeding. Tarrant Restoration v. Tarrant Arlington Oaks, 225 S.W.3d 721, 729 (Tex.
App.–Dallas 2007, pet. dism’d w.o.j.) (citing Linwood v. NCNB Texas, 885 S.W.2d 102,
103 (Tex. 1994)). Therefore, we hold that the trial court did not err in declining to make
findings of fact and conclusions of law. Clark’s eighth issue is overruled.
DISCOVERY
In his tenth issue, Clark contends that the trial court erred by not scheduling
discovery prior to the entry of its orders on Appellees’ motions for summary judgment.
When a party contends that it has not had an adequate opportunity for discovery before a
summary judgment hearing, it must file either an affidavit explaining the need for further
discovery or a verified motion for continuance. See Mackey v. Great Lakes Invs., Inc.,
255 S.W.3d 243, 252 (Tex. App.–San Antonio 2008, pet. denied). Here, by his failure to
file the required affidavit or a verified motion, Clark has waived his argument regarding
the adequacy of time allotted for discovery. See Flores v. Flores, 225 S.W.3d 651, 655
(Tex. App.–El Paso 2006, pet. denied). Clark’s tenth issue is overruled. To the extent
that it relates to his lack of opportunity to conduct discovery, Clark’s fourth issue is
overruled.
DISPOSITION
Having overruled Clark’s first, second, third, fourth, sixth, seventh, eighth, ninth,
and tenth issues, and having not reached Clark’s fifth issue, we affirm the trial court’s
judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered September 1, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
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108 F.3d 343
Lockv.Chater*
NO. 96-2689
United States Court of Appeals,Eleventh Circuit.
Feb 12, 1997
1
Appeal From: M.D.Fla. , No. 94-02014-CIV-T-21A
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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646 F.3d 1008 (2011)
UNITED STATES of America, Plaintiff-Appellee,
v.
Carl C. ADAMS, Defendant-Appellant.
No. 10-2968.
United States Court of Appeals, Seventh Circuit.
Argued June 3, 2011.
Decided July 22, 2011.
*1009 Richard N. Cox (argued), Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL, Thomas A. Keith, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.
Robert A. Alvarado (argued), Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
Before EVANS and WILLIAMS, Circuit Judges, and CONLEY, District Judge.[*]
EVANS, Circuit Judge.
Carl Adams entered a guilty plea to a charge of using the Internet to traffic in child pornography. 18 U.S.C. § 2252A(a)(1) and (b)(1). All sides agreed that the correct guideline range for the offense was 210 to 262 months. However, because the statutory maximum penalty was 240 months, the range was compressed to 210 to 240 months. The government argued for a sentence of 210 months, the bottom of the unchallenged range. Adams argued for a sentence of 60 months, the statutory minimum for the offense. The judge imposed a term of 180 months. Adams appeals.
The nub of the appeal lies in Adams' argument that his sentence was inflicted with procedural error. He claims that the judge believed (wrongly) that Adams, and others like him, suffer "from an uncontrollable illness when no such evidence was contained in the record and uncontradicted studies establish that consumers of child pornography have low rates of recidivism and are not a high risk to commit contact offenses." (Emphasis added.)
The events that led to the indictment against Adams kicked off in 2007 when an FBI task force agent in Florida accessed the peer-to-peer program "LimeWire" through the Internet as part of an undercover investigation into child pornography.[1] After the agent entered various search terms associated with child pornography, he was connected to Adams' computer, from which the agent downloaded nine files containing child pornography. The presentence report (PSR) described the images as depicting:
a prepubescent girl exposing her genitalia while wearing underwear; a nude prepubescent girl spreading her legs and labia with semen and bruises on the labia; a nude prepubescent girl lying on her stomach, exposing her vagina and anus (2 copies); a nude prepubescent girl bound to a bench lying face down wearing a dog collar; two nude prepubescent girls under the age of 13 holding an adult male penis while one of the girls performs oral sex on said penis; a nude prepubescent girl under the age of 13 performing oral sex on a male penis (2 copies); and a prepubescent girl under the age of 12 sitting in a vehicle nude from the waist down, exposing her vagina and wearing a dog collar.
Acting on the Florida agent's investigation, law enforcement officers in Illinois executed a search warrant at Adams' home *1010 in Pontiac. They found two computers. The first computer was operating on a desk, and the second was stored in a box. Adams, who was home during the search, told the officers that he was the sole user of both computers. Adams said that he purchased the stored computer in 2005 and used it until he purchased the computer that was on the desk. Adams admitted that he had installed and used LimeWire on the operating computer to download music, videos, and adult pornography but denied that he had ever searched for child pornography.
Following the search, a computer expert examined the seized computers and found that they contained 4,567 pornographic images, 639 of which were child pornography.[2] When examining the stored computer, the expert recovered nine Internet chats that took place in September 2005 between Adams and other Internet users. During the chats, Adams expressed his sexual interest in children and exchanged and received more than 150 images containing child pornography. Here are a few examples (we apologize for their graphic detail), all from the PSR, of the chats:
In one chat, the other user asked Adams, "what ages you trade?" Adams responded, "any . . . I love younger girls. . . send I'll match." During the chat, Adams exchanged and received 12 images of child pornography.
In another chat, Adams asked the other user, "what do u like[?]" The user replied, "young girls playing with big hard cocks . . . u?" Adams responded, "me too." Later in the chat, the user asked Adams, "would you like to watch a 10 girl suck my cock[?]" Adams replied, "yes." During this chat, Adams exchanged and received 109 images of child pornography.
And in another chat, Adams told the other user, "I love oral . . . 12 and under. . . cumshots." During this chat, Adams exchanged and received 25 images of child pornography.
Against this backdrop, Adams had several factors to present to the judge in his favor at sentencing. He was 38 years old, single, and had no children. He was born and raised in Pontiac and had no criminal record. He served in the Air Force (1991-1995) and was honorably discharged. He worked regularly on several blue-collar jobs after leaving the Air Force, and he had a close-knit family that supported him by sending letters to the judge regarding the sentence that should be imposed. The only blemish on his record, and even he acknowledged it, was excessive drinking over the course of most of the last 15 years.
Adams also argued that he did not pose a particular threat to commit sexual assaults against minors in the future, presenting the judge with two research studies in support of his position. The studies, Adams asserted, concluded that "viewing child pornography itself is not a risk factor for committing `hands-on' or `contact' offenses against minors, at least for those who have not committed hands-on or contact offenses in the past." At sentencing, Adams' lawyer also noted that there was no evidence that Adams had even looked at child pornography after his computers were seized in 2007.
The judge began his remarks by discussing the seriousness of the crime, which he believed was not truly appreciated. The judge explained that, unlike in television or in the movies, the conduct depicted *1011 in child pornography "happened to 9, 10, 11, 12, 13-year-old children. . . . And every time someone watches it, like Mr. Adams, that's creating a market, and that's encouraging that person and others like him to continue to make that kind of filth . . . . to continue to exploit helpless children."
The judge then acknowledged the mitigating factors that we previously discussed and concluded that there was no reason to doubt Adams' sincerity when he said that he would never commit the crime again. But the judge said that he could not be certain:
[S]ometimes our needs and our desires are so strong that they overcome our good judgment, our will. And in my judgment, attraction to child pornography is an illness because I don't see how any reasonable good person would find pleasure in that, certainly, watching some helpless child and sometimes infants be abused. So to get pleasure in that, suggests to me it may be beyond one's control.
Immediately thereafter, however, the judge stated that maybe he "should back off on that" because there was no evidence that Adams had not controlled his desires since 2007. The judge determined that, if he were only looking at Adams' likelihood of recidivism, he "would be much more responsive to Mr. Adams and his attorney's plea for the minimum of five years."
However, the law also required the judge to examine "what would deter other people who may have a predisposition to child pornography." On that issue, the judge said that he sought to impose a sentence "that would cause someone right now sitting at their computer who has a desire to see child pornography to say, wait a minute, if I'm caught, I'm going to get a stiff sentence and it is not worth it. I better go get some treatment."
The judge concluded his remarks by acknowledging that Adams was not charged with acting on his desires. Nevertheless, the judge said that what Adams had donespecifying the particular images that he wanted, downloading images of children being abused, and actively trading images with othersindicated that Adams had "a problem that is fueling the abuse of our children."
To repeat, Adams only takes issue with the judge's comments concerning whether Adams, and others like him, suffer from an uncontrollable illness. Adams claims that the judge committed procedural error by relying on an unsupported conclusion that people who view child pornography are unable to control their actions. Whether a district judge followed proper procedures in determining a sentence is a question of law that we review de novo. United States v. Glosser, 623 F.3d 413, 418 (7th Cir.2010).
The judge first mentioned the word "illness" in his discussion of the seriousness of the crime and Adams' likelihood of recidivism. There is nothing in the record to suggest the judge was making a finding of mental illness. Instead, he was struggling with the severity of the crime and wondering why anyone would choose to view images like those that Adams had viewed. The judge surmised that such a desire was so unreasonable that perhaps it was beyond a person's control.
Moreover, immediately after these comments, the judge said that he may need to "back off" on that belief because Adams had apparently controlled his desires since 2007. The judge then explicitly stated that if his only consideration were Adams' likelihood of recidivism, he would be more responsive to Adams' requested five-year sentence. Thus, the judge's initial discussion of an attraction to child pornography *1012 as an "illness" did not dictate the ultimate sentence.
Instead, the judge imposed a sentence above Adams' request primarily because of the need to deter others from engaging in similar crimes. The judge explained that Adams' sentence needed to "cause someone right now sitting at their computer who has a desire to see child pornography to say, wait a minute, if I'm caught, I'm going to get a stiff sentence and it is not worth it. I better go get some treatment." These comments do not amount to a finding that all child pornographers suffer from an illness beyond their control[3] (indeed, if the illness were truly uncontrollable, attempts at deterrence would be futile). Rather, the judge sought to encourage people who have problematic desires similar to Adams' to remedy themwith help, if necessary. There is nothing improper about sending this message.
True, the judge did not mention the studies that Adams presented. But, as Adams concedes, a judge is not required to address every argument raised by a defendant at sentencing. United States v. Cunningham, 429 F.3d 673, 678 (7th Cir.2005). Furthermore, here, the judge specifically acknowledged that Adams was not charged with a contact offense and, as we previously discussed, determined that Adams was rather unlikely to recidivate. Thus, there is no indication that Adams was sentenced based on findings contradicted by the studies.
In the end, the judge arrived at a below-guidelines sentence by properly considering, among other things, the seriousness of the offense and the need to provide deterrence. Accordingly, the judgment of the district court is AFFIRMED.
NOTES
[*] The Honorable William M. Conley, United States District Court for the Western District of Wisconsin, sitting by designation.
[1] LimeWire, according to Wikipedia, is a free-access file-sharing program that allows users to make files available to all other LimeWire users by placing them in a shared folder. Any LimeWire user may access that folder to download files, but they may not add to another user's shared folder. This appears to mean that if a file is in a LimeWire user's shared folder, then that user put it there.
[2] In his appellate brief and at oral argument, Adams and his lawyer argued that this fact actually cuts in Adams' favor because it reveals that less than 15% of all of the pornography he possessed was child-related. We fail to see anything meritorious in these numbers.
[3] The judge's comments do not even suggest that he was referring to an "illness" in a clinical sense. Even if he were, the comments are not inconsistent with the two recent studies Adams' counsel brought to the attention of the court, since neither focus on whether an attraction to child pornography can accurately be described as an "illness," treatable or otherwise, but rather on the apparent lack of correlation between the viewing of child pornography and recidivism, particularly future "hands-on" sexual assault of children. Indeed, though not formally recognized as an "addiction"as is compulsive gamblingthe DSM-IV-TR defines among "paraphilias" the "recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving . . . children or other nonconsenting persons."
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835 So.2d 174 (2001)
J.S. and E.S.
v.
D.W. and J.W.
2990431.
Court of Civil Appeals of Alabama.
May 4, 2001.
*176 John M. Wood and Michael A. Anderson of Wood & Shaw, L.L.C., Birmingham, for appellants.
Robert P. Bynon, Jr., Birmingham, for appellees.
Patricia N. Moore, Birmingham, guardian ad litem.
YATES, Presiding Judge.
J.S. and his wife E.S. appeal from a judgment awarding D.W. and J.W. grandparent visitation pursuant to § 26-10A-30, Ala.Code 1975, with T.S., the 4-year-old adopted daughter of J.S. and E.S. On appeal, J.S. and E.S. argue that D.W. and J.W. lack standing to bring the action and they also challenge the constitutionality of that statute.
The family relationships between the parties are somewhat unconventional. In 1994, S.S. (the son of J.S. and E.S.) and A.W. (the daughter of D.W. and J.W.), lived together for a brief period and conceived a daughter, T.S. A.W. and S.S. terminated their relationship after T.S.'s birth. Both A.W. and S.S. had serious personal problems that rendered them incapable of caring for T.S. For the first two years of her life, T.S. was cared for by D.W. and J.W. in their home; J.S. and E.S. frequently visited her during that period. During that same time, D.W. and J.W. began to experience marital problems, and they eventually divorced. J.W. continued to care for T.S. in her home after she and D.W. separated.
In 1996, when T.S. was almost two years old, J.W. and D.W. approached J.S. and E.S. about the possibility of J.S. and E.S. adopting T.S., because providing full-time care for the child had become too physically demanding on J.W. J.S. and E.S. agreed, and D.W. convinced his adopted daughter A.W. to give her consent to the adoption. T.S. was adopted by J.S. and E.S. in 1997.[1] D.W. paid for one-half of the attorney fees associated with the adoption proceeding.
For a short time immediately after the entry of the final order of adoption in early 1997, D.W. and J.W. visited the child on a regular basis and took her to their homes for overnight visits. Approximately two months after the adoption was complete, however, the formerly congenial relationship between D.W. and J.W. and J.S. and E.S. deteriorated. J.S. and E.S. discovered that T.S. suffered from allergies and asthma. They claimed that her worst asthmatic episodes occurred after she returned from visits in the homes of D.W. and J.W. J.S. and E.S. claimed that J.W. smoked in the child's presence and that T.S. was extremely allergic to J.W.'s cat. In response to these claims that the child's health was jeopardized by her visits with D.W. and J.W., D.W. consulted with T.S.'s allergist, who advised him how to control the child's environment to minimize her asthma symptoms. Upon learning of the allergist's recommendations, J.W. found a new home for her cat and stopped smoking in her home. Both D.W. and J.W. made efforts to clean their respective homes[2] in accordance with the allergist's recommendations, *177 but J.S. and E.S. refused D.W. and J.W. visitation with the child, except in the home of J.S. and E.S. and under the supervision of J.S. and E.S.
On August 10, 1998, D.W. and J.W. petitioned for grandparent visitation, pursuant to § 26-10A-30. J.S. and E.S., on February 2, 1999, moved to dismiss the petition, stating as grounds that D.W. and J.W. did not qualify as "natural" grandparents as contemplated by § 26-10A-30, because they had adopted A.W., their granddaughter, who is also T.S.'s mother. J.S. and E.S. argue that D.W. and J.W. are T.S.'s "natural" great-grandparents, rather than "natural" grandparents. J.S. and E.S. further alleged in their motion that the petition for visitation pursuant to § 26-10A-30 was an unconstitutional infringement on their right to privacy. The attorney general was given notice of the constitutional challenge, pursuant to § 6-6-227. After a hearing, the trial court overruled J.S. and E.S.'s motion to dismiss.
A guardian ad litem was appointed to represent T.S.'s interest; she filed a report with the court that favorably described the homes of D.W. and J.W. The guardian ad litem did not make a recommendation regarding visitation, but requested that if the trial court granted visitation it do so on a gradual basis to allow the child sufficient time to readjust to D.W. and J.W., because they had not seen each other for over a year. This is because neither D.W. or J.W. felt comfortable visiting T.S. in J.S. and E.S.'s home.
At the hearing, J.S. and E.S. expressed their concern that visitation with D.W. and J.W. would cause T.S. to experience health problems. J.S. and E.S. also testified that they were concerned that A.W., the child's birth mother, would return to D.W. or J.W.'s home and kidnap the child. The testimony indicated that A.W. was continuing to experience substance-abuse problems. A.W. now lives in Kentucky and rarely contacts D.W. and J.W; J.S. and E.S. admitted that their son (T.S.'s biological father) was presently incarcerated on a conviction of grand larceny, and they testified that they had taken the child to visit him in prison. After the hearing, the trial court entered a judgment awarding visitation to J.W. and D.W. pursuant to § 26-10A-30.
J.S. and E.S. contend that D.W. and J.W. have no standing to bring a petition seeking visitation pursuant to § 26-10A-30, because, they say, D.W. and J.W. are not the "natural" grandparents as contemplated in the language of that section. Section 26-10A-30 provides that "[p]ost-adoption visitation rights for the natural grandparents of the adoptee may be granted when the adoptee is adopted by [certain family members]." We note that, in advancing this argument, J.S. and E.S. appear to equate the term "natural" with the term "biological." It is undisputed that the child's mother, A.W., is the biological granddaughter of D.W. and J.W. However, D.W. and J.W. adopted A.W. when she was a child and, under Alabama law, they are to be treated as A.W.'s natural parents. Section 26-10A-29 provides that, after adoption, "the adoptee shall be treated as the natural child of the adopting parent or parents and shall have all rights and be subject to all of the duties arising from the relation, including the right of inheritance." It follows that if A.W. is to be treated as the "natural child" of D.W. and J.W., then they are to be treated as A.W.'s "natural" parents. Following this line of reasoning, we find it clear that, under Alabama law, D.W. and J.W. are treated as "natural" grandparents of T.S., who is A.W.'s biological daughter.
It is instructive to compare § 26-10A-30 with another recently enacted statute codified at § 30-3-4.1; this new statute also *178 provides for grandparent visitation. This new statute did not become effective until September 1, 1999almost one year after D.W. and J.W. had filed their petition pursuant to § 26-10A-30. Although this newly enacted statute has no application to the present case, we find noteworthy its definition of "grandparent." Section 30-3-4.1 defines a "grandparent" as "the parent of a parent of a minor child, the parent of a minor child's parent who has died, or the parent of a minor child's parent whose parental rights have been terminated when the child has been adopted pursuant to Section 26-10A-27, 26-10A-28, or 26-10A-30, dealing with stepparent and relative adoption." We conclude that J.W. and D.W. have standing to bring the present action.
Therefore, D.W. and J.W., i.e., the biological great-grandparents of T.S., have standing under § 26-10A-30 to ask for grandparent visitation with T.S., because they adopted their biological granddaughter. Any other interpretation would contradict Alabama law and its mandate that adopted children be treated the same as biological children. Cf. Gotlieb v. Klotzman, 369 So.2d 798 (Ala.1979)(adopted children are treated the same as biological children under will); Kernop v. Taylor, 644 So.2d 971 (Ala.Civ.App.1994)(father must pay child support for adopted child because adopted children have equal status with biological children).
J.S. and E.S. also challenge the constitutionality of § 26-10A-30. J.S. and E.S. have served a copy of their brief on the attorney general, in compliance with Rule 44, Ala. R.App. P.; that office has waived the right to appear in this appeal.
The history of grandparent visitation in Alabama is as follows: In 1980, the legislature enacted § 30-3-3, which abrogated the common-law proposition that grandparents possessed no legal right of visitation, and created a right of visitation when the parents were divorcing. In 1983, the legislature repealed § 30-3-3 and enacted § 30-3-4. The intent of the 1983 statute was to expand "grandparental rights to visitation to include the situation involving the death of one of the grandchild's parents." Mills v. Parker, 549 So.2d 97, 98 (Ala.Civ.App.1989).
In a case pending before the repeal of § 30-3-3, the supreme court decided Ex parte Bronstein, 434 So.2d 780 (Ala.1983), wherein it addressed the question whether natural grandparents who want to visit their grandchildren may obtain visitation rights when the children's natural mother has subsequently remarried and the natural father has consented to the stepfather's adoption of the children. The supreme court held that § 30-3-3 applied only in situations where the court was considering a divorce case. The supreme court further stated:
"[A]doption, like birth, creates legal relationships under which adoptive parents gain certain rights which pre-empt any visitation rights by natural parents or grandparents. Consequently, we hold that because there is a societal importance in the establishment of a permanent and stable family unit, see Pendergrass v. Watkins, 383 So.2d 851, 855 (Ala.Civ.App.1980), an adoption of a child must necessarily sever all former family bonds and relationships. The courts are not free, therefore, to intervene on behalf of relatives who seek visitation, especially when the child's adoptive parents have decided not to permit visitation."
Id. at 783-84.
In 1984, the year after Ex parte Bronstein was decided, the legislature amended the adoption statute, § 26-10-5, to create an exception to the general rule that an *179 adoption order that terminates the rights of the natural parents also terminates the rights of the natural grandparents. That exception provided:
"[A]t the discretion of the court, visitation rights for the natural grandparents of the minor children may be maintained, or allowed upon petition of modification after the final order of adoption is entered."
In 1990, § 26-10A-30 replaced § 26-10-5. The constitutionality of § 26-10A-30 has never before been challenged. It is interesting to note that former § 30-3-4[3] the predecessor to § 30-3-4.1, was challenged in Cockrell v. Sittason, 500 So.2d 1119 (Ala.Civ.App.1986). Even though the appellant in Cockrell had not raised that issue at the trial level, the court, with little discussion and citing no caselaw, declared that statute constitutional.
J.S. and E.S. argue that § 26-10A-30 infringes on their familial rights, which, they argue, fall within a recognized zone of privacy, in contravention of the Alabama Constitution and of the United States Constitution. Section 26-10A-30 provides:
"Post-adoption visitation rights for the natural grandparents of the adoptee may be granted when the adoptee is adopted by a stepparent, a grandfather, a grandmother, a brother, a half-brother, a sister, a half-sister, an aunt or an uncle and their respective spouses, if any. Such visitation rights may be maintained or granted at the discretion of the court at any time prior to or after the final order of adoption is entered upon petition by the natural grandparents, if it is in the best interest of the child."
While this appeal was pending, the United States Supreme Court handed down an opinion in which six Justices of that Court affirmed the Washington Supreme Court's decision striking down Washington's nonparental-visitation statute as an unconstitutional infringement on parents' fundamental rights to rear their children. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000). In Troxel, the Supreme Court stated that, with regard to child-visitation rights, "the right of parents to make decisions concerning the care, custody, and control of their children" is a fundamental right protected by the Due Process Clause. The Supreme Court struck down the Washington statute, which allowed "any person" at "any time" to seek visitation rights with a child and provided that visitation might be awarded if "visitation may serve the best interest of the child." 530 U.S. at 67, 120 S.Ct. at 2061.
The plaintiffs in Troxel were the paternal grandparents of two illegitimate children of their deceased son; they sought visitation with the children. The grandparents requested two weekends of overnight visitation per month and two weeks of visitation during the summer. The mother did not oppose the visitation, but, instead, objected to the amount of visitation requested by the grandparents. The mother requested that the grandparents have one day of visitation per month, with no overnight stay. The trial court granted the grandparents visitation for one weekend per month, one week during the summer, and four hours on each grandparent's birthday.
The mother appealed. The Washington Court of Appeals reversed the trial court's order and dismissed the grandparents' petition for lack of standing. On review, the Washington Supreme Court held that the *180 grandparents had standing but that the statute was unconstitutional for two reasons. First, the court found that the statute did not require that a person seeking visitation make a showing that in the absence of the requested visitation the child was at risk, and such a showing, the court held, is required before the state can interfere with parents' rights to rear their children. Second, the court held that the statute was too broad in allowing "any person" at "any time" to seek visitation and requiring only that the visitation serve the best interests of the child.
The Supreme Court of the United States affirmed the Washington Supreme Court's judgment, concluding that what it called the "breathtakingly broad" statute, as applied to the mother, violated her due-process rights to make decisions concerning the care, custody, and control of her children. In reaching its decision, the Supreme Court noted that the statute contained no requirement that the parent's decision be given any presumption of validity or any special weight. 530 U.S. at 70, 120 S.Ct. at 2062-63. The Supreme Court held that because the grandparents had not alleged that the mother was unfit, it must be presumed that the mother had acted in the best interests of her children. 530 U.S. at 68, 120 S.Ct. at 2061. The problem, the Supreme Court said, was not that the trial court intervened, but that in so doing it gave no special weight to the mother's determination of her children's best interests. 530 U.S. at 69-70, 120 S.Ct. at 2062. Indeed, the trial court presumed the opposite and placed the burden on the mother to prove that visitation would not be in the best interests of her children. 530 U.S. at 69-70, 120 S.Ct. at 2062.
The Supreme Court's plurality opinion in Troxel is also notable for the issues it left unanswered. First, the Court declined to determine whether, as a condition precedent to visitation, the Due Process Clause requires a showing of harm or potential harm to the child. The Court did not define "the precise scope of the parental due process right in the visitation context." 530 U.S. at 73, 120 S.Ct. at 2064. The Court did not issue a per se holding that all nonparental visitation statutes are unconstitutional. 530 U.S. at 73-74, 120 S.Ct. at 2064. The members of the plurality agreed with Justice Kennedy's statement in his dissent that the "constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied." 530 U.S. at 73, 120 S.Ct. at 2064-65. The reason the Court did not make a per se ruling on constitutionality is that states, in ruling on the constitutionality of their own nonparental-visitation statutes, have made these determinations in the past on a case-by-case basis, because the outcome depends on the application of those statutes. 530 U.S. at 73-74, 120 S.Ct. at 2064. The Troxel Court noted differing provisions in various state statutes governing grandparent visitation. 530 U.S. at 73-74, 120 S.Ct. at 2064. This too, would affect the constitutionality of a particular statute.
Although the Troxel Court recognized the parental rights at issue as fundamental, the court did not articulate a standard of review to be applied to laws impinging on such rights. As Justice Thomas noted in his concurrence, "the opinions of the plurality, Justice Kennedy, and Justice Souter recognize such a [parental] right, but curiously none of them articulates the appropriate standard of review." Troxel, 530 U.S. at 80, 120 S.Ct. at 2068 (Thomas, J., concurring).
Justice O'Connor, writing for the plurality, recognized that the Due Process Clause "includes a substantive component that `provides heightened protection against *181 government interference with certain fundamental rights and liberty interests.' [Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)]; see also Reno v. Flores, 507 U.S. 292, 301-302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)." 530 U.S. at 65, 120 S.Ct. at 2060.
The plurality opinion then went on to cite the following cases concerning parental rights, in its recognition that parental rights are fundamental: Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (statutory bar against teaching a foreign language struck down); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (upholding the right of parents to send their children to a private school); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (upholding a child-labor law that prohibited children from selling magazines in the street or other public place, against a freedom-of-religion claim); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (state statute that automatically allowed the State to assume custody of a child whose mother had died, without allowing the unwed father to assert parental rights, violated due-process and equal-protection guarantees); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) ("best-interests-of-the-child" standard adequately protected unwed father's due-process rights where he had never supported or attempted to legitimate the 11-year-old child involved in an adoption proceeding); Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) (applying strict scrutiny, the Court held state statute authorizing parents to commit their children to mental institutions without the child's consent did not deny due process); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (due process requires that proceedings to terminate parental rights use the "clear-and-convincing" standard of proof); Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (holding that terminally ill patients do not have a fundamental liberty interest in committing suicide).
Although Meyer, 262 U.S. at 399-400, 43 S.Ct. 625, and Pierce, 268 U.S. at 534-35, 45 S.Ct. 571, appear to apply a "rational-basis" standard in the context of parental rights, by holding that State interference must not be "arbitrary or without reasonable relation to some purpose within the competency of the state to effect," see Meyer, 262 U.S. at 400, 43 S.Ct. 625, those cases were decided before the Supreme Court had developed the "strict-scrutiny" analysis. See Poe v. Ullman, 367 U.S. 497, 548, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Graham v. Richardson, 403 U.S. 365, 375-76, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). In Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), the Supreme Court applied a "strict-scrutiny" analysis in striking down a statute that required all children, including Amish children who had challenged the statute as a violation of the right to free exercise of religion, to attend school until they were 16. However, the Yoder Court indicated that had the parents' concerns been only secular, then the "rational-review" standard would apply. These cases recognize that the family is not beyond regulation in the public interest. However, we note that Meyer, Pierce, and Yoder involved parental rights in the context of public education. As the Yoder Court stated, providing a public education is "the very apex of the function of the State." 406 U.S. at 213, 92 S.Ct. 1526. Providing nonparental visitation is not. Further, Yoder also indicates that a higher standard of review may be warranted with certain fundamental rights, depending on *182 their character and the context in which they are asserted.
In contrast, the parental rights involved in the present case concern a parent's right "in the companionship, care, custody, and management of his or her child." Stanley v. Illinois, 405 U.S. at 651, 92 S.Ct. 1208. Court-ordered visitation whereby on a weekly or monthly basis a child is taken from the parent's custody for days or weeks at a time, over the parent's objection, can hardly be characterized as a minimal intrusion. Because this case involves the fundamental right to parent, we will apply a strict-scrutiny analysis.
The common law recognized a right of parents to determine with whom their child would associate. In contrast to parents, grandparents generally had no common-law right to visitation if the parents objected. Ex parte Bronstein, 434 So.2d 780; Ronald W. Nelson, "Troxel v. Granville: The Supreme Court Wades Into the Quagmire of Third-Party Visitation," 12 No. 6 Divorce Litig. 101 (June 2000). The Supreme Court noted in Troxel that all 50 states now have grandparent-visitation statutes, which vary in form. The Troxel Court recognized that these statutes were, in part, a response to the fact that we have an increasing number of children living in single-parent households. The number of unmarried and divorced parents has increased, along with the number of stepfamilies. David T. Whitehouse, Comment, 76 N.D. L.Rev. 191, 196 (1999) (relating to Hoff v. Berg, 595 N.W.2d 285 (N.D.1999), declaring the North Dakota grandparent-visitation statute unconstitutional). Also, the lobbying effort on behalf of an increasing number of senior citizens has been seen as a reason for the success of efforts promoting grandparent-visitation statutes. Comment, 76 N.D. L.Rev. at 198.
The earlier grandparent-visitation statutes required for their invocation some form of disruption in the core family, such as death, divorce, incarceration, incompetency, loss of parental rights, or some harm or threat of harm to the child. Karen A. Nalle, Comment, Whose Child Is It Anyway: The Unconstitutionality of the Texas Grandparent Visitation Statute, 51 Baylor L.Rev. 721, 726 (1999). More recent statutes have allowed for grandparent visitation regardless of the status of the family unit. See, e.g., § 30-3-4.1(b)(5), Ala.Code 1999; Idaho Code § 32-719 (1999); Texas Family Code § 153.433(2)(F); Revised Code of Washington § 26.10.160(3).
There are generally three categories of grandparent-visitation statutes. Comment, 51 Baylor L. Rev at 733-41. The first kind of statute is an open-ended statute that allows visitation without a showing of harm to the child and balances the parents' fundamental rights with the best interests of the child. An example is the Florida statute addressed in Beagle v. Beagle, 678 So.2d 1271 (Fla.1996). In Beagle, the Florida Supreme Court held Florida's grandparent-visitation statute unconstitutional because it violated the parents' right to rear their children free from government intervention and infringed upon the parents' privacy. The Florida statute was open-ended, because it granted visitation solely upon a finding that visitation was in the child's best interests. The court held the statute to be facially unconstitutional, on the basis that it impermissibly interfered with parental rights protected by the Florida and United States Constitutions. The court held that without a showing of harm to the child, the State was unable to satisfy a compelling state interest required under the privacy provisions in the Florida Constitution. That court applied the doctrine of "strict scrutiny."
*183 The second kind of grandparent visitation is provided by a modified open-ended statute that specifically defines the best interests of the child with regard to whether harm to the child is present. Comment, 51 Baylor L.Rev. at 737. This kind of statute intertwines a finding of substantial harm to the child within the definition of "best interests" of the child. In Herndon v. Tuhey, 857 S.W.2d 203 (Mo.1993), the Missouri Supreme Court held that state's statute constitutional because, the court held, the statute did not impose an undue burden on parents' childrearing rights and was narrowly tailored to protect the interests of the parties. The best interests of the child, as defined by the statute, were the focal point. The court appears to have applied a heightened scrutiny, judging by its use of the terms "undue burden" and "narrowly tailored." 857 S.W.2d at 210.[4]
The third kind of statute is one that requires a court to apply a "best-interests-of-the-child" analysis, along with making a finding of harm to the child, before granting visitation. Comment, 51 Baylor L.Rev. at 793. The Georgia Supreme Court, in Brooks v. Parkerson, 265 Ga. 189, 454 S.E.2d 769 (1995), applied the "strict-scrutiny" standard to its statute, which allowed grandparents to ask for visitation "under any circumstances" if visitation served the best interests of the child. The court held that there must be an element of harm present before the State can legitimately infringe on parents' fundamental rights. The Georgia Legislature has since amended its statute to require a showing of harm to the child before grandparent visitation is allowed. § 19-7-3, Ga.Code.
In King v. King, 828 S.W.2d 630 (Ky. 1992), the Kentucky Supreme Court upheld that state's statute, under a "rational-basis" review. The court took a novel approach and declared that grandparents have a fundamental right to visit their grandchildren, stating that the legislature had the power to strengthen family bonds. This, in effect, was comparing two fundamental rights; review under some standard less than "strict scrutiny" may be appropriate where competing fundamental rights are at issue. See Carey v. Population Servs. Int'l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (intermediate scrutiny applied where reproductive rights and parental rights were competing in case involving a minor).
The Tennessee Supreme Court in Hawk v. Hawk, 855 S.W.2d 573 (Tenn.1993), held Tennessee's grandparent-visitation statute unconstitutional by applying "strict scrutiny." The court rejected the argument that the best interests of the child constituted a compelling State interest that would be upheld in a "strict-scrutiny" analysis.
In Hoff v. Berg, 595 N.W.2d 285 (N.D. 1999), the North Dakota Supreme Court held North Dakota's statute unconstitutional, on the basis that it burdened the parents' fundamental right to control their children's associations. The court used the "strict-scrutiny" analysis in determining that a compelling State purpose did not justify the infringement upon this right.
The statute in the present case is open-ended and allows for grandparent *184 visitation "at the discretion of the court" and when "it is in the best interest of the child." The petition may be filed at "any time" before or after the adoption. Although the "best-interests" standard applies in custody and visitation statutes involving parents, those cases involve competing parental rights. In other words, in those cases the rights of both the mother and the father are involved and neither parent's rights outweigh the other's. Also, the "best-interests" standard is used when no fit parent is available, such as in a termination case where the State is attempting to provide an alternative parenting plan. Just as in Troxel, there have been no allegations that J.S. and E.S. are unfit parents.
In contrast to parental rights, a grandparent's right to visitation is a recent statutory creation and is not a fundamental right on an equal footing with the right of a parent. This statute does not require a showing that the child will be harmed if grandparent visitation is not granted. The statute provides no factors for the court to consider in its analysis and no mandate that the court make findings of fact. There is no presumption in favor of the fit parents' decision. "The Due Process Clause does not permit a State to infringe on the fundamental rights to make child-rearing decisions simply because a state judge believes a `better' decision could be made." Troxel, 530 U.S. at 72-73, 120 S.Ct. at 2064. With the goal of adoption being to create new, presumably more stable, familial bonds, a statute infringing upon the new parents' rights must be narrowly tailored in a manner least restrictive of the parents' rights. Although the statute in Troxel was broader than § 26-10A-30, in that it allowed "any person" to ask for visitation, the Supreme Court's holding was not based on the fact that "any person" could petition for visitation, but, rather, was based on grandparents' visitation rights. In other words, the statute was not held facially unconstitutional, but was held unconstitutional as applied. In the present case, § 26-10A-30, as applied, is unconstitutional, because it infringes upon J.S. and E.S.'s fundamental right to parent.
Based on the foregoing, the judgment is reversed and the case is remanded for the trial court to enter an order consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
MURDOCK, J., concurs specially.
CRAWLEY, J., concurs in the result.
THOMPSON and PITTMAN, JJ., concur in part and dissent in part.
MURDOCK, Judge, concurring specially.
The appellants are adoptive parents. More importantly, however, they are parents.
In Lehr v. Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), the Supreme Court recognized that "the importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays `in promot[ing] a way of life' through the instruction of children as well as from the fact of blood relationship." See also Michael H. v. Gerald D., 491 U.S. 110, 123-24, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (referring to "sanctity" traditionally accorded to "the relationships that develop within the unitary family"); Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). In distinguishing between the due process protection afforded to foster parents and natural parents, the Supreme *185 Court in Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), noted:
"No one would seriously dispute that a deeply loving and interdependent relationship between an adult and a child in his or her care may exist even in the absence of a blood relationship.... Adoption, for example, is recognized [under New York law] as the legal equivalent of biological parenthood."
431 U.S. at 844 and n. 51, 97 S.Ct. 2094. As all the judges of this court today agree, the same is true in Alabama. I therefore concur in the main opinion.
CRAWLEY, Judge, concurring in the result.
I conclude that Ala.Code 1975, § 26-10A-30, is unconstitutional. Judge Yates concludes that the statute is unconstitutional as applied. I conclude that the statute is per se or facially unconstitutional. I cannot conceive of any situation where this statute could be constitutional. If a parent were found unfit, custody and visitation arrangements would be governed by the dependency jurisdiction of the juvenile court. See Ala.Code 1975, § 12-15-1 et seq., and § 26-18-1 et seq. Simply put, a fit parent's decision regarding who visits his or her child cannot be regulated by the state.
Judge Yates follows the reasoning of the plurality opinion of the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). I would adopt the reasoning of Justice Thomas's concurring opinion:
"Our decision in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), holds that parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them.... I would apply strict scrutiny to infringements of fundamental rights. Here, the State of Washington lacks even a legitimate governmental interestto say nothing of a compelling onein second-guessing a fit parent's decision regarding visitation with third parties."
530 U.S. at 80, 120 S.Ct. 2054.
THOMPSON, Judge, concurring in part and dissenting in part.
I concur in the holding that D.W. and J.W., the biological great-grandparents of T.S., have standing, pursuant to § 26-10A-30, Ala.Code, 1975, to seek visitation with T.S. because of their adoption of their biological granddaughter.
I dissent, however, from the holding that § 26-10A-30, as applied by the trial court, is unconstitutional. In his dissent, Justice Kennedy joined with the four Justices concurring in the Troxel opinion in the admonition to the courts that "constitutional protections in [the area of nonparental-visitation statutes] are best `elaborated with care.'" Troxel v. Granville, 530 U.S. 57, 73, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).
The statute being challenged in the present case, § 26-10A-30, is a much narrower statute than the "breathtakingly broad" Washington statute reviewed by the Troxel Court. Unlike the Washington visitation statute, which allowed any person to petition for visitation under any circumstances, § 26-10A-30 permits only "natural grandparents," a limited class of persons, to petition for visitation in the limited category of intrafamily[5] adoptions. § 26-10A-30, Ala.Code, 1975.
*186 Moreover, unlike the Washington Superior Court's judgment that was reviewed by the Troxel Court, a judgment containing "slender findings," the trial court's judgment on review here contained the following specific finding:
"The Court finds that the adoptee previously had a relationship with [the petitioners], having lived in their home until she was approximately two years old. Both biological parents have problems which prevented them from assuming a child-rearing role with the adoptee. During such time that the adoptee lived with [the petitioners] they allowed [the paternal grandparents who ultimately adopted the child] to maintain visitation with the adoptee away from their home, and eventually suggested and facilitated [the paternal grandparents'] adoption [of the child]...."
I believe we may infer from this finding that the petitioners established a bond during the child's initial two formative years and that they fostered a healthy relationship with the paternal grandparents, who ultimately adopted the child, with the petitioners' assistance.
Section 26-10A-30, Ala.Code, 1975, permits the trial court to determine, in its discretion, whether visitation would serve the child's best interest. Alabama domestic-relations courts have traditionally used the "best interest-of-the-child" standard on a case-by-case basis in visitation proceedings. This narrowly drafted statute currently under review was apparently designed to foster close family bonds that had existed before the intrafamily adoption proceedings occurred. Given the limited context addressed by § 26-10A-30, I conclude that that statute, as written and as applied in the present case, is not unconstitutional.
Although I recognize and share the concerns expressed in the main opinion and in Judge Crawley's special concurrence pertaining to the fundamental rights of parents to rear their children without interference, I do not believe the limited ruling in Troxel can be extended to declare this narrowly drafted statute unconstitutional on its face.
PITTMAN, J., concurs.
NOTES
[1] Neither the petition seeking the adoption nor the judgment granting that petition are contained in the record. From the testimony presented, however, we presume that J.S. and E.S. adopted T.S. pursuant to § 26-10A-28.
[2] D.W. and J.W. were divorced at the time of trial and when the judgment was entered. In its final judgment, the trial court specified the hours T.S. was to visit in J.W.'s home and the hours she was to visit in D.W.'s home.
[3] The legislature amended § 30-3-4 in 1989 and 1995 to expand grandparent visitation. In 1999, § 30-3-4.1 replaced § 30-3-4, further expanding grandparent visitation.
[4] Subsequent to Troxel, a Missouri appeals court followed the holding of the Missouri Supreme Court in Herndonthat the statute was constitutionalbecause the Missouri statute was not as broad as the Washington statute and because of the unanswered questions left by the Troxel court. In re G.P.C., 28 S.W.3d 357 (Mo.App.2000). But Cf., Brice v. Brice, 133 Md.App. 302, 754 A.2d 1132 (2000) (Maryland court held its grandparent-visitation statute unconstitutional, based on Troxel, even though Maryland's statute was not as broad as Washington's).
[5] The statute specifically relates to a situation "when the adoptee is adopted by a stepparent, a grandfather, a grandmother, a brother, a half-brother, a sister, a half-sister, an aunt or an uncle and their respective spouses, if any." § 26-10A-30, Ala.Code, 1975.
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In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-20-00007-CR
DEQUAVIOUS EUGENE SANDERSON, § On Appeal from the 89th District Court
Appellant
§ of Wichita County (61176-C 1-3)
§ February 20, 2020
V.
§ Per Curiam
THE STATE OF TEXAS § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that the
appeal should be dismissed. It is ordered that the appeal is dismissed for want of
jurisdiction.
SECOND DISTRICT COURT OF APPEALS
PER CURIAM
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Fourth Court of Appeals
San Antonio, Texas
June 20, 2018
No. 04-18-00072-CR
Sierra FISHER,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR5413A
Honorable Catherine Torres-Stahl, Judge Presiding
ORDER
On June 9, 2018, appellant filed her appellant brief. Appellant’s brief violates Texas
Rule of Appellate Procedure 9.10 in that the brief includes sensitive data, specifically the name
of a minor, and such data has not been redacted to protect the minor’s identity. See TEX. R. APP.
P. 9.10 (indicating sensitive data, such as the name of any person who was a minor when
underlying suit was filed, may not be filed with court and must be redacted).
We therefore ORDER that appellant’s brief is STRICKEN. We further ORDER
appellant to file an amended appellant’s brief in compliance with Texas Rule of Appellate
Procedure 9.10 on or before July 2, 2018.
We order the clerk of this court to serve a copy of this order on all counsel.
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 20th day of June, 2018.
___________________________________
Keith E. Hottle
Clerk of Court
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SANTOS MAXIMINO GARCIA,
Plaintiff,
v. Civil Action No. 16-cv-94 (JDB)
EXECUTIVE OFFICE FOR UNITED
STATES ATTORNEYS
Defendant.
MEMORANDUM OPINION
Plaintiff Santos Maximino Garcia, proceeding pro se, brought this action under the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against defendant, the Executive Office
for United States Attorneys (“EOUSA”), Compl. [ECF No. 1] at 1. Plaintiff seeks “disclosure of
all information germane to prosecution witness Noe Cruz,” a cooperating witness who testified for
the government in Garcia’s federal criminal trial. Id. Asserting that it has satisfied its disclosure
obligations under FOIA, EOUSA moved for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure. See Def.’s Mot. for Summ. J. [ECF No. 18] at 1. The Court advised
plaintiff of the need to respond to EOUSA’s motion and granted him an extension to file a
response. See Oct. 11, 2017 Order [ECF No. 19]. Plaintiff, however, has failed to respond, and
his time to do so expired over four months ago.
The Court finds that EOUSA’s search for the requested documents was adequate, and that
the agencies sufficiently justified withholding responsive documents under the relevant statutory
exemptions. Hence, for the reasons explained below, the Court will grant EOUSA’s motion for
summary judgment.
1
BACKGROUND
On November 16, 2014, plaintiff submitted a request to EOUSA for the release of
documents pursuant to FOIA. See Compl. Ex. A. In his request, plaintiff sought the disclosure of
“all information germane to prosecution witness Noe Cruz” relating to plaintiff’s criminal case,
United States v. Garcia, No. 05-0393 (D. Md. judgment issued May 13, 2009). Id. He claimed
that the prosecution “never attempted to ascertain the scope of [Cruz’s] criminal history” and was
“deliberately ignorant” as to Cruz’s rape charge, for which he was indicted in 2013, five years after
plaintiff’s trial. Compl. at 5.
On January 5, 2015, EOUSA notified plaintiff that his request was received. Compl. Ex.
B. EOUSA’s response informed plaintiff that records pertaining to a third party generally cannot
be released absent (1) “express authorization and consent of the third party,” (2) “proof that the
subject of the request is deceased,” or (3) “a clear demonstration that the public interest in
disclosure outweighs the third party’s personal privacy interest and that significant public benefit
would result from the disclosure of the requested records.” Id. Since plaintiff did not provide a
release, death certificate, or public justification for release, EOUSA explained that the release of
records concerning Noe Cruz would result in an unwarranted invasion of personal privacy. Id.
On January 14, 2015, plaintiff appealed EOUSA’s decision to the Office of Information
Policy (“OIP”). Compl. Ex. C. He claimed that all documentation involving Cruz should be
disclosed, citing the D.C. District Court’s decision in Marino v. Drug Enforcement Administration,
15 F. Supp. 3d 141 (D.D.C. 2014). Id. OIP informed plaintiff on February 10, 2015 that his appeal
had been received a week earlier. Compl. Ex. D. On June 30, 2015, OIP notified plaintiff that it
had “affirm[ed], on partly modified grounds, EOUSA’s action on [plaintiff’s] request.” Compl.
Ex. E. OIP explained that, because any non-public records responsive to plaintiff’s request would
2
be categorically exempt from disclosure, EOUSA properly asserted FOIA Exemption 7(C) and
was not required to conduct a search for the requested records. Id.
Blocked from receiving his requested information, plaintiff filed a complaint in this Court
on January 15, 2016, seeking the disputed materials. See Compl. EOUSA filed a motion to
dismiss on the same grounds provided in OIP’s denial of plaintiff’s FOIA request. See Mot. to
Dismiss [ECF No. 3] at 1. The Court denied the government’s motion, stating that “EOUSA’s
Exemption 7(C) claims are best considered as to specific documents, rather than in the abstract.”
See June 21, 2016 Order [ECF No. 7] at 2. EOUSA then forwarded plaintiff’s request to EOUSA’s
FOIA contact for the United States Attorney’s Office for the District of Maryland (“USAO-MD”)
and asked it to search for any records related to plaintiff’s prosecution. See Def.’s Mot. for Summ.
J. at 4. All systems within the USAO-MD likely to contain records responsive to plaintiff’s request
were searched, and EOUSA claims that “[t]here are no other records systems or locations within
EOUSA in which other files pertaining to Garcia were maintained.” Id.
In the course of processing plaintiff’s request, EOUSA determined that certain records
originated from other agencies and, accordingly, referred those records to the Department of
Justice’s Criminal Division (“DOJ”), the Department of Homeland Security’s Immigration and
Customs Enforcement (“ICE”), and DOJ’s Bureau of Alcohol, Tobacco, Firearms, and Explosives
(“ATF”). Each agency prepared a declaration and a Vaughn index addressing all documents
withheld pursuant to an applicable FOIA exemption, in accordance with Vaughn v. Rosen, 484
F.2d 820 (D.C. Cir. 1973). See Decl. of David Luczynski (“Luczynski Decl.”) and Luczynski
Decl. Ex. H (“EOUSA Vaughn Index”) [ECF No. 18-2]; Decl. of John E. Cunningham III
(“Cunningham Decl.”) and DOJ Vaughn Index [ECF No. 18-3]; Decl. of Matthew Riley (“Riley
3
Decl.”) and Riley Decl. Ex. 1 (“ICE Vaughn Index”) [ECF No. 18-4]; Decl. of Stephanie M.
Boucher (“Boucher Decl.”) and Boucher Decl. Ex. E (“ATF Vaughn Index”) [ECF No. 18-5].
EOUSA moved for summary judgment on July 7, 2017, claiming it had fulfilled its
obligations under FOIA. See Def.’s Mot. for Summ. J. at 1. A schedule issued by the Court
required plaintiff to file a response to defendant’s motion and any cross-motion for summary
judgment by September 8, 2017. See June 6, 2017 Order [ECF No. 17]. On October 11, 2017,
after no such response was filed, the Court advised plaintiff of the consequences of failing to
respond to a dispositive motion under Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988), and
ordered him to file any response to EOUSA’s motion for summary judgment by November 10,
2017, see Oct. 11, 2017 Order. Plaintiff has still filed no response; therefore, pursuant to the
October 11, 2017 Order and the D.C. Circuit’s decision in Winston & Strawn, LLP v. McLean,
843 F.3d 503, 507–08 (D.C. Cir. 2016), the Court may accept as undisputed defendant’s Statement
of Undisputed Material Facts in Support of Defendant’s Motion for Summary Judgment and may
decide the motion without the benefit of any opposition brief from plaintiff.
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The party seeking summary judgment bears the initial responsibility of demonstrating the
absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The moving party may successfully support its motion by identifying those portions of
“the record, including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only), admissions,
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interrogatory answers, or other materials” which it believes demonstrate the absence of a genuine
dispute of material fact. Fed. R. Civ. P. 56(c)(1)(A); see Celotex, 477 U.S. at 323.
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quoting Defs. of Wildlife v. U.S.
Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). FOIA is a means for citizens to “know
‘“what their Government is up to.”’” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157,
171 (2004) (citation omitted). Accordingly, FOIA requires federal agencies to release their records
to the public upon request, unless the requested information falls within one of nine statutory
exemptions to disclosure. See 5 U.S.C. § 552(a)(3)(A), (b).
District courts review de novo an agency’s decision to withhold requested documents under
a statutory exemption, and the agency withholding responsive documents bears the burden of
proving the applicability of claimed exemptions. Am. Civil Liberties Union (ACLU) v. U.S. Dep’t
of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011). An agency is entitled to summary judgment “if
no material facts are in dispute and if it demonstrates ‘that each document that falls within the class
requested either has been produced . . . or is wholly exempt from [FOIA’s] inspection
requirements.’” Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir.
2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). “Ultimately, an agency’s
justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’”
ACLU, 628 F.3d at 619 (citation omitted).
Even if the nonmoving party fails to respond to the motion for summary judgment, “a
motion for summary judgment cannot be ‘conceded’ for want of opposition.” Winston & Strawn,
843 F.3d at 505. The burden is always on the movant to demonstrate why summary judgement is
warranted, and “[t]he nonmoving party’s failure to oppose summary judgment does not shift that
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burden.” Id. (quoting Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015)). Pursuant
to Federal Rule of Civil Procedure 56(e)(1), the district court can “give a party who has failed to
address a summary judgment movant’s assertions of fact ‘an opportunity to properly support or
address’ the fact.” Grimes, 794 F.3d at 92 (quoting Fed. R. Civ. P. 56(e)(1)). However, if the
nonmovant fails to respond to a movant’s factual submission and then fails to take advantage of
the opportunity to rectify that failure, the district court may consider the facts undisputed for
purposes of the motion. Winston & Strawn, 843 F.3d at 507; see Grimes, 794 F.3d at 94.
ANALYSIS
I. EOUSA’S SEARCH FOR REQUESTED DOCUMENTS WAS ADEQUATE UNDER FOIA
An agency only fulfills its FOIA obligations if it can demonstrate beyond a material doubt
that its search was “reasonably calculated to uncover all relevant documents.” Weisberg v. U.S.
Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). To prevail in a FOIA action, the agency
must show that it has made “a good faith effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the information requested.” Oglesby v.
U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “The question is not whether there
might exist any other documents possibly responsive to the request, but rather whether the search
for those documents was adequate.” Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C.
Cir. 1994) (citation omitted). Adequacy is judged by a standard of reasonableness. Weisberg v.
U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). The agencies are not required to
search every record system; rather, a search may be reasonable if it includes all systems “that are
likely to turn up the information requested.” Ryan v. FBI, 174 F. Supp. 3d 486, 491 (D.D.C. 2016)
(quoting Oglesby, 920 F.2d at 68).
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The agency may meet its burden and show that the search was adequate by submitting
reasonably “detailed and non-conclusory” affidavits or declarations that are submitted in good
faith, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted), and
an index of the information withheld, Vaughn, 484 F.2d at 827–28. For an affidavit to be
“reasonably detailed,” it must “set[] forth the search terms and the type of search performed, and
aver[] that all files likely to contain responsive materials (if such records exist) were searched.”
Oglesby, 920 F.2d at 68. Agency affidavits that “do not denote which files were searched or by
whom, do not reflect any systematic approach to document location, and do not provide
information specific enough to enable [the plaintiff] to challenge the procedures utilized” are
insufficient to support summary judgment. Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 371
(D.C. Cir. 1980).
EOUSA submitted a declaration from David Luczynski, an EOUSA Attorney Advisor, in
order to meet its burden with respect to the adequacy of its search. See Luczynski Decl. ¶ 1.
Luczynski’s declaration states that EOUSA evaluated plaintiff’s FOIA request and, because each
United States Attorney’s Office maintains the case files for criminal matters prosecuted by that
office, it forwarded the request to EOUSA’s FOIA contact for the USAO-MD. Id. ¶ 10. The FOIA
contact conducted a systematic search for records using the search term “Santos Maximino-
Garcia” 1 and the case number to determine the location of all files relating to plaintiff. Id. The
FOIA contact used the “LIONS” system, the computer system used by United States Attorney’s
Offices “to track cases and to retrieve files pertaining to cases and investigations.” Id. With this
1
Plaintiff’s last name does not appear to include a hyphen in any of the other documents filed in this case,
which theoretically could suggest that the search terms were inadequate. But see Judicial Watch v. U.S. Dep’t of
State, Civ. Action No. 12-893 (JDB), 2017 WL 3913212, at *11 (D.D.C. Sept. 6, 2017) (rejecting argument that a
search was inadequate because the State Department used variants of Anwar Aulaqi’s last name rather than his full
name). However, plaintiff does not allege that the search terms were inadequate, and it appears that EOUSA found
plaintiff’s criminal case files without difficulty.
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system, “the user can access databases which can be used to retrieve information based on a
defendant’s name, the USAO number (United States’ Attorney’s Office internal administrative
number), and the district court case number for any court cases.” Id. According to Luczynski,
“[a]ll documents responsive to plaintiff’s FOIA request would have been located in the United
States Attorney’s office for the District of Maryland” and “[t]here are no other records systems or
locations within EOUSA in which other files pertaining to plaintiff were maintained.” Id.
Luczynski’s affidavit provides sufficient information for EOUSA’s search process to be
challenged: it indicates who conducted the search, specifies the search terms used, and describes
the type of search conducted. See Weisberg, 627 F.2d at 371; Oglesby, 920 F.2d at 68. The
information in the affidavit indicates that EOUSA took a sensible and systematic approach to
plaintiff’s FOIA request. Plaintiff has not alleged that any of the information EOUSA provided
was inaccurate, or that its process was inadequate. Accordingly, because EOUSA ensured that all
systems “likely to contain records responsive to plaintiff’s request were searched,” Luczynski
Decl. ¶ 11, and submitted a reasonably detailed declaration describing the search, the search was
adequate.
II. THE RESPONSIVE DOCUMENTS WERE PROPERLY WITHHELD PURSUANT TO FOIA’S
STATUTORY EXEMPTIONS.
After the search is deemed adequate, the agency must show that withheld materials fall
within a FOIA statutory exemption. Leadership Conference on Civil Rights v. Gonzales, 404 F.
Supp. 2d 246, 253 (D.D.C. 2005). Here, each agency submitted a declaration and Vaughn index
addressing all responsive documents withheld pursuant to a FOIA exemption. See Luczynski
Decl. ¶¶ 13–29 and EOUSA Vaughn Index; Cunningham Decl. ¶¶ 10–25 and DOJ Vaughn Index;
Boucher Decl. ¶¶ 16–37 and ATF Vaughn Index; Riley Decl. ¶¶ 25–37 and ICE Vaughn Index.
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Between them, the agencies invoked seven different FOIA exemptions that they claimed apply to
all or some of the responsive documents. The Court will address each in turn.
A. FOIA Exemption 6
EOUSA, DOJ, ICE, and ATF withheld records pursuant to FOIA Exemption 6, which
exempts from disclosure “personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). To
determine whether Exemption 6 applies, a court must first determine whether the responsive
records are personnel, medical, or similar files. See Multi Ag Media LLC v. U.S. Dep’t of Agric.,
515 F.3d 1224, 1228 (D.C. Cir. 2008). If so, the court must then decide whether the disclosure of
the third-party information “would constitute a clearly unwarranted invasion of personal privacy.”
Id. This requires the court “to balance the privacy interest that would be compromised by
disclosure against any public interest in the requested information.” Id.
“Congress’ primary purpose in enacting Exemption 6 was to protect individuals from the
injury and embarrassment that can result from the unnecessary disclosure of personal information.”
U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 599 (1982). Accordingly, Exemption 6 is
designed to cover “detailed Government records on an individual which can be identified as
applying to that individual.” Id. at 602. Courts have applied this exemption broadly, holding
specifically that Exemption 6 covers “such items as a person’s name, address, place of birth,
employment history, and telephone number.” Judicial Watch, Inc. v. U.S. Dep’t of the Navy, 25
F. Supp. 3d 131, 141 (D.D.C. 2014).
EOUSA, DOJ, ICE, and ATF each invoked Exemption 6 for all records “pertaining to third
party individuals to protect their personal privacy interests.” Luczynski Decl. ¶ 20. EOUSA’s
Vaughn Index lists, for example, a document withheld under Exemption 6 because it contains
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names and identifying information of victims and suspects. See, e.g., EOUSA Vaughn Index, Doc.
3; see also DOJ Vaughn Index, Doc. 1 (redacting the names and identifying information of lower-
level government employees and other third parties who provided information to the Department
of Justice during the course of criminal investigations and prosecutions); ICE Vaughn Index, Doc.
2 (withholding documents that contain the first and last names, addresses, phone numbers, and fax
numbers of special agents); ATF Vaughn Index, Doc. 1 (withholding, among other things, the
names and identifying information of ATF Special Agents, RAGE Task Force Officers, Local Law
Enforcement Officers and USAO personnel, suspects in the investigation, and confidential
informants). Given the broad application of Exemption 6, this information falls within Exemption
6’s “personnel file” category.
The Court must therefore balance the privacy interests and public interest at stake. “The
balancing analysis for FOIA Exemption 6 requires that we first determine whether disclosure of
the files ‘would compromise a substantial, as opposed to de minimis, privacy interest,’ because
‘[i]f no significant interest is implicated . . . FOIA demands disclosure.’” Multi Ag Media LLC,
515 F.3d at 1229 (quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C.
Cir. 1989)). A “substantial privacy interest exists in avoiding embarrassment, retaliation, or
harassment and intense scrutiny by the media that would likely follow disclosure.” Judicial Watch,
Inc. v. U.S. Dep’t of State, 875 F. Supp. 2d 37, 46 (D.D.C. 2012); see also Horner, 879 F.2d at 875
(“[T]he privacy interest of an individual in avoiding the unlimited disclosure of his or her name
and address is significant[.]”). Then the Court must “address the question whether the public
interest in disclosure outweighs the individual privacy concerns.” Multi Ag Media LLC, 515 F.3d
at 1230. The basic purpose of FOIA is for citizens to be informed about what their government is
up to. Id. at 1231. Accordingly, information that “sheds light on an agency’s performance of its
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statutory duties” is in the public interest. U.S. Dep’t of Justice v. Reporters Comm. for Freedom
of Press, 489 U.S. 749, 773 (1989).
Here, each agency reasonably determined that the privacy interests at stake were
substantial. The agencies withheld records or portions of records because the names and
identifying information of third-party individuals permeated those documents, and disclosure
could be expected to cause “harassment, embarrassment and/or unsolicited publicity which would
clearly constitute an unwarranted invasion of their personal privacy.” Cunningham Decl. ¶ 16; see
Luczynski Decl. ¶ 19; Riley Decl. ¶ 29; Boucher Decl. ¶ 22. This claim is especially significant
in light of plaintiff’s involvement in a RICO investigation by the ATF Regional Area Gang
Enforcement (RAGE) Unit Task Force, which was established to address the violent crimes carried
out by the MS-13 street gang. See Boucher Decl. ¶ 11; see also id. ¶ 23 (“ATF determined that
the disclosure of this information could reasonably be expected to constitute an unwarranted
invasion of these third parties’ privacy, because being associated with ATF’s criminal
investigation into Plaintiff’s unlawful actions carries a stigmatizing and negative connotation.”).
The agencies noted that the documents withheld included a wide range of identifying personal
information, and they raised legitimate concerns about retaliatory actions that could be taken
against the law enforcement agents and cooperating witnesses whose information the agencies
wish to shield under Exemption 6—particularly given the violent tendencies of the MS-13 gang—
and about maintaining the confidentiality of witnesses who cooperated with the promise that their
identities would remain private. See id. ¶¶ 23–25; Cunningham Decl. ¶¶ 16, 18; Luczynski Decl.
¶ 18; Riley Decl. ¶¶ 28–31. All of these considerations weigh strongly against disclosure. See
U.S. Dep’t of State v. Ray, 502 U.S. 164, 175 (1991).
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These individual privacy interests are not outweighed by any public interest in disclosure.
Any such interest must be rooted in “the basic purpose of the Freedom of Information Act ‘to open
agency action to the light of public scrutiny.’” U.S. Dep’t of Air Force v. Rose, 425 U.S. 352, 372
(1976). The agencies assert that there is little public interest in the disclosure of personal
information about third parties involved in ATF’s investigation. See Riley Decl. ¶ 36 (“The
disclosure of this [personal identifying information] serves no public benefit and would not assist
the public in understanding how the agency is carrying out its statutory responsibility.”); see also
Cunningham Decl. ¶ 18 (“[T]he Criminal Division balanced the significant personal privacy
interests of a third-party confidential source in not having their name and identifying information
disclosed against the negligible public interest in the disclosure of their identity.”). The Court
agrees. While information regarding the RAGE Unit Task Force might shed light on ATF’s
operations against a prominent gang, the documents withheld under Exemption 6 contain a wide
range of confidential information about individuals involved with the Task Force’s investigations.
“[R]arely does a public interest outweigh an individual’s privacy interest when law enforcement
information pertaining to an individual is sought,” Martin v. Dep’t of Justice, 488 F.3d 446, 457
(D.C. Cir. 2007), and this is not one of those rare instances.
In sum, because the disclosure of the third-party identifying information would “constitute
a clearly unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(6), and disclosure of the
information would serve little public benefit, the agencies’ reliance on Exemption 6 in withholding
responsive documents was appropriate.
B. FOIA Exemption (7)(C)
EOUSA, DOJ, ICE, and ATF each withheld records pursuant to FOIA Exemption 7(C).
This provision exempts from disclosure “records or information compiled for law enforcement
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purposes, but only to the extent that the production of such law enforcement records or information
. . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(7)(C). Where disclosure of information compiled for law enforcement purposes
“could reasonably be expected to constitute an unwarranted invasion of personal privacy,” id.,
“such information can be withheld if the privacy interests outweigh the public interest in
disclosure.” King v. U.S. Dep’t of Justice, 245 F. Supp. 3d 153, 161 (D.D.C. 2017).
“[P]rivacy interests are particularly difficult to overcome when law enforcement
information regarding third parties is implicated.” Martin, 488 F.3d at 457. This Court has held
that, under Exemption 7(C), the disclosure of names and other identifying information of third
parties that could lead to the individuals becoming “targets of harassment and humiliation” is a
“‘legitimate interest’ weighing against disclosure.” King, 245 F. Supp. 3d at 161 (quoting Lesar
v. U.S. Dep’t of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980)); see also SafeCard Servs., Inc., 926
F.2d at 1205 (“There is little question that disclosing the identity of targets of law-enforcement
investigations can subject those identified to embarrassment and potentially more serious
reputational harm.”).
Once the government has shown that the privacy concerns addressed by Exemption 7(C)
are present, the burden shifts to the requester to demonstrate that the “public interest sought to be
advanced is a significant one, an interest more specific than having the information for its own
sake.” Favish, 541 U.S. at 172. The D.C. Circuit has categorically held that, “unless access to the
names and addresses of private individuals appearing in files within the ambit of Exemption 7(C)
is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal
activity, such information is exempt from disclosure.” SafeCard Servs., Inc., 926 F.2d at 1206.
13
Here, EOUSA, DOJ, ICE, and ATF withheld law enforcement records under Exemption
7(C). See Luczynski Decl. ¶ 21 and EOUSA Vaughn Index; Cunningham Decl. ¶¶ 15–16 and DOJ
Vaughn Index; Boucher Decl. ¶ 18 and ATF Vaughn Index; Riley Decl. ¶ 26 and ICE Vaughn
Index. The privacy interests relating to these law enforcement records claimed by each agency
outweigh the public interest in disclosure. As described above in connection with Exemption 6,
the agencies each assert a strong privacy interest against disclosure: the release of documents
compiled for law enforcement purposes could subject individuals to “harassment, harm, or
exposure to unwanted and/or derogatory publicity and interferences.” Luczynski Decl. ¶ 22.
The public interest in favor of disclosure, meanwhile, is slight. In his complaint, plaintiff
asserts that the prosecution was “deliberately ignorant” of Cruz’s criminal history during his tenure
as a cooperating witness, because it “fail[ed] to discover that its principal witness had committed
a rape and perjured himself during Plaintiff’s 2008 trial to the extent that his testimony purposely
omitted this offense from any discussion as to his criminal history.” Compl. at 5–6. Plaintiff
therefore claims, citing Marino v. Drug Enforcement Administration, 15 F. Supp. 3d 141, that this
purported “government impropriety” creates a significant public interest in the release of
information about Cruz, Compl. at 7. This claim is unpersuasive. In Marino, the court held that
“Marino has presented evidence indicating that the Government ‘might’ have been negligent in
failing to know that its key witness was lying to the jury and seriously understating his involvement
in the [drug ring] conspiracy.” 15 F. Supp. 3d at 154; see also id. at 154–55 (citing reasons why
the government should have been aware that the primary witness’s role in the drug organization
was more extensive than he represented, and holding that the government acted either negligently
in failing to cross-check his story against the government’s broader investigation of the drug
organization or improperly by presenting his testimony despite knowing it was false).
14
Here, by contrast, plaintiff offers no evidence as to why the prosecution should have been
aware of Cruz’s 2003 rape. See Compl. at 5. Plaintiff’s argument is particularly unconvincing in
light of the fact that Cruz was not convicted of rape until 2013, five years after plaintiff’s trial. Id.
Accordingly, Plaintiff has not satisfied his burden of demonstrating that the public interest in
disclosure outweighs the privacy interests at stake because “there is no such evidence of agency
misconduct.” SafeCard Servs, Inc., 926 F.2d at 1206.
C. FOIA Exemption (7)(D)
EOUSA, DOJ, and ATF each withheld records pursuant to FOIA Exemption 7(D), which
allows agencies to withhold “records or information compiled for law enforcement purposes,” but
only to the extent that the withheld information “could reasonably be expected to disclose the
identity of a confidential source, . . . and, in the case of a record or information compiled by
criminal law enforcement authority in the course of a criminal investigation . . . , information
furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D). A source is confidential for purposes
of this exemption where “the source provided information under an express assurance of
confidentiality.” Williams v. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (quoting U.S. Dep’t of
Justice v. Landano, 508 U.S. 165, 172 (1993)).
EOUSA, DOJ, and ATF each invoked Exemption 7(D) in order to protect the identities of
confidential informants who “provid[ed] information to law enforcement officers with an express
promise of confidentiality.” See, e.g., EOUSA Vaughn Index, Doc. 4; see also Boucher Decl. ¶¶
27–30; Cunningham Decl. ¶¶ 19–23. DOJ, for example, asserted that it “withheld documents
where the release of information contained within those records could clearly identify a third-party
confidential source.” Cunningham Decl. ¶ 23; see also Boucher Decl. ¶ 30 (“If this information
were released, the source or sources of information would be identified to the Plaintiff.”). The
15
confidential information was provided “during the course of a legitimate law enforcement
investigation” into the activities of MS-13. Williams, 69 F.3d at 1159. The agencies thus properly
invoked Exemption 7(D).
D. FOIA Exemption (7)(E)
ICE and ATF both withheld records pursuant to FOIA Exemption 7(E), which likewise
exempts from disclosure “records or information compiled for law enforcement purposes,” when
production “would disclose techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if
such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C.
§ 552(b)(7)(E). The D.C. Circuit has recognized that “Exemption 7(E) sets a relatively low bar
for the agency to justify withholding.” Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). The
agency need only demonstrate “logically how the release of the requested information might create
a risk of circumvention of the law.” Id.
Here, ICE and ATF have made that demonstration. Stephanie Boucher, Chief of the
Disclosure Division at ATF, explained that “[a]lthough the use of recording devices and the use
of [Confidential Informants/Confidential Sources] are known law enforcement techniques,
specific information relating to the types of recording devices used, the parameters used to
determine whether a device or [Confidential Informants/Confidential Sources] will be used, and
how law enforcement employs those techniques could reveal information that would result in
circumvention of the law.” Boucher Decl. ¶ 33. If this “sensitive law enforcement information”
were released, it “would jeopardize the future use of the investigative technique(s) or minimize the
effectiveness of those techniques.” Id. Similarly, Matthew Riley, Acting Deputy FOIA Officer at
ICE, explained that “the law enforcement techniques redacted involve cooperative arrangements
16
between ICE and other agencies,” the disclosure of which “could adversely affect future
investigations by giving potential subjects of investigations the ability to anticipate the
circumstances under which such techniques could be employed . . . and identify such techniques
as they are being employed in order to either obstruct the investigation or evade detection from
law enforcement officials.” Riley Decl. ¶ 37. These statements logically explain how releasing
the content of these documents could help criminals circumvent the law, and that “suffices here to
justify invocation of Exemption 7(E).” Blackwell, 646 F.3d at 42.
E. FOIA Exemption (7)(F)
EOUSA, DOJ, and ATF each withheld records pursuant to FOIA Exemption 7(F), which
exempts from disclosure “records or information compiled for law enforcement purposes, but only
to the extent that the production of such law enforcement records or information . . . could
reasonably be expected to endanger the life or safety of any individual.” 5 U.S.C. § 552(b)(7)(F).
The language in this exemption is “very broad,” Pub. Emps. for Envtl. Responsibility v. U.S.
Section, Int’l Boundary & Water Comm’n, 740 F.3d 195, 205 (D.C. Cir. 2014), and “has been
interpreted to apply to names and identifying information of law enforcement officers, witnesses,
confidential informants and other third persons who may be unknown to the requester,” Berard v.
Fed. Bureau of Prisons, 209 F. Supp. 3d 167, 174 (D.D.C. 2016). In addition, “[d]isclosure need
not definitely endanger life or physical safety; a reasonable expectation of endangerment suffices.”
Pub. Emps. for Envtl. Responsibility, 740 F.3d at 205 (emphasis in original). Courts generally
defer to an agency’s predictions of harm. See id.
Here, EOUSA explained that Exemption 7(F) was asserted “to protect the identities
(including identifying information) of confidential informants providing information to law
enforcement officers with an express promise of confidentiality.” E.g., EOUSA Vaughn Index,
17
Doc. 15. If these identities were released, the individuals would be subject to “retaliation,
including murder, by [a] violent criminal organization guilty of murder, attempted murder, arson,
and assault.” Id.; see also Cunningham Decl. ¶ 25 (“In light of the detailed information the
confidential source provided to federal law enforcement, it is reasonable to expect that release of
the confidential source identity would place him/her at great risk.”). ATF’s Chief of the Disclosure
Division, furthermore, explained that “Plaintiff served as a fairly high level MS-13 gang member”
and “[m]embers of MS-13 frequently engage in criminal activity, including, but not limited to,
murders, assault, robberies, kidnappings, and witness intimidation.” Boucher Decl. ¶ 35. “Based
on the violent nature of the MS-13 street gangs . . . ATF asserted Exemption 7(F) to protect the
identities and identifying information of all third parties involved in this case.” Id. ¶ 37.
“Deferring to the agency’s prediction of harm that could occur to individuals who provided
[the agency] with information,” Sandoval v. U.S. Dep’t of Justice, No. 16-1013 (ABJ), 2017 WL
5075821, at *13 (D.D.C. Nov. 2, 2017), the Court concludes that EOUSA, DOJ, and ATF have
sufficiently justified their invocations of Exemption 7(F).
F. FOIA Exemption (5)
EOUSA and DOJ each withheld records pursuant to FOIA Exemption 5, which exempts
from disclosure “inter-agency . . . memorandums or letters that would not be available by law to
a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). If a document
requested pursuant to FOIA would normally be subject to disclosure in the civil discovery context,
“it must also be disclosed under FOIA.” Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d
508, 516 (D.C. Cir. 1996). This exemption thus protects—among other things—pre-decisional
deliberative memoranda, attorney-client communications, and attorney work product, which are
also privileged from civil discovery. Id.
18
Here, EOUSA and DOJ invoked Exemption 5 for documents that constitute attorney work-
product. See Luczynski Decl. ¶¶ 14–17; Cunningham Decl. ¶¶ 11–12. EOUSA explained that the
records withheld pursuant to Exemption 5 included, among other things, email communications of
attorneys involved in plaintiff’s criminal case and draft letters and memoranda. See EOUSA
Vaughn Index. EOUSA concludes that these documents are therefore exempt because they
“contain deliberations concerning possible strategies as they relate to the prosecution of the
plaintiff” and “were prepared by, or at the request of an attorney, and made in anticipation of, or
during litigation of plaintiff’s criminal case.” Luczynski Decl. ¶ 16. DOJ withheld certain
documents that were “in the form of applications and worksheets which pertain to a third-party
confidential source.” Cunningham Decl. ¶ 12. “[B]ecause these applications and worksheets
involve and contain the thought processes, personal evaluations, litigation strategies and positions
of government attorneys and their agents,” DOJ asserts that “they are clearly attorney work-
product under Exemption 5.” Id.
The documents withheld are attorney work product of the sort “routinely protected in
discovery,” and therefore “fall[] within the reach of Exemption 5.” Burka, 87 F.3d at 516. Hence,
the agencies’ use of Exemption 5 was proper.
G. FOIA Exemption (3)
EOUSA withheld a document pursuant to FOIA Exemption 3, which states that FOIA’s
disclosure obligation does not apply to matters that are “‘specifically exempted from disclosure by
[another] statute,’ if the statute ‘(i) requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue,’ or ‘(ii) establishes particular criteria for withholding
or refers to particular types of matters to be withheld.’” Labow v. U.S. Dep’t of Justice, 831 F.3d
523, 527 (D.C. Cir. 2016) (quoting 5 U.S.C. § 552(b)(3)(A)). Federal Rule of Criminal Procedure
19
6(e), which bars disclosure of matters occurring before a grand jury, is “a qualifying statute under
Exemption 3.” Id. While there is no “per se rule against disclosure of any and all information
which has reached the grand jury chambers,” “the touchstone is whether disclosure would tend to
reveal some secret aspect of the grand jury’s investigation,” such as “the identities of witnesses or
jurors.” Senate of the Commonwealth of Puerto Rico ex rel. Judiciary Comm. v. U.S. Dep’t of
Justice, 823 F.2d 574, 582 (D.C. Cir. 1987) (citations and internal quotation marks omitted).
EOUSA invoked Exemption 3 in connection with a transcript of a conversation between
third-party individuals, which described detailed criminal activity, including names of individuals,
because “the release of the name of the witness or other contextual information that could lead to
the derivation of the name would compromise the integrity of the grand jury system.” Luczynski
Decl. ¶ 13; EOUSA Vaughn Index, Doc. 16. As disclosure of the document in question “would
tend to reveal . . . the identities of [grand jury] witnesses,” Senate of Puerto Rico, 823 F.2d at 582
(internal quotation marks omitted), this document was properly withheld under Exemption 3.
III. SEGREGABILITY
FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C.
§ 552(b). “Agencies are entitled to a presumption that they complied with the obligation to
disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117
(D.C. Cir. 2007). Here, EOUSA, DOJ, ICE, and ATF each examined all responsive documents
“page-by-page” and determined that “no reasonably segregable non-exempt information was
withheld from plaintiff.” Luczynski Decl. ¶ 31; see also Boucher Decl. ¶ 38 (“All of the documents
provided by EOUSA to ATF pertain to third parties. . . . A Disclosure Specialist reviewed the
materials responsive to Plaintiff’s FOIA request and determined that no documents could be
20
reasonably segregated from exempt information and produced to Plaintiff.”); Cunningham Decl. ¶
26 (“Upon review of the records responsive to plaintiff’s request, the Criminal Division has also
concluded that there is no segregable non-exempt information.”); Riley Decl. ¶ 39 (“I have
reviewed each record line-by-line to identify information exempt from disclosure or for which a
discretionary waiver of exemption could be applied.”).
Plaintiff “has not presented sufficient evidence”—or, indeed, any evidence—“to rebut th[e]
presumption” that these statements correctly characterize the documents at issue and that the
agencies have complied with their obligation to disclose segregable material. Hodge v. FBI, 703
F.3d 575, 582 (D.C. Cir. 2013). Hence, the agencies properly withheld records under FOIA
Exemptions 3, 5, 6, 7(C), 7(D), 7(E), and 7(F), and appropriately concluded that no non-exempt
material was reasonably segregable. 2
CONCLUSION
For the foregoing reasons, EOUSA’s motion for summary judgment will be granted. A
separate order has been issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: March 14, 2018
2
EOUSA, ATF, and ICE also invoked the Privacy Act, 5 U.S.C. § 552a(j)(2), to justify withholding
responsive documents in their possession. Because plaintiff does not bring any claims under the Privacy Act, the
Court need not address the Act. However, “the Court notes that all of the records in this case appear to originate
within record systems that have been exempted from the Privacy Act.” Parker v. U.S. Immigration & Customs Enf’t,
238 F. Supp. 3d 89, 98 n.8 (D.D.C. 2017); see 28 C.F.R. § 16.81(a)(1); Privacy Act of 1974; Department of Homeland
Security U.S. Immigration and Customs Enforcement–009 External Investigations System of Records, 75 Fed. Reg.
404 (Jan. 5, 2010); Boucher Decl. ¶¶ 7–9; Luczynski Decl. ¶ 12; Riley Decl. ¶¶ 15–21. Thus, EOUSA, ATF, and ICE
were likely “within [their] right to withhold documents identified in [these] database[s].” Campbell v. United States
Dep’t of Justice, 133 F. Supp. 3d 58, 69 (D.D.C. 2015).
21
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11 F.3d 1241
Mario MARQUEZ, Petitioner-Appellant,v.James A. COLLINS, Director, Texas Department of CriminalJustice, Institutional Division, et al.,Respondents-Appellees.
No. 92-5642.
United States Court of Appeals,Fifth Circuit.
Jan. 10, 1994.
Michael Tigar, and Robert McGlasson and Eden E. Harrington, Texas Resource Center, Austin, TX, Sandra L. Babcock, Texas Resource Center, Houston, TX, for petitioner-appellant.
William C. Zapalac, Asst. Atty. Gen., Austin, TX, for respondents-appellees.
Appeal from the United States District Court for the Western District of Texas.
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
1
In his first federal habeas petition, Mario Marquez urges that his conviction of capital murder and sentence of death imposed by a Texas jury must be set aside for four constitutional errors. He first contends that he has been denied due process and a fundamentally fair trial because he was handcuffed behind his back and forced to wear leg irons during the sentencing phase of his trial, arguing that the district court failed to hold a required hearing and that there was no justification for the restraints. Second, Marquez urges that his trial counsel was precluded from presenting mitigating evidence by the structure of the Texas capital sentence jury questions. Third, Marquez urges that the jury was precluded from considering mitigating evidence contrary to Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Finally, he contends that the trial judge allowed the jury to consider prior unadjudicated offenses during the sentencing phase of his trial without requiring that the jury find that the state had proven their factual basis beyond a reasonable doubt, denying his rights under the Fifth, Eighth, and Fourteenth Amendments.
I.
A.
2
The Texas Court of Criminal Appeals on direct appeal rejected Marquez's contentions regarding the trial restraints, and we reject his contentions for essentially the same reasons. Marquez v. State, 725 S.W.2d 217, 226-231 (Tex.Crim.App., cert. denied, 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987). We agree with Marquez that the appearance of a defendant in shackles and handcuffs before a jury in a capital case requires careful scrutiny. Shackling carries the message that the state and the judge think the defendant is dangerous, even in the courtroom. It is not that shackling signals the prosecutor's opinion--indeed, there is nothing subtle about the prosecutor's view. A jury knows and understands that. It is obvious that an accused does not enjoy unfettered freedom and may in fact not be on bail. It follows that because an accused is led away each day does not unduly tax his claim of innocence.
3
Apart from the risk of prejudice to the defendant, the indecorous appearance of a shackled defendant in an American trial demands close scrutiny of the practice. Solemnity and that indefinable but knowable ambiance of evenhanded judicial disinterest and respect for the dignity of individuals are components of a fair trial. Rules will not alone create them but rules can maintain the conditions in which they flourish.
4
When the complained of restraint comes only in the sentencing phase of a capital charge, a jury has just convicted of a violent crime--so the risk of prejudice is lessened from the risk of such events during the guilt phase. At the same time, the defendant's life turns on the same jury's answer to the question of future dangerousness, so the risk, although less, is not eliminated. Restraint at trial may carry a message that a defendant continues to be dangerous.
5
On the other hand, shackling a defendant may be necessary to preserve the dignity of the trial and to secure the safety of its participants. It is immediately apparent that any rule that would accommodate these competing interests rests on the word "necessary". The required scrutiny must balance the state's interest of safety and decorum against these concerns. Simply put, a defendant must not be shackled before his jury unless the restraint is necessary to protect the safety of the trial participants or the sanctity of the trial itself.
6
We need not detail the images conjured by the range of restraints of a defendant in the courtroom to conclude that the threats to a fair trial posed by visible restraints are sufficiently large and sufficiently likely that due process secures to the defendant a right to contest their necessity. Elledge v. Dugger, 823 F.2d 1439, 1451-52 (11th Cir.1987), cert. denied, 485 U.S. 1014, 108 S.Ct. 1487, 99 L.Ed.2d 715 (1988); Zygadlo v. Wainwright, 720 F.2d 1221, 1223-24 (11th Cir.1983), cert. denied, 466 U.S. 941, 104 S.Ct. 1921, 80 L.Ed.2d 468 (1984).
7
The process due must reflect the inherent case-specific character of the trial court's decision to restrain a defendant and the reality that the issue is usually collateral to the trial itself. Relatedly, because the trial judge is uniquely situated to make this judgment call he must be given considerable discretion. Given this discretion, it is not a question of whether, looking back, lesser restraints might have been adequate, although that is relevant. Rather, it is a question of whether it was reasonable to conclude at the time that the restraint was necessary. Put another way, necessity does not here trigger a type of "least means" analysis. That in retrospect some lesser restraint might have sufficed is not determinative. The trial judge must only have acted reasonably in responding to the scene before him using no more restraint than appeared necessary.
8
Finally, in this federal habeas context we will not upset a state trial judge's decision absent a clear abuse of discretion. In a practical sense, our review is analogous to review of a state trial judge's ruling on a Witherspoon objection. See Wainwright v. Witt, 469 U.S. 412, 426-30, 105 S.Ct. 844, 854, 83 L.Ed.2d 841 (1985).
B.
9
The Texas Court of Criminal Appeals described the events leading to shackling Marquez as follows:
10
[D]uring the afternoon session of the first day of the punishment phase, the trial judge ordered that appellant be handcuffed and shackled for the remainder of the trial. The judge made the following findings as justification for the order on November 26, 1984, just prior to instructing the jury on punishment.
11
THE COURT: ... I will go ahead and make my findings of fact at this time. The defendant has been found guilty of choking the complainant to death. At the same time he choked his former wife to death. The defendant while in jail has carried deadly weapons on his person. The Defendant while in jail stabbed a fellow inmate with a ballpoint pen. The Defendant while in jail choked a fellow prisoner. In 1983 the Defendant attempted to murder a uniformed officer driving a marked autombiles [sic] while trying to evade arrest for four burglaries. The Defendant endangered the lives of many innocent people while trying to evade arrest by driving on the wrong side of the freeway.
12
Since being found guilty of capital murder while being transferred from the courtroom the Defendant attacked a television cameraman by knocking his television camera to the floor and on the same occasion, spit on another cameraman or spit on a camera. In fact, since being found guilty of capital murder the Defendant threatened prosecutor Ed Garcia in the courtroom.
13
The Defendant on numerous occasions since being found guilty of capital murder has threatened to run and cause the officers to have to shoot him and kill him. Unless his legs are chained there is a danger he will do so.
14
The Defendant is young, powerful and very quick and there is a grave danger he might grab the firearms of an officer and kill officers of the court and onlookers unless he is kept in handcuffs.
15
MR. SPRINGER: May I add something to the court's findings, Your Honor?
16
THE COURT: Yes, sir.
17
MR. SPRINGER: I believe that the Court was correct that the Defendant did have the leg brace on at the time that he assaulted the cameraman.
18
THE COURT: That failed to restrain him from assaulting a cameraman who was anywhere from three to five feet away and while counsel for Defendant has frequently referred to the situation as being a circus atmosphere, the court finds that no such atmosphere has existed either in the courtroom or in the hall except that which was brought on by the Defendant himself when he attacked the cameraman.
19
In fact, two disputes took place in the hall and the court immediately removed people that [sic] engaged the defendant in an argument. And there has been absolutely no circus atmosphere tolerated and none will be tolerated. All right. Anything else?
20
MR. SPRINGER: Yes. I believe that the Defendant has told the court that he was thinking about committing suicide and has told the bailiffs and everybody he wasn't afraid of the needle and he was not afraid to die, which shows that he is an extremely dangerous individual.
21
THE COURT: Well, the court adopts those statements as part of the findings and there is at least one more in the courtroom that has four young children that [sic] is an officer of the court whose life would be in danger. There's several others with children to be raised. There's numerous officers of the court, bystanders, people whose lives would be in danger if this Defendant were allowed to not be handcuffed. There is no doubt in this court's mind that he is a grave danger to the people in this courtroom as well as to himself.
22
At the time the trial judge made his findings he had already heard all of the evidence presented at both the guilt/innocence and punishment phases of trial. Some of his findings were based on the evidence then presented and summarized at the outset of this opinion. In the interests of time and space we will not review that evidence here. However, certain other evidence, presented close to the time and at the time of trial, obviously bore on the judge's findings and it will be reviewed.
23
On July 12, 1984, a hearing was held on a motion for withdrawal of appellant's counsel because of appellant's inability to pay. During that hearing the following testimony was elicited.
24
THE COURT: Obviously you don't have the money so I'm going to appoint a lawyer to represent you.
25
MR. MARQUEZ: That's okay, sir, because I ain't got to talk to him. I ain't got to talk to no State's attorney. I would rather be dead than talk to a State's attorney.
26
THE COURT: That may be exactly the problem you face. You understand you are charged with capital murder which could result in the death penalty for you?
27
MR. MARQUEZ: That's okay.THE COURT: So its not one of these things that can be taken lightly. It is a very--
28
MR. MARQUEZ: Anyway I was going to take my life last night. I was about to do it last night.
29
THE COURT: I see you didn't do it. All right. I want to thank you all very much.
30
On October 18, 1984, a pretrial hearing was held on appellant's motion to suppress certain oral statements made while in custody. During the course of that hearing Detective Anton Michalec testified as to remarks made by appellant at the police station shortly after his arrest.
31
Q. [by the State's Attorney]: Did he say anything else about--
32
A. Well, he did indicate that the police officer that [sic] apprehended him where he was apprehended was yellow for not shooting him and he said he wished he would have shot him and just got it over with and he indicated that--by his actions and so forth that--I took it he might try to commit suicide, and I called the jail and notified the jail that he may have some suicidal tendencies at the time, so 'watch him.'
33
Q. Did he say whether or not he told the officer that the officer was yellow for not shooting him?
34
A. No, sir.
35
Q. What did he say?
36
A. He just told me in his own words that he felt that the officer should have shot him when he apprehended him and just gotten it over with then and there.
37
Q. Did he say why the officer should have shot him?
38
A. No, he said he wasn't a man, though, for not shooting him ...
39
* * * * * *
40
Q. [by appellant's counsel] All right. 'He said after this he wanted to commit suicide and would hang himself?'
41
A. Yes.
42
Q. He did say that.
43
A. Yes.
44
Q. Did he specifically mention that he wanted to hang himself?
45
A. Yes, ma'am. It would not be in my report if he didn't.
46
Q. All right. What did you say to that?
47
A. Well, I made no reply, but like I said earlier, I did call the jail because he made those threats. I was concerned that he might try to harm himself and I told him what he said.
48
Q. All right. Then also he talked of how he wanted the police officer that caught him to shoot him?
49
A. Yes.
50
Later during the hearing evidence was presented to show that appellant was the subject of a prior outstanding arrest warrant for robbery involving a bodily injury. The outstanding warrant was issued three weeks before the murder in the instant case.
51
On November 26, 1984, one of the State's Attorneys, Edward Garcia, stated in closing argument that,
52
[A]fter the altercation that was had Monday at the doorway1 when Mr. Marquez was brought in and sat down by the bailiffs, he was cursing in Spanish and he said something to the effect that 'I'm tired of people treating me like an animal.' And I was sitting to his left and Mr. Marquez looked at me and glared at me and said, 'That goes for that guy sitting at the table there.'
53
Earlier on November 26, 1984, the court, outside the presence of the jury heard the following testimony from Lieutenant Billhartz of the Bexar County Sheriff's Department.
54
THE COURT: All right. Have you been supervising the handling of the Defendant, Mario Marquez, through the time he has been charged with the capital offense?
55
MR. BILLHARTZ: Yes, I have.
56
THE COURT: All right. Let me ask you this. In your opinion are the threats and actions of the Defendant such that you feel it is necessary that he be handcuffed and have leg irons during the rest of this trial?
57
MR. BILLHARTZ: Yes, I believe they are.
58
* * * * * *
59
Q. [by appellant's counsel]: Are you familiar with the leg brace Mr. Marquez is wearing right now?
60
A. Yes, I am.
61
Q. What is the purpose of that leg brace?
62
A. To keep a person from running.
63
Q. Okay. Do you have any information that Mr. Marquez has actually run off anytime during this trial?
64
A. Not yet, but he's made statements to the effect.
65
Q. Okay. But no actual running?
A. No. I don't have any information
66
MR. STEVENS: That's all we have.
67
THE COURT: If he were not handcuffed, would there not be a danger of his grabbing the pistol of one of these bailiffs.
68
MR. BILLHARTZ: I think that is true.
69
THE COURT: And would the lives of all the court officers be endangered?
70
MR. BILLHARTZ: It would.
71
After this testimony the trial judge made the findings above and overruled appellant's final objection to the handcuffs and leg irons. Appellant was not displayed to the jury in leg irons and handcuffs prior to their convicting him of capital murder.
72
Marquez, 725 S.W.2d at 228-31.
C.
73
Marquez's able counsel argues that the prior acts of violence were not so violent, but does not rest there. Rather, Marquez contends that he was denied an opportunity to be fully heard before he was shackled. The argument points out that Marquez was ordered shackled in the afternoon of the first day of the sentencing phase of the trial; that the state trial judge did not make his findings regarding the safety risks of an unshackled Marquez until shortly before instructing the jury at the close of the sentencing phase. The argument goes that this was a shackle now, explain later, approach that denied Marquez a fair arbiter. When the trial court made his findings he was justifying a decision earlier made, it is said, and therefore was not about the business of fair decisions. We are not persuaded. The trial court did decide to shackle Marquez before he issued his reason from the bench. There is nothing untoward about that--if Marquez had a reasonable opportunity to be heard on the subject of restraint before it was a fact.
74
Marquez never requested a hearing. We doubt that the state trial judge was constitutionally obliged to conduct a hearing in the absence of a request for one. We do not rest here because we further conclude that the state judge had a reasonable basis for the order to put on leg irons and handcuff Marquez at the time he ordered it. We are also convinced that Marquez had a constitutionally adequate opportunity to participate in the development of the facts underpinning the state judge's decision. The state trial judge had, in Marquez's presence and with his full opportunity to cross-examine, heard the following evidence in open court before ordering the shackling: (i) Marquez pleaded guilty on January 11, 1984 to four separate indictments for burglary and an earlier theft in 1977; (ii) defendant fled police in an automobile and exchanged gunfire with the pursuing police while going the wrong way on a major thoroughfare at speeds up to 100 mph; (iii) as a juvenile Marquez was charged with "robbery by assault, strongarm, ungovernable, unlawfully carrying a knife, paint sniffing and burglary of a nonhabitation"; (iv) he had that morning assaulted television cameramen in the hallway while wearing leg braces; and (v) he said he was going to run and the bailiffs would have to shoot him.
75
The trial judge knew that the bailiffs were each armed; that the defendant had the quickness and strength to seize a bailiff and perhaps take his weapon placing at risk persons in the courtroom. The possibility of this occurring loomed large in the trial judge's thinking. Less may have been enough, but we are persuaded that these facts, with the fresh conviction for capital murder entailing proof of two vicious murders and a violent sexual assault, were enough.
II.
76
Marquez also asserts that the Texas capital sentencing scheme violated the Eighth Amendment by restricting his opportunity to present mitigating evidence. See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). He also claims that this constraint deprived him of his right to effective assistance of counsel guaranteed by the Sixth Amendment by unduly narrowing the options available to him at sentencing. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He asserts that he had no meaningful opportunity to present mitigating evidence that, inter alia, he is mentally retarded and was abused as a child.
77
We cannot reach the merits of Marquez's claims because he made the tactical decision not to present the mitigating evidence on which he bases this appeal. "We have previously ruled that a defendant's deliberate failure to introduce mitigating evidence as a tactical decision ... does not come within the requirements announced in Penry." May v. Collins, 904 F.2d 228, 232 (5th Cir.1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991) (citations and internal quotation marks omitted). Marquez argues that he made this decision under troubling circumstances. At the time of his trial, the only use that the jury could have made of his evidence would have been adverse to his case and he had no reason to believe he was entitled to a special instruction to the jury. This circuit has considered this argument already, however, and has ruled in a manner that offers Marquez no relief under the Eighth Amendment. The same is true of Marquez's Sixth Amendment claim. See May v. Collins, 948 F.2d 162, 166-68 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 907, 116 L.Ed.2d 808 (1992).
III.
78
Marquez also argues that the trial court did not afford the jury the opportunity to consider all of the mitigating evidence that Marquez proffered. In particular, the trial court refused to submit to the jury the issue "whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased." Marquez wanted the jury to consider whether he perpetrated his heinous acts of physical and sexual violence in response to infidelity by his wife. As Marquez stood accused of murdering his niece, not his wife, under Texas law there was no provocation "by the deceased" and therefore no basis for submitting the issue to the jury. See Hernandez v. State, 643 S.W.2d 397, 401 (Tex.Crim.App.1982), cert. denied, 462 U.S. 1144, 103 S.Ct. 3128, 77 L.Ed.2d 1379 (1983).
79
Marquez argues that the fact that he was in a jealous rage could have mitigated the wrong he committed by inflicting physical and sexual violence on his innocent niece. Whether or not this claim has merit, he is wrong in asserting that the jury had no vehicle for considering it. The jury could have concluded that Marquez killed in an angry response to infidelity and therefore that he would be unlikely to be dangerous in the future. We have noted in the past that "Penry does not require that a sentencer be able to give effect to a defendant's mitigating evidence in whatever manner or to whatever extent the defendant desires." White v. Collins, 959 F.2d 1319, 1322 (5th Cir.1992). In light of this standard, we have held that the special issue addressing future dangerousness meets the constitutional requirements for considering the relevance of youth, even though no special provision is made to reflect the fact that the young may be less culpable. Id. at 1324. We conclude that the jury had an adequate opportunity to consider that infidelity may have prompted Marquez's violent acts.
IV.
80
Finally, Marquez argues that the trial court erroneously allowed the court to hear evidence of various of Marquez's misdeeds that were unrelated to the murder for which he stood trial. As the jury had no obligation to find that the state had proven beyond a reasonable doubt that Marquez had committed these acts, Marquez asserts that consideration of this evidence was unconstitutional. We have rejected this claim in the past. Milton v. Procunier, 744 F.2d 1091, 1097 (5th Cir.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985). We need not consider it again now. We AFFIRM the district court's dismissal of Marquez's petition and VACATE the stay pending appeal.
1
This refers to the incident with the television camera
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(2008)
David A. WARD, et al., Plaintiffs,
v.
John K. NIERLICH, et al., Defendants.
No. 99-14227-CIV.
United States District Court, S.D. Florida.
March 28, 2008.
ORDER ON SUMMARY JUDGMENT
K. MICHAEL MOORE, District Judge.
THIS CAUSE came before the Court upon Defendants' John K. Nierlich ("Nierlich"), Richard A. Puzzitiello Sr. ("Puzzitiello"), Carol Chandler ("Chandler"), Reserve Developers, L.L.P. ("Reserve Developers"), Park Group East, Inc. ("Park Group East"), Park Southern Builders of Pinellas, Inc. ("Park Southern"), The Park Group Companies of America Inc. ("Park Group of America"), and Banyon Lakes C. Corp. ("Banyon Lakes") (collectively "Defendants") Motion for Summary Judgment (dkt # 546). Plaintiffs, David A. Ward ("Ward"), Reserve Management, Inc. ("Reserve Management"), MMC of the Treasure Coast, Inc. ("MMC"), Reserve Realty Sales, Inc. ("Reserve Realty Sales"), Reserve Builders, Inc. ("Reserve Builders"), and ML Builders, Inc. ("ML Builders") (collectively "Plaintiffs") filed an Amended Response to Defendants' Motion for Final Summary Judgment (dkt # 593). A Reply (dkt # 598) was also filed.
UPON CONSIDERATION of the Motion, and the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.
I. Background
Plaintiffs' cause of action has an extensive and detail dependent history that includes both a complicated procedural history, as well as a large number of different entities. Given this complexity, and Plaintiffs' previous misgivings that their action has not been comprehended, this Court will provide a comprehensive overview of the relevant background.
In or around 1991, Ward organized ML Builders, which he utilized as a general contracting company to build both single and multiple family residences. During this same period, Ward was planning and beginning to implement development of an area labeled Pod E at the Reserve Development. The Reserve is an affluent residential development, containing golf courses and amenities, located in St. Lucie County, Florida. In 1992, as part of Ward's Pod E development project, he formed Reserve Realty Sales. Reserve Realty Sales was originally created to sell ML Builders' residential structures. Again, as part of his Pod E development plan, in 1994, Ward established Reserve Builders, which would own the lots and buildings located at the Reserve. Part of the Pod E development plan called for the creation of a forty-eight unit development. Also in 1994, the Professional Golf Association ("PGA") announced that the Reserve would serve as its winter home, which increased the value and notoriety of the Reserve's real estate.
By 1995, ML Builders had built 170 single family homes and had begun construction on a forty-eight unit condominium complex located on Pod E. Also in 1995, Defendants Nierlich and Puzzitiello visited the Reserve and expressed interest in purchasing a unit. During this 1995 visit, they began asking detailed questions regarding the Reserve's development plan; consequently, Nierlich and Puzzitiello were introduced to Ward. In the course of their discussions, Ward explained to Nierlich and Puzzitiello that Ward had the option of purchasing additional land at the Reserve. This additional land is referred to as Pod F.
Ward informed Nierlich and Puzzitiello that Pod F could support a 140 unit condominium complex. Ward went on to reveal that his company, Reserve Builders, possessed an option to purchase Pod F from Callaway Land & Cattle Company, Inc. ("Callaway Company"), but Reserve Builders had let this option lapse. Ward explained to Nierlich and Puzzitiello that he did not have sufficient financing to exercise the option and develop Pod F. Nierlich and Puzzitiello claimed that, through their companies, they could obtain the financing necessary to exercise the option to purchase and develop Pod F. Nierlich and Puzzitiello stated that their business, Park Group of America, was a family company worth around $30,000,000. Nierlich also mentioned that he had a development company called Bridlewood (now known as Banyon). Following the discussions between Ward and Park Group of America, represented by Nierlich and Puzzitiello, the two groups contemplated creating a partnership for the purpose of purchasing and developing Pod F.[1]
In further contemplation of the partnership, an entity, which would eventually become Reserve Developers, LLP, obtained an extension on the option to purchase the Pod F real estate from Callaway Company. The entity paid $100,000 for this option extension. After obtaining the extension, but before an official partnership was formed, Ward requested references and background information on Puzzitiello. Puzzitiello provided Ward with favorable background materials, but did not include any information about alleged lawsuits that had been filed against Puzzitiello. After receipt of the background information, Ward entered into a partnership agreement with Nierlich, Puzzitiello, and their entities.
On February 16, 1996, Park Group East, of which Puzzitiello was President and Nierlich was Vice-President, merged with MMC[2] to establish Reserve Developers LLP. The partnership agreement ("agreement") limited Ward and his companies (Reserve Management, Reserve Realty, and ML Builders) to only performing work in furtherance of the partnership, excepting any projects commenced before the partnership formation. The agreement further created a fifty-fifty split of most assets between Ward's Company MMC and Defendants' Company Park Group East. Upon establishment of Reserve Developers, the partnership began developing a strategy to finance the Pod F acquisition.
Nierlich and Puzzitiello explained to Ward that in order to obtain one hundred percent financing for the acquisition of Pod F they needed to pass the property through an independent entity at a substantial mark up. Bridlewood was chosen as the independent entity through which the Pod F real estate would be passed. Accordingly, Reserve Builders[3] assigned the option to purchase Pod F to Bridlewood with the understanding that following Bridlewood's acquisition of Pod F, Bridlewood would sell Pod F to Reserve Developers at an inflated price. Bridlewood, without Plaintiffs' knowledge, signed a consulting agreement with Parkview Corporation. Parkview Corporation was a consulting company headed by Puzzitiello, who was also president of Park Group East, which represented the non-Ward portion of the Reserve Developers partnership. Bridlewood also paid Puzzitiello's Parkview Corporation $227,000 for its advice as to whether Bridlewood should purchase and develop Pod F. The consulting agreement was entered into despite the fact that Reserve Developers, not Bridlewood, already had a contract to purchase Pod F from Callaway for $1,815,000. In furtherance of their financing scheme, Bridlewood entered into a sales contract with Reserve Developers whereby Bridlewood would sell Pod F to Reserve Developers for $2,275,000. This was done, according to Nierlich and Puzzitiello, to obtain greater financing, since Reserve Developers already had the right to purchase Pod F for $1,815,000. Nierlich and Puzzitiello promised that the $460,000 Pod F markup would be split fifty-fifty among the partnership. Following the financing scheme, on April 26, 1996, Ohio Savings Bank issued a loan of $6,972,000[4] to Nierlich and Park Group of America.
On April 25, 1996, Bridlewood closed with Callaway for purchase of Pod F, paying the original, uninflated amount of $1,815,000. Approximately four months later, Bridlewood executed a warranty deed to Reserve Developers, but the deed only transferred the Pod F real estate and not additional land purchase options that were obtained from Callaway, which Plaintiffs' argue should have gone to the partnership. Upon receipt of Pod F, Nierlich and Puzzitiello allegedly inflated the value of Pod F a second time to a value of $2,405,000, which served to reduce future profits of the partnership. Ward also argues that Nierlich and Puzzitiello took advantage of him during the Pod F acquisition because Nierlich took a brokers fee of $50,000, retained 1.5 acres of land for a sales center rather than making it a partnership asset, and exercised dominion over additional land purchase options from Callaway.
Following the acquisition of Pod F, Plaintiffs argue that Defendants began to wrest control over all of Plaintiffs' companies and failed to repay those same companies for expenditures made to benefit the partnership. Reserve Realty Sales, a Ward company, expended resources and money to create advertising and marketing for Pod F. Reserve Realty Sales also paid for all sales expenses. These expenditures were made for the benefit of Reserve Developers (the partnership) and Plaintiffs believe that Reserve Realty Sales should have been reimbursed. Nierlich and Puzzitiello allegedly insisted that Reserve Realty Sales expend more money for marketing, and Puzzitiello even made payable on demand loans to keep that company afloat. Ward maintains that Bridlewood's transfer of Pod F to Reserve Developers should have left the partnership with ample liquidity, making Puzzitiello's loans unnecessary and just another method that Defendants used to diminish Ward's businesses.[5]
Further, Plaintiffs allege that Nierlich and Puzzitiello started engaging in activities to force Ward out of the partnership. First, Nierlich and Puzzitiello, allegedly artificially increased the cost of Pod F site development and then performed non-existent phantom work to draw down on the Ohio Savings Bank loan. Second, Ward's Company, ML Builders, spent approximately $50,000 on furnishings for Pod F and Reserve Developers never reimbursed ML Builders for this expense. Third, in 1997, Nierlich and Puzzitiello began acquiring information from Ward about additional operations at the Reserve. The two Defendants would have meetings in Ohio and make requests for information from Plaintiffs in Florida. Around this same time, Ward and Reserve Developers were named in a lawsuit ("Donahue Lawsuit").
The Donahue lawsuit named both Ward and Reserve Developers, but Ward alleges that Nierlich and Puzzitiello allegedly managed to turn their mutual counsel against Ward.[6] During this lawsuit, Nierlich approached Ward with two documents that demanded unconscionable concessions. One day later, February 27, 1997, Ward copied the demands, but refused to sign the documents given their unilateral nature. During the following March, Nierlich and Puzzitiello continued to pressure Ward to leave the Reserve Developers partnership, so that they could reap the development's profit. They enhanced this pressure by offering to buy Ward out for an amount just large enough to cover the costs of his sales, marketing, and building expenses. Ward maintains he was entitled to have these expenses reimbursed immediately by the partnership in any event.[7] The threats, however, moved from economic to verbal affronts when on March 11, Puzzitiello called Ward's son Matthew and threatened him. In addition, Ward's lawyer, Mr. Reich, explained to Ward that there could be serious consequences if Ward did not settle and relinquish his interest in Reserve Developers. Ward's relationship deteriorated to such a level that Mr. Reich, Nierlich, and Puzzitiello did not allow him to participate in the Donahue litigation despite Ward's status as a partner in Reserve Developers.
Under these circumstances, Ward felt compelled to sign a settlement agreement with Reserve Developers. On March 14, 1997, Ward signed the settlement agreement. The agreement required Ward to relinquish the entirety of his partnership interest. MMC (the Ward half of the partnership) was forced out of the partnership and replaced with a Nierlich controlled entity: Park Southern. The remainder of the agreement mandated that Ward would receive a 1.5% commission on future Pod F sales, but that the first $1,600 of each commission would go to the Donahue's (as part of their settlement) up to 100 units. Nierlich and Puzzitiello now appear to maintain that the settlement agreement was actually global in nature and requires Ward to give up all of the previous monies owed by Reserve Developers. The agreement provided that all prior agreements between Matthew A. Ward, David Ward, ML Builders, and Reserve Management, were terminated. Given this language, it is unclear whether the agreement was to have a retroactive effect and cancel all previously incurred debts. Ward maintains that the agreement did not apply retroactively and cites as evidence the existence of a "T-sheet" that was to reimburse Ward and his companies for initial outlays that they made. Following execution of the settlement agreement, Nierlich and Puzzitiello began to pressure the remaining Ward companies, Reserve Realty and Reserve Management, out of the Reserve.
Nierlich and Puzzitiello created the entity Park Group Realty, which was designed to compete against Reserve Realty for housing sales at the Reserve. Park Group Realty, however, began to utilize Reserve Realty's copyrighted sales materials, which detrimentally affected Reserve Realty's ability to compete. Next, Reserve Developers, now without any Ward component, claimed ownership of the architectural designs and building plans for the Reserve's model golf villas. Ward, nevertheless, appears to claim that his companies retained the intellectual property or copyright to the designs following the dissolution of the partnership. Third, Nierlich and Puzzitiello allegedly began hiring Reserve Management employees in an effort to cripple Ward's remaining company still in business at the Reserve. Specifically, Defendant Carol Chandler, had formerly been Reserve Management's office manager, but she resigned and became employed with Park Realty. Chandler had access to Reserve Management's sales and customer information as well as all of Reserve Management's forms, business practices, and development information. Nierlich and Puzzitiello used many of Reserve Management's forms and simply replaced Ward's information with their own. Nierlich and Puzzitiello also lured Reserve Management customers to their company by claiming that they represented the new management group at the Reserve. In addition to competing with Ward's businesses, Nierlich and Puzzitiello also allegedly started personally interfering with Ward and his son Matthew.
Ward next claims that Nierlich aided a criminal prosecution against Ward. The prosecution originated from the management of the Reserve's Pod E. In managing Pod E, Ward would retain money received for Pod E rentals, but would then reimburse the owners of the units once per quarter. Around the time the rental receipts became due, Ward requested the funds he and his companies were allegedly owed under the Donahue settlement. Nierlich and Puzzitiello refused to pay the funds to Ward. As a result of the default, state criminal action was instituted against Ward. Ward believes that all of this was done in an effort to ruin Ward's reputation and prevent him from remaining a competitor in the Reserve. Eventually the state criminal charges were dropped.[8]
As a consequence of Nierlich and Puzzitiello's actions in carrying out their alleged scheme, Plaintiffs claim that Defendants nefariously caused Reserve Management, Reserve Realty, and ML Builders to fail and go out of business. Further, that Defendants ruined the Ward family's reputation. From these facts as stated, Plaintiffs claim that Defendants engaged in behavior that violated 18 U.S.C. § 1962(a)[9] [Count I], § 1962(b) [Count II], § 1962(c) [Count III], § 1962(d) [Count IV], F.S. § 772.103(1)[10] [Count V], § 772.103(2) [Count VI], § 772.103(3) [Count VII], § 772.103(4) [Count VIII], F.S. § 817.034 "Florida Communications Fraud Act" [Count IX][11], Common Law Fraud [Count X], Negligent Misrepresentation [Count XI], Interference with Contract [Count XII], Unjust Enrichment [Count XIII], F.S. § 620 Breach of Fiduciary Duty [Count XIV], F.S. § 688.001 Misappropriation of Trade Secrets [Count XV], Conversion [Count XVI], Unfair Competition [XVII], and Defamation and Defamation Per Se [Count XVIII].
II. Jurisdiction
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 "Federal Question" jurisdiction. Counts I-IV of Plaintiffs' cause of action arise under federal law, specifically 18 U.S.C. § 1961. The remaining counts, V-VIII, are pendent state law claims, which arise under the laws of the State of Florida. If this Court dismisses Plaintiffs' federal law claims, it is within the Court's discretion to choose not to exercise jurisdiction over the pendent state law claims.
III. Standard of Review
The applicable standard for reviewing a summary judgment motion is unambiguously stated in Rule 56(c) of the Federal Rules of Civil Procedure:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and 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.
Summary judgment may be entered only where there is no genuine issue of material fact. Twiss v. Kury, 25 F.3d 1551, 1554 (11th Cir.1994). The moving party has the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). An issue of fact is "material" if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). It is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Id.
In applying this standard, the district court must view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Id. However, the nonmoving party:
may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.
Fed.R.Civ.P. 56(e). "The mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
IV. Discussion
Defendants rest their motion for summary judgment on six separate arguments. First, Defendants argue that Plaintiffs lack standing to sue for RICO claims.
A. Standing: Financial Institution Fraud Predicate Act
The Racketeer Influenced and Corrupt Organizations Act ("RICO") prohibits individuals from engaging in a pattern of racketeering activity that derives income, results in an interest in any enterprise that affects interstate commerce, creates an enterprise through a pattern of racketeering activity, or conspires in violation of the aforementioned prohibited behavior. 18 U.S.C. § 1962. RICO § 1961(1)(B) provides a litany of predicate acts that if committed and meet relatedness and continuity requirements, constitute racketeering activity. Specifically, violation of 18 U.S.C. § 1341 mail fraud, § 1343 wire fraud, and § 1344 financial institution fraud are a few of the predicate acts listed. The Federal Civil cause of action results from § 1964 and states
Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee.
RICO 18 U.S.C. § 1964(c) (2006). Section 1964 also establishes the four fundamental RICO standing requirements: (1) a person, (2) who has sustained an injury, (3) to his business or property, (4) by reason of a violation of § 1962. The Supreme Court articulated the injury requirement and its relationship to the predicate act, which is at specific issue here, as follows: "the compensable injury necessarily is the harm caused by predicate acts." Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). Plaintiffs claim that Defendants violated RICO and assert mail fraud, wire fraud, financial institution fraud, extortion, interstate travel to aid in racketeering, interstate transportation of stolen goods, and interstate receipt of stolen goods, as the injury causing acts in violation of § 1962 ("predicate acts").
Defendants initiate their motion by stating that Plaintiffs lack standing to allege financial institution fraud. In order to utilize an action as a predicate act, the alleged violation must have proximately caused the injury upon which the complaint is made. See Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006); see also Corporate Healthcare Financing v. BCI Holdings, 444 F.Supp.2d 423, 433 (D.Md.2006) (holding that proximate causation is a part of the RICO standing inquiry). Further, the Supreme Court stated "[w]hen a court evaluates a RICO claim for proximate causation, the central question it must ask is whether the alleged violation led directly to the plaintiffs injuries .... [Further], [t]he requirement of direct causal connection is especially warranted where the immediate victims of an alleged RICO violation can be expected to vindicate the laws by pursuing their own claims." Anza, at 460, 126 S.Ct. 1991.
Here, Defendant argues that Plaintiffs cannot maintain the predicate RICO violation of financial institution fraud because any alleged financial institution fraud would directly harm Ohio Savings, not Plaintiffs. In this case, Plaintiff complains that the alleged financial institution fraud caused his businesses financial injury. The injury, however, came from the actions Defendants took upon receipt of the funds. The inflated Pod F purchase price put Ohio Savings at risk, not Plaintiffs. The injury to Plaintiff, the siphoning off of partnership assets and the failure to share the increased capital with Ward are all actions taken by Defendants after receipt of the loan. Plaintiffs' claims in this regard are against Defendants for breach of duty and/or fraud, not financial institution fraud; it was these actions that led directly Plaintiffs claimed injuries. Defendants' actions in allocating the funds received and not sharing equally in the funds obtained are the causes of Plaintiffs' alleged injury. Financial institution fraud may have allowed for the receipt of the funds, but that merely created access to the instrumentality that Defendants later employed to injure Plaintiffs. Financial institution fraud was not the proximate cause of any alleged injury. Thus, the injury prong of the standing requirement is not met because the alleged predicate act did not cause the violation. Further, as the Supreme Court held in Anza, Ohio Savings Bank can vindicate any financial institution fraud through the pursuit of its own claim against Defendants. Therefore, financial institution fraud cannot serve as a predicate act for Defendants RICO violations.
B. Standing: Mail and Wire Fraud
Defendants next contend that Plaintiffs' predicate act claims of mail and wire fraud must fail because they are really only breach of contract claims. A violation of 18 U.S.C. §§ 1341 and 1344 requires that Defendants "(1) intentionally participated in a scheme to defraud another of money or property and (2) used the mails or wires in furtherance of that scheme." Sikes v. Teleline, Inc., 281 F.3d 1350, 1360 (11th Cir.2002). Defendants' Motion, in its attempt to prove there is no genuine issue of material fact relating to mail or wire fraud, argues that no fraud occurred, but rather Ward simply did not agree with the written terms of the partnership agreement. Defendants contentions surrounding oral modification of a written agreement may contain merit, but they misrepresent at least Plaintiffs' allegations of fraud. Plaintiffs allege Defendants infiltrated Plaintiffs' businesses by utilizing the mails and wires.
Plaintiffs allege sufficient evidence to maintain that there is a genuine issue of material fact as to whether Defendants intentionally defrauded Plaintiffs of money or property using the mails or wires in furtherance. First, Plaintiffs allege that as part of the fraud, Defendants sent a fax regarding a brokerage fee that was to be paid to Nierlich's company, Bridlewood, as compensation for finding financing for the Pod F purchase. See Pl. Ex. 3 [Ward Affidavit] at ¶ 9. Plaintiffs, however, maintain that Puzzitiello actually financed the purchase, which according to Plaintiffs was Puzzitiello's role in the partnership. Plaintiff claims that had he not been defrauded regarding the origin of the financing he would not have agreed to pay Nierlich's company the $50,550 finders fee. See Id. Plaintiffs' reliance on this alleged misrepresentation pushed plaintiff into authorizing a payment that diminished partnership assets that he, as a partner, might have been entitled to and left the partnership less secure.
Second, Plaintiffs' claim that Defendants transferred, by wire, $227,500 of partnership loan proceeds to Puzzitiello's Parkview Corporation. Id. at ¶ 13. Ward, as a general partner of Reserve Developers, claims that he should have had knowledge and/or a share of the transfer of partnership assets to Puzzitiello. Id. This shielding of partnership assets from Plaintiffs removed equity that might have been due to the partnership and injured Plaintiffs because when Plaintiffs requested allocation of partnership funds, Plaintiff was informed that not enough money existed. This $227,500 could have provided the needed funds to keep the partnership and its projects profitable.
Third, Plaintiffs provide evidence that on January 10, 1997, Puzzitiello sent a letter to Ward demanding that he provide additional information to Defendants and include "full disclosure of all aspects of your operations at the Reserve." PI. Ex. 77 [Letter from Puzzitiello to Ward] at 2. This letter requires Plaintiffs to provide complete disclosure regarding their businesses. Throughout the letter, Defendants request Ward's business information and state that the condo sales must meet a certain threshold. Id. at 1-5. In examining the letter, it appears nothing more than the firm warning of a concerned business partner, but based in the light most favorable to the Plaintiffs, the letter does appear to request information that Defendants could then use to defraud Plaintiffs of their businesses.
Fourth, following Plaintiffs' withdrawal from Reserve Developers, Defendants transmitted letters through the mail to condominium owners in both Pod E and Pod F explaining that their company Park Group Realty would "be the new management company here at Golf Villas at the Reserve." Pl. Ex. 91. Again, this letter appears innocuous by itself, but in the light most favorable to Plaintiffs, the letter insinuates that Park Group Realty is replacing Reserve Management, when in fact, Park Group Realty was a Reserve Management competitor, not a replacement.
The previously stated four examples do not necessarily represent all of the possible instances of wire and mail fraud, but as Plaintiffs simply parenthetically listed exhibits that purportedly reveal mail and wire fraud, the Court was forced to sift through this un-annotated list and determine what could reasonably be considered an example of mail or wire fraud.[12] These examples do create a genuine issue of material fact as to whether Defendants committed the underlying predicate acts of mail and wire fraud.
C. Elements of RICO Cause of Action: Pattern of Racketeering Activity, Existence of Close Ended Continuity
As Defendants correctly state, a violation of RICO § 1962 requires the plaintiff to prove "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima, 473 U.S. at 496, 105 S.Ct. 3275. The Eleventh Circuit, under guidance from the Supreme Court's limited RICO jurisprudence, delineated what is necessary to prove "the pattern of racketeering activity" element of RICO. U.S. v. Browne, 505 F.3d 1229 (11th Cir.2007). To establish a pattern of racketeering activity, Plaintiff must establish that the predicate acts were related and that they amount to a threat of continued criminal activity. See id. at 1257; see also Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1265 (11th Cir. 2004).[13] Further, this Circuit has held that "[t]he continuity element of a pattern of racketeering activity is crucial to a valid RICO claim in order to ensure that the crime alleged is the sort of offense that RICO is designed to address-one that is part of a pattern of ongoing, continuing criminality." Jackson, 372 F.3d at 1265. Continuity can either be close or open-ended. "A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time. Predicate acts `extending over a few weeks or months and threatening no future criminal conduct' do not suffice." Id. at 1266 (quoting H.J.Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 242, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989)).
Here, Defendants argue that Plaintiffs' predicate act allegations do not satisfy RICO's "pattern of racketeering activity" close-ended continuity requirement.[14] Ward has alleged that Nierlich and Puzzitiello first made contact with Plaintiffs in the fall of 1995 when they visited the Reserve. It allegedly became apparent during this 1995 visit that Nierlich and Puzzitiello were interested in becoming investors at the Reserve. It is debatable whether this initial visit represents the beginning of Defendants' scheme to defraud Plaintiffs of their companies, regardless, Plaintiffs response in opposition does not cite this period as the beginning of the close-ended continuity period. Plaintiffs identified this initial meeting as the beginning of Defendants' information gathering about Plaintiffs' operations, but Plaintiffs have not alleged a distinct violation that would constitute a predicate act and start of the continuity period. Further, Plaintiffs do not allege when this purported close-ended continuity period ends. In their allegations, Plaintiffs do state that as late as March 25, 1997, Defendants had committed a predicate act of mail fraud in sending out their letter claiming to be the new management company at the Reserve. Therefore, based upon Plaintiffs' claims, this Court must establish the length of the close-ended continuity period.[15] This alleged period might have lasted for approximately fifteen months from the fall 1995 to March, 1997. Alternatively, since this Court has found an absence of financial institution fraud, the continuity period may not have commenced until Spring 1996 when the first alleged act of wire fraud occurred, but this period might not have ended until after this suit was filed, because in 1999 the Defendants allegedly instituted a state court action against Plaintiffs' attorneys in an effort to prevent Plaintiffs from pursuing their claims in Federal Court. See Pl. Compl. at ¶ 301. However, this latter time-frame is overly generous and hides the fact that the first alleged predicate act took place in approximately 1996 and the majority of the predicate act violations were concluded by August, 1997, a period of only nineteen months.[16] It is this lesser period that Plaintiffs have actually submitted evidence in support of rather than merely alleged in the Complaint.[17]
Regarding the substantial period of time component, the Supreme Court provided only the following guidance that was stated above regarding close-ended continuity, "[p]redicate acts extending over a few weeks or months" do not meet the requirement of a substantial period of time. The Eleventh Circuit has held that nine months was too short to constitute a substantial period of time. Jackson, 372 F.3d at 1265-66 (periods of twenty months or less held to have been insufficient to constitute a substantial period of time).
In spite of the uncertainty as to whether Plaintiffs' claims meet the substantial period of time requirement, Plaintiffs' claims fail to meet the close-ended continuity requirement. All of Defendants' alleged acts only constitute one scheme to accomplish the discrete goal of gaining control of the Reserve, and this behavior was only directed at a small, interrelated group of victims. This Circuit's precedent supports finding a lack of close-ended continuity when only one scheme is used to accomplish a discrete goal. Despite the relevance of duration in establishing close-ended continuity, the Eleventh Circuit, in its Jackson opinion, established the possibility that duration by itself might not always be enough to establish closed-ended continuity.
The Jackson court held, in a similar scenario to the one at issue [one scheme, one goal, and limited victims], that a finding of close-ended continuity is inappropriate; "in cases like this one, where the RICO allegations concern only a single scheme with a discrete goal, the courts have refused to find a closed-ended pattern of racketeering even when the scheme took place over longer periods of time." Jackson, 372 F.3d at 1267.[18] Again, this scenario is very similar to the one at issue in Plaintiffs' case. Defendants engaged in one scheme: to wrest control of the partnership from Ward for the purpose of controlling development and management at the Reserve, and in the process, injured a limited number of victims. Further in the Jackson opinion, the Court quotes the Third Circuit and states, "[w]e have eschewed the notion that continuity is solely a temporal concept, though duration remains the most significant factor." Id. at 1267; quoting United States v. Pelullo, 964 F.2d 193, 208 (3d Cir.1992). The Jackson court also references Edmondson & Gallagher v. Alban Towers Tenants Ass'n, where, after a three year period that included fifteen predicate acts, the D.C. Circuit found that given the small number of victims, single scheme, and one injury, the alleged acts did not demonstrate a pattern of racketeering activity, but rather a single scheme, directed at a few victims, and resulting in a single, distinct injury. 48 F.3d 1260, 1265 (D.C.Cir.1995). In that case, there was a single discrete injury [the prevention of a sale of a large apartment complex], whereas here there was a single injury, removing Plaintiffs from their position as developers and managers at the Reserve, but the injury took multiple steps to inflict. Despite this difference, the fundamental reasoning still applies, one scheme, causing harm to a few victims, and causing one injury does not create close-ended continuity.
Also in its Jackson opinion, the Eleventh Circuit cited to Efron v. Embassy Suites as support for its holding that a narrow scheme, with one goal, and limited victims does not create closed-ended continuity. 223 F.3d 12 (1st Cir.2000). The facts at issue in Efron are closely related to this matter. There, a partner in a real estate group filed a RICO suit claiming that some of his partners purposefully caused their joint endeavor to lose money so that the partnership would be worth less and certain partners would eventually be forced out. Efron, 223 F.3d at 13. On appeal, the First Circuit found that the case turned on whether Plaintiffs could meet the "pattern of racketeering activity" requirement based upon an analysis of close-ended continuity. Id. at 14. Under similar facts, the First Circuit found that even though there were seventeen predicate acts of wire and mail fraud over a twenty-one month time frame, "it is not so long a period nor are there so many predicate acts that other indicators of continuity-or the lack of them-are without significance." Id. at 17. Other factors that the First Circuit suggest courts should look to in evaluating close-ended continuity are the "number of victims, number of racketeering acts, variety of racketeering acts, whether the injuries were distinct, complexity and size of the scheme, and nature or character of the enterprise or unlawful activity. In assessing continuity, we analyze these factors with the goal of achieving a `natural common sense result." Resolution Trust Corp. v. Stone 998 F.2d 1534, 1543 (10th Cir.1993).
Here, the number of victims is limited. The victims consist of Ward, possibly his family, and his conglomerate family companies that he or his son control. While this does not limit Defendants alleged scheme to one victim, it is correct to state that the there were only a few victims, all of which were integrally related. In addition, the number of predicate acts was not remarkable. Even based on Plaintiffs' Complaint, aside from what Plaintiffs can provide evidence for, there were only a limited number of acts of mail and wire fraud, and one possible act of extortion, and a limited number of, if any, acts of interstate travel in aid of racketeering. As this Court has already held above, Plaintiffs lack standing to complain of financial institution fraud, which further diminishes Plaintiffs' ability to complain of widespread action with multiple victims. Further, the complexity and size of the scheme was minimal. The scheme, as evidenced by Plaintiffs' Complaint, involved Nierlich, Puzzitiello and their business entities defrauding Plaintiffs of their interest in a development. The character and nature of the enterprise was that of alleged dishonest partners who breached their duties to another partner.[19] Therefore, based upon the factors listed in Resolution, Defendants' alleged scheme does not allow a finding of closed-ended continuity.
Further, looking again to the Efron case, with its similar fact pattern, the First Circuit found that even when multiple predicate acts are carried out, if there are a limited number of victims who suffer from the same acts, a finding of close-ended continuity is improper:
Although multiple related acts of deception were claimed to underlay the faxes and mailings, all allegedly were aimed at the single goal of transforming the ownership of the Partnership during its early stages. Although a RICO pattern need not have countless victims, the finite nature of the racketeering activities alleged here, together with their occurrence over a relatively modest period of time[21 months], cannot, in our view, support a jury finding of a RICO pattern under the "closed" continuity approach. Our own precedent firmly rejects RICO liability where the `alleged racketeering acts, taken together, comprise a single effort to facilitate a single financial endeavor.'
Efron, 223 F.3d at 18-19. Like Efron, Defendants' alleged goal was to take over control of development and management at the Reserve. This constitutes one goal that took multiple steps against the same limited number of victims. Once Plaintiffs were removed as competitors at the Reserve, Defendants' alleged scheme was complete. Under similar circumstances, the Efron court found:
while the complaint pleads a series of related racketeering acts and permits an inference that defendants defrauded appellant and his two partners, we agree with the district court's determination that no reasonable jury could find that these allegations establish a RICO `pattern.' Taken together, the acts as alleged comprise a single effort, over a finite period of time, to wrest control of a particular partnership from a limited number of its partners. This cannot be a RICO violation.
Id. at 21.
These alleged actions, if true, are not without penalty, but they are properly brought in the form of individual claims for fraud, breach of duty, etc, as Plaintiffs have alleged in the form of state law claims. Consequently, this Court finds that Plaintiffs are unable to establish a pattern of racketeering activity because their claim fails to meet the standards for closed-ended continuity.[20] Furthermore, this Court will not permit Plaintiffs to boot-strap their proper state law claims "into a `federal case' by couching the allegations in RICO statutory language. This is not the purpose for which RICO was enacted."[21]
V. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED that Defendants' Motion for Summary Judgment is GRANTED IN PART. It is further
ORDERED AND ADJUDGED that as Plaintiffs' claims fail to establish a pattern of racketeering activity Counts I-VIII are DISMISSED.[22] It is additionally
ORDERED AND ADJUDGED that this Court exercises its discretion to decline supplemental jurisdiction over Plaintiffs' remaining state law claims as well as Defendants' counterclaim, which are DISMISSED WITHOUT PREJUDICE. It is finally
ORDERED AND ADJUDGED that this case is CLOSED and all remaining motions not yet ruled upon are DENIED AS MOOT.
NOTES
[1] Around this time, Ward also established Reserve Management, whose purpose was to manage rentals and oversee all units controlled by Ward.
[2] Ward created MMC as an entity for the express purpose of joining the partnership and developing Pod F.
[3] Although Reserve Builders assigned the option, this assignment was apparently in error as Reserve Builders no longer possessed an option to assign. Reserve Developers had ownership over this option pursuant to its February 1, 1996 extension of contract agreement with Callaway. Therefore, Reserve Developers, not Reserve Builders, should have been the entity that assigned the option to purchase to Bridlewood.
[4] This amount was later increased to $8,972,000.
[5] Reserve Management, another Ward Company, was also absorbed by a Defendant company. Reserve Management was having difficulty maintaining sufficient liquidity to reimburse the owners of its condominiums for the rental fees that they were due.
[6] Ward states that Nierlich and Puzzitiello also under represented the partnership equity in an effort to get Ward to acquiesce into leaving the partnership.
[7] Defendants argue that Ward was not to be reimbursed immediately because their partnership agreement did not require immediate compensation.
[8] Nierlich and Puzzitiello helped form a criminal charge against Matthew Ward that charged him with filing a false lien on Pod F construction. These charges were also eventually dropped, but the litigation was costly, distracting, and served to further hamper Ward's efforts at keeping his operation afloat.
[9] 18 U.S.C. § 1962 is the Federal Racketeer Influenced Corrupt Organizations Act "RICO" statute, which forms the basis of Counts I-IV of Plaintiffs' Complaint.
[10] Florida Statute § 772.103 is the Florida law that prohibits racketeering activity and is often referred to as "Little RICO." Plaintiffs allege violations under Little RICO in Counts V-VIII of their Complaint.
[11] Counts IX-XVIII represent Plaintiffs' non-RICO state law claims.
[12] A number of Plaintiffs' listed examples of fraud [in the form of exhibits] were struck by Magistrate Garber's order (dkt # 652). In addition, Plaintiffs' allegations relating to financial institution fraud are now moot and cannot serve as predicate acts because this Court found Plaintiffs lack standing to allege financial institution fraud.
[13] The Supreme Court cautioned lower courts engaging in the continuity analysis that "the precise methods by which relatedness and continuity or its threat may be proved, cannot be fixed in advance with such clarity that it will always be apparent whether in a particular case a "pattern of racketeering activity" exists." H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 243, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989).
[14] This Court agrees with Judge Paine's earlier assessment that the facts of this case do not involve an open-ended continuity scenario. See (dkt # 186 at 8 n. 2).
[15] See Efron v. Embassy Suites, 223 F.3d 12 at 20 (1st Cir.2000) (stating "[i]t is true that the scheme as alleged already had spanned twenty-one months, and that its exact endpoint could not be ascertained from the pleading.").
[16] Again, Plaintiffs, in their response in opposition, do not provide the court with even their alleged beginning and end of the closed-continuity period, stating only that the acts spanned "an extended period of time." In their response, Plaintiffs simply include one citation to a list of Plaintiffs' exhibits without any further explanation, parenthetical or otherwise. In reviewing these exhibits, along with the complaint, this Court attempted to approximately determine the starting and ending point of the alleged closed-ended continuity.
[17] At this juncture, the Court finds it appropriate to note that a large portion of Plaintiffs' affidavits and other exhibits proffered in opposition to summary judgment were properly struck during the discovery portion of this proceeding. In addition, a great deal of Plaintiffs' argument stems from mere allegations made in the complaint. "In opposing a motion for summary judgment, "a party may not rely on his pleadings to avoid judgment against him. Thus, mere general allegations which do not reveal detailed and precise facts will not prevent the award of summary judgment upon a court's determination that no genuine issue for trial exists." Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir.1995) (internal citations omitted).
[18] In Jackson, Plaintiffs' RICO claim was dismissed because the scope of the racketeering activity was narrow and because the time frame was only nine months. The much smaller timeline at issue in Jackson prevents the case from being directly on point, but its discussion of the relevancy of narrowness of a RICO scheme is highly relevant.
[19] Plaintiffs argue that Defendants actually engaged in multiple schemes to wrest control of the partnership, which injured multiple Plaintiffs. However, where there is one scheme to defraud, the Court, "courts must take care to ensure that the plaintiff is not artificially fragmenting a singular act into multiple acts simply to invoke RICO." Schlaifer Nance & Co. v. Estate of Warhol, 119 F.3d 91, 98 (2d Cir.1997).
[20] The Eleventh Circuit found in Jackson that RICO's continuity requirement serves a crucial gate keeping function, as it did in this case, by ensuring that the "crime alleged is the sort of offense that RICO is designed to address." 372 F.3d at 1265.
[21] Robert Suris General Contractor Corp. v. New Metropolitan, 873 F.2d 1401, 1404 (11th Cir. 1989) (referred to just for the proposition that presiding Judge Scott's words, reflected in the quotation above, succinctly state why this Court must dismiss Plaintiffs' RICO claims).
[22] The following citation represents this Court's authority to dismiss Plaintiffs' state RICO claims without a duplication in analysis, Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1263-64 (holding "Because `Florida courts often look to the Federal RICO decisions for guidance in interpreting and applying the act,' the analysis we apply to the plaintiffs' federal RICO claims is equally applicable to their state RICO claims." [internal citations omitted]).
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39 F.2d 338 (1930)
ROSE, Collector of Internal Revenue,
v.
GRANT.
No. 5755.
Circuit Court of Appeals, Fifth Circuit.
March 19, 1930.
Clint W. Hager, U. S. Atty., and C. P. Goree, Asst. U. S. Atty., both of Atlanta, Ga. (G. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and T. H. Lewis, Jr., Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for appellant and cross-appellee.
John M. Slaton and I. S. Hopkins, both of Atlanta, Ga., and Richard H. Wilmer, of Washington, D. C., for appellee and cross-appellant.
Before BRYAN and FOSTER, Circuit Judges, and HOLMES, District Judge.
HOLMES, District Judge.
The plaintiff below, John W. Grant, appellee and cross-appellant here, instituted an action in the United States District Court for the Northern District of Georgia against the collector of internal revenue to recover income taxes alleged to have been erroneously assessed and collected for the years 1920, 1921, and 1922.
Several errors were alleged in the computation of the tax. The court below held that in some respects the tax was incorrectly computed, but otherwise that there was no error, *339 and entered judgment in favor of the plaintiff for an amount less than claimed by him. From the judgment so entered both parties have appealed.
The disputed credits claimed by the taxpayer embrace the following items: (1) An allowance for exhaustion, wear, and tear, including obsolescence, which the court granted, and (2) an amount bequeathed to an executor, as compensation for his services as such, which the court denied.
The collector appealed from the allowance of the first, and the taxpayer from the disallowance of the second.
As to the first item, it appears that on September 2, 1920, John W. Grant, as tenant for life under the will of his father, came into the possession and enjoyment of land in the city of Atlanta upon which is situated an office building used by him in his business.
No allowance is claimed by the life tenant for depletion of the land or for shrinkage in value of his property by reason of the expiration of his estate by efflux of time. Section 215 (b), Revenue Act of 1921, 42 Stat. 242.
Grant claims depreciation on the building and fixtures, including elevators, under section 214(a) and (8) of the Revenue Acts of 1918 and 1921 (40 Stat. 1067, 42 Stat. 240), each of which provides that in computing the net income of an individual there shall be allowed as a deduction: "A reasonable allowance for the exhaustion, wear and tear of property used in the trade or business, including a reasonable allowance for obsolescence."
The court below found the present value of the life tenant's interest in the building and elevators, and made an allowance for the years in question which we see no reason to disturb if a life tenant is entitled to any deduction which is the cardinal consideration with reference to this item.
In later Revenue Acts the question has been put at rest by amendments which it is urged clarify or construe the earlier enactments. That of 1926 provides: "In the case of improved real estate held by one person for life with remainder to another person, the deduction * * * shall be equitably apportioned between the life tenant and the remainderman. * * *" Section 214(a) (8), Act of 1926, 26 USCA § 955(a) (8).
That of 1928 says: "In the case of property held by one person for life with remainder to another person, the deduction shall be computed as if the life tenant were the absolute owner of the property and shall be allowed to the life tenant." Act of 1928, § 23(k), 26 USCA § 2023(k).
But no weight can be given to these subsequent amendments in deciding the case in hand, because all legislation is presumed to be prospective, unless the contrary clearly appears. United States v. Magnolia Company, 276 U. S. 160, 48 S. Ct. 236, 72 L. Ed. 509, Brewster v. Gage, 280 U. S. 327-337, 50 S. Ct. 115, 74 L. Ed. ___.
More than this: "The deliberate selection of language so differing from that used in the earlier acts indicates that a change of law was intended." Brewster v. Gage, 280 U. S. 327-337, 50 S. Ct. 115, 118, 74 L. Ed. ___.
Instead of the later acts construing the earlier ones, they indicate a progressive development and improvement of the legislation on the subject.
For the years in question (XXXX-XX-XX) the government claims that no one is entitled to the depreciation; that the life tenant cannot have it, because he does not own the fee, and is not compelled to restore the exhausted or renew the obsolete estate; that the remainderman cannot claim it, because the loss occurs before he obtains possession.
Weiss v. Weiner, 279 U. S. 333, 49 S. Ct. 337, 73 L. Ed. 720, which denied depreciation to a lessee under a ninety-nine year lease, renewable forever, is relied on to show that, "in spite of the fact that depreciation was taking place, no allowance was intended by statute." But the fallacy in the argument is that the lessor in that case as owner was entitled to the full depreciation.
A lessee has an estate less than freehold, while a life tenant has a freehold estate for the duration of his life. Blackstone says: "We have before remarked, and endeavored to assign the reason of, the inferiority in which the law places an estate for years, when compared with an estate for life, or an inheritance: observing, that an estate for life, even if it be pur auter vie, is a freehold; but that an estate for a thousand years is only a chattel, and reckoned part of the personal estate." Book II, p. 143.
The Revenue Acts of 1918 and 1921 do not limit the deduction to property held in fee simple, or attempt nice discriminations between inheritances absolute and limited or conditional, but they grant the allowance on "property used in the trade or business." Therefore, an estate for life, even if it be pur auter vie, if so used, is property within *340 the letter and spirit of the statute and entitles the owner, that is, the holder of the legal title in possession, to the deduction.
The remainderman is not in possession and does not use it, his use or enjoyment being postponed until the termination of the particular estate.
The second item in dispute is the sum of $25,000, which Grant received in the year 1920 under the will of his mother, item 9 of which provided: "Item 9. For his compensation as executor and trustee under this will I give and bequeath unto my son, John William Grant, the sum of Twenty-five Thousand ($25,000.00) Dollars, which shall be in full for all services as executor and as trustee for his minor children."
In his income tax return for the year 1920, Grant listed said sum as a part of his taxable income, but now claims that, inasmuch as that sum was received by him as a gift, legacy, and bequest under his mother's will, the inclusion thereof in taxable income was erroneous. The question whether a sum paid to an executor under a will is taxable income as compensation for his services, or is nontaxable, being a gift or bequest to him, is to be determined in accordance with the rule laid down by the Supreme Court in United States v. Merriam, 263 U. S. 179, 44 S. Ct. 69, 71, 68 L. Ed. 240, 29 A. L. R. 1547, where the court said: "* * * The distinction to be drawn is between compensation fixed by will for services to be rendered by the executor and a legacy to one upon the implied condition that he shall clothe himself with the character of executor. In the former case he must perform the service to earn the compensation. In the latter case he need do no more than in good faith comply with the condition in order to receive the bequest. * * *"
The intention of the testatrix must control. Did she intend it as a gift or bequest or as compensation for services as executor and trustee?
Her words seem plain enough: "For his compensation as executor and trustee under this will I give and bequeath * * * which shall be in full for all services as executor and as trustee. * * *"
No dissertation or terminological discussion is necessary to clear up or amplify the meaning of such simple words. The construction put upon them by the taxpayer himself when he listed the money in his income tax return seems to us the obviously correct one. This case differs from United States v. Merriam, supra, but is similar to Ream v. Bowers (C. C. A.) 22 F.(2d) 465.
The judgment of the court below is affirmed, both on appeal and cross-appeal.
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685 F.2d 117
Ralph W. STATON, Appellant,v.UNITED STATES of America, Appellee.
No. 80-1744.
United States Court of Appeals,Fourth Circuit.
Argued Jan. 8, 1982.Decided June 10, 1982.
Paul Reiber, Rutland, Vt., for appellant.
E. Montgomery Tucker, Asst. U. S. Atty., Roanoke, Va. (John S. Edwards, U. S. Atty., Roanoke, Va., on brief), for appellee.
Before WINTER, Chief Judge, and ERVIN and CHAPMAN, Circuit Judges.
ERVIN, Circuit Judge:
1
Ralph W. Staton brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., to recover damages for the loss of three hunting dogs shot by a park ranger in the Shenandoah National Park. The district court held that the government was exempt from liability under 28 U.S.C. § 2680(a) of the Federal Tort Claims Act because the park ranger had performed a discretionary act under 36 C.F.R. § 2.8(d).
2
We find that shooting the dogs was not a discretionary act and hold, therefore, that the government is not exempt from liability under the "discretionary function" clause of § 2680(a). The government is exempt from liability under § 2680(a), nonetheless, if the park ranger was "exercising due care, in the execution of a statute or regulation" when he shot the dogs. Because it is unclear whether the district court considered the issue of negligence, we reverse and remand with instructions to make findings on that issue.
I.
A.
3
Shenandoah National Park is a wildlife sanctuary located in northern Virginia. Congress has authorized the Secretary of the Interior to promulgate regulations necessary "for the protection of the property therein, especially ... for the protection of the animals and birds in the park from capture or destruction, and to prevent their being frightened or driven from the said park ...." 16 U.S.C. § 403c-3. Pursuant to this congressional grant of authority, the Secretary promulgated 36 C.F.R. § 2.8, which provides in pertinent part:
4
(a) Dogs, cats and other pets are prohibited unless they are crated, caged, or on a leash, or otherwise under physical restrictive control at all times.
5
(d) Dogs, cats or other pets running at large and observed by an authorized person in the act of killing, injuring or molesting humans or wildlife may be disposed of in the interest of public safety and protection of wildlife.
6
Despite authorization to dispose of unleashed dogs endangering wildlife in the park, it has been the practice of the Park Service to capture and impound dogs rather than shoot them. On November 2, 1977, the opening day of bear hunting season and the day on which the events giving rise to the present action occurred, the Park Service distributed a leaflet on which 36 C.F.R. § 2.8(a) and (d), and the following note were printed:
7
Dogs observed in the Park, chasing any animals will be caught and impounded. Capture methods will be by hand or dart injected tranquilizer drugs. All such dog owners will be cited and subject to fees under Section 5.11.
8
Although field ranger personnel were responsible for printing and distributing the leaflet, higher officials had approved it.1
B.
9
Ralph W. Staton was among a group of sportsmen bear hunting on private land bordering the Shenandoah National Park. Two packs of dogs, including three dogs belonging to Mr. Staton, entered the park and began chasing a small bear.2 Park Ranger Douglas M. Bowen was driving a park vehicle in the area and heard the chase. When the dogs came into sight, Ranger Bowen tried to divert them by yelling. When they continued to pursue the bear, he shot and killed the three dogs belonging to Mr. Staton.3
10
Mr. Staton subsequently brought an action against the United States under the Federal Tort Claims Act to recover damages for the loss of his three hunting dogs. He alleged that Ranger Bowen was negligent in shooting the dogs because they were not in hot pursuit of the bear. He also contended that shooting the dogs was not a discretionary act because Ranger Bowen had acted contrary to the Park Service practice of capturing and impounding unleashed dogs. Mr. Staton relied on the leaflet and the fact that a hunting dog had not been shot in the park for over twenty years to establish that the Park Service had a policy against shooting dogs.
11
The district court held that the government was exempt from liability under 28 U.S.C. § 2680(a) of the Federal Tort Claims Act because the park ranger had performed a discretionary act under 36 C.F.R. § 2.8(d) and, further, that he had not acted negligently in shooting the dogs. The decision of the district court was based on its findings that the dogs were in hot pursuit of a small black bear in violation of 36 C.F.R. § 2.8(d) and that Ranger Bowen had shot the dogs in good faith only after he had attempted to divert them by yelling. The district court also found that the leaflet distributed by the Park Service did not alter the result in the case because Mr. Staton was not aware of the leaflet when his dogs entered the Park and, therefore, could not show reliance.
II.
12
Section 1346(b) of title 28 of the United States Code authorizes suits against the United States for property damage caused by the negligent or wrongful acts of government employees acting within the scope of their employment. Section 2680(a) of the Federal Tort Claims Act, however, expressly exempts the United States from liability as follows:
13
The provisions of this chapter and section 1346(b) of this title shall not apply to-
14
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
15
28 U.S.C. § 2680.
16
The government, therefore, is not liable for the loss of the dogs, and we must affirm the decision of the district court, if Ranger Bowen either was "exercising due care in the execution of a statute or regulation," or was "perform(ing) a discretionary function or duty." See Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065 (1956); Bernitsky v. United States, 620 F.2d 948 (3d Cir.), cert. denied, 449 U.S. 870, 101 S.Ct. 208, 66 L.Ed.2d 90 (1980).
A.
17
In Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the leading case regarding the "discretionary function" exception of the Federal Tort Claims Act, the Court concluded that
18
(T)he "discretionary function or duty" that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.
19
Id. at 35-36, 73 S.Ct. at 967-968 (footnotes omitted).
20
Courts have experienced considerable difficulty in applying Dalehite to determine whether particular actions are within the discretionary function exception. See Bernitsky v. United States, 620 F.2d 948, 951 (3d Cir.), cert. denied, 449 U.S. 870, 101 S.Ct. 208, 66 L.Ed.2d 90 (1980); Downs v. United States, 522 F.2d 990, 996 (6th Cir. 1975); Depass v. United States, 479 F.Supp. 373, 375 (D.Md.1979). In attempting to define and distinguish decisions made at the "planning level" from those made at the "operational level," see Dalehite, supra, at 42, 73 S.Ct. at 971, courts have focused upon "the nature and quality" of the judgment involved. See Downs v. United States, supra, at 997 (citing Smith v. United States, 375 F.2d 243, 246 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967)); Griffin v. United States, 500 F.2d 1059, 1064 (3d Cir. 1974). As the court in Downs v. United States recognized, "Judgment is exercised in almost every human endeavor. It is not the mere exercise of judgment, however, which immunizes the United States from liability for the torts of its employees." 522 F.2d at 995. Although it is difficult to articulate a comprehensive standard for determining whether a particular judgment falls within the discretionary function exception, the test set forth in Barton v. United States, 609 F.2d 977 (10th Cir. 1979), provides guidance. In Barton, the court concluded that
21
Generally speaking, a duty is discretionary if it involves judgment, planning, or policy decisions. It is not discretionary if it involves enforcement or administration of a mandatory duty at the operational level, even if professional expert evaluation is required. Concisely stated, the rule is that if a government official in performing his statutory duties must act without reliance upon a fixed or readily ascertainable standard, the decision he makes is discretionary and within the exception of the Tort Claims Act.
22
609 F.2d at 979 (citations omitted). Accord, Depass v. United States, 479 F.Supp. 373, 377 (D.Md.1979).
23
The issue before us is whether shooting the dogs pursuant to 36 C.F.R. § 2.8(d) was a discretionary act. Section 2.8(d) provides that "Dogs ... running at large and observed by an authorized person in the act of killing, injuring or molesting humans or wildlife may be disposed of in the interest of public safety and protection of wildlife." (emphasis added). The use of the word "may" in the regulation suggests that park rangers were intended to have discretion in applying the regulation. The Park Service, however, routinely has captured and impounded dogs running loose in the Park. A hunting dog has not been shot in the Park for over twenty years. The policy against shooting dogs was reflected in the leaflet distributed by the Park Service wherein it expressly was stated that "Dogs observed in the Park, chasing any animals will be caught and impounded."
24
Although field ranger personnel were responsible for printing and distributing the leaflet, higher officials had indicated that dogs were to be tranquilized or captured by hand rather than shot. The "discretionary function," which is exempt from tort liability under 28 U.S.C. § 2680(a), was exercised by Ranger Bowen's superiors when they made a policy decision to capture rather than shoot dogs. By establishing such a policy, Ranger Bowen's superiors had interpreted 36 C.F.R. § 2.8(d) in such a manner that field ranger personnel no longer had discretion because "a fixed or readily ascertainable standard" had been established. See Barton, supra, at 979. We find, therefore, that shooting dogs did not fall within the discretionary function exception to the Federal Tort Claims Act.
B.
25
The first clause of 28 U.S.C. § 2680 provides that the government is not liable under the Federal Tort Claims Act for "an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid ...." It is clear that Ranger Bowen is a government employee and that he shot the dogs pursuant to a regulation. The only remaining question is whether he exercised due care in shooting the dogs. Because we are unable to determine from the record whether the district court considered the question of due care, we remand for a determination on this issue.4
III.
26
Although the government is not exempt from liability under the "discretionary function" clause of 28 U.S.C. § 2680(a), it, nonetheless, is exempt from liability under § 2680(a) if Ranger Bowen was "exercising due care, in the execution of a statute or regulation." Accordingly, we reverse and remand this case to the district court for a determination on the issue of negligence.
1
Chief Ranger Larry L. Hakel or Superintendent Robert R. Jacobsen had indicated to the park rangers that dogs were to be tranquilized or captured by hand rather than shot
2
Shortly before hunting season opened, the Park Service issued a media release informing the public it planned to defend its borders against illegal activity. Hunters occasionally had been sending their dogs into the park to chase game out onto private land where the game could be taken legally. That does not appear to be the case here
3
Ranger Bowen did not have a tranquilizer gun with him at the time. He shot the first two dogs with his personal shotgun and the third dog with his service revolver
4
We note that in its pleadings the government raised contributory negligence as an affirmative defense to a finding of negligent conduct by Ranger Bowen. Because contributory negligence is a bar to recovery for negligence in Virginia, see, e.g., Flakne v. Chesapeake & Potomac Telephone Company, 199 Va. 31, 34, 97 S.E.2d 650, 652 (1957), and because the United States is liable only to the extent that a private citizen would be liable under Virginia law, see 28 U.S.C. § 1346(b); Downs v. United States, 522 F.2d 990, 999 (6th Cir. 1975), the district court also should consider the issue of contributory negligence on remand
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125 So.2d 213 (1960)
Gus SCHRAM, Sr., Plaintiff-Appellee,
v.
LAKE CHARLES READY-MIX, INC., et al., Defendants-Appellants.
No. 124.
Court of Appeal of Louisiana, Third Circuit.
December 19, 1960.
*214 Plauche & Plauche, by A. L. Plauche, Lake Charles, for defendants.
Larry A. Roach, Lake Charles, for plaintiff-appellee.
Before TATE, FRUGE, and CULPEPPER, JJ.
TATE, Judge.
The plaintiff employee was awarded benefits for total and permanent disability in this workmen's compensation suit by an injured employee against his former employer and its insurer, and the defendants appeal.
We adopt the trial court's summary of the facts and its legal conclusions, which we find to be supported by the jurisprudence and the preponderance of the evidence, as follows:
"On April 22, 1959, while plaintiff [, 59 years of age,] was employed as a scale operator by Lake Charles Ready Mix, Inc., a dragline bucket fell on a shed occupied by plaintiff and caused injuries to plaintiff's head, face, chin, back and shoulders. He was hospitalized for about 14 days and has received medical attention since that time. He did not return to work for defendant, but has been employed as a day clerk at a motel since August 22, 1959. * * *
"Plaintiff's duties as a scale operator required heavy lifting. He had been employed in that capacity for only one or two months before the accident occurred. For many years prior to the accident he had been employed as route man or supervisor of the Borden Company, as the operator of a grocery store or as the manager of a motel. In each of those types of employment he was required to do some heavy lifting and some moderately heavy manual labor. The type of work which he has performed since the accident is very light work, requiring no lifting and no manual labor. The medical experts seem to agree that plaintiff is now disabled from doing any heavy lifting or performing manual labor because of high blood pressure and arthritis.
"The evidence, and particularly the testimony of the medical experts who were called as witnesses, convinces me that prior to the time of the accident plaintiff suffered from arthritis and high blood pressure, but that in spite of these infirmities he was able to perform the duties of a scale operator, those of the manager of a motel, and other work requiring heaving lifting and manual labor. As a result of the accident, however, plaintiff's arthritic condition has been aggravated to the extent that he cannot now perform the duties which he was performing at the time he was injured, or the duties required in the other types of employment which he customarily had performed prior to the accident. His disability appears to be permanent, and under the established jurisprudence of this state I must conclude that he is totally disabled, even though he is now employed at a salary *215 equal to or more than that which he was receiving at the time of the injury."
The defendants-appellants urge that the trial court erred (1) in accepting the medical testimony as proving disability when essentially it is based upon the subjective complaints of the plaintiff and (2), alternatively, even conceding that such testimony proves disability, in holding that the plaintiff is totally disabled when he has returned to and found gainful employment in the motel field in which he was employed for many years prior to the employment in which injured.
I.
To prove his disability, aside from corroborative testimony from himself and lay witnesses, the plaintiff relied upon the testimony of two attending physicians who treated him for the results of the fairly severe present accident and who had been his family physicians prior thereto for thirteen and twenty-five years, respectively.
Both of these medical witnesses testified positively that, from their medical and personal familiarity with the plaintiff's condition before and after the accident, his pre-existing arthritic condition had been activated or aggravated from an occasionally uncomfortable but non-disabling condition before the accident into a condition now totally disabling him from the performance of heavy manual labor. Although the x-ray findings verifying the existence of the pre-existing and subsequent arthritis were not shown to have changed as a result of the accident, these physicians further testified positively that the extent of x-ray findings is not necessarily related to the severity of subjective symptoms caused by arthritis and that trauma can (as here) activate a non-painful arthritic condition shown by x-ray into a painful and disabling state without necessarily producing any change in the x-ray findings. One of the physicians further noted muscle spasm verifying the subjective complaints of pain following the accident, although he did not remember ever having noted such symptom before. (Tr. 116.)
As the defendants-appellants urge through their able counsel, ultimately the holding of the trial court and the opinion of the two doctors that the plaintiff is disabled depends upon an acceptance as genuine of the plaintiff's subjective complaints of pain; based of course also upon the severe accident, the x-ray findings and muscle spasm objectively verifying the presence of the arthritic condition, and the plaintiff's history as verified by the lay and medical testimony.
But proof of disability arising by reason of subjective pain must of necessity depend to a great extent upon the evaluation of the truthfulness of the claimant's complaints, and proof of such disability based essentially upon such evaluation has been held sufficient to support an award of workmen's compensation when medical testimony shows that such disabling pain may be residual from the industrial accident. See e.g. Reed v. Calcasieu Paper Company, La.App. 1 Cir., 93 So.2d 263, affirmed, 233 La. 747, 98 So.2d 175; Bonin v. Sam Carline, Inc., La.App. 1 Cir., 117 So. 2d 312, certiorari denied; Thompson v. Bituminous Cas. Corp., La.App. 2 Cir., 104 So.2d 248; Bynum v. Maryland Cas. Co., La.App. 1 Cir., 102 So.2d 547, certiorari denied. (Cf., Malone, Louisiana Workmen's Compensation, 1951, Section 286, p. 372: "In view of the fact that disability may be found merely from the fact that the worker experiences pain in discharging his duties, it often becomes necessary to establish the fact of pain. This will usually be done through the testimony of the complainant or his relatives and friends, supported by the evidence of the experts that the objective conditions are of a character calculated to produce pain.")
II.
The preponderance of the medical testimony is that the plaintiff cannot without pain after the accident perform the heavy *216 duties of his employment as scale operator, although he could do so prior to the accident. Lay witnesses, including the plaintiff's employer, testified that he had in fact performed such duties without complaint and to the satisfaction of the employer prior to the accident.
In urging that the plaintiff is not totally disabled, the defendants-appellants point out that prior to his employment as scale operator the plaintiff had been employed for many years in the motel business and that subsequent to the accident he had returned to work as desk clerk in a motel and was earning better wages than at the time of the accident.
This contention is without merit. "An employee is considered totally disabled within the meaning of the compensation act when he is unable to perform without pain the regular and usual duties of the occupation in which the injury was sustained, that is, to perform work of the same or similar character to that in which engaged at the time of the accident. Reed v. Calcasieu Paper Co., 233 La. 747, 98 So.2d 175; Brannon v. Zurich Gen. Acc. & Liab. Ins. Co., 224 La. 161, 69 So.2d 1; Thomas v. Crown-Zellerbach Corp., La.App. 1 Cir., 101 So.2d 478," Bassemier v. W. S. Young Construction Co., La.App. 1 Cir., 110 So.2d 766, 768, certiorari denied. (Italics ours) As stated in Bean v. Higgins, Inc., 230 La. 211, 88 So.2d 30, 32, "* * * The test of total and permanent disability is whether the injured employee is capable of performing the work of the occupation in which he was engaged at the time of injury or whether he is able to do the kind of work he is trained to do or customarily does in the usual and customary way and without any serious impairment of his capacity to perform such work. * * *" (Italics ours.)
To some extent the rationale for this rule is illustrated by the present facts. Prior to securing employment as a scale operator doing manual labor, the plaintiff had been unsuccessfully looking for work for approximately ten months following the expropriation of the motel in which he had been working. While he had not for many years engaged in manual labor and while this form of employment was regarded by him as least desirable, nevertheless after ten months it was the only sort of employment which he could obtain. Now, because of the accident, he is disabled from performing such heavy manual duties again; and, although he has been fortunate enough since then finally to obtain work back in the motel business, undoubtedly because of the disability residual from the present accident he is permanently and substantially handicapped in the obtaining of employment to earn a living because of his accident-caused inability to do heavy manual labor. Such accident-caused substantial physical inability and the resultant competitive disadvantage is compensable as total disability under our jurisprudence. See Malone, Louisiana Workmen's Compensation (1951), Sections 272-278.
For the foregoing reasons, the trial court judgment is
Affirmed.
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IN THE SUPREME COURT OF TEXAS
444444444444
NO . 11-0517
444444444444
CERTIFIED EMS, INC. D/B/A CPNS STAFFING, PETITIONER,
v.
CHERIE POTTS, RESPONDENT
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444
Argued October 17, 2012
CHIEF JUSTICE JEFFERSON delivered the opinion of the Court.
A patient alleged that a hospital nurse, who was temporarily placed with the hospital by a
staffing service, assaulted her. The patient sued under the Texas Medical Liability Act, asserting that
the staffing service was directly and vicariously liable for the nurse’s conduct. The staffing service
sought dismissal because the patient’s expert reports did not specify how the service was directly
negligent. The service has not challenged, in this Court, the reports’ adequacy concerning its
vicarious liability.
The trial court denied the motion to dismiss, and the court of appeals affirmed. It held that
because the reports support a theory of vicarious liability against the staffing service, the lack of a
description supporting direct liability is not fatal to the claimant’s maintaining her cause of action.
We agree with the court of appeals, but for different reasons. Accordingly, we affirm the court of
appeals’ judgment.
I. Background
Cherie Potts was admitted to Christus St. Catherine’s Hospital for treatment of a kidney
infection. One of the nurses assigned to her care, Les Hardin, was referred to the hospital by a
staffing service owned by Certified EMS. Potts claims that Hardin assaulted her sexually and
verbally during her hospital stay. Potts alleges that the assaults caused her anxiety and physical pain.
She sued the hospital, Hardin, and Certified EMS.1
Potts claimed that Certified EMS was directly liable for Hardin’s conduct because it failed
to properly train and oversee its staff, enforce applicable standards of care, and employ protocols to
ensure quality patient care and adequate staff supervision. Potts also alleged that Certified EMS was
vicariously liable under the theory of respondeat superior.
Because Potts sued under the Texas Medical Liability Act, she was required to serve each
defendant with an expert report that met certain statutory requirements. See TEX . CIV . PRAC. & REM .
CODE § 74.351 (outlining requirements and guidelines for expert reports in health care liability
claims). Potts timely served reports from Nurse S. Francis Scholl Foster and Dr. Kit Harrison, Ph.D.
Certified EMS challenged the reports, and the trial court gave Potts thirty days to cure the alleged
deficiencies. See id. § 74.351(c). In response, Potts supplemented Nurse Foster’s original report and
provided a new one from Dr. Milton Altschuler, M.D.
The relevant portions of Nurse Foster’s supplemented report outline the appropriate standard
of care for nurses and nursing agencies, describe the steps that should have been taken by Hardin and
1
Christus St. Catherine’s Hospital and Les Hardin are not parties to this interlocutory appeal.
2
Certified EMS to prevent the assaults, and conclude that Hardin’s and Certified EMS’s failures
caused Potts’s injuries. Dr. Altschuler’s report states that Hardin engaged in sexually inappropriate
and intrusive conduct, causing the injuries that Potts has alleged.
Certified EMS objected to the newly submitted reports and moved to dismiss on numerous
grounds, among them that the reports omitted any explicit reference to Certified EMS’s direct
liability for Hardin’s conduct.
The trial court denied the motion, and Certified EMS appealed. See TEX . CIV . PRAC. & REM .
CODE § 51.014 (a)(9) (allowing interlocutory appeal of an order denying relief sought by motion
under section 74.351(b) in certain circumstances). The court of appeals affirmed, holding (as
relevant here) that “if the claimant timely serves an expert report that adequately addresses at least
one liability theory against a defendant health care provider, the suit can proceed, including
discovery, without the need for every liability theory to be addressed in the report.” 355 S.W.3d 683,
693.2 We granted Certified EMS’s petition for review, which raises a single issue: Must a claimant
in a health care liability suit provide an expert report for each pleaded liability theory? 55 Tex. Sup.
Ct. J. 461 (Mar. 30, 2012).
II. Conflict Among the Courts of Appeals
Numerous appellate decisions have discussed the extent to which an expert report must
examine every liability theory alleged. The cases reach varied results. Several courts of appeals, like
the court of appeals in this case, have determined that a claimant’s expert report(s) need address only
2
The court of appeals also determined that the expert reports that Potts provided to Certified EMS sufficiently
addressed her vicarious liability theory, but failed to address her direct liability theories. 355 S.W .3d at 686. Neither
party has challenged those conclusions.
3
a single theory for the entire suit to proceed.3 Some of those decisions rely on Potts, either indirectly
or explicitly.4 The Potts court focused on the Act’s plain language, specifically on the requirement
that an expert report be served “[i]n a health care liability claim,” which the statute further defines
as a “cause of action.” See 355 S.W.3d at 690–92; see also TEX . CIV . PRAC. & REM . CODE
§ 74.001(a)(13) (“‘Health care liability claim’ means a cause of action against a health care provider
or physician for treatment, lack of treatment, or other claimed departure from accepted standards of
medical care, or health care, or safety or professional or administrative services directly related to
health care, which proximately results in injury to or death of a claimant, whether the claimant’s
claim or cause of action sounds in tort or contract.”). Relying on our discussion of “cause of action”
in In re Jorden, 249 S.W.3d 416 (Tex. 2008), the Potts court reasoned that the Act requires an expert
report only for each set of operative facts that give rise to one or more bases for suing. 355 S.W.3d
at 691. Thus, if an expert report adequately addresses a single liability theory within a cause of
action, the entire case may proceed. Id.
3
See Laurel Ridge Treatment Ctr. v. Garcia, No. 04-12-00098-CV, 2012 W L 3731748, at *1 (Tex. App.— San
Antonio Aug. 29, 2012, pet. filed) (mem. op.) (holding that the trial court did not abuse its discretion when it denied
defendant’s motion to dismiss because an “expert report is required to be adequate with regard to only one liability theory
within a cause of action in order for the claimant to proceed with the entire cause of action against the defendant”);
Nexion Health at Duncanville, Inc. v. Ross, 374 S.W .3d 619, 626 (Tex. App.— Dallas 2012, pet. denied) (holding that
an expert report need “not address each ‘specific act of negligence’ pleaded by a plaintiff . . . [to] satisfy the two intended
purposes of the expert report requirement”); Univ. of Tex. Med. Branch at Galveston v. Qi, 370 S.W .3d 406, 415–16
(Tex. App.— Houston [14th Dist.] 2012, no pet.)(referencing the Potts court’s reasoning when it held that an expert
report need not address “every act or omission mentioned in the pleadings, so long as at least one liability theory within
each cause of action is sufficiently addressed”); Clear Lake Rehab. Hosp., L.L.C. v. Karber, No. 01-09-00883-CV, 2010
W L 987758, at * 5 n.7 (Tex. App.— Houston [1st Dist.] Mar. 18, 2010, no pet.) (mem. op.) (suggesting that a report that
is adequate as to one theory of liability can move an entire cause of action past the expert report stage).
4
See, e.g., Laurel Ridge Treatment Ctr., 2012 W L 3731748, at *1; Nexion Health, 374 S.W .3d at 626–27.
4
Other courts insist that an expert report must specifically address each liability theory.5
Unsupported theories must be dismissed. Those courts also look to the statute’s language. Some
interpret “health care liability claim” to mean a single theory of liability.6 Thus, when the statute
requires that a “liability claim” be supported by an expert report, these courts reason that the report
must address each liability theory. Other courts of appeals interpret “health care liability claim” to
mean a cause of action, or set of operative facts, like the Potts court did. But unlike the Potts court,
they reason that different theories of liability must be based on different sets of operative facts and
each, therefore, requires its own expert report. In that respect, several cases have held that direct and
vicarious liability theories involve different sets of operative facts because “the facts required to
establish the defendant’s vicarious liability, i.e., the acts of [the agent and his relationship] to [the
principal], differ from the facts required to establish the . . . defendant’s direct liability, i.e., [its]
5
See MSHC the Waterton at Cowhorn Creek, LLC v. Miller, No. 06-12-00056-CV, 2012 W L 6218001, at *7
(Tex. App.— Texarkana Dec. 14, 2012, no pet.) (holding that the claimant’s expert reports must address vicarious and
direct liability claims separately because the theories were based on two different sets of operative facts, which were
“qualitatively different from the facts necessary to establish [the employer’s] vicarious liability for the acts or omissions
of its staff”); Fung v. Fischer, 365 S.W .3d 507 (Tex. App.— Austin 2012, no pet.) (finding that because the claimant’s
theories of liability were both vicarious and direct and thus based on different sets of operative facts, the expert report
that only addressed the employee’s conduct was not sufficient to impose direct liability on the employer); Hendrick Med.
Ctr. v. Miller, No. 11-11-00141-CV, 2012 W L 314062, at *3 (Tex. App.— Eastland Jan. 26, 2012, no pet.) (mem. op.)
(holding that direct and vicarious liability claims must be evaluated separately to determine whether each claim was
sufficiently supported by an expert report); River Oaks Endoscopy Ctrs., L.L.P. v. Serrano, No. 09-10-00201-CV, 2011
W L 303795, at *2 (Tex. App.— Beaumont Jan. 27, 2011, no pet.) (mem. op.) (holding that a claimant alleging theories
of direct and vicarious liability must provide an expert report that addresses all theories so that the defendant can be made
aware of the specific conduct being called into question); Beaumont Bone & Joint, P.A. v. Slaughter, No. 09-09-00316-
CV, 2010 W L 730152, at *3–4 (Tex. App.— Beaumont Mar. 4, 2010, pet. denied) (mem. op.) (holding that although
vicarious liability claims were sufficiently addressed in an expert report, direct liability claims were not, and should have
been dismissed); Azle Manor, Inc. v. Vaden, No. 2-08-115-CV, 2008 W L 4831408, at *10 (Tex. App.— Fort W orth Nov.
6, 2008, no pet.) (mem. op.) (holding that although vicarious liability claims against two doctors were sufficiently
addressed in two expert reports, the direct liability claims were not, and thus the trial court abused its discretion when
it denied the defendant doctors’ motion to dismiss the direct liability claims).
6
See, e.g., Hendrick Med. Ctr., 2012 W L 314062, at *3.
5
provision of particular policies and procedures.” Fung v. Fischer, 365 S.W.3d 507, 522 (Tex.
App.—Austin 2012, no pet.); see also MSHC the Waterton at Cowhorn Creek, LLC v. Miller, No.
06-12-00056-CV, 2012 WL 6218001, at *7 (Tex. App.—Texarkana Dec. 14, 2012, no pet.) (“The
facts required to establish direct liability here are qualitatively different from the facts necessary to
establish . . . vicarious liability . . . . ”).
Still other courts have addressed questions that vary slightly from the one before us today.
These courts have engaged in analyses that demonstrate the need to definitively resolve the question
of how expert reports treat multiple theories of liability.7
These conflicts give us jurisdiction over this interlocutory appeal. TEX . GOV ’T CODE
§ 22.225(c).8
7
See Marino v. Wilkins, No. 01-11-00835-CV, 2012 W L 749997, at *8–10 (Tex. App.— Houston [1st Dist.]
Mar. 8, 2012, pet. denied) (holding, under the Potts reasoning, that a health care liability suit may proceed under one
liability theory if the defendant does not move to dismiss all theories of liability in his challenge to the expert reports);
Petty v. Churner, 310 S.W .3d 131, 138 (Tex. App.— Dallas 2010, no pet.) (concluding that the trial court properly
dismissed direct liability claims because the vicarious and direct liability theories were based on two different standards
of care, and an expert report that only addressed the vicarious theory did not meet the statutory requirements); Obstetrical
and Gynecological Assocs., P.A. v. McCoy, 283 S.W .3d 96, 105–06 (Tex. App.— Houston [14th Dist.] 2009, pet. denied)
(deciding that a claimant need not provide an expert report addressing an employer’s conduct if the claimant only seeks
to hold the employer liable under a vicarious liability theory, noting that there is a distinction between allegations of
liability made against the employer based on the conduct of employees versus allegations of direct liability based on the
conduct of the employer entity itself); Methodist Charlton Med. Ctr. v. Steele, 274 S.W .3d 47, 50–51 (Tex. App.— Dallas
2008, pet. denied) (holding that because the claimant failed to timely serve expert reports related to the direct liability
claims against defendants that were added in an amended petition, those particular claims should have been dismissed;
but, the vicarious liability claims, based on the conduct of a nurse employee, were addressed in a timely report and could
move forward).
8
See also T EX . G O V ’T C O D E § 22.225(e) (noting that “one court holds differently from another when there is
inconsistency in their respective decisions that should be clarified to remove unnecessary uncertainty in the law and
unfairness to litigants”).
6
III. Addressing Theories of Liability
Certified EMS contends that if a claimant’s report does not adequately address each asserted
theory, the trial court must dismiss those theories that are unsupported by a report. Thus, if a
plaintiff’s allegations include both direct and vicarious liability claims, the report is deficient if it
does not cover both. We are not persuaded.
Several courts of appeals rely on the statute’s use of the term “cause of action” to decide this
issue. When we discussed the phrase in In re Jorden, we noted that it “generally applies to facts, not
filings.” Jorden, 249 S.W.3d at 421. We also looked to Black’s Law Dictionary, which “defines
‘cause of action’ as [a] group of operative facts giving rise to one or more bases for suing; a factual
situation that entitles one person to obtain a remedy in court from another person.” Id. (quoting
BLACK’S LAW DICTIONARY 235 (8th ed. 2004)). From this, several appellate courts have relied on
“operative facts” to reach opposing results—either that an expert report must address every pleaded
liability theory,9 or that it need not.10 The competing conclusions demonstrate the pitfalls of this
approach.
The focus on operative facts raises more questions than it answers. Are the “operative facts”
underlying alleged liability for failure to train different from the underlying allegations of vicarious
liability for medical malpractice? The court of appeals here said no,11 but others would say yes.12
9
See, e.g., MSHC the Waterton, 2012 W L 6218001, at *6–7.
10
See, e.g., Qi, 370 S.W .3d at 415–16.
11
355 S.W .3d at 690–92.
12
See, e.g., MSHC the Waterton, 2012 W L 6218001, at *7; Fung, 365 S.W .3d at 522.
7
Would each of Potts’s direct liability theories against Certified EMS—for failing to train its
employees, failing to enforce accepted standards of care, and failing to employ protocols to ensure
quality care for patients—require its own expert report, because the facts underlying each allegation
may differ? Will, as the cases suggest, the relevant operative facts be disputed in every case, leading
to additional time, expense, and interlocutory appeals?
We appreciate the courts of appeals’ reasoning, but decline to follow that approach. No
provision of the Act requires an expert report to address each alleged liability theory. The Act
requires a claimant to file an expert report “[i]n a health care liability claim.” TEX . CIV . PRAC. &
REM . CODE § 74.351(a). Once an expert report is timely served and properly challenged, the trial
court:
shall grant a motion challenging the adequacy of an expert report only if it appears
to the court, after hearing, that the report does not represent an objective good faith
effort to comply with the definition of an expert report.
Id. § 74.351(l); see also Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012) (same). A valid expert
report has three elements: it must fairly summarize the applicable standard of care; it must explain
how a physician or health care provider failed to meet that standard; and it must establish the causal
relationship between the failure and the harm alleged. TEX . CIV . PRAC. & REM . CODE § 74.351(r)(6);
see Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011). A report that satisfies these
requirements, even if as to one theory only, entitles the claimant to proceed with a suit against the
physician or health care provider.
The report serves two functions. “First, the report must inform the defendant of the specific
conduct the plaintiff has called into question. Second, and equally important, the report must
8
provide a basis for the trial court to conclude that the claims have merit.” Am. Transitional Care
Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001).
A report need not cover every alleged liability theory to make the defendant aware of the
conduct that is at issue. Palacios recognized that an expert report does not require litigation-ready
evidence. Rather, “to avoid dismissal . . . [t]he report can be informal in that the information in the
report does not have to meet the same requirements as the evidence offered in a summary-judgment
proceeding or at trial.” Id. For the particular liability theory addressed, the report must sufficiently
describe the defendant’s alleged conduct. Such a report both informs a defendant of the behavior
in question and allows the trial court to determine if the allegations have merit. If the trial court
decides that a liability theory is supported, then the claim is not frivolous, and the suit may proceed.
IV. Legislative Intent
This approach is consistent with the Legislature’s intent. See Molinet v. Kimbrell, 356
S.W.3d 407, 411 (Tex. 2011) (“Our primary objective in construing statutes is to give effect to the
Legislature’s intent.”). In amending the Act, the Legislature sought to reduce “the excessive
frequency and severity of . . . claims,” but to “do so in a manner that will not unduly restrict a
claimant’s rights any more than necessary to deal with the crisis.” Act of June 11, 2003, 78th Leg.,
R.S., ch. 204, § 10.11(b)(1), (3), 2003 Tex. Gen. Laws 847, 884. In accordance with this goal, we
have opined that one purpose of the report requirement is “to expeditiously weed out claims that
have no merit.” Loaisiga, 379 S.W.3d at 263. We have also stated that the purpose of evaluating
expert reports is “to deter frivolous claims, not to dispose of claims regardless of their merits.”
Scoresby, 346 S.W.3d at 554; see also Loaisiga, 379 S.W.3d at 258 (recognizing that the expert
9
report “requirements are meant to identify frivolous claims and reduce the expense and time to
dispose of any that are filed”); In re Jorden, 249 S.W.3d at 421.
Our holding today satisfies these purposes. If a health care liability claim contains at least
one viable liability theory, as evidenced by an expert report meeting the statutory requirements, the
claim cannot be frivolous. The Legislature’s goal was to deter baseless claims, not to block earnest
ones. Potts demonstrated to the trial court that at least one of her alleged theories—vicarious
liability—had expert support. She cleared the first hurdle, and the appeals court correctly recognized
her right to have the entire case move forward. 355 S.W.3d at 693.
V. Efficient and Practical Litigation
Certified EMS argues that this holding will prolong litigation by forcing defendants to defend
meritless claims. For two reasons, we disagree. First, if there is at least one valid theory, the
defendant will be engaged in further litigation regardless of the merits of the remaining theories.
Defending those theories would not be unduly burdensome. The converse is not true. To require
an expert report for each and every theory would entangle the courts and the parties in collateral
fights about intricacies of pleadings rather than the merits of a cause of action, creating additional
expense and delay as trial and appellate courts parse theories that could be disposed of more simply
through other means as the case progresses. Cf. Scoresby, 346 S.W.3d at 549 (applying a “lenient
standard” to a plaintiff’s right to cure a deficient report, noting that approach “avoids the expense
and delay of multiple interlocutory appeals and assures a claimant a fair opportunity to demonstrate
that his claim is not frivolous”).
10
This leads to our second point. The expert report requirement is a threshold mechanism to
dispose of claims lacking merit, but reports are not the only means to address weak subsets of those
claims. The original and amended petitions inform a defendant of the claims against it and limit
what a plaintiff may argue at trial. Discovery allows a claimant to refine her pleadings to abandon
untenable theories and pursue supported ones. Summary judgment motions permit trial courts to
dispose of claims that lack evidentiary support. But while a full development of all liability theories
may be required for pretrial motions or to convince a judge or jury during trial, there is no such
requirement at the expert report stage. See Palacios, 46 S.W.3d at 879.
It may be difficult or impossible for a claimant to know every viable liability theory within
120 days of filing suit, and the Act reflects this reality. It strictly limits discovery until expert reports
have been provided, and we have held that the statute’s plain language prohibits presuit depositions
authorized under Rule 202 of the Texas Rules of Civil Procedure. See TEX . CIV . PRAC. & REM .
CODE § 74.351(s); TEX . R. CIV . P. 202; In re Jorden, 249 S.W.3d at 418. The Act requires the
expert report to summarize the expert’s opinions “as of the date of the report,” recognizing that those
opinions are subject to further refinement. Id. § 74.351(r)(6). Discovery can reveal facts supporting
additional liability theories, and the Act does not prohibit a claimant from amending her petition
accordingly. Under Certified EMS’s reasoning, a claimant would have to serve an expert report each
time a new theory is discovered. Not only would that be impractical, it would prohibit altogether
those theories asserted more than 120 days after the original petition was filed—effectively
eliminating a claimant’s ability to add newly discovered theories. See id. § 74.351(a) (requiring that
11
expert report be filed “not later than the 120th day after the date the original petition was filed”). We
see no indication that the Legislature intended such a result.
In sum, an expert report that adequately addresses at least one pleaded liability theory
satisfies the statutory requirements, and the trial court must not dismiss in such a case. To the extent
other cases hold differently, we disapprove of them.
VI. Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669 (Tex. 2008) (per curiam)
Finally, we address Certified EMS’s argument that Gardner precludes the result we reach
today. In Gardner, we stated that “[w]hen a party’s alleged health care liability is purely vicarious,
a report that adequately implicates the actions of that party’s agents or employees is sufficient.”
Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008) (per curiam). Certified EMS
argues that because Potts’s theories are not purely vicarious, Gardner implies that each must be
addressed in an expert report.
We disagree that Gardner compels such a conclusion. Our statement distinguished between
expert reports required for vicarious liability claims, in which merely implicating the agent’s conduct
is sufficient, and those required for direct ones, in which the employer’s conduct must be implicated.
But we did not address the effect of such a report in a claim involving both vicarious and direct
liability. To clarify, when a health care liability claim involves a vicarious liability theory, either
alone or in combination with other theories, an expert report that meets the statutory standards as to
the employee is sufficient to implicate the employer’s conduct under the vicarious theory. And if
any liability theory has been adequately covered, the entire case may proceed.
12
VII. Conclusion
Because Potts’s reports sufficiently addressed one liability theory, the trial court correctly
denied the motion to dismiss. We affirm the court of appeals’ judgment. TEX . R. APP . P. 60.2(a).
________________________________________
Wallace B. Jefferson
Chief Justice
OPINION DELIVERED: February 15, 2013
13
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331 F.Supp.2d 290 (2004)
NATIONAL GROUP FOR COMMUNICATIONS AND COMPUTERS LTD., Plaintiff,
v.
LUCENT TECHNOLOGIES INTERNATIONAL INC., Defendant.
Civil Action No. 00-86 (JLL).
United States District Court, D. New Jersey.
March 1, 2004.
*291 Michael E. Patunas, Lite Depalma Greenberg & Rivas, LLC, Newark, NJ, Donald Burke, New York, NY, LeRoy Lambert, Michael P. Smith, Healy & Ballie, New York, NY, for Plaintiff.
*292 Richard E. Donovan, Geoffrey W. Castello, Kelley Drye & Warren LLP, Parsippany, NJ, for Defendant.
LINARES, District Judge.
Plaintiff National Group for Communications and Computers Ltd. ("NGC") filed suit against Lucent Technologies International, Inc. ("Lucent") for the alleged breach of a telecommunications construction subcontract. Because significant aspects of Plaintiff's claim hinge upon an interpretation of Saudi Arabian law, in October 2002 Magistrate Judge Hedges directed the parties to submit their respective experts' opinions on how Saudi Arabian law would construe Plaintiff's claim for damages stemming from the termination of its Projects Department as a result of the alleged contractual breach. In accordance with its September 25, 2003 Order, this Court conducted a hearing on December 15 & 17, 2003 wherein expert testimony was heard from both parties regarding the application of Saudi Arabian law to the circumstances in this case. This Opinion constitutes the Court's Findings of Fact and Conclusions of Law regarding said hearing pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. For the reasons discussed herein, this Court finds that the findings of fact and conclusions of law reached indicate that under the law of Saudi Arabia, Plaintiff is prohibited from collecting damages for the loss of its Projects Department beyond the loss in actual value of the Department's existing assets. Consistent with its previous Order, this Court reserves judgment on the precise valuation of NGC's Projects Department.
Findings of Fact
A. Underlying Events
As agreed by the parties, this Court has "assumed" for the purposes of the resolution of the issue now before it that Defendant breached the subcontract in dispute and that this breach caused the loss of Plaintiff's Projects Department. Therefore, the following findings of fact shall not be dispositive on the contractual issues of breach and causation, matters which will be decided at trial, but speak only to the proper award of damages under Saudi Arabian law.
On August 13, 1994, Defendant's corporate predecessor, AT & T International, Inc., entered into a $4.6 billion contract with the Saudi Arabian Ministry of Post Telephone and Telegraph (which later became the Saudi Telecom Company), a contract involving the Saudi government's sixth telecommunications project ("TEP-6"). On April 5, 1995, Plaintiff NGC, a Saudi Arabian corporation, entered into contract No. 220806 (the "Subcontract") with Defendant as part of the larger expansion project. According to the terms of the Subcontract, Plaintiff was to implement the Roadside Emergency Telephone and Wayside Facilities Projects ("RET/WSF Projects") in Saudi Arabia by performing design and engineering services and installing emergency and pay telephones along Saudi Arabia's highways and nearby facilities. The Subcontract provided for a four year contractual relationship at a fixed price of $75,460,902.
For reasons that remain disputed in the underlying litigation, and need not be resolved in the present analysis, the RET/WSF Projects were never completed and the Subcontract was ultimately terminated in the summer of 1999. As the alleged direct result of this contractual termination, Plaintiff liquidated its Projects Department during the fourth quarter of 1999. The Projects Department had been created to implement Plaintiff's telecommunications contracts, including the Subcontract. It included staff and labor under contract, offices, equipment, vehicles, and *293 warehouses. Soon after these events took place, the present lawsuit was filed.
B. Background on Valuation of Projects Department
Beginning in August 1998, Plaintiff attempted to attract outside capital by preparing for a private placement of a portion of its equity. Plaintiff engaged Riyad Bank to act as the lead bank in this private placement and to carry out a professional valuation of NGC. Riyad Bank completed two valuations in late 1998, appraising the Projects Department at $153.0 million and $173.8 million, respectively. ("Riyad Bank Valuation Analysis," Pl.Ex. 5-7)
In the fall of 1998, Kingdom Holding Company Ltd. ("Kingdom Holding") became interested in purchasing equity in Plaintiff NGC. As part of its investigation, Kingdom Holding requested that its accountant, Arthur Andersen, review the Riyad Bank valuations and to prepare its own. Arthur Andersen completed its assessment on January 9, 1999, and valued the Projects Department at $112.3 million. On May 9, 1999, Kingdom Holding agreed to purchase 25.4% of Plaintiff company for a fixed price per share and acquired options to acquire another 15.6% at the same price. These options were never exercised. Extrapolating from this purchase price basis, the value of the entire Projects Department would be fixed at $111.7 million.
As part of this lawsuit, Plaintiff's valuation expert has determined that the value of NGC's Projects Department as of June 30, 1999 was $101,170,591. ("Decl. of R. Christopher Rosenthal", Pl.'s Exh. 1). Once discounting this amount for duplicative items of damage subsumed under other claims, the expert calculated the adjusted value of NGC's claim for loss of the Projects Department to be $92,319,579. Plaintiff's expert employed five methodologies to arrive at his ultimate valuation. Three of these methodologies were based respectively on the two Riyad Bank valuations and the Arthur Anderson valuation. The fourth methodology, the so-called "Guideline Company Method," used data on five publicly traded companies with businesses comparable to NGC's Projects Department, and generated a valuation of $105,064,296. The fifth methodology, the "Kingdom Holding Method," was based on the price per share of NGC equity actually paid by Kingdom Holding on May 9, 1999. The valuation by Plaintiff's expert was created by applying different weights to each of these methodologies 40% to the Kingdom Holding Method, 30% to the Guideline Company Method, and 10% to each of the Riyad Bank and Arthur Andersen valuations. (R. Christopher Rosenthal, Transcript of Oral Arguments on December 15th and December 17th (hereinafter "Tr."), 30:18-23).
Conclusions of Law
A. Legal Framework
Both parties agree that the law of Saudi Arabia covers this contractual dispute. This conclusion stems from the terms of the Subcontract which include the following choice of law provision:
This Subcontract is subject to the regulations in force in the Kingdom of Saudi Arabia. Interpretation and execution of the Subcontract and settlement of claims arising therefrom shall be subject to and in accordance with the said regulations.
(Def. Ex. 14A, Tab 3, Art. 8). Therefore, it is incumbent upon this Court to determine how Saudi Arabian law would apply to the present case, more particularly, how Saudi Arabian law would construe Plaintiff's claim for the loss of its Projects Department.
Federal Rule of Civil Procedure 44.1 governs the judicial determination of foreign law. Rule 44.1 states that when *294 deciding issues of foreign law, a court "may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law." This rule provides courts with broad authority to conduct their own independent research to interpret foreign law. Bel-Ray Co., Inc. v. Chemrite Ltd., 181 F.3d 435, 440 (3d Cir.1999). The court may rely upon its own research and any submissions from the parties when considering foreign law. See Ackermann v. Levine, 788 F.2d 830, 838 n. 7 (2d Cir.1986). In order to arrive at legal conclusions, courts may seek the aid of expert witnesses, U.S. v. Jurado-Rodriguez, 907 F.Supp. 568 (E.D.N.Y.1995), extracts from foreign legal material, Access Telecom, Inc. v. MCI Telecomm. Corp., 197 F.3d 694, 713 (5th Cir.1999) and may even consider material that would be inadmissible at trial. Sidali v. I.N.S, 107 F.3d 191, 198 n. 10 (3d Cir.1997). It is important to note that "[d]ifferences of opinion among experts on the content, applicability, or interpretation of foreign law do not create a genuine issue as to any material fact." Banco de Credito Indus., S.A. v. Tesoreria General, 990 F.2d 827, 838 (5th Cir.1993). In fact, "federal judges may reject even the uncontradicted conclusions of an expert witness and reach their own decisions on the basis of independent examination of foreign legal authorities." Curtis v. Beatrice Foods, Co., 481 F.Supp. 1275, 1285 (S.D.N.Y.1980). Having set forth the broad legal structure within which this Court can act when analyzing foreign law, it is now necessary to discuss the law of Saudi Arabia.
B. The Law of Saudi Arabia
1. Tenets of the Shari'a
The legal system in Saudi Arabia is fundamentally different from that of the United States. Western conceptions of the role that law plays in society, the legal process, and methods of legal interpretation, often mistakenly assumed to be universal in nature, are in many ways poles apart from those concepts in Islamic countries such as Saudi Arabia. The difficulties in understanding Islamic law are multiplied by the fact that there is a paucity of literature specifically targeted at those who, like this Court, are steeped in other legal mindsets and seek guidance as to Islamic law's interpretation. Confronted with this formidable and difficult responsibility, this Court has examined various texts and treatises dealing with Saudi Arabian law and carefully considered the testimony of the experts presented and the submissions of the parties which included testimony and submissions from Saudi Arabian lawyers, Islamic scholars, and former Saudi Arabian judges.
Based on the aforesaid considerations, it is apparent that Islam permeates every aspect of life in the Kingdom of Saudi Arabia, including its legal structure. The "Basic Regulation of the Kingdom of Saudi Arabia" states in pertinent part:
Article 1. The religion [of Saudi Arabia] is Islam, its constitution is the Book of God Most High and the Sunna of His Prophet, may God bless him and give him peace.
Article 7. Rule in the Kingdom of Saudi Arabia draws its authority from the Book of God Most High and the Sunna of His Prophet. These two are sovereign over this Regulation and all regulations of the state.
Article 48. The courts shall apply in cases brought before them the rules of the Islamic shari'a in agreement with the indications in the Book and the Sunna and the regulations issued by the ruler that do not contradict the Book or the Sunna.
*295 BASIC REGULATION OF THE KINGDOM OF SAUDI ARABIA, 1992 (cited in Pl.Ex. 14, FRANK E. VOGEL, ISLAMIC LAW AND LEGAL SYSTEM, 3 (2000)).
As evidenced by its Basic Regulation, the Saudi Arabia legal system is governed exclusively by what is known as the "Shari'a," or divine law. VOGEL, ISLAMIC LAW AND LEGAL SYSTEM, 3. In fact, there are no "laws" in Saudi Arabia other than Islamic law, and any supplemental rules promulgated by the Saudi government are actually considered regulations known as "nizam." (Def. Ex. 13, Howard L. Stovall, Doubts Persist-Arab Commercial Law into the Future, in ARAB COMMERCIAL LAW, 8 (William M. Ballantyne and Howard L. Stovall eds., 2002)). These regulations, issued under the authority of the King after approval by the Council of Ministers, are valid only to the extent that they are consistent with Shari'a. See ART. 67, BASIC REGULATION OF THE KINGDOM OF SAUDI ARABIA (cited in Def. Ex. 12, WILLIAM M. BALLANTYNE, ESSAYS AND ADDRESSES ON ARAB LAWS, 59 (2000)).
The Shari'a is the product of several interrelated sources of religious authority. (Frank E. Vogel Tr. 143: 21-22; William M. Ballntyne Tr. 228:18-19; Mujahid M. Al-Sawwaf Tr. 418: 17-21). The doctrines comprising Shari'a are derived primarily from the Qur'an, the "Book of God." The Qur'an is considered the word of God as received by the Prophet Muhammed. Because the Qur'an commands adherents of Islam to obey the Prophet, the recorded examples of the acts and words of Muhammed, known as the "Sunnah," constitute an additional integral part of the Shari'a. (Vogel Tr. 143-44: 20-1). In the centuries since the founding of Islam, Islamic religious-legal scholars qualified to interpret the scriptural sources have produced opinions known as "fiqh." A complete understanding of the Shari'a in Saudi Arabia today also requires reference to any relevant fiqh for guidance. VOGEL, ISLAMIC LAW AND LEGAL SYSTEM, 5. There are four schools of Shari'a law, each of which interprets Islamic doctrine somewhat differently. The predominant school followed in the courts of Saudi Arabia is known as the "Hanbali" school. (Pl.Ex. 13, FRANK VOGEL AND SAMUEL L. HAYES, III, ISLAMIC LAW AND FINANCE, 50-51 (1998)); BALLANTYNE, ESSAYS AND ADDRESSES ON ARAB LAWS, 84.
When a Saudi Arabian judge, known as a "qadi," attempts to resolve disputes, his decision must be in accordance with the Shari'a. Therefore, he will turn to the aforementioned Qur'an, the Sunnah, and fiqh to guide his legal determination. Saudi Arabian judges are not bound by judicial precedent (in fact, Saudi Arabian judicial opinions are not published) and the concept of stare decisis does not exist. (Vogel Tr. 143:2-4; Ballantyne Tr. 260-61:25-1). Instead, judges "must strive for the divine truth for each case that confronts him, without being bound by past opinions, even his own. Truth is the ultimate precedent, to which one must return once it is revealed." VOGEL, ISLAMIC LAW AND LEGAL SYSTEM, 15. Commercial disputes, such as the one presently facing this Court, would be heard by a Saudi judge sitting on the Board of Grievances. Judicial decisions by the Board of Grievances are appealable to the Review Committee of the Board of Grievances, which may then be appealed to the King of Saudi Arabia. (Vogel Tr. 138-139; Hassan M.S. Mahassni Tr. 311:16-18; 314:1-12; 316: 5-18); VOGEL, ISLAMIC LAW AND LEGAL SYSTEM, 305.
Generally speaking, the Saudi Arabian legal structure is highly traditional and judges strictly apply classical Islamic law. In contrast to other Islamic countries that have adapted religious tenets to meet modern demands, in Saudi Arabia, Shari'a remains free of compromising reforms. (Vogel Tr. 166:14-25). The Board of *296 Grievances too is very conservative in its interpretation of commercial and contract law. (Vogel Tr. 163:10-11). As one author noted, "commercial jurisprudence in Saudi Arabia remains marked by a conservative fiqh orientation, reflecting the shari'a educations of the judges.... [W]henever the expectations of international commerce conflict with fixed standards of the old Hanbali law, it is the former that gives way." VOGEL, ISLAMIC LAW AND LEGAL SYSTEM, 305.
A key doctrine within the Shari'a is the prohibition on "gharar," meaning risk or uncertainty. Gharar is absolutely repugnant to Islamic law. See, e.g., Stovall, in ARAB COMMERCIAL LAW, 9. (Vogel Tr. 154-55:16-9). Future activity is deemed gharar because it is uncertain to anyone except for God. One of the consequences of this categorical rejection of gharar is that Saudi Arabian courts will not enforce the sale of anything uncertain or unknown. The object of a contract must be certain and defined and in existence. BALLANTYNE, ESSAYS AND ADDRESSES ON ARAB LAWS, 267. Several historical accounts of the acts and statements of the Prophet Muhammed, known as "hadith," are instructive on this issue:
Do not buy fish in the sea, for it is gharar.
The Prophet forbade sale of what is in the wombs, sale of the contents of the udders, sale of a slave when he is runaway ...
The Messenger of God forbade the [sale of] the copulation of the stallion.
He who purchases food shall not sell it until he weighs it.
Quoted in Frank E. Vogel, The Contract Law of Islam and of the Arab Middle East, in INTERNATIONAL ENCYCLOPEDIA OF COMPARATIVE LAW, 52 (Draft September 1, 2003).
One scholar expounded upon the implications that the prohibition of gharar has in producing differing understandings of contractual obligations under Western and Islamic law:
In English law the sanctity of contract means that the promise endures despite the normal vicissitudes of fortune. It is right that the promise should be kept `for better or for worse', `through thick and thin', because this in line with the popular belief that tenacity of purpose to some degree controls events and that the human will determines the future. The promise must dominate the circumstances.
For Islam precisely the converse is true. Circumstances dominate the promise. Future circumstances are neither predictable nor controllable but lie entirely in the hands of the Almighty.... If the tide of affairs turns then the promise naturally floats out with it.
BALLANTYNE, ESSAYS AND ADDRESSES ON ARAB LAWS, 274 (internal citation omitted).
For reasons that include the strict prohibition on anything gharar, it is often very difficult to conduct modern complex business transactions in a manner consistent with Shari'a. Consequently, other Islamic countries have enacted codes to establish sources of law other than, or in addition to, Shari'a. Lawyers often advise their clients doing business in these countries to include choice of law clauses that exclude the application of Shari'a or provisions for commercial arbitration. VOGEL AND HAYES, ISLAMIC LAW AND FINANCE, 51. The parties in this case are both knowledgeable and sophisticated business enterprises well-versed in the ways of Islamic countries and the doctrines of Islamic law. They chose not to include any prophylactic choice of law clause in this case. The parties, therefore, are subject to the full application of Shari'a, however uncompromising that application may be.
*297 2. Valuation and the Recognition of Damages Under Saudi Arabian law
In this discussion of damages, it is important to first distinguish between the formation of a contractual agreement between parties in Saudi Arabia and the enforcement of that agreement in Saudi Arabian courts. When determining the application of foreign law to the present dispute, this Court's concern is not on the practices of consenting parties in Saudi Arabia who may have privately agreed on a given valuation or a degree of damages. Rather, the Court must ascertain what would occur when one party attempts to enforce the terms of that contract or damages claim before the Board of Grievances. This is so, because whatever parties may have privately agreed upon will not be enforced under Saudi Arabian law unless it is in accordance with Shari'a. (Ballantyne Tr. 287-88: 23-1; Vogel Tr. 169-70:14-6).
Adhering to the principles of Shari'a, when the Board of Grievances faces a breach of contract action, the quantum of damages recoverable will "fall far short of the mark which might reasonably be anticipated under English law." BALLANTYNE, ESSAYS AND ADDRESSES ON ARAB LAWS, 275 (internal citation omitted). Not only is the scope of damages recognized by the Board of Grievances much narrower than that in Western countries but also more restrictive than other Gulf States and Islamic nations. (Ballantyne Tr. 237:18-20).
Under Saudi Arabian law, damages for breach of contract are generally limited to those losses which are actual and direct. Damages will be awarded for actual physical harm to property caused by the breach as well as out-of-pocket losses, and can be obtained only for losses which are precise, accurate and certain. ("Declaration of Dr. Mujahid Al-Sawwaf," 5, Def. Ex. 15). Conversely, because of the principle of gharar, Saudi law does not permit damages that are "ascertainable only be means involving speculation, contingencies, uncertainties or indeterminancy." (Vogel Tr. 177:1-6). Accordingly, the Board will not permit the recovery of expectation damages. Vogel, The Contract Law of Islam and of the Arab Middle East, 121. Indeed, as Plaintiff's expert himself has written:
Losses to expectancy (beyond actual sustained injuries) are by definition fictional, based on the counter-factual premise that the contract was carried through without a breach. If damages are to include these undetermined contingencies, then either the parties did not consent to bear them or they consented to extreme gharar. On a theological plane, they assign to parties a God-like role to predict fate, and to be held to account for failures to do so.
Vogel, The Contract Law of Islam and of the Arab Middle East, 131. Gharar threatens to invalidate a contract irregardless of the degree of risk actually involved, and even if one of the parties has explicitly assumed the contractual risk and had been compensated accordingly. VOGEL AND HAYES, ISLAMIC LAW AND FINANCE, 91.
Saudi law also denies any recovery for unrealized gains or future profits lost due to contractual default because of their speculative nature. Vogel, The Contract Law of Islam and of the Arab Middle East, 132; VOGEL AND HAYES, ISLAMIC LAW AND FINANCE, 51. See also BALLANTYNE, ESSAYS AND ADDRESSES ON ARAB LAWS, 274-275 ("Calculation of damages never takes into account anticipated profit because this is a future and unknown quantity.") For similar reasons, recovery is not permitted in Saudi courts for those damages based on intangible notions such as the loss of goodwill because they are inherently uncertain. (Al-Sawwaf Tr. 409:22-25; Ballantyne Tr. 245:17-23).
*298 Based on this understanding of contractual damages, a Saudi judge, for example, would not enforce a transaction for the sale of a pregnant camel if that transaction afforded a higher price due to the camel's pregnancy. This is because the future pregnancy is gharar; it may not in fact occur, and therefore the value is imbued with an unacceptable risk. If the Court were awarding damages according to Shari'a, it would not take notice of the pregnancy because that would be a future expectation. (Ballantyne Tr. 242:20-23). Likewise, the likelihood that a race horse will earn prize money in the future is gharar and would not be taken into account in awarding damages for the horse's destruction. According to the Shari'a, only God knows whether the horse would in fact win anything in the future or whether God would disfavor the owner of the race horse in the future. (Ballantyne Tr. 283:7-10; Al-Sawwaf Tr. 415: 5-19).
These zoological metaphors are not the only examples of the restriction on the award of uncertain damages. In construction contracts in which the contractor sues the work owner for breach of contract, one scholar has noted that damages are limited to "actual performance costs `lost' due to the breach." Vogel, The Contract Law of Islam and of the Arab Middle East, at 130-31, n. 239. Such "actual performance costs" refers to money paid out for workers, the costs of equipment or facilities, and other out-of-pocket damage. (Vogel Tr. 199-200:22-1).
In the case at bar, Plaintiff's expert seems to concede that courts will not enforce a greater valuation based on future expectations. (Mahassni Tr. 361:17-23). Plaintiff advances the argument that higher valuations are possible as long as the future event is not an explicit condition to the contract (Vogel Tr. 157:3-23), and that uncertainty that is subsumed within a larger entity, such as a corporation, would be upheld, and it is only when gharar inheres within a separate entity is it forbidden. (Vogel Tr. 181:11-23). These arguments lack meaningful supporting religious, academic or legal authority, and appear to draw too tenuous a distinction to be acceptable. This Court does not accept the suggestion that the conservative highly-religious Saudi Arabian courts would find significance in superficial differences in the presentation of gharar sufficient to overcome the dictates of the Shari'a.
C. Application of Saudi Arabian Law on Damages to the Projects Department
Assuming it can eventually prove breach and causation, Plaintiff seeks recovery for the full value of its liquidated Projects Department which has been valued by its expert at $92,319,579. Because such a damages award runs contrary to Shari'a law as said law would be interpreted by the Board of Grievances, the Court rejects this claim and limits damages to the loss in value of Plaintiff's actual assets.
A review of the methods used by Plaintiff's valuation expert shows that they all contain unacceptable elements of gharar, thereby precluding their acceptance under Islamic law. The two Riyad Bank valuations and the Arthur Andersen valuation used by Plaintiff's expert rest almost entirely on projections into the future. These three valuations used the "discounted cash flow" method of valuation. By definition, use of the discounted cash flow method requires future predictions which are then discounted to derive a present valuation. Plaintiff's expert conceded as much at trial. (Rosenthal Tr. 69:2-3 ("Using the discounted cash flow methodology by definition projects into the future.")) A company's cash flow is based in part "upon what [the company] might expect to be able to do in the future" and takes into account "projects that they expected to *299 have in the future." (Rosenthal Tr. 26:6-8). This analysis requires future estimates of, among other things, revenues, costs, debts and capital expenditures.
Indeed, the different Riyad Bank valuations arise from running discounted cash flow projections under two different scenarios (a conservative and best case scenarios), each of which was based upon different probabilities that NGC would obtain future contracts. Likewise, Arthur Andersen stated that only 20% of its estimate of the value of Plaintiff's business was based on presently-held contracts, compared to 80% which was based on future contracts. (Vincent O'Brien Tr. 90:10-17; 1116-17: 23-16). The fact that none of the testifying experts had ever heard of any case in which the Board of Grievances awarded damages for the value of a business based on this method of valuation lends support to this Court's conclusion. Although the discounted cash flow approach serves as a useful tool to aid in business transactions in Western countries, it would be unacceptable to a court in Saudi Arabia that is faithful to Islamic doctrine.
The Guideline Company Method of valuation likewise conflicts with the Saudi Arabian aversion to gharar. Under this approach, Plaintiff's expert used five publicly-traded companies with operating and financial characteristics similar to NGC's Projects Department to determine its value. However, the value of the stocks in these "guideline companies" are inevitably future oriented, based on an implicit projection of future cash flows by investors. (O'Brien Tr. 91:14-16). To the extent the value of a share depends on estimated future earnings, it would be excluded from a damages claim. (Ballantyne Tr. 285:19-21). Basic economic doctrine holds that the price of a stock is "the present value of the future dividends out to infinity" (O'Brien Tr. 92:1-2). The "value of any asset is a function of the cash flows generated by that asset, the life of the asset, the expected growth in cash flows, and the riskiness associated with them." (Def. Ex. 4, "Expert Report of Dr. Vincent O'Brien," 3, quoting from CORPORATE FINANCE, THEORY AND PRACTICE, 750) (2nd ed., Aswath Damodaran, John Wiley & Sons (2001)). Consequently, this methodology is likewise offensive to Shari'a principles in Saudi Arabia.[1]
Plaintiff contends that if the Court were to reject the Guideline Company Method, that rejection would imply that no one in Saudi Arabia could enforce a contract to buy or sell shares of stock in a company to the extent the price did not reflect the tangible value alone of that company's assets. This may very well be the case. However, it is neither the province nor duty of this Court to comment upon the wisdom or practicality of the strict application of Shari'a or bemoan the potential troubling ramifications that Shari'a might have on the ability to conduct complex business transactions in Saudi Arabia. To paraphrase the great Chief Justice John Marshall, this Court's mandate is only "to say what the law is." Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). And based on the research as outlined above, coupled with the inability of any expert to point to any case in which the Board of Grievances ever used something akin to the Guideline Company Method to value a company for damages determination, this Court finds that Shari'a law would not allow for this approach.
*300 The fifth method used to value Plaintiff's Projects Department, the Kingdom Holding Method, suffers from similar infirmities. This valuation is based on the May 9, 1999 agreement by Kingdom Holding Company Ltd. to purchase a portion of Plaintiff company for a fixed price per share. This purchase price was then used as a basis from which to extrapolate the value of the entire Projects Department. Putting the potential substantive weaknesses of this approach aside,[2] this approach is problematic first because both parties in the transaction used the troublesome Riyad Bank and the Arthur Andersen discounted cash flow methods to structure their negotiations. (O'Brien Tr. 96:6-8). In addition, this approach is clearly based on Kingdom Holding's expectations of future return, a projection that of course cannot be predicted with certainty and would be invalidated because it is gharar. Furthermore, at least one expert has suggested that the doctrine of "taqualub al asaar," (meaning "changing of prices") would preclude consideration of the Kingdom Holding Method by a Shari'a judge. Under this principle, a judge should not base a valuation of complex entities such as a company on offers by bidders or other purchasers. This is because offers may change based on numerous extraneous circumstances, and different people have particular subjective motivations for purchasing an object which cannot be generalized to derive a uniform "proper" valuation. (Def. Ex. 15, "Declaration of Dr. Mujahid M. Al-Sawwaf,7; Al-Sawwaf Tr. 423:9-25").
Plaintiff attempts to sidestep the dictates of Shari'a by characterizing its claim as one for the loss in the "present actual value" of the Projects Department rather than one for lost future gains. However, Plaintiff's expert himself admitted that "trying to recover lost gains by reproducing them or representing them as a direct reduction in value ... would be improper under Islamic law." (Vogel Tr. 197: 4-7). The loss in a company's value is directly dependent on, and intertwined with, the loss of its future earnings. If a Saudi court would deny damages based on the latter because of its inconsistency with Islamic law, it would certainly also deny damages based on the former. Permitting Plaintiff to evade the ban on gharar by re-framing its claim as a loss in present value would produce an exception that would soon swallow the rule, as most future claims have some present element to them. The Board of Grievances has not and would not permit this back-door approach to obtaining damages that is effectively identical to a forbidden claim for lost future earnings.
The $92 million valuation by Plaintiff's expert is also suspect because the figure includes intangibles beyond future contracts, such as goodwill, that are not allowed under the Shari'a. (Al-Sawwaf Tr. 411:7-12). Plaintiff's own expert, who practiced law in Saudi Arabia for almost 40 years, testified that he never heard of a case in which the Board of Grievances awarded damages based on the destruction of an intangible piece of property. Plaintiff's discussion of "mithli" (fungible property) and "qimi" (non-fungible property) does not change this Court's conclusion. (Ballantyne Tr. 275: 18-22). It may very well be true that the amount of compensation for qimi such as a company is the actual market value of the item, a valuation *301 in which the Board of Grievances may reach by relying upon the opinions of accounting experts. (Mahassni Tr. 327:22-24; 332: 5-9). However, this assertion does not take away from the undisputed notion that the presence of gharar would still invalidate any such valuation.
Consequently, it is clear to this Court that in Saudi Arabia, the Board of Grievances would not award damages based on Plaintiff's valuation of the Projects Department. To do so would be equivalent to placing a value on fish in the sea, or purchasing food that has not yet been weighed. Although Plaintiff's valuation is rejected, this does not mean that Plaintiff cannot recover damages for its losses. However, the measure for the loss of the Projects Department must be limited to the actual existing assets of the Department, and not to those items impinged with gharar. Moreover, the amount obtainable will be measured by the fair market value of the assets and not their book value, as book value is an accounting convention that would not produce an accurate picture of actual losses as defined under Islamic law.
Conclusion
In conclusion, it is the holding of this Court that Plaintiff's valuation for the Projects Department must be rejected. This conclusion is based upon this Court's review of various academic texts, the testimony of the experts, the submissions of the parties, and the Court's understanding of the fundamental principles of Islamic law as they would be interpreted by a court in Saudi Arabia.
It is so ordered.
NOTES
[1] Plaintiff's statements that companies in Saudi Arabia are often valued on this basis does not mean that were the matter to be litigated in Saudi Arabia a Saudi Arabian court would indeed enforce that valuation and award damages.
[2] Kingdom Holding has since accused Plaintiff NGC of substantially overstating its historical net worth, believing that it overpaid for this portion of the company. (See Rosenthal Tr. 75:10-14). Moreover, the Kingdom Holding purchase price appears to be based on the purchase of the entire NGC company and not just the Projects Department. It is unclear how much of that purchase price can be attributed to the Projects Department.
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284 F.3d 293
Melvin D. HARRISON, PPA Kenyeda Taft, Plaintiff, Appellant,v.UNITED STATES of America, Defendant, Appellee.
No. 01-1373.
United States Court of Appeals, First Circuit.
Heard December 3, 2001.
Decided April 1, 2002.
COPYRIGHT MATERIAL OMITTED Adam R. Satin, with whom Andrew C. Meyer, Jr., William J. Thompson, and Lubin & Meyer, P.C., were on brief, for appellant.
Mary Elizabeth Carmody, Assistant U.S. Attorney, with whom James B. Farmer, United States Attorney, were on brief, for appellee.
Before TORRUELLA, LYNCH and LIPEZ, Circuit Judges.
TORRUELLA, Circuit Judge.
1
This is an appeal from a bench trial in a medical malpractice case brought under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Kenyeda Taft, on behalf of her minor son, Melvin Harrison, sued Dr. Louis Laz, her obstetrician and a federal employee, for injuries allegedly sustained by Melvin during his birth. The complaint set forth two grounds for finding negligence: failure to meet the standard of care and lack of informed consent. The district court, after a five-day trial, concluded that Dr. Laz was not negligent under either theory and concomitantly entered judgment for the defendant of record, the United States. Plaintiff-appellant, Melvin Harrison, appeals the judgment on the informed consent claim. For the reasons discussed below, we vacate the judgment and remand to the district court judge.
I.
2
In 1996, Kenyeda Taft ("Ms.Taft") was pregnant with Melvin Harrison, her second child. In March of that year, Ms. Taft, almost four months pregnant, began her prenatal care at the Lynn Community Health Center ("Lynn CHC") with an initial screening visit conducted by a nurse practitioner. During this visit, Ms. Taft provided a medical history, including the fact that her first child, due to her large size of 9 pounds and 3 ounces, suffered an injury during vaginal birth that resulted in Erb's Palsy.1
3
Ms. Taft first met with Dr. Louis Laz ("Dr.Laz"), a Board-certified obstetrician and gynecologist, at the Lynn CHC on April 29, 1996. Ms. Taft informed Dr. Laz that her first child suffers from Erb's Palsy as a result of a shoulder dystocia,2 due to the baby's large size. At the time, Dr. Laz's general practice with patients who had had a prior large baby was to determine the estimated fetal weight by ultrasound at about 37 weeks' gestation. If the estimated weight was 4500 grams or more, Dr. Laz would offer the patient an elective Cesarean section ("C-section"). If the estimated weight was under this threshold, Dr. Laz would recommend inducing labor at 37 or 38 weeks' gestation.
4
In addition to her previous large child, Ms. Taft presented with other risk factors that increased the likelihood that her second baby would also be large, and therefore more likely to suffer complications, such as a shoulder dystocia or brachial plexus injury, during a vaginal birth: she was pregnant with her second child, and second children are usually larger than first; the fetus was male, and males are generally larger; Ms. Taft was an obese woman at the time of her pregnancy; Ms. Taft experienced excessive weight gain during the pregnancy; and her prior delivery resulted in an Erb's Palsy injury. While Dr. Laz recognized these risk factors, he considered them to be normal birth risks and therefore did not discuss them with Ms. Taft.
5
After meeting with Ms. Taft, Dr. Laz obtained the delivery record for Ms. Taft's first child, Keneisha Taft, from Salem Hospital. At trial, Dr. Laz testified that it was his general practice to request the hospital delivery notes for any patient who had a history of delivery complications. The delivery record of Dr. Orkin, the treating obstetrician, indicated that Keneisha's birth occurred "without any complications." Dr. Laz, considering the obstetrician's delivery notes to be the "gold standard of what happened at that delivery," concluded that Ms. Taft did not experience a shoulder dystocia during her first birth. Therefore, Dr. Laz believed that the Erb's Palsy developed spontaneously, rather than as a result of a shoulder dystocia. Although Dr. Laz testified that he would have discussed an elective C-section with a patient where there was documented evidence of a prior shoulder dystocia resulting in an injury, he did not do so in this case, since the delivery notes did not document such complication.
6
On September 12, 1996, at approximately 37 weeks' gestation, in accordance with Dr. Laz's general practice, Ms. Taft had an ultrasound at Union Hospital to estimate the fetal weight. The ultrasound report estimated the fetal weight to be 3676 grams (a little over 8 pounds). Because the estimated weight was under the 4500 grams threshold, Dr. Laz determined that a vaginal delivery, as opposed to a C-section, was the appropriate mode of childbirth. Dr. Laz recommended to Ms. Taft that labor be induced, but he did not discuss with her either the risks of vaginal birth or the possibility of a C-section.
7
On September 17, 1996, Ms. Taft, at 37.5 weeks' gestation, was admitted to Beverly Hospital for induction of labor. During labor, the baby's head crowned, but the shoulders did not deliver. Dr. Laz and the delivery team followed standard steps to attempt to resolve the shoulder dystocia. After these steps were unsuccessful, Dr. Laz delivered the posterior (right) arm, which then allowed delivery of the baby at 12:46 a.m. on September 18. The baby, Melvin Harrison, weighed 4508 grams (9 pounds and 15 ounces) at birth and had a weakness of the right arm and hand, which was subsequently diagnosed as Erb's Palsy.
8
The plaintiff filed suit against Dr. Laz for medical malpractice in Essex County Superior Court. However, since Dr. Laz was a federal employee at the time he treated Ms. Taft, the action was removed to the United States District Court for the District of Massachusetts, and the United States was substituted as the defendant. The plaintiff's suit was premised on two grounds of negligence: (1) Dr. Laz's failure to meet the standard of care by not originally offering an elective C-section and by not performing a C-section during labor based on fetal heart monitorings; and (2) Dr. Laz's failure to obtain Ms. Taft's informed consent by not discussing the risks of vaginal birth and disclosing the alternative of a C-section. A bench trial began on December 18, 2000. At the close of the plaintiff's case, the district court granted the United States' motion for judgment as a matter of law on the question of Dr. Laz's compliance with the standard of care during labor.
9
At the conclusion of the trial, the district court determined that Dr. Laz did not fail to obtain the patient's informed consent and entered judgment for the defendant. The court found that, although the risks of vaginal birth for the baby were "something more than negligible," when these risks were balanced against the risks to the mother from a C-section, "a cesarean section to avoid brachial plexus injury was not a reasonable medical judgment." Therefore, even though the court found that Ms. Taft would have opted for a C-section if informed of the possibility, the court concluded that "Dr. Laz was under no duty to afford [Ms. Taft] the opportunity to have a cesarean section...."
10
The plaintiff appeals the court's judgment only on the informed consent claim, arguing that Dr. Laz, because such information was material to her decision to deliver vaginally, did have a duty to inform Ms. Taft of both the risks of vaginal birth and the availability of a C-section as an alternative method of childbirth.
II.
11
We review a district court's factual findings for clear error. See Fed. R.Civ.P. 52(a); La Esperanza De P.R., Inc. v. Pérez y Cía. De P.R., Inc., 124 F.3d 10, 15 (1st Cir.1997). "We deem a finding to be clearly erroneous only when, after reviewing the entire record, we are left with the definite and firm conviction that a mistake has been committed." La Esperanza, 124 F.3d at 15 (internal quotation marks omitted). Questions of negligence decided in a bench trial are treated as questions of fact, or as mixed questions of fact and law, and are therefore evaluated under this deferential standard. See id. at 15-16.
12
However, when the district court's factual findings are premised on an incorrect interpretation of the relevant legal principles, we do not owe the court the same level of deference. See United States v. 15 Bosworth St., 236 F.3d 50, 54 (1st Cir.2001); Vinick v. United States, 205 F.3d 1, 6-7 (1st Cir.2000). "Instead, we treat the trial court's conclusion as a question of law," Vinick, 205 F.3d at 7, and review it de novo. 15 Bosworth St., 236 F.3d at 53.
III.
13
Under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), state law is "the source of substantive liability." Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 477-78, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). To recover under a theory of informed consent in Massachusetts, a patient must prove that the physician has a duty to disclose certain information and that a breach of that duty caused the patient's injury. See Halley v. Birbiglia, 390 Mass. 540, 458 N.E.2d 710, 715 (Mass.1983). To establish a breach of the physician's duty of disclosure, the plaintiff must establish that: (1) a sufficiently close doctor-patient relationship exists; (2) the doctor knows or should know of the information to be disclosed; (3) the information is such that the doctor should reasonably recognize that it is material to the patient's decision; and (4) the doctor fails to disclose this information. See id. In this case, only the materiality of the information to the patient is contested.3
14
If a duty exists, a physician must disclose "sufficient information to enable the patient to make an informed judgment whether to give or withhold consent to a medical or surgical procedure." Harnish v. Children's Hosp. Med. Ctr., 387 Mass. 152, 439 N.E.2d 240, 242 (Mass.1982). Failure to do so constitutes medical malpractice. See id.
15
There are two primary standards for determining the requisite scope of the physician's disclosure in informed consent cases: "customary practice" and "materiality." See id. at 243-44; Canterbury v. Spence, 464 F.2d 772, 786-87 (D.C.Cir.1972). Many jurisdictions require a physician to disclose whatever information a reasonable physician in similar circumstances would customarily disclose. See Harnish, 439 N.E.2d at 243; Canterbury, 464 F.2d at 786 & n. 70. The Commonwealth of Massachusetts, however, has rejected the customary practice standard as providing insufficient protection for the patient's autonomy, which is the very purpose of disclosure.4 See Harnish, 439 N.E.2d at 243-44; Precourt v. Frederick, 395 Mass. 689, 481 N.E.2d 1144, 1149 (Mass.1985) (balancing patient's right to self-determination and desire to not unduly burden practice of medicine). Instead, Massachusetts has adopted the "materiality" standard, requiring the physician to disclose "information he should reasonably recognize is material to the [patient's] decision." Harnish, 439 N.E.2d at 243.
16
"`Materiality may be said to be the significance a reasonable person, in what the physician knows or should know is his patient's position, would attach to the disclosed risk or risks in deciding whether to submit or not to submit to surgery or treatment.'" Id. at 243 (quoting Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676 (R.I.1972)). Material information "may include the nature of the patient's condition, the nature and probability of risks involved, the benefits to be reasonably expected, ... the likely result of no treatment, and the available alternatives, including their risks and benefits." Id.
17
Whether a risk of injury is material to a patient depends upon the severity of the potential injury as well as the probability of its occurrence. See Precourt, 481 N.E.2d at 1148. If the likelihood of an injury occurring is negligible, then the risk is not considered material, and the risk is insufficient to trigger the physician's duty to disclose.5 See Feeley v. Baer, 424 Mass. 875, 679 N.E.2d 180, 182 (Mass.1997) (holding that physician had no duty to disclose risk of serious infection because plaintiffs failed to prove that there was "more than a negligible risk"); Precourt, 481 N.E.2d at 1148 (noting that a risk of injury "cannot be considered a material factor" if the probability of its occurrence "is so small as to be practically nonexistent"). Similarly, if the severity of the potential injury is "very minor," the risk is immaterial and need not be disclosed. Precourt, 481 N.E.2d at 1149 (quoting LaCaze v. Collier, 434 So.2d 1039, 1046 (La.1983)) (internal quotation marks omitted).
18
In the case at hand, the plaintiff, citing to Feeley, argues that any risk that is more than negligible automatically qualifies as a material factor that must be disclosed. See Feeley, 679 N.E.2d at 182 (stating that "[t]he risk that must exist in order to invoke informed consent principles in this case is a more than negligible risk...."). The defendant, however, challenges the plaintiff's understanding of the Commonwealth's informed consent law. The defendant argues that Feeley and the other Massachusetts informed consent cases indicate that materiality requires more than just non-negligibility. The defendant contends that Feeley stands for the proposition that if a plaintiff can show evidence of only a negligible risk, then there is no duty to disclose, because such a risk is, as a matter of law, not material. See id., 679 N.E.2d at 182 (holding that there was no duty to disclose because plaintiff failed to show "more than a negligible risk").
19
The district court seemingly adopted the plaintiff's interpretation of the law by stating that "the doctor must inform the patient where there exists more than a negligible risk of one or more serious consequences from the course of treatment that is being undertaken by the doctor." After hearing the evidence, the court found that Dr. Laz was aware of the risk factors for a birth injury and that these risk factors were "something more than negligible." However, the court then weighed the risks to the mother of a C-section, which the court found to be "more than normally associated with the birth of a child," against the risks to the child of a vaginal birth and found "that Dr. Laz was under no duty to afford [Ms. Taft] the opportunity to have a cesarean section and on the particular circumstances of this case a cesarean section to avoid brachial plexus injury was not a reasonable medical judgment."
20
We believe that the district court erred in its interpretation of Massachusetts law, thereby triggering de novo review of its finding that Dr. Laz owed no duty to disclose the risks and alternative methods of childbirth. See 15 Bosworth St., 236 F.3d at 54; Vinick, 205 F.3d at 6-7. As discussed above, Harnish and Precourt establish materiality as the standard for determining whether a physician has an affirmative duty to disclose. See Harnish, 439 N.E.2d at 243 (noting duty to disclose material information, but that this does not require the disclosure of all risks); Precourt, 481 N.E.2d at 1148-49 (recognizing duty to disclose material information, which does not include "remote risks"). However, Precourt reserved the issue of how to determine when a risk need not be disclosed, except for indicating there is no duty to disclose negligible risks:
21
The development of our law concerning the distinction between risks that as a matter of law may be considered remote, and those that may be left to the determination of a fact finder, must await future cases. It is clear, however, that when, as in this case, the evidence does not permit the jury to draw an inference that the physician knew or reasonably should have known that the probability that a particular risk would materialize was other than negligible, the evidence is insufficient to warrant a finding that the physician violated his duty of disclosure.
22
481 N.E.2d at 1149-50.
23
Feeley did not change this materiality approach to informed consent. In Feeley, a mother sued for medical malpractice when her child died from streptococcus pneumonia five days after birth. See 679 N.E.2d at 181. The mother alleged that the treating physician, who opted for spontaneous labor (as opposed to inducing labor) after her water broke, failed to disclose any risk of infection from this procedure. See id. The Supreme Judicial Court of Massachusetts, citing Harnish and Precourt, undertook a materiality analysis and concluded that "[t]he evidence would not permit a finding that the risk to the child of serious infection was more than negligible." 679 N.E.2d at 181. Thus, because the severity of the potential injury was minimal, the court concluded that the information was not material, and the doctor, therefore, had no duty to disclose. See id. at 181-82.
24
The plaintiffs in Feeley, similar to the plaintiff in this case, argued that there was more than a negligible risk and, as a result, that risk had to be disclosed. See id. On the particular facts, however, the Feeley court determined that the risk was not more than negligible. See id. at 182. Thus, the court stated that "[t]he risk that must exist in order to invoke informed consent principles in this case is a more than negligible risk of one or more infections that will have serious consequences." Id. This context clarifies that the court was merely negating any duty to disclose negligible risks. The court was not, as plaintiff argues, declaring an affirmative duty to disclose any risk that is "more than negligible." Thus, the caselaw stands for the proposition that there is no duty to disclose negligible risks, not that all non-negligible risks are actionable if not revealed.
25
As a result, when the district court's analysis focused on whether the risks were "more than negligible" rather than on materiality, the district court applied the incorrect legal standard. Thus, we vacate the district court's judgment and remand the case to the district court judge to assess the materiality of the risks of vaginal birth to a reasonable person in Ms. Taft's position.6
26
Moreover, the court made a second legal error by balancing the risks to the child from a vaginal birth against the risks to the mother from a C-section and concluding that, because the C-section presented a greater risk and was therefore not medically recommended, the doctor had no duty to disclose the risks of either procedure. The materiality standard for disclosure does not incorporate a balancing test by which the court can weigh the risks of alternate treatments in deciding what information is material to the patient. An obstetrician in the delivery room is in the unique situation of having to take into account the best interests of two individuals, mother and child, in rendering medical care. Cf. Thomas v. Ellis, 329 Mass. 93, 106 N.E.2d 687, 689-90 (Mass.1952) (holding that evidence could support finding of negligence where doctor's external turning of fetus' position, causing a separated placenta, endangered health of both mother and child). As such, in recommending a course of treatment to his patients, the standard of care may require the doctor to consider the risks to the mother, the risks to the child, and the appropriate balance of these risks.
27
However, the standard of care that governs a conventional medical malpractice case differs from the materiality standard that governs informed consent cases. See Steinhilber v. McCarthy, 26 F.Supp.2d 265, 272, 274-75 (D.Mass.1998) (analyzing doctor's negligence under the standard of care of an average member of his profession but his duty to disclose under materiality of the information). Under informed consent law, if a risk to the baby or a risk to the mother is material to the patient-mother's decision, the doctor has a duty to disclose that risk. See Harnish, 439 N.E.2d at 243 (asserting that physician has duty to disclose "all significant information that the physician possesses" that is material to the patient's decision). Once these risks and other material information have been disclosed, it is the patient's prerogative to balance these risks and choose the form of treatment that best meets that patient's needs. See Harnish, 439 N.E.2d at 244 (declaring it is "the patient's right to decide for himself"); Canterbury, 464 F.2d at 781 ("To the physician, whose training enables a self-satisfying evaluation, the answer may seem clear, but it is the prerogative of the patient, not the physician, to determine for himself the direction in which his interests seem to lie.").7
28
Thus, if, on remand, the district court finds that a risk existed either as to the mother's health or as to the child's health and that such information would have been material to a reasonable patient in Ms. Taft's position, then Dr. Laz had a duty to disclose that risk. Moreover, because there are only two methods of childbirth, if the district court finds the risk of vaginal birth to be material to the patient, then Dr. Laz also had a duty to present the alternative option of a C-section that might minimize such risk, regardless of his medical opinion on the proper course of treatment.8
IV.
29
The plaintiff also challenges on appeal the district court's analysis of his claim for damages arising out of the alleged malpractice. The district court, in an effort to provide a "complete record of factual findings," analyzed the case backwards, starting with an assessment of damages, then proceeding to causation, negligence, and duty, in that order. Although we understand why the court engaged in this method of analysis, rather than simply concluding its ruling after finding there was no duty to disclose, such analysis resulted in extraneous factual findings. Therefore, because the district court did not need to reach the issue of damages, any findings regarding damages are dicta; the district court did not actually award any damages. As a result, plaintiff's claims of error in computing the damages are premature. See United States v. Ottati & Goss, Inc., 900 F.2d 429, 443 (1st Cir.1990) (refusing to address appeal of district court's liability finding since such finding was not necessary to the judgment below). Rather, plaintiff should raise his claims if, on remand, the district court finds Dr. Laz liable and awards damages.
V.
30
For the reasons discussed herein, we vacate the district court's judgment and remand the case to the district court judge for a determination of materiality.
31
Vacated and remanded for actions consistent with this opinion.
Notes:
1
Erb's Palsy is a brachial plexus injury, which results in decreased mobility and functionality of the affected upper extremity
2
Shoulder dystocia is a complication that can occur during a vaginal birth where the fetus' shoulders impede the fetus' passage through the birth canal after the head has been delivered. Shoulder dystocia can cause Erb's Palsy, although Erb's Palsy can also occur spontaneously
3
Appellee, in its brief, states that the doctor's knowledge of the information is also disputed. However, the doctor's knowledge is not at issue given his and defense counsel's admission at trial that he was aware of Ms. Taft's risk factors for delivering a large child
4
The Supreme Judicial Court of Massachusetts has, in prior cases, citedCanterbury with approval for its explanation rejecting the customary practice standard:
The decision to unveil the patient's condition and the chances as to remediation, as we shall see, is ofttimes a non-medical judgment and, if so, is a decision outside the ambit of the special [medical] standard. Where that is the situation, professional custom hardly furnishes the legal criterion for measuring the physician's responsibility to reasonably inform his patient of the options and the hazards as to treatment.
. . . . .
... Any definition of scope [of disclosure] in terms purely of a professional standard is at odds with the patient's prerogative to decide on projected therapy himself. That prerogative, we have said, is at the very foundation of the duty to disclose, and both the patient's right to know and the physician's correlative obligation to tell him are diluted to the extent that its compass is dictated by the medical profession.
464 F.2d 785-86.
5
We note, however, that there is no "magic number" for determining whether a probability of injury is sufficient to make the risk materialSee Canterbury, 464 F.2d at 788 & n. 86 (citing cases, among which one percent chance of loss of hearing was material but 1.5 percent chance of loss of eye was not material).
6
Materiality, since it is a factual determination, is properly left for the district court to determineSee Kissinger v. Lofgren, 836 F.2d 678, 681 (1st Cir.1988) (finding that once jury had heard evidence on likelihood and severity of injury, it was jury's responsibility to determine materiality); Harnish, 439 N.E.2d at 243; Canterbury, 464 F.2d at 787, 788, 794; McMahon v. Finlayson, 36 Mass.App.Ct. 371, 632 N.E.2d 410, 413 (Mass.App.Ct.1994) (stating that materiality is issue for the fact finder once there has been expert testimony regarding the likelihood of the injury).
7
The patient's opportunity to perform this balancing may assume particular importance when the patient is a mother giving birth. In such a case, the mother may purposefully discount risks to herself in order to choose a treatment or procedure that will present the least risk to her newborn child. While the treating physician will undoubtedly feel the need to balance the welfare of mother and child, the mother may consider her baby's health as the paramount concernSee Statement by American Medical Association on Forced Cesarean Section Court Case in Chicago, U.S. Newswire, December 15, 1993, available at 1993 WL 7132850 (opining that in cases where there is a "trade-off" between the health of the mother and the child, "pregnant women routinely choose" and "should" choose a cesarean section "for the benefit of their fetuses," even though the risk to the woman is higher than from a vaginal delivery).
8
We emphasize that a duty to disclose, if it exists, doesnot necessarily indicate any duty to offer or to perform a C-section if the doctor does not consider one to be warranted in his medical judgment. See Canterbury, 464 F.2d at 781 (separating physician's duty "to treat [and diagnose] his patient skillfully" from his "obligation to communicate specific information to the patient"). The duty to disclose is intended to be limited, so as not to unduly burden the practice of medicine. See Harnish, 439 N.E.2d at 243.
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568 F.2d 780
U. S.v.Warner
No. 77-1741
United States Court of Appeals, Ninth Circuit
9/26/77
1
D.Mont.
AFFIRMED
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785 F.2d 322
Lancasterv.V.A.
84-1034
United States Court of Appeals,Federal Circuit.
11/1/85
MSPB, 19 M.S.P.R. 641
Affirmed
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629 F.2d 1347
dU. S.v.Sutterer
79-5668
UNITED STATES COURT OF APPEALS Fifth Circuit
10/14/80
1
N.D.Ala.
AFFIRMED
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(2008)
Vincent NASTRO, Plaintiff,
v.
Arthur M. D'ONOFRIO, Carolyn D'Onofrio, Arthur A. D'Onofrio, Paul D'Onofrio, Nicole D'Onofrio, New England Propeller Service, Inc., U.S. Propeller Service of CT, Inc., DIVACQ, Inc., ADMW, LLC, The Chana Trust, The Continental Trust Co. Ltd., Kleban & Samor, P.C., and Elliot I. Miller, Defendants.
No. 3:02CV00857(DJS).
United States District Court, D. Connecticut.
March 31, 2008.
MEMORANDUM OF DECISION AND ORDER
DOMINIC J. SQUATRITO, District Judge.
Plaintiff, Vincent Nastro ("the Plaintiff) initially brought this action against thirteen defendants, alleging violations of both federal and Connecticut law. After various motions, conferences, and other proceedings, the only remaining defendants in this case are Kleban & Samor, P.C. ("K & S") and Elliot I. Miller ("Miller") (collectively, "the Defendants").[1] In the Fifth Count of his Amended Complaint, the Plaintiff alleges that the Defendants have violated the Racketeer Influenced and Corrupt Organizations Act ("RICO"), "18 U.S.C. § 1962. On January 18, 2006, the Defendants filed a motion to dismiss (dkt. # 161),[2] which the court subsequently converted into a motion for summary judgment (dkt. # 173) pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."). For the reasons set forth herein, the' Defendants' motion for summary judgment (dkt. # 161) is GRANTED.
I. THE PLAINTIFF'S SUBMISSIONS
Before setting forth the background facts of this case, the court notes that the Plaintiff has failed to fully comply with Rule 56 of the Local Rules of Civil Procedure for the District of Connecticut ("D. Conn. L. Civ. R."). Local Rule 56(a)(1) provides that "[t]here shall be annexed to a motion for summary judgment a document entitled`Local Rule 56(a)l Statement' which sets forth in separately numbered paragraphs ... a concise statement of each material fact as to which the moving party contends there is no genuine issue to be tried." D. Conn. L. Civ. R. 56(a)(1). Under Local Rule 56(a)(2),
[t]he papers opposing a motion for summary judgment shall include a document entitled "Local Rule 56(a)2 Statement," which states in separately numbered paragraphs ... corresponding to the paragraphs contained in the moving party's Local Rule 56(a)l Statement whether each of the facts asserted by the moving party is admitted or denied.
D. Conn. L. Civ. R. 56(a)(2). "All material facts set forth in [the moving party's Local Rule 56(a)l] [S]tatement and supported by the evidence will be deemed admitted unless controverted by the statement required to be filed and served by the opposing party in accordance with Local Rule 56(a)2." D. Conn. L. Civ. R. 56(a)(1).
Furthermore, pursuant to Local Rule 56(a)(3),
Each statement of material fact by a movant in a Local Rule 56(a)(1) Statement, or by an opponent in a Local Rule 56(a)(2) Statement, and each denial in an opponent's Local Rule 56(a)(2) Statement, must be followed by a specific citation to (1) the affidavit of a witness competent to testify as to the facts at trial and/or (2) evidence that would be admissible at trial.
D. Conn. L. Civ. R. 56(a)(3). "[F]ailure to provide specific citations to evidence in the record as required by this Local Rule may result in the Court deeming certain facts that are supported by the evidence admitted in accordance with Rule 56(a)(1)...." D. Conn. L. Civ. R. 56(a)(3).
The majority of the Defendants' factual statements, as contained in their Local Rule 56(a)(1) Statement, have been admitted by the Plaintiff in his Local Rule 56(a)(2) Statement.[3] The Plaintiff has denied Paragraphs 8, 17, and 18 of the Defendants' Local Rule 56(a)(1) Statement. None of the Plaintiffs denials, however, are supported by specific citations to evidence in the record, even though the Defendants provided citations to support the factual assertions contained in those paragraphs. Consequently, the court shall deem admitted those paragraphs.[4]
II. FACTS
In 1996, the Plaintiff filed an action against Arthur M. D'Onofrio ("D'Onofrio") in the Superior Court of California ("the California Action"). The California Action went to trial.[5] On June 7, 2001, the Plaintiff obtained a judgment against D'Onofrio in the California Action in the amount of $514,698.75 for compensatory damages and prejudgment interest, and $1,600,000,000 for exemplary damages ("the Judgment"). D'Onofrio appealed the Judgment to the California Appellate Court, but, because he did not file a bond for a stay of proceedings pursuant to the California Code of Civil Procedure, there was no stay of the Judgment. On August 10, 2001, the Judgment, pursuant to Section 52-605 of the Connecticut General Statutes, was registered in Connecticut and became a judgment of the State of Connecticut. On April 1, 2003, 2003 WL 1711286, the California Appellate Court, Third Appellate District, affirmed the award of compensatory damages; however, with regard to the punitive damages, the California Appellate Court remanded the action to the trial court for a new trial that would be based on evidence of D'Onofrio's financial condition at the time of the retrial.
According to the Plaintiff, D'Onofrio, acting as settlor, created The Chana Trust ("the Trust"), an offshore trust located on the Island of Jersey in the Channel Islands. The original trustee of the Trust was the Continental Trust Company Limited ("Continental").[6] The beneficiaries of the Trust were D'Onofrio's wife and children.[7] The Plaintiff maintains that on and before June 21, 2001, D'Onofrio owned 100% of the shares of New England Propeller Service, Inc. ("NEPS"), U.S. Propeller of CT ("USPCT"), Inc., and DIV-ACQ, Inc. ("DIV-ACQ"), and that D'Onofrio also was the owner of a 50% membership in ADMW, LLC ("ADMW").[8] The Plaintiff further maintains that, on June 21, 2001, D'Onofrio transferred all of his right, title, and interest in his shares of NEPS, USPCT, and DIV-ACQ, and his membership in ADMW, to Continental as trustee of the Trust. In his complaint, the Plaintiff claims that D'Onofrio received no money, consideration, or other value for the transfers of the above-mentioned shares and membership. In addition, the Plaintiff claims that, as a result of these transfers, D'Onofrio became insolvent. The Plaintiff asserts that the above-mentioned transfers fraudulently deprived him of the remedies he is entitled to under the Judgment.
With regard to the Defendants, K & S is a law firm and Miller is a member of K & S. As for the Defendants' specific conduct, the Plaintiff alleges the following: (1) on or before May 16, 2001, K & S contacted Continental via telephone regarding the creation of the Trust; (2) Continental sent to K & S a facsimile dated May 14, 2001 that made specific inquiries about language for the trust instrument; (3) Continental sent to K & S a facsimile dated June 22, 2001 that contained an S4, the IRS application for employer identification number, for the Trust; (4) Continental sent to Miller a letter, dated June 26, 2001, representing that D'Onofrio executed the Trust on June 21, 2001; (5) K & S sent to the IRS a letter dated July 2, 2001, which indicated the creation of the Trust; (6) Continental sent to K & S a letter dated July 11, 2001 that contained certificates and assignments of D'Onofrio's stock and membership interests to the trustee, Continental; (7) Continental sent a letter, dated April 10, 2002, to K & S seeking information for inclusion on the annual information return of "Foreign Trust with a U.S. owner," form 3520-A for the IRS; and (8) K & S sent to Continental a facsimile and letter, dated April 11, 2002, containing a Form 1041 and a U.S. Income Tax return for Estate and Trusts, and seeking Continental's signature for completion of the Form 1041.
The Plaintiff asserts that he is a creditor of D'Onofrio within the meaning of the Connecticut Uniform Fraudulent Transfer Act. According to the Plaintiff, D'Onofrio devised a scheme to defraud the Plaintiff by creating an offshore trust and transferring his stocks and membership interests to the trust, thus depriving him of his claims to those assets in satisfaction of any judgment he had against D'Onofrio. The Plaintiff claims that the Defendants assisted D'Onofrio in this fraudulent scheme. In addition, the Plaintiff alleges that the Defendants were involved with continued wrongful activity in order to keep D'Onofrio's assets out of the Plaintiffs reach.[9] Thus, the Plaintiff claims that the Defendants' conduct constituted mail and wire fraud in violation of the Racketeer Influenced and Corrupt Organizations Act.
III. DISCUSSION
The only claim at issue here is the Fifth Count of the Amended Complaint, which alleges that the Defendants violated the RICO statute. The Defendants argue that they are entitled to summary judgment on the Fifth Count. According to the Defendants, the Plaintiffs RICO claim against them must fail because: (1) there is insufficient evidence demonstrating that the Defendants' actions constituted racketeering activities; (2) the Plaintiff cannot establish the Defendants' participation in two or more acts constituting a pattern of continuous racketeering activity; (3) RICO claims require that the RICO person must be different from the RICO enterprise, and the alleged RICO person and enterprise in this case are the same; and (4) the performance of proper legal services by the Defendants does not constitute a participation in the operation or management of a RICO enterprise.
A. SUMMARY JUDGMENT STANDARD
A motion for summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
Summary judgment is appropriate if, after discovery, the nonmoving party "has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "The burden is on the moving party`to demonstrate the absence of any material factual issue genuinely in dispute.'" Am. Int'l Group, Inc. v. London Am. Int'l Corp., 664 F.2d 348, 351 (2d Cir.1981) (quoting Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975)).
A dispute concerning a material fact is genuine "`if evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The Court must view all inferences and ambiguities in a light most favorable to the nonmoving party. See Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Id.
B. RICO
The RICO statute permits private cause of action for violations of 18 U.S.C. 1962. See 18 U.S.C. § 1964(c). "To state a claim for damages under RICO a plaintiff has two pleading burdens." Town of West Hartford v. Operation Rescue, 915 F.2d 92, 100 (2d Cir.1990) (internal quotation marks omitted). "First, the plaintiff must assert that the defendant has violated 18 U.S.C. § 1962 ..., the substantive RICO statute." Id. Second, the plaintiff must "allege that he was injured in his business or property by reason of a violation of section 1962." Id. (internal quotation marks omitted).
With regard to violations of the substantive RICO statute, a plaintiff must specifically show: "(1) that the defendant (2) through the commission of two or more acts (3) constituting a`pattern' (4) of`racketeering activity' (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an`enterprise' (7) the activities of which affect interstate or foreign commerce." Id. "`Racketeering activity' is defined in RICO to mean`any act or threat involving' specified state-law crimes, any`act' indictable under various specified federal statutes, and certain federal `offenses.'" H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 232, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). Title 18, section 1961(1) sets forth the federal offenses that constitute the basis for a claim of racketeering activity. See 18 U.S.C.1961(1). Included in the list of federal offenses are mail fraud in violation of 18 U.S.C. § 1341, and wire fraud in violation of 18 U.S.C. § 1343. See id. The Plaintiffs substantive RICO claims against the Defendants implicate both mail and wire fraud, as the Plaintiff maintains that the Defendants used both mail services and wire services (via facsimiles) to perpetrate their alleged wrongdoing. An attorney, however, is not subject to liability under RICO for merely providing legal advice. See Biofeedtrac, Inc. v. Kolinor Optical Enters. & Consultants, S.R.L., 832 F.Supp. 585, 591 (E.D.N.Y.1993).
1. Racketeering Activity
The Plaintiff alleges that the necessary predicate racketeering activities here were mail fraud and wire fraud. "The elements of mail, wire, or television fraud include (1) the existence of a scheme to defraud, (2) the defendant's knowing participation in the scheme, and (3) the use of wire, mail, or television communications in interstate commerce in furtherance of the scheme." Chanayil v. Gulati 169 F.3d 168, 170-71 (2d Cir.1999). The Defendants argue that the Plaintiff has not sufficiently established mail or wire fraud, and hence a racketeering activity, under RICO because he has not demonstrated any intentional fraud. The Plaintiff counters that mail and wire fraud do not require intent to be established.
The court disagrees with the Plaintiffs contention. The Second Circuit has specifically held that, with regard to such mail and wire fraud claims, "Proof of fraudulent intent is required." United States v. Altman, 48 F.3d 96, 101 (2d Cir.1995). This is not a rare or random holding. Indeed, the court has found ample case law, from the Second Circuit and district courts within the Second Circuit, holding the same. See, e.g., United States v. Novak, 443 F.3d 150, 156 (2d Cir.2006) ("This Court has interpreted th[e] statutory language [for mail fraud] as requiring the government to show proof of a scheme or artifice to defraud, which itself demands a showing that the defendant possessed a fraudulent intent.") (internal quotation marks omitted); United States v. Thomas, 377 F.3d 232, 242 (2d Cir.2004) ("Critical to ... showing [a violation of the federal fraud statutes] is evidence that the defendant possessed a fraudulent intent.") (internal quotation marks omitted); United States v. Wallach, 935 F.2d 445, 461 (2d Cir.1991) ("To establish the existence of a scheme to defraud, the government must present proof that the defendants possessed a fraudulent intent."); United States v. Marino, 204 F.Supp.2d 476, 490-91 (E.D.N.Y.2002) ("[Essential to a scheme to defraud is fraudulent intent.... It is not sufficient that [the] defendant realizes that the scheme is fraudulent and that it has the capacity to cause harm to its victims. Instead, the proof must demonstrate that the defendant had a conscious knowing intent to defraud ... [and] that the defendant contemplated or intended some harm to the property rights of the victim.") (internal citation and quotation marks omitted); Daddona v. Gaudio, 156 F.Supp.2d 153, 161 (D.Conn.2000) (holding that, for mail and wire fraud claims, a plaintiff must show "defendant's knowing or intentional participation in the scheme" and provide "a strong inference that the defendant possessed fraudulent intent"); A. Terzi Prods., Inc. v. Theatrical Protective Union, 2 F.Supp.2d 485, 499 (S.D.N.Y. 1998) (holding that a wire fraud claim requires "specific intent to defraud").
Assuming that D'Onofrio formulated a scheme to defraud the Plaintiff, the fundamental question here is whether, based on the factual allegations and submissions in the record, the Plaintiff has produced sufficient evidence of the Defendants' knowing participation in that scheme. In the court's view, the Plaintiff has not produced evidence sufficient to demonstrate the Defendants' knowing participation in a scheme to defraud the Plaintiff. As summarized by the Honorable Victor Marrero,
Although Rule 9(b) provides that[,] [for allegations of fraud,] intent and "other conditions of mind" may be averred generally, plaintiffs must nonetheless provide some factual basis for conclusory allegations of intent.... Furthermore, [t]hese factual allegations must give rise to a "strong inference" that the defendants possessed the requisite fraudulent intent.... Intent is commonly demonstrated by specifying a motive for committing fraud, i.e., that the defendant benefitted [sic] from the alleged fraud, and an opportunity to do so. If motive is not apparent, scienter can be demonstrated through a showing of conscious behavior by the defendant.
USA Certified Merchs., LLC v. Koebel, 262 F.Supp.2d 319, 333 (S.D.N.Y.2003) (internal citations and quotation marks omitted); see Beck v. Mfrs. Hanover Trust Co., 820 F.2d 46, 50 (2d Cir.1987), overruled on other grounds by United States v. Indelicato, 865 F.2d 1370 (2d Cir.1989) (en banc).
Here, while the court does not doubt that the Defendants benefited, via remuneration, by taking on D'Onofrio as a client, the Plaintiff indicates no benefit they received or could have received from defrauding him in this case. Based on what the court has seen in the record, the Defendants would have made the same amount of money regardless of any scheme D'Onofrio may have had. In addition, the evidence suggests that only D'Onofrio and his family stood to benefit from the alleged fraudulent scheme. Therefore, no benefit from D'Onofrio's alleged scheme can be ascribed to the Defendants.
Furthermore, Miller has submitted an affidavit wherein he states that he was neither informed nor had knowledge of the judgment entered against D'Onofrio at any time prior to the execution of the Trust. Although the Plaintiff has denied this in his Local Rule 56(a)(2) Statement and memoranda of law, he has not provided a shred of evidence to rebut Miller's affidavit. The Plaintiffs conclusory allegations, although possibly sufficient to survive a motion to dismiss, are insufficient to raise a genuine issue of material fact for the purposes of summary judgment. Thus, the record in this case shows that Miller (and hence K & S) could not have participated in the necessary predicate racketeering activities of mail and wire fraud because they did not knowingly participate in, or conspire to cause, D'Onofrio's alleged scheme to defraud the Plaintiff.
2. Two or More Acts Constituting a "Pattern"
Even if the court were to assume the Plaintiff had established the Defendants' conduct to be mail and wire fraud, he would also have to demonstrate two or more acts constituting a "pattern" under the RICO statute. The Defendants argue that the Plaintiff has not established either the "two or more acts" or the "pattern" requirement.
The court agrees with the Defendants. With regard to the "two or more acts" requirement, the court notes that the scheme alleged here was the plan to deprive the Plaintiff[10] of his ability to collect on a judgment. As the Plaintiff rightly points out, furtherance of only a single scheme will not cause a RICO claim to fail. See Indelicato, 865 F.2d at 1383. There still must be, however, two or more acts by the Defendants to further the single scheme. As the Second Circuit has warned, "courts must take care to ensure that the plaintiff is not artificially fragmenting a singular act into multiple acts simply to invoke RICO." Schlaifer Nance & Co. v. Estate of Warhol, 119 F.3d 91, 98 (2d Cir.1997)
In the court's view, the Plaintiff is fragmenting a singular act into multiple acts. Accepting that there was a scheme to defraud the Plaintiff, the Defendants' alleged act in furtherance of that scheme was the establishment of the Trust.[11] All of the conduct ascribed to the Defendants in this case consisted of transactions (e.g., phone calls, facsimiles, letters) in furtherance of that one act. As a result, they were "subparts of the singular act, and not a `pattern' of separate acts with an underlying purpose." Id. "[M]ultiple acts of mail fraud in furtherance of a single episode of fraud involving one victim and relating to one basic transaction cannot constitute the necessary pattern." Tellis v. U.S. Fid. & Guar. Co., 826 F.2d 477, 478 (7th Cir.1986); see Persaud v. Bode, No. 04 CV 4475(ARR), 2006 WL 1419397, at *5 (E.D.N.Y. Feb. 8, 2006); Dtex, LLC v. BBVA Bancomer, S.A., 405 F.Supp.2d 639, 649-50 (D.S.C.2005); Zhu v. First Atlantic Bank, No. 05 Civ. 96(NRB), 2005 WL 2757536, at *4 (S.D.N.Y. Oct. 25, 2005); Maddaloni Jewelers, Inc. v. Rolex Watch U.S.A., Inc., 354 F.Supp.2d 293, 304 (S.D.N.Y.2004); Linens of Europe, Inc. v. Best Mfg., Inc., No. 03 Civ. 9612(GEL), 2004 WL 2071689, at *16 (S.D.N.Y. Sept. 16, 2004).
The court also does not believe that the Plaintiff has established a "pattern" of racketeering activity. As the Supreme Court has noted,
A pattern is not formed by "sporadic activity," ... and a person cannot be subjected to [RICO] sanctions ... simply for committing two widely separated and isolated criminal offenses.... Instead, [t]he term "pattern" itself requires the showing of a relationship between the predicates ... and of the threat of continuing activity.... It is this factor of continuity plus relationship which combines to produce a pattern.... RICO's legislative history reveals Congress' intent that to prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.
H.J. Inc., 492 U.S. at 239, 109 S.Ct. 2893 (emphasis in original) (internal citations and quotation marks omitted). The Supreme Court went on to state that "`[c]ontinuity' is both a closed-and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition." Id. at 241, 109 S.Ct. 2893.
A closed-ended pattern of racketeering activity is demonstrated by proving a series of related predicate acts that amount to continued criminal activity "extending over a substantial period of time." First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 181 (2d Cir.2004) (internal quotation marks omitted). "Predicate acts extending over a few weeks or months ... do not satisfy this requirement." H.J. Inc., 492 U.S. at 242, 109 S.Ct. 2893. "Since the Supreme Court decided H.J. Inc., we have never held a period of less than two years to constitute a substantial period of time." Spool v. World Child Int'l Adoption Agency, 520 F.3d 178, 184 (2d Cir.2008); see Satinwood, Inc., 385 F.3d at 181 ("Notably, [the Second Circuit] has never found a closedended pattern where the predicate acts spanned fewer than two years.").
In addition, "[w]here the predicate acts alleged are not inherently unlawful acts, such as murder or obstruction of justice, courts normally require a longer span of time to satisfy the continuity requirement." Casio Computer Co., Ltd. v. Sayo, No. 98CV3772 (WK), 2000 WL 1877516 at *11 (S.D.N.Y. Oct. 13, 2000). Indeed, "it will be rare that conduct persisting for a shorter period of time establishes closed-ended continuity, particularly where ...`[t]he activities alleged involved only a handful of participants' and do not involve a`complex, multi-faceted conspiracy.'" Spool, 520 F.3d at 184 (quoting GICC Capital Corp. v. Tech. Fin. Group, Inc., 67 F.3d 463, 468 (2d Cir.1995)).
The Plaintiff has not established closeended continuity here. D'Onofrio retained Miller as his attorney on May 11, 2001, and the final act of racketeering activity alleged by the Plaintiff occurred in April 2002. Such a brief span of time (less than a year) falls short of the "substantial period of time" required for demonstrating a close-ended pattern. This is especially true when, as here, the alleged predicate acts were not inherently unlawful, there are only a "handful of participants," and the scheme is neither "complex" or "multifaceted."
This leaves open-ended continuity. "To satisfy open-ended continuity, the plaintiff ... must show that there was a threat of continuing criminal activity beyond the period during which the predicate acts were performed." Id. at 185 (internal quotation marks omitted). "This threat is generally presumed when the enterprise's business is primarily or inherently unlawful." Id. "When the enterprise primarily conducts a legitimate business, however, no presumption of a continued threat arises." Id. (internal quotation marks omitted).
As discussed above, the court does not believe that the Defendants were involved in racketeering activity, thus making this argument academic. Nevertheless, the court fails to see how there was a "threat" of continued activity on the Defendants' part here when it appears that their last alleged racketeering activity occurred in April 2002 and the Trust itself has been terminated. In sum, the Plaintiff has failed to demonstrate that the Defendants performed two or more acts constituting a pattern of racketeering activity.
3. Operation or Management of an Enterprise[12]
To maintain a civil RICO claim, a plaintiff must show that a defendant "conducted] or participate[d], directly or indirectly, in the conduct of [the RICO] enterprise's affairs...." 18 U.S.C. § 1962(c). "[T]o conduct or participate, directly or indirectly, in the conduct of [a RICO] enterprise's affairs, ... one must participate in the operation or management of the enterprise itself." Reves v. Ernst & Young, 507 U.S. 170, 185, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993) (internal quotation marks omitted). "Of course, the word`participate' makes clear that RICO liability is not limited to those with primary responsibility for the enterprise's affairs, just as the phrase`directly or indirectly' makes clear that RICO liability is not limited to those with a formal position in the enterprise, but some part in directing the enterprise's affairs is required." Id. at 179, 113 S.Ct. 1163 (footnote omitted).
After the Supreme Court's decision in Reves, "[m]any other courts faced with ... § 1962(c) claims against outside professionals have agreed that providing important services to a racketeering enterprise is not the same as directing the affairs of the enterprise." Dep't of Econ. Dev. v. Arthur Andersen & Co. (U.S.A.), 924 F.Supp. 449, 466 (S.D.N.Y.1996) (collecting cases); see Azrielli v. Cohen Law Offices, 21 F.3d 512, 521-22 (2d Cir.1994) (finding that the provision of legal services related to fraudulent real estate transaction was not management of the RICO enterprise conducting the fraudulent transaction); Arons v. Lalime, 3 F.Supp.2d 314, 321 (W.D.N.Y.1998) ("[P]roviding legal advice and legal services generally does not constitute participation in the operation or management of an enterprise sufficient to ground an allegation of a violation of § 1962(c).") (citing Morin v. Trupin, 835 F.Supp. 126, 135 (S.D.N.Y.1993)); Biofeedtrac, Inc., 832 F.Supp. at 590-91 (holding that attorney who knowingly assisted enterprise in execution of fraudulent scheme by providing legal services and advice could not be held liable under § 1962(c) because his role was, at all times, limited to the provision of legal services and did not extend to operation or management of enterprise); see also Goren v. New Vision Int'l Inc., 156 F.3d 721, 728 (7th Cir.1998) ("Indeed, simply performing services for an enterprise, even with knowledge of the enterprise's illicit nature, is not enough to subject an individual to RICO liability under § 1962(c); instead, the individual must have participated in the operation and management of the enterprise itself."); Nolte v. Pearson, 994 F.2d 1311, 1317 (8th Cir.1993) (attorneys who prepared allegedly false opinion letters and informational memoranda regarding a music recording leasing program had not participated in "operation or management"); Univ. of Md. v. Peat, Marwick, Main & Co., 996 F.2d 1534, 1539 (3d Cir. 1993) ("Simply because one provides goods or services that ultimately benefit the enterprise does not mean that one becomes liable under RICO as a result"); Sassoon v. Altgelt, 777 Inc., 822 F.Supp. 1303 (N.D.Ill.1993) (attorneys' provision of legal services to general partners and limited partnership did not constitute operation or management of enterprise that would support liability under Section 1962(c)); Gilmore v. Berg, 820 F.Supp. 179, 183 (D.N.J.1993)(attorney who prepared false limited partnership documents not liable under Section 1962(c)).
Here, the Plaintiff has failed to put forth any evidence from which a reasonable jury could conclude that the Defendants, in their roles as an attorney and law firm, did anything more than offer their professional legal services to D'Onofrio. The Defendants have submitted evidence showing that they were retained by D'Onofrio to (1) review drafts of trust documents in order to provide advice concerning the estate, gift, and income tax consequences of the establishment of the Trust; and (2) prepare required tax filings for the Trust. The Plaintiff has submitted nothing to counter the Defendants' evidence in this regard. In other words, there is no evidence that the Defendants' involvement in the transactions at issue exceeded their professional duties. As noted above, the performance of these duties would not make the Defendants liable under RICO even if they had knowledge of the alleged enterprise's illicit nature.[13] Thus, there is no evidence they operated or managed the alleged RICO enterprise. The Plaintiffs simple allegation that the Defendants were involved in the operation or management of the alleged RICO enterprise is insufficient to survive summary judgment.
The court has found that the Plaintiff has not produced sufficient evidence from which a reasonable jury could conclude that the Defendants (1) through the commission of two or more acts constituting a "pattern" of "racketeering activity," directly or indirectly participated in a RICO enterprise, or (2) conspired to violate the RICO statute. The Plaintiffs RICO claim against the Defendants thus fails. Consequently, the Defendants' motion for summary judgment (dkt. # 161) is GRANTED.[14]
IV. CONCLUSION
For the reasons above, the Defendants' motion for summary judgment (dkt. # 161) is GRANTED. Judgment in favor of Kleban & Samor, P.C. and Elliot I. Miller shall enter on the Fifth Count of the Amended Complaint. There are no longer any remaining claims in this case because the Fifth Count of the Amended Complaint was the only active count when the motion for summary judgment was filed. Therefore, the Clerk of the Court shall close this file.
NOTES
[1] On May 16, 2003, 263 F.Supp.2d 446, the court dismissed the Plaintiffs claims against The Chana Trust and the Continental Trust Company Limited, as set forth in the Plaintiff's original Complaint, for lack of personal jurisdiction. (See dkt. # 52.) The court also dismissed the Plaintiff's Connecticut Uniform Fraudulent Transfers Act and Connecticut Unfair Trade Practices Act claims against the Defendants. (See id.) As there were no other claims against the Defendants at that time, they were dismissed from the case. (See id.) The Plaintiff subsequently filed an Amended Complaint, alleging, in the Fifth Count, that the Defendants violated the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962. On January 13, 2006, the Plaintiff filed a Notice of Dismissal (Partial) (dkt. # 160), in which he gave notice to the court that he was dismissing his action, with prejudice, against Arthur M. D'Onofrio, Carolyn D'Onofrio, Arthur A. D'Onofrio, Paul D'Onofrio, Nicole D'Onofrio, New England Propeller Service, Inc., U.S. Propeller Service of CT, Inc., DIV-ACQ, Inc. and ADMW, LLC. On January 19, 2006, the court approved the Plaintiff's Notice of Dismissal. (See dkt. # 162.) Thus, only the Defendants remain to defend this case.
[2] The Defendants' motion to dismiss referenced that it was brought pursuant to Rule 12(b)(2), which allows dismissal for lack of jurisdiction over the person. See Fed.R.Civ.P. 12(b)(2). Despite this mention of Rule 12(b)(2), however, the Defendants made no argument as to how or why this court lacks personal jurisdiction over them. The court recognizes that "[o]n a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, plaintiff bears the burden of showing that the court has jurisdiction over defendant." Reese v. Arrow Fin. Servs., LLC, 202 F.R.D. 83, 86 (D.Conn.2001). The Plaintiff has alleged that K & S is a professional corporation organized under Connecticut law with a principal place of business in Connecticut, and that Miller, a citizen and resident of Connecticut, is a member of K & S. The Defendants have not rebutted (and may not be able to rebut) the Plaintiff's assertions here. Consequently, insofar as the Defendants move to dismiss for lack of personal jurisdiction, their motion is denied.
[3] The Plaintiff titled his submission "Plaintiffs Local Rule 9(c)(2) Statement." The court points out that "[u]nder the 2003 Amendments to the Local Rules, Local Rule 9(c)[] was renumbered as Local Rule 56(a)[]." Tyson v. Willauer, 289 F.Supp.2d 190, 193 n. 4 (D.Conn.2003). For purposes of consistency and to avoid confusion, the court shall refer to the Plaintiff's submission as a Local Rule 56(a)(2) Statement.
[4] The court is aware that "in determining whether the moving party has met this burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts contained in the moving party's [Local] Rule 56[] statement. It must be satisfied that the citation to evidence in the record supports the assertion." Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see Giannullo v. City of New York, 322 F.3d 139, 143 n. 5 (2d Cir.2003) (stating that, "although [Local] Rule 56[] is designed to streamline the district court's consideration of summary judgment motions," not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts"). Here, upon review of the evidence cited by the Defendants, the court is satisfied that the Defendants' citations to the record support the factual assertions contained in their Local Rule 56(a)(1) Statement.
[5] The Plaintiff states that the trial proceeded from December 12, 2000 through December 21, 2000, and from January 17, 2001 through January 25, 2001.
[6] The Trust and Continental had been defendants in the Plaintiff's original complaint. The court dismissed the claims against the Trust and Continental for lack of personal jurisdiction.
[7] D'Onofrio's wife and children had been defendants in this case until the Plaintiff filed his Notice of Dismissal.
[8] As with D'Onofrio's wife and children, these companies had been defendants in this case until the Plaintiff filed his Notice of Dismissal.
[9] The Defendants have submitted evidence showing that the Trust at issue was terminated, and that D'Onofrio had a bankruptcy action pending within the District of Connecticut.
[10] The Plaintiff alleges that the purpose of the scheme was to shield D'Onofrio's assets from his "creditors." There is no evidence in this case Regarding any other creditors, and even if there were, the court fails to see how the Plaintiff would have standing to bring a RICO cause of action on their behalf.
[11] The court is aware that the Defendants deny establishing the Trust.
[12] For the purposes of this section, the court shall assume the existence of a RICO enterprise.
[13] The court notes that, in fact, no evidence has been submitted demonstrating that the Defendants knew of D'Onofrio's alleged scheme before the Trust was established.
[14] In light of the above, the court need not discuss the Defendants' arguments that the RICO persons and enterprise in this case are the same.
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452 F.3d 140
UNITED STATES of America, Appellee,v.Edwin A. KANE, Defendant-Appellant.
Docket No. 05-2714-cr.
United States Court of Appeals, Second Circuit.
Argued: May 4, 2006.
Decided: June 19, 2006.
June 19, 2006.
Mark D. Hosken, Assistant Federal Defender for the Western District of New York (Jay S. Ovsiovitch, of counsel), Rochester, NY, for Defendant-Appellant.
Stephan J. Baczynski, Assistant United States Attorney (Kathleen M. Mehltretter, Acting United States Attorney for the Western District of New York, on the brief), Buffalo, NY, for Appellee.
Before MESKILL, STRAUB, and KATZMANN, Circuit Judges.
PER CURIAM.
1
Defendant-Appellant Edwin A. Kane appeals from a judgment entered in the District Court for the Western District of New York sentencing him principally to 24 months' imprisonment upon a plea of guilty to one count of equity skimming in violation of 12 U.S.C. § 1709-2. He contends that the District Court violated his First Amendment rights by weighing his prior published writings against the mitigating character evidence he offered at sentencing. He further maintains that his below-Guidelines sentence is unreasonable.
2
For seven years, Kane defrauded the Federal Housing Administration ("FHA") and the United States Department of Housing and Urban Development ("HUD"). He purchased homes carrying mortgages guaranteed by FHA or HUD, rented those properties to unsuspecting tenants, and then fraudulently transferred the properties, along with the mortgage obligations, to third parties via fabricated warranty assumption deeds. After the false transfers, Kane continued to collect rent while the third parties defaulted on the mortgage obligations, causing HUD or FHA to foreclose on the homes and throwing into chaos the existing leaseholds. Through his scheme, Kane caused FHA and HUD to lose at least $700,000.
3
Although the Sentencing Guidelines established an advisory range of 30 to 37 months' imprisonment, Kane requested a probationary sentence. In support of his request, he submitted more than 35 letters from family, friends, and acquaintances attesting to the many aspects of his good character, including that he was a "fair and honest man, true to his word." Those letters, defense counsel asserted in Kane's sentencing submission, "provide an informative answer to the question: Who is Andy Kane?" Defense counsel also took the opportunity to answer the question himself, describing Kane as "a good friend" given to "random acts of kindness," who "accepted full responsibility for his fraudulent actions" and is "truly sorry for his actions." Kane further justified his request for probation by citing his need to care for his ailing wife, his own imperfect health, his age, and the corresponding slim chance that he would recidivate.
4
In response, the government submitted excerpts of books that Kane had authored. In those excerpts, Kane penned how-to advice on topics ranging from wife "training" to illegal real estate transactions. Specifically, he described how to convert "single-family dwellings into rooming houses without it being legal," a scheme that generated enough cash to fund his annual purchase of a new Cadillac Eldorado. He also gave advice on how to manipulate financial records so as to appear to qualify for subsidized housing, described running a fraudulent mail order scheme in which he "offered a service that didn't exist," provided tips on how to avoid a sexual harassment suit while displaying photographs of topless women in the office, and in a work titled "Mastering the Art of Male Supremacy: Training Techniques for the Home Front," set forth his philosophy of "training a wife," which eschewed "real violence" but endorsed the use of "a rolled up newspaper on the rump once in a while. . . ."
5
The District Court acknowledged that the numerous character reference letters portrayed Kane's "acts of kindness[ and] acts of responsibility" and weighed those letters against Kane's writings. Ultimately, the Court concluded that Kane's published advice on running real estate and mail order schemes undercut his professed honesty, and his guide to "Mastering the Art of Male Supremacy" tempered the sincerity of his spousal devotion. For these and other reasons, the District Court rejected Kane's request for a probationary sentence. However, the Court imposed a non-Guidelines sentence of 24 months' imprisonment, six months below the bottom of the advisory range.
6
On appeal, Kane contends that the District Court violated the First Amendment by considering his expressive activity as part of its sentencing calculus, and that even in the absence of a constitutional violation, his sentence is unreasonable.
7
The First Amendment "does not erect a per se barrier" to the admission at sentencing of evidence regarding the defendant's beliefs or associational activity. Dawson v. Delaware, 503 U.S. 159, 165, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992). A sentencing court may consider such evidence so long as it is "relevant to the issues involved" in the sentencing proceeding. Id. at 164, 112 S.Ct. 1093; see also United States v. Simkanin, 420 F.3d 397, 418 (5th Cir.2005) (holding that court properly considered defendant's belief that the tax laws are invalid in sentencing defendant for income tax evasion); Kapadia v. Tally, 229 F.3d 641, 644-48 (7th Cir.2000) (holding that court properly considered defendant's anti-Semitic beliefs in sentencing defendant for attack on a Jewish community center); United States v. Brown, 479 F.2d 1170, 1174-75 (2d Cir.1973) (holding that court properly considered defendant's "expressed sympathy with the political and social views of the Black Panther Party" as relevant to whether defendant posed a future threat). Among other possible uses, a particular piece of evidence may be relevant to show motive, see Barclay v. Florida, 463 U.S. 939, 948-49, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983) (plurality opinion), analyze a statutory aggravating factor, see id. at 949 & n. 7, 103 S.Ct. 3418, illustrate future dangerousness or potential recidivism, see, e.g., United States v. Tampico, 297 F.3d 396, 402-03 (5th Cir. 2002), or rebut mitigating evidence that the defendant proffers, see generally Dawson, 503 U.S. at 167, 112 S.Ct. 1093. Although a given piece of evidence may be relevant in many ways, the government may not offer proof of a defendant's "abstract beliefs" merely for the purpose of demonstrating that those beliefs, and by extension the defendant, are "morally reprehensible." Id. at 166-67, 112 S.Ct. 1093.
8
Here, the District Court considered Kane's writings only to the extent that they rebutted his mitigating evidence. The First Amendment does not bar the government from putting the lie to a defendant's proof at sentencing. See generally id. at 167, 112 S.Ct. 1093 ("But just as the defendant has the right to introduce any sort of relevant mitigating evidence, the State is entitled to rebut that evidence with proof of its own."). We note, importantly, that the Court considered only evidence that refuted Kane's claims of honesty, charity, and tender devotion to his wife. By confining its analysis to the particular character issues that Kane raised, the Court avoided considering Kane's abstract beliefs for the irrelevant and impermissible purpose of showing general moral reprehensibility. Cf. id. at 166-67, 112 S.Ct. 1093. We also note that because much of Kane's writings concerned illegal real estate schemes, which related directly to his offense of conviction, the writings also "may indicate the increased likelihood of recidivism or a lack of recognition of the gravity of the wrong. . . ." Tampico, 297 F.3d at 403.
9
Kane also claims that the books constituted a series of jokes and were meant only for entertainment purposes. The District Court determined otherwise, and we see no clear error in that finding. See United States v. Snype, 441 F.3d 119, 145 (2d Cir.2006) (noting that "we review a district court's findings of fact as they pertain to sentenc[ing] only for clear error"). Indeed, not every outlandish statement is jest; the fact that Kane wrote about real estate schemes and then actually executed one illustrates that his books reflect his reality. Accordingly, the District Court's consideration of Kane's writings did not violate the First Amendment.1
10
Kane next contends that his sentence is unreasonable. The government urges that we lack jurisdiction to consider the reasonableness of Kane's sentence, and that if we possess such jurisdiction, Kane's below-Guidelines sentence is a reasonable one. We recently rejected the government's jurisdictional argument in United States v. Fernandez, 443 F.3d 19, 25-26 (2d Cir.2006). Undeterred, the government contends that Fernandez is inconsistent with an earlier decision of this Court, United States v. Colon, 884 F.2d 1550 (2d Cir.1989), and entreats this panel to abide by Colon. We cannot do so.
11
In Colon, we held that "a decision not to depart from the applicable Guidelines range is not appealable." 884 F.2d at 1552. We premised our holding partly on the conclusion that 18 U.S.C. § 3742(a)(1), which authorizes a defendant to appeal a sentence "imposed in violation of law," could not be read to encompass a defendant's appeal of a within-Guidelines sentence "based on a claim that [his] sentence violates 18 U.S.C. § 3553(a)." Colon, 884 F.2d at 1553. Assuming that Colon addresses the issue raised by the government in this case—that we lack jurisdiction to consider a defendant's appeal of his below-Guidelines sentence on the ground that the term of imprisonment is unreasonable—we hold that this narrow interpretation of § 3742(a)(1) is irreconcilable with the Supreme Court's mandate that "the [Sentencing Reform] Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range . . . )." United States v. Booker, 543 U.S. 220, 260, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); see also Veltri v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d 318, 327 (2d Cir.2004) ("[O]ne panel of this Court cannot overrule a prior decision of another panel unless there has been an intervening Supreme Court decision that casts doubt on our controlling precedent." (internal quotation marks omitted)).
12
As we reaffirm our recent conclusion in Fernandez against the government's reliance on Colon, we note that our position is consistent with every court of appeals to have considered the question.2 See, e.g., United States v. Jimenez-Beltre, 440 F.3d 514, 517 (1st Cir.2006) (in banc); United States v. Cooper, 437 F.3d 324, 328 & n. 5 (3d Cir.2006); United States v. Montes-Pineda, 445 F.3d 375, 377-78 (4th Cir. 2006); United States v. Mickelson, 433 F.3d 1050, 1052-55 (8th Cir.2006); United States v. Martinez, 434 F.3d 1318, 1321-22 (11th Cir.2006). Further, we join at least two of our sister circuits in recognizing that Booker has abrogated or rendered inapplicable prior cases, such as Colon, that adopted a narrow interpretation of § 3742(a)(1). See United States v. Plouffe, 445 F.3d 1126, 1127-29 (9th Cir.2006); Cooper, 437 F.3d at 327-28.
13
Having rejected the government's jurisdictional argument based on Colon, we now must determine whether the sentence is reasonable. In Fernandez, we explained that "[r]easonableness review does not entail the substitution of our judgment for that of the sentencing judge. Rather, the standard is akin to abuse of discretion." Fernandez, 443 F.3d at 27. We ask only "whether the sentencing judge exceeded the bounds of allowable discretion, committed an error of law in the course of exercising discretion, or made a clearly erroneous finding of fact." Id. (internal quotations marks omitted and alterations incorporated).
14
The District Court committed no such error here. The Judge considered the relevant sentencing factors in careful and reasoned fashion, premised his conclusions on a sound view of the facts, and understood the applicable legal principles. Kane merely renews the arguments he advanced below—his age, poor health, and history of good works—and asks us to substitute our judgment for that of the District Court, which, of course, we cannot do. See id.
15
For the reasons set forth above, we AFFIRM the judgment of the District Court.
Notes:
1
Because we find no error, we need not decide whether Kane preserved his objection below, and if so, whether we should employ the harmless error standard of reviewSee Dawson, 503 U.S. at 169, 112 S.Ct. 1093 (Blackmun, J., concurring) (noting that "there is a substantial argument that harmless-error analysis is not appropriate for the type of error before us today" and the majority opinion does not conclusively resolve the issue).
2
We note that inFernandez and the numerous opinions penned by our sister circuits, the question presented was slightly different. In those cases, the question was whether there existed appellate court jurisdiction to review a within-Guidelines sentence for reasonableness. Although in this case Kane appeals from a below-Guidelines sentence, we find the distinction to be immaterial, particularly in light of Booker's parenthetical that the Sentencing Reform Act provides for appellate review "irrespective of whether the trial judge sentences within or outside the Guidelines range. . . ." Booker, 543 U.S. at 260, 125 S.Ct. 738.
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Case: 16-13893 Date Filed: 05/30/2017 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-13893
Non-Argument Calendar
________________________
Agency No. A205-614-865
YA LING WU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 30, 2017)
Before JORDAN, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:
Case: 16-13893 Date Filed: 05/30/2017 Page: 2 of 6
Ya Ling Wu, proceeding pro se, petitions for review of the Board of
Immigration Appeals’ (BIA) final order affirming the Immigration Judge’s (IJ)
denial of her application for asylum, withholding of removal, and relief under the
United Nations Convention Against Torture and Other Cruel, Inhuman, or
Derating Treatment or Punishment (CAT). Wu, who converted to Christianity
while living in the United States, argues she established a well-founded fear of
future persecution based on her religious beliefs if returned to China. After
review, 1 we deny Wu’s petition.
An alien who arrives in or is present in the United States may apply for
asylum. 8 U.S.C. § 1158(a)(1). To obtain asylum, an alien must meet the
Immigration and Nationality Act’s (INA) definition of a “refugee.” 8 U.S.C.
§ 1158(b)(1)(A). A “refugee” is:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution or a
1
We “review only the [BIA’s] decision, except to the extent that it expressly adopts the
IJ’s opinion. Insofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as
well.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (citation omitted).
Factual determinations are reviewed under the substantial-evidence test, which requires
that we “view the record evidence in the light most favorable to the agency’s decision and draw
all reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27
(11th Cir. 2004) (en banc). We must affirm the BIA’s decision “if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” D-Muhumed v. U.S.
Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004) (quotation omitted). “To reverse the . . . fact
findings, we must find that the record not only supports reversal, but compels it.” Mendoza v.
U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
2
Case: 16-13893 Date Filed: 05/30/2017 Page: 3 of 6
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion.
8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving
statutory “refugee” status. 8 C.F.R. § 208.13(a). To establish eligibility, the alien
must, with specific and credible evidence, establish (1) past persecution on account
of a statutorily listed factor, or (2) a well-founded fear that the statutorily listed
factor will cause future persecution. 8 C.F.R. § 208.13(b).
If there is no showing of past persecution, an applicant must establish a well-
founded fear of future persecution by demonstrating that there is a “reasonable
possibility” of suffering persecution if she returns to her home country. Mejia v.
U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007) (quotation omitted). The
fear of persecution must be “subjectively genuine and objectively reasonable.” Al
Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir. 2001). “The subjective
component is generally satisfied by the applicant’s credible testimony that he or
she genuinely fears persecution,” and “[i]n most cases, the objective prong can be
fulfilled either by establishing past persecution or that he or she has a good reason
to fear future persecution.” Id. (quotation omitted).
Substantial evidence supports the finding that Wu has failed to establish a
well-founded fear of future persecution on the basis of her Christian belief. The
record reflects that tens of millions of people practice Protestant Christianity in
3
Case: 16-13893 Date Filed: 05/30/2017 Page: 4 of 6
China and local tolerance of unregistered believers varies. Although the
Department of State’s 2012 International Religious Freedom Report on China
(IRFR) noted incidents of religious discrimination, none were identified in Fujian
Province, where Wu lived. Furthermore, the IRFR noted that employment
discrimination based on religion is illegal and parents are permitted to instruct their
children in their religious beliefs. There is evidence that family and friends have
the right to meet at home for worship, although there is other evidence indicating
that authorities regularly harassed and detained small groups meeting for religious
purposes. While Wu argues the IJ relied upon improper information from China’s
State Administration of Religious Affairs (SARA) website, the information taken
from the SARA website was included in the IRFR. Therefore, whether or not the
website as a whole is reliable, the BIA and IJ properly relied upon this particular
information in making their determination. The BIA is entitled to rely heavily on
the State Department reports. Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239,
1243 (11th Cir. 2004).
Substantial evidence also supports the finding the documents provided by
Wu are entitled to little or no weight. See Li Shan Chen v. U.S. Att’y Gen., 672
F.3d 961, 964 (11th Cir. 2011) (“Unauthenticated documents lack veracity and are
entitled to no deference.”). As to the notice from the Ding’an Villagers’
Committee (the Notice), Wu does not argue that it was authenticated pursuant to 8
4
Case: 16-13893 Date Filed: 05/30/2017 Page: 5 of 6
C.F.R. § 287.6, 2 and she had no personal knowledge that it was what it claimed to
be. The only evidence about its veracity was the letter from Wu’s mother, who
was not subject to cross-examination and provided no details about how she came
to receive the Notice. In light of these facts, as well as the possibility of fraud in
Fujian Province, and the fact that Wu herself had no explanation for how the
Village Committee would have come to learn about her activity in the United
States, the record does not compel a finding that the Notice is entitled to substantial
weight. See Mu Ying Wu v. U.S. Att’y Gen., 745 F.3d 1140, 1154 (11th Cir. 2014)
(holding (1) the BIA and IJ did not err in giving little to no weight to a document
that was unauthenticated, or in making the finding that the document was not
authenticated when the petitioner put forth no evidence confirming that the
document was created by who it was purportedly created by, and (2) the IJ and
BIA properly considered evidence showed documents from Fujian Province are
often fraudulent).
Substantial evidence also supports the BIA and IJ’s decision to give minimal
weight to the letters from Xin and Wu’s mother. Because the letters were written
to assist Wu’s asylum claim and Xin and Wu’s mother were not subject to cross
examination, the letters were entitled to little weight. See Matter of H-L-H- & Z-Y-
2
In relevant part, § 287.6(b)(1) states that “an official record . . . shall be evidenced by
an official publication thereof, or by a copy attested by an officer so authorized.” 8 C.F.R. §
287.6. It continues, “[t]his attested copy in turn may but need not be certified by any authorized
foreign officer both as to the genuineness of the signature of the attesting officer and as to his/her
official position.” Id.
5
Case: 16-13893 Date Filed: 05/30/2017 Page: 6 of 6
Z-, 25 I&N Dec. 209, 215 (BIA 2010) (affording little weight to letters from
individuals who “are interested witnesses who were not subject to cross-
examination”), rev’d in part on other grounds by Hui Lin Huang v. Holder, 677
F.3d 130 (2d Cir. 2013).
In light of the country conditions evidence and the weakness in Wu’s
supporting documents, the record does not compel a finding that she had a well-
founded fear of future persecution. Consequently, she necessarily also failed to
satisfy the higher standard of a clear probability of persecution as required by
withholding of removal. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th
Cir. 2005) (explaining to establish eligibility for withholding of removal under the
INA, an applicant must show it is more likely than not he will be persecuted or
tortured upon returning to his country, and the standard for withholding of removal
is “more stringent” than the asylum standard). Finally, substantial evidence
supports the denial of Wu’s CAT claim because Wu did not provide any evidence
of past torture or threats of future torture. See 8 C.F.R. § 208.16(c)(2) (providing
the applicant for CAT relief bears the burden of proving that it is “more likely than
not that he or she would be tortured if removed to the proposed country of
removal”).
Accordingly, we deny Wu’s petition.
PETITION DENIED.
6
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FILED
NOT FOR PUBLICATION SEP 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EULOGIO MALDONADO-VALLARTA, No. 08-72627
Petitioner, Agency No. A098-455-023
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Eulogio Maldonado-Vallarta, a native and citizen of Mexico, petitions pro se
for review of the Board of Immigration Appeals’ (“BIA”) order denying his
motion to reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We deny
in part and dismiss in part the petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
In his opening brief, Maldonado-Vallarta fails to raise any challenge to the
BIA’s denial of his motion to reconsider. See Martinez-Serrano v. INS, 94 F.3d
1256, 1259-60 (9th Cir. 1996) (issues not specifically raised in an opening brief are
deemed waived).
We lack jurisdiction to review the BIA’s underlying order dismissing
Maldonado-Vallarta’s appeal from the immigration judge’s decision denying his
cancellation of removal application, because this petition for review is not timely
as to that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 08-72627
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4 F.3d 995
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee and Cross-Appellant,v.Danny STOKES and Terry Bailey, Defendants-Appellants andCross-appellees.
Nos. 91-2001, 91-2059, 91-2072 and 91-2073.
United States Court of Appeals, Sixth Circuit.
Aug. 17, 1993.
On Appeal from the United States District Court for the Eastern District of Michigan, No. 90-80304, Gilmore, J.
E.D.Mich.
AFFIRMED.
BEFORE: RYAN and BOGGS, Circuit Judges; and ECHOLS, District Judge.1
PER CURIAM.
1
The defendants were convicted on multiple counts of drug-related offenses. They now raise numerous assignments of error. The government also appeals the district court's refusal to increase the defendants' sentence based upon obstruction of justice. For the reasons stated, we affirm.
2
* In January 1990, DEA agents in Los Angeles, California arrested Pete Moore for possession of controlled substances with intent to distribute. Agents debriefed Moore regarding his role in illegal narcotics trafficking between California and Detroit. He agreed to cooperate in return for a reduced sentence. Moore admitted that he supplied drugs to dealers in Detroit. Specifically, he claimed that he worked with Danny Stokes and Terry Bailey, and that he would introduce the agents to these two dealers.
3
Moore arranged for DEA agents to meet with Stokes and Bailey so that DEA agents could perform an undercover sting operation. At the first meeting, only Stokes met with the undercover agents. DEA agent Neville, posing as a dealer, rented a room at the Radisson Inn at the Detroit Airport. At the meeting, Stokes agreed to purchase six kilos of cocaine from Neville for $19,000 a kilo. Stokes said that Bailey would raise the funds. Several days later, Neville met with both Stokes and Bailey, and the three men ironed out the deal.
4
On April 3, 1990, a third meeting was held, this time at the Embassy Suites Hotel in Southfield, Michigan. Only Stokes and Neville were present. Further changes in the deal were made. Stokes finally agreed to purchase eight kilos of cocaine, and Neville agreed to give him two kilos on credit. Stokes made some calls, and told Neville that Bailey and another co-defendant, Bobby Wade, would be arriving with the cash. When Stokes, Bailey, and Wade were in the room with the money, police entered and arrested them. Defendant Wade had physical possession of the $127,000 in cash at the time of the arrest. Every meeting between the appellants and the DEA agents was videotaped.
5
The case proceeded to trial against Stokes, Bailey, and four co-defendants in 1991.2 A four-week jury trial was held. Out of the six co-defendants, only Stokes and Bailey were convicted. Stokes was convicted of three counts: 1) conspiracy to possess cocaine with the intent to distribute, in violation of 21 U.S.C. Secs. 841 and 846; 2) unlawful use of a communication facility, in violation of 21 U.S.C. Sec. 843(b); and 3) attempted possession of cocaine with intent to distribute, in violation of 21 U.S.C. Secs. 841 and 846. Bailey was found guilty on the first two counts and not guilty on the third count. Stokes received 188 months' imprisonment on counts one and two, to run concurrently with a 48-month sentence on count three, and five years' supervised release. Bailey was sentenced to 168 months' imprisonment on count one, and 48 months on count three, to be served concurrently. Bailey also received five years' supervised release.
6
Stokes and Bailey then brought these timely appeals. They argue that: they were entrapped as a matter of law; the jury instructions were improper; there is insufficient evidence to support the verdict; and juror misconduct requires a mistrial. Stokes also argues that the court improperly refused to allow two of his witnesses to testify. Bailey independently argues that insufficient evidence exists to sustain his conspiracy conviction. The government cross-appealed on the issue of whether the defendants should have received obstruction of justice enhancements.
II
7
Both Stokes and Bailey assert that they were entrapped as a matter of law. The district court submitted the issue to the jury, and the argument was necessarily rejected. Both defendants then filed motions for judgment of acquittal pursuant to Fed.R.Crim.P. 29(c), raising the issue of entrapment. The district court denied these motions, and the argument has now been renewed on appeal.
8
The Supreme Court has recognized that "the question of entrapment is generally one for the jury, rather than for the court." Matthews v. United States, 485 U.S. 58, 63 (1988). In United States v. Silva, 846 F.2d 352, 355 (6th Cir.), cert. denied, 488 U.S. 941 (1988), this court stated that an entrapment as a matter of law defense must show a patently clear case of lack of predisposition, and the evidence must be taken in the light most favorable to the government. A court cannot chose between conflicting testimony or make credibility determinations.
9
Neither appellant has satisfied this standard. Moore told DEA agents that he had been shipping drugs to Stokes and Bailey for years. Moore set up a meeting, at which time Stokes met with the agents who were posing as drug dealers. At this meeting, Moore told Stokes that there was a great deal of "heat" on him, and so he could not meet their usual demands. Stokes expressed no reluctance in dealing with the agents. Terms were discussed, and a deal was made. Throughout the meeting, Stokes referred to Bailey as his partner, and Stokes discussed his and Bailey's dealings together.
10
A second meeting was held. This time both Stokes and Bailey were present. During the discussion, Stokes and Bailey told the agent that: 1) Bailey recently had graduated from Western Michigan University, and he had operated that branch of the drug operations; 2) Stokes previously had dealt drugs in Atlanta, Georgia; and 3) Bailey was leery about doing the deal in Southfield, Michigan because of a bad drug dealing experience in that town.3 Throughout the negotiations, both Stokes and Bailey stated that they were in a hurry to consummate a deal so that they could "get back in business." Finally, Stokes had been arrested in January 1990 with 3 grams of cocaine. He pled guilty to this offense only two weeks before his arrest on these charges. At the time of the instant trial, charges were pending against Bailey in state court for possession of 13 grams of cocaine. Based upon this overwhelming evidence, we reject the appellants' position.
III
11
Both defendants argue that the court's entrapment instruction was error. Appellants base their position on United States v. Lasuita, 752 F.2d 249 (6th Cir.1985). In that case, the jury asked the court:
12
Does the government have to prove, beyond a reasonable doubt, that prior to contact with the U.S. Government or its agents, that the Defendant was ready and/or willing to enter into an illegal act?
13
Id. at 252. Over the objection of the defendant's counsel, the court answered "No." We held that this answer was incorrect, as the government does have to prove predisposition prior to contact with the government. Id. at 253. In the present case, the district court offered the following instruction regarding the defendant's burden of proof for the entrapment defense:
14
It must be shown that the defendant was not already willing to commit the crime before the government became involved.... In deciding whether the defendant was already willing to commit the crime you may ask yourselves: Did the defendant engage in similar activity with others either before or after he became involved with the government agent....
15
Appellants contend that this instruction, specifically the last sentence, was error because it gave the impression that the defendants need not have a predisposition to commit a crime. According to the defendants, this last sentence directly contravenes Lasuita's requirement that the government prove predisposition.
16
Because appellants never raised this issue below, we must review under the plain error standard. United States v. Sanchez, 928 F.2d 1450, 1456 (6th Cir.1991). Plain error review is discretionary, and used solely in those situations where a miscarriage of justice would otherwise result. Finch v. Monumental Life Ins. Co., 820 F.2d 1426 (6th Cir.1987). Plain errors are those "which are so rank that they should have been apparent to the trial judge without objection, or that strike at the fundamental fairness, honesty, or public reputation of the trial." United States v. Causey, 834 F.2d 1277, 1281 (6th Cir.1987), cert. denied, 486 U.S. 1034 (1988). In this case, appellants' asserted error does not rise to the level of plain error, as absolutely no error was made.
17
The contested portion of the jury instruction tracks the language of the Sixth Circuit Pattern Criminal Jury Instruction 6.03 ("ask yourself if the defendant took part in any similar criminal activity with anyone else before or afterwards...."). This instruction in no way undermines Lasuita. Rather, the instruction concerns only the evidence that may be considered when answering the question posed in Lasuita: whether predisposition existed before the crime. In answering this question, a jury may look at evidence of the defendant's character both before and after his arrest. Ex post evidence is relevant because it may shed light on whether defendant is the type of person who could commit the crime in question. Accordingly, no error was made.
IV
18
One of the potential jurors, Linda Parizon, told the court during voir dire that she could not be a fair juror. She did not think it was right that the defendants could get life imprisonment, and she did not want to be responsible for what happened to the defendants.4 Parizon then reported to the trial court that she had overheard another prospective juror, Allie Davis, telling other prospective jurors that she, Allie Davis, had seen one of the defendants "selling drugs on the corner." Parizon conjectured that 5 to 10 prospective jurors heard the comment.
19
The trial judge noted that he thought Parizon concocted the story so that she could avoid jury duty. However, in order to insure a fair jury, the court asked the remaining potential jurors whether they had heard any statement concerning any of the defendants. Only one person answered in the affirmative. This potential juror said that Davis had commented that she recognized defendant Blevins.5 However, the reference had been "vague," and Davis had said that she could not remember how she knew him. The court then questioned Davis in chambers. She stated that she thought that she recognized Blevins, but she could not remember how she knew him, and that she had not said anything more specific to the other potential jurors. The court then struck Davis, Parizon, and the prospective juror who had heard Davis's comments. Voir dire continued, and a jury eventually was selected.
20
Appellants now argue that it was error not to declare a mistrial and strike the entire panel. This argument is meritless. The burden is on the defendants to show that any unauthorized communication involving jurors resulted in actual juror partiality. United States v. Pennell, 737 F.2d 521, 532 (6th Cir.1984), cert. denied, 469 U.S. 1158 (1985). This issue is committed to the sound discretion of the trial court. United States v. Knipp, 963 F.2d 839 (6th Cir.1992). A trial court's decision on this issue will not be disturbed unless there is a clear abuse of discretion. Ibid.
21
In the present case, there absolutely is no evidence of actual juror prejudice. Appellants cite cases where jurors who actually determined guilt heard prejudicial comments. Leonard v. United States, 378 U.S. 544 (1964) (where prosecutor improperly told jury that defendant had previously been convicted of similar crime, mistrial was proper). However, in the present case, no member of the jury reported hearing any prejudicial comments. Moreover, it appears any comment made was minor. Davis only said that she recognized one of the defendants.6 This defendant is not even one of the appellants. For these reasons, we reject the appellants' position.
V
22
The defendants argue that the district court committed reversible error by refusing to give a "missing witness" instruction concerning Pete Moore. Moore did not testify because he was testifying in California against his suppliers at the same time. Bailey and Stokes now argue that a "missing witness" instruction should have been given. Pursuant to such an instruction, the court would instruct that the failure of the government to call Moore leads to an inference that, had the witness been produced, his testimony would have been adverse to the government. See United States v. Frost, 914 F.2d 756, 765 (6th Cir.1990).
23
This argument is frivolous. From the beginning, the government stated that it did not plan to call Moore because he was needed in California. The district court stated that, "if any defense attorney wants him, let the Court and Mr. Stern [the prosecutor] know fairly quickly," and the court would subpoena him. The prosecutor then stated that he would be happy to transfer Moore at the request of the defendants. The defense attorneys all affirmatively stated that they did not wish to call him.
24
Several times thereafter, defense counsel made cutting remarks in front of the jury regarding Moore's failure to testify, and what that said about the government's case. Each time the district court reprimanded defense counsel, and made very clear that the court gladly would subpoena Moore. Each time, the defendants declined. Given these facts, the request of a "missing witness" instruction is baseless. Id. at 765 (a "missing witness" instruction requires a showing that the missing witness was beyond the reach of the party requesting the instruction).
VI
25
Bailey argues that insufficient evidence exists to sustain his conspiracy conviction. Upon reviewing a verdict for sufficiency of the evidence, "[I]t is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80 (1942). More recently, the Court has stated that, provided that sufficient evidence exists for a rational trier of fact to reach the stated verdict, the court must affirm. Jackson v. Virginia, 443 U.S. 307, 330 (1979).
26
According to Bailey, he was not at the meeting between DEA agents and Stokes when the terms were finalized. For this reason, he contends that he cannot be considered a member of a conspiracy. This position is incorrect. Stokes made clear at the first meeting that he and Bailey were partners. At subsequent meetings, Bailey was present, and he took part in negotiations that resulted in a modification of the original agreement. On the stand, Bailey admitted that he took an active role in negotiations. Bailey also played an active role in the actual purchase of the drugs. He obtained the money, and was present at the time of the purchase. Accordingly, we reject his argument.
VII
27
Stokes also argues that the court improperly refused to allow two of his witnesses to testify. After opening arguments, the attorneys and the court agreed to a sequestration order. Upcoming witnesses were not allowed in the courtroom. Rule 615, Fed.R.Evid., allows for such an order at the request of a party. During the presentation of Stokes's case, his attorney attempted to call a representative of Chrysler Credit Corporation and appellant's landlady. The trial court did not allow them to testify, based upon violation of the sequestration order. Appellant concedes that these witnesses violated the order, however, but he contends that the punishment was too severe.
28
A district court has broad discretion in determining the appropriate remedy for a party's violation of a sequestration order, and that remedy may include prohibiting the witness from testifying. United States v. Gibson, 675 F.2d 825, 836 (6th Cir.), cert. denied, 459 U.S. 972 (1982). Review of the district court's decision is limited to a determination of whether the court abused its discretion. Ibid. In the present case, the witnesses undeniably violated the order, and appellant has not shown that the court abused its discretion. Moreover, the testimony was essentially irrelevant. Both witnesses would have testified about Stokes's desperate financial situation, implying he was thus unwillingly seduced into the transaction. Stokes had other witnesses testify as to his dire financial situation. Also, the evidence was overwhelming that Stokes required no seducing whatsoever. He willingly entered into the transaction. Accordingly, any error was harmless. Fed.R.Crim.P. 52(b).
VIII
29
The government cross-appeals the district court's refusal to grant a two-level increase for obstruction of justice. In its sentencing memorandum, the government detailed the alleged lies both defendants told while on the stand. At the hearing, the court refused to increase the sentence. The court gave two different explanations for its ruling. First, the court stated that, although the defendant's testimony was implausible, it did not rise to the level of perjury. Second, the district court expressed fear regarding the chilling effect on testifying that the increase might have.
30
The government contends that reversal is required based upon United States v. Dunnigan, --- U.S. ----, 113 S.Ct. 1111 (1993). In that case, the Court held that an increase for obstruction of justice when the defendant lies on the stand is proper. With this ruling, the Court made clear that the commission of perjury during a criminal trial necessities a two-level enhancement. The government asks that we require the district court to impose a two-level increase because the district court's concerns about the potential chilling effect are no longer valid in light of Dunnigan.
31
We reject the government's position. The government is correct that Dunnigan negates the court's concerns about chilling a defendant's testimony. However, before finding obstruction of justice, the district court must make a factual finding that the defendants committed perjury. United States v. Burnette, 981 F.2d 874 (6th Cir.1992). The district court emphatically refused to make this finding. The court stated that their testimony was "implausible," but did not rise to the level of "perjury." Perjury requires that the court find that the defendant gave "false testimony concerning a material matter with the willful intent to provide false testimony...." Dunnigan, --- U.S. at ----, 113 S.Ct. at 1116. Taking the evidence before the trial court in the light most favorable to the defendants, the government has not shown that the trial court's factual finding of no perjury was clearly erroneous.
32
For the reasons stated, we AFFIRM the convictions and sentences of Bailey and Stokes.
1
The Honorable Robert L. Echols, United States District Court Judge for the Middle District of Tennessee, sitting by designation
2
There originally were seven co-defendants. However, Bobby Wade pled guilty prior to trial
3
13 kilos of cocaine had been lost when a maid unexpectedly entered their hotel room and discovered the drugs
4
The district court tried to explain that the defendants could not get life imprisonment, but Parizon did not appear to be listening
5
Blevins was one of the defendants who was acquitted
6
Based upon Ms. Parizon's clear desire to avoid jury duty, the district court chose not to believe her version of what transpired. The fact that Davis and the other prospective juror told identical stories supports the district court's finding that Parizon was not telling the truth, and that the comment was minor
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1757
WILLIAM M. CONRAD,
Plaintiff – Appellant,
v.
CSX TRANSPORTATION, INCORPORATED, c/o Corporation Creation
Network, Inc.,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:14-cv-00051-MJG)
Submitted: December 22, 2015 Decided: February 16, 2016
Before WILKINSON, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lawrence A. Katz, COFFEY KAYE MYERS & OLLEY, Bala Cynwyd,
Pennsylvania, for Appellant. Amy E. Askew, Catherine Mary
Manofsky, KRAMON & GRAHAM, PA, Baltimore, Maryland; Evan M.
Tager, Carl J. Summers, MAYER BROWN LLP, Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William M. Conrad appeals from the district court’s order
granting summary judgment to Defendant CSX Transportation, Inc.
(CSX) in Conrad’s suit under the Federal Employers’ Liability
Act (FELA), 45 U.S.C. §§ 51 to 60 (2012). Conrad alleged CSX
was negligent in numerous ways relating to his fall over a
barrier at a railway yard. On appeal, Conrad argues that the
district court erred in determining that he did not present a
prima facie case of negligence. Finding no error, we affirm.
This court reviews a district court’s grant of summary
judgment de novo, “viewing all facts and reasonable inferences
therefrom in the light most favorable to the nonmoving party.”
Smith v. Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014) (internal
quotation marks omitted). Summary judgment is appropriate only
when there is no genuine issue of material fact and the movant
is entitled to judgment as a matter of law. Seremeth v. Bd. of
Cty. Comm’rs Frederick Cty., 673 F.3d 333, 336 (4th Cir. 2012).
The relevant inquiry on summary judgment is “whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc.,, 477 U.S. 242, 251-52 (1986). To withstand a
summary judgment motion, the nonmoving party must produce
competent evidence sufficient to reveal the existence of a
2
genuine issue of material fact for trial. Fed. R. Civ. P.
56(c)(1).
We have reviewed the record, briefs, and applicable case
law on this matter. Our careful review persuades us that the
district court’s ruling was correct. See Conrad v. CSX Transp.
No. 1:14-cv-00051-MJG (D. Md. filed June 16 & entered June 17,
2015; and filed June 24 & entered June 25, 2015). We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
3
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187 F.3d 587 (6th Cir. 1999)
Marvin Fullerton, Defendant-Appellant.v.United States of America, Plaintiff-Appellee,
No. 98-3472
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: June 15, 1999Decided and Filed: August 13, 1999Rehearing Denied Sept. 14, 1999.
Appeal from the United States District Court for the Northern District of Ohio at Cleveland; No. 97-00305--Solomon Oliver, Jr., District Judge.
Edward F. Feran, OFFICE OF THE U.S. ATTORNEY, Cleveland, Ohio, for Appellee.
Paul Mancino, Jr., MANCINO, MANCINO & MANCINO, Cleveland, Ohio, for Appellant.
Before: MARTIN, Chief Judge; JONES and SUHRHEINRICH, Circuit Judges.
OPINION
BOYCE F. MARTIN, JR., Chief Judge.
1
Marvin Fullerton appeals his conviction for distribution of cocaine and the district court's denial of both his motion for judgment of acquittal and motion for a new trial.
I.
2
In August 1997, the Drug Enforcement Agency, in cooperation with the East Cleveland, Ohio Police Department, conducted an investigation into local drug trafficking. Special Agents Tim Jones and John Clayton of the DEA set up a drug buy between an informant and a dealer known as "Romeo"1 on August 4. The agents dialed "Romeo's" pager number,690-4946, and "Romeo" told the informant to meet him at 1827 Knowles Avenue.
3
The agents testified that at approximately 11:15 p.m., the informant purchased cocaine from "Romeo." Jones had a clear view of the transaction and was able to observe "Romeo." Clayton also observed the transaction. To make positive identification of "Romeo," after the informant left the scene, Clayton walked down the street, passing approximately one to two feet from "Romeo" and made eye contact with him. Clayton testified that "Romeo" asked him if he needed anything.
4
The agents set up a second drug buy from "Romeo" on August 6. Again they paged 690-4946. "Romeo" instructed the informant to meet him at the same location. Jones was approximately fifty yards away from the informant and "Romeo" as the transaction occurred and again was able to observe "Romeo." Clayton also witnessed the deal and drove past "Romeo" after the transaction was complete to verify his identity.
5
Over the next month, the agents observed "Romeo" at the Knowles Avenue location one to three times a week. "Romeo" was not immediately arrested because the agents were using the same informant as part of their on-going investigation of drug activity in this area. The agents were present, however, when "Romeo" was arrested on September 22, in front of 1827 Knowles Avenue, based upon the August 4 and 6 cocaine sales. The agents learned "Romeo's" actual identity, Marvin Fullerton, from identification found at the time of his arrest. Prior to the arrest, the agents believed the dealer known as "Romeo" to be a man named Larry Morgan. At trial, Jones and Clayton identified Fullerton as both the man they observed selling cocaine on August 4 and 6 and the man they saw arrested on September 22.
6
Because the investigation of drug activity in East Cleveland was conducted in cooperation with the East Cleveland Police Department, local police were on the scene when Fullerton was arrested and took him into their custody. At the time of the arrest the DEA, without a warrant, directed that an officer of the East Cleveland Police Department arrest Fullerton. Before putting Fullerton in the police cruiser, Clayton, the federal agent, searched Fullerton and recovered a pager. Clayton then dialed 690-4946, the number used to set up both the August 4 and 6 drug buys, and the confiscated pager responded.
7
For some reason unexplained in the record, we have no idea where Fullerton was from September 22, the day of the arrest, and September 25, when Clayton filed a complaint and affidavit with a United States Magistrate against Fullerton for distributing cocaine in violation of 21 U.S.C. 841. On September 26, Fullerton made his first appearance before the magistrate. When he signed Clayton's complaint, a warrant was issued. Thus, between September 22 and September 26, no judicial officer had determined whether there was adequate probable cause to support Fullerton's September 22 warrantless arrest.
8
After an indictment and trial, on January 21, 1998, a jury found Fullerton guilty on two counts of distributing cocaine in violation of 21 U.S.C. 841. On January 28, Fullerton filed a Fed. R. Crim. P. Rule 29(c) Motion for Judgment of Acquittal, or in the alternative, Motion for a New Trial, pursuant to Fed. R. Crim. P. Rule 33. The district court denied both motions. Fullerton timely filed an appeal.
II.
9
On appeal, Fullerton argues that the district court improperly admitted the pager into evidence. He reasons that because the agents failed to have a magistrate determine whether there was probable cause for his arrest until September 26, over seventy-two hours after his arrest, allegedly in violation of County of Riverside v. McLaughlin, 500 U.S. 44(1991), the arrest was illegal and the seizure of the pager incident to the arrest was also illegal. Therefore, he argues that the arrest was without probable cause and that the district court should have suppressed the confiscated pager. The district court's legal conclusions on suppression issues are reviewed de novo, and its factual findings are reviewed under the clearly erroneous standard. United States v. Dotson, 49 F.3d 227, 299 (6th Cir. 1995).
10
The fact that the federal agents waited over seventy-two hours to move Fullerton to federal custody and have a probable cause hearing surprises us. We cannot overstate the importance of the constitutional requirement that there be a prompt determination of probable cause when a person is arrested without a warrant. Federal magistrates are generally expected to be available twenty-four hours a day and many are equipped with pagers to ensure that anyone arrested without a warrant promptly receives a judicial determination of probable cause.
11
In McLaughlin, the Supreme Court stated that a judicial determination of probable cause within forty-eight hours of arrest will generally comply with the constitutional requirement of promptness in bringing an arrestee before a magistrate; however, after a lapse of forty-eight hours, the burden shifts to the government to establish extraordinary circumstances to justify the delay. 500 U.S. at 56-57. The Supreme Court adopted this forty-eight hour guideline to clarify its statement in Gerstein v. Pugh, 420 U.S. 103, 113-16 (1975), that warrantless arrests are permissible, but people arrested without a warrant must be promptly brought before a neutral magistrate for a judicial determination of probable cause.
12
Fullerton's arrest was not validated by a magistrate judge until over seventy-two hours after his arrest. We hold this delay to be a violation of the standards set forth in McLaughlin. It is unclear from the record whether there were extraordinary circumstances which would excuse the agents' failure to obtain a warrant within forty-eight hours of Fullerton's arrest.2 However, we hold that while the delay in bringing Fullerton before a magistrate to determine probable cause violates the rule articulated in McLaughlin, suppression of the pager is not an appropriate remedy for this violation.
13
There is much confusion over the appropriate remedy for a McLaughlin violation. The Supreme Court has specifically declined to address this issue. Powell v. Nevada, 511 U.S. 79, 85 (1994). Fullerton makes the novel argument that the appropriate remedy for the failure to judicially determine probable cause within forty-eight hours of an arrest should be the suppression of evidence obtained incident to thatarrest. As authority for this proposition, Fullerton cites Mapp v. Ohio, 367 U.S. 643, 655 (1961), which held that illegally obtained evidence must be excluded at trial.
14
The Supreme Court remanded Powell to the Nevada Supreme Court to determine an appropriate remedy for a McLaughlin violation. 511 U.S. at 84-85. As goes without saying, the Sixth Circuit is not bound by Nevada case law. We nonetheless find a comparison of Powell to the case at hand to be instructive. In Powell, the Supreme Court held that a four-day delay between Powell's warrantless arrest and a judicial determination of probable cause was presumptively unreasonable under McLaughlin. 511 U.S. at 83-84. Powell sought to suppress prejudicial statements which he made to police the day of his probable cause hearing, four days after his arrest. 551 U.S. at 79. On remand, the Nevada Supreme Court held that harmless error analysis applies to McLaughlin violations, and found that the possible error in admitting Powell's prejudicial statements was harmless because the other evidence admitted at trial was so compelling that excluding the statements made during the illegal detention would not have changed the result at trial. Powell v. State, 113 Nev. 41, 930 P.2d 1123, 1126 (Nev. 1997), cert. denied, 118 S.Ct. 377, 139 L.Ed.2d 294 (1997).
15
One significant difference between Powell and the case at hand is that Powell made his prejudicial statements after the McLaughlin violation occurred, over forty-eight hours after the police arrested him and before a judicial determination of probable cause, Powell, 551 U.S. at 79, whereas Clayton seized the pager from Fullerton at the time of Fullerton's arrest, before the McLaughlin violation occurred. Thus, the pager was not obtained pursuant to the McLaughlin violation. Because the agents had probable cause to arrest Fullerton on September 22,3 the arrest, search, and detention of Fullerton during the first forty-eight hours were lawful. Because the evidence in question, the pager, was obtained incident to the lawful arrest and during the first forty-eight hours, the district court properly admitted the pager at trial. Thus, while there was a McLaughlin violation, suppression of the pager is not the appropriate remedy.
16
Even if the district court erred by admitting the evidence, we hold that such error would be harmless, given the extensive testimony at trial supporting Fullerton's conviction. Chapman v. California, 386 U.S. 18, 23-24 (1967). Nor does such an error fall into the "limited class of fundamental constitutional errors . . . that defy analysis by harmless error standards and require automatic reversal," which the Supreme Court recently addressed in Neder v. United States, -- U.S. --, 119 S. Ct. 1827, 1833 (1999). In Neder, the Supreme Court held that certain constitutional errors which affect the framework within which the trial proceeds, rather than simply an error in the trial process itself, should not be subject to harmless error analysis. Id. at119 S.Ct. 1827. If the district court erred in admitting the pager, which we hold it did not, such an error would fall into the latter category and would thus still be susceptible to harmless error analysis.
17
Nonetheless, we find the delay in bringing Fullerton before a magistrate for a probable cause hearing to be entirely unacceptable. While suppression of the pager is not an available remedy in this instance, the law affords Fullerton another remedy for the delay in bringing him before a magistrate. Fullerton may follow the lead of numerous other victims of McLaughlin violations and file a Bivens claim, Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971). See Luck v. Rovenstine, 168 F.3d 323 (7th Cir. 1999); Hallstron v. City of Garden City, 991 F.2d 1473 (9th Cir. 1993); Sivard v. Pulaski County, 959 F.2d 662 (7th Cir. 1992); Wayland v. City of Springdale, 933 F.2d 668 (8th Cir. 1991).
III.
18
Fullerton also contends that he should have been granted a new trial because he was the victim of prosecutorial misconduct. Specifically, he objects to the Assistant United States Attorney's statement, during his closing argument, that the defense counsel was "trying to blow smoke in the jury's faces. This case is beyond a reasonable doubt." The standard of review for the denial of a motion for a new trial is abuse of discretion. Anchor v. O'Toole, 94 F.3d 1014, 1021 (6th Cir. 1996).
19
In reviewing a claim of prosecutorial misconduct, we must first consider whether a prosecutor's comment was improper. United States v. Carroll, 26 F.3d 1380, 1387 (6th Cir. 1994). Improper witness vouching occurs when a prosecutor supports the credibility of a witness by indicating a personal belief in the witness's credibility. United States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999). The Assistant United States Attorney indicated his belief in the credibility of the government's witnesses with his statement that the defense counsel was "trying to blow smoke in the jury's faces. This case is beyond a reasonable doubt." Therefore, his comment was improper.
20
We next consider whether the comment was flagrant. To determine flagrancy, this Court considers the following factors: (1) whether the remarks tended to mislead the jury or to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally placed before the jury; (4) the strength of the evidence against the accused. Carroll, 26 F.3d at 1384-85.
21
The prosecutor's comment that the defense counsel was "trying to blow smoke in the jury's faces. This case is beyond a reasonable doubt" pushes the boundaries of what we consider not to be flagrant nearly to the breaking point. His remarks may have misled the jury or prejudiced the accused, although any prejudice was mitigated by the fact that the district court immediately gave a curative instruction. The fact that the statement was isolated works in the Assistant United States Attorney's favor. But it strains credulity to imagine that such a statement was accidentally placed before the jury. Nonetheless, given the testimony of the two agents, the evidence against Fullerton was strong.
22
Although the Assistant United States Attorney's statement was a poor choice of words, we need not determine whether the comment was flagrant. His statement alone does not warrant a new trial. Even if the comment was determined to be flagrant, its admission would be harmless error. This isolated statement, immediately followed by a curative instruction was "harmless beyond a reasonable doubt," Neder, 119 S. Ct. at 1837. Furthermore, because the comment in no way "affected theframework within which the trial proced[ed]", id. at 591, it does not fall within the limited class of fundamental constitutional errors that defy harmless error analysis, id. at 591. Therefore, we decline to grant Fullerton a new trial based on the Assistant United States Attorney's statement.
23
We have reviewed the other grounds for Fullerton's appeal and determined them to be without merit. AFFIRMED.
Notes:
1
Agent Clayton testified that, in his experience, drug dealers often identify themselves by "street names" instead of their legal names when selling drugs.
2
In his motion to clarify his statement made during oral argument, the Assistant United States Attorney attempted to distinguish this case from McLaughlin by stating that Fullerton was held on local charges until September 26, then transferred into federal custody and afforded an initial appearance within twenty-four hours. Therefore, he argues, there was no deficiency in the arrest or the timing of the initial appearance on federal charges. We find the Assistant United States Attorney's argument to be disingenuous. First, we can find no indication in the record that Fullerton was held initially on local charges. Second, although he does not cite to it, his argument appears to be based on United States v. Alverez-Shanchez, which held that 18 U.S.C. 3501(c), governing the admissibility of custodial confessions in federal trials despite delay in presentment, does not apply if the suspect is arrested initially on local charges and held in local custody before federal charges are filed. 51 U.S. 350, 357-56 (1994). We can easily distinguish Alverez-Shanchez from the case at hand because Alverez-Shanchez discusses 3501(c), not McLaughlin. Furthermore, 3501(c) applies only to people arrested for violating federal laws, id., whereas McLaughlin sets forth a Fourth Amendment violation, 500 U.S. at 56, which through the Fourteenth Amendment would apply equally to people arrested on state or local charges.
3
Generally, a warrantless arrest is justified if, at the time of the defendant's arrest, police had probable cause to believe that an offense has been, is being, or will be committed. Beck v. Ohio, 379 U.S. 89, 91 (1964). Where a warrantless arrest is proper, a search incident to that arrest is also lawful. New York v. Belton, 435 U.S. 454, 461 (1981). Jones and Clayton testified that they observed Fullerton selling cocaine on August 4 and 6. This gave them probable cause to have Fullerton arrested on September 22. Furthermore, "a clearly authorized law enforcement officer may make a warrantless arrest in a public place even though he had adequate opportunity to procure a warrant after developing probable cause for arrest." United States v. Watson, 423 U.S. 411, 422 (1976). Thus, it is not constitutionally improper that the agents did not obtain a warrant before the arrest, even though the agents had ample time to obtain a warrant between August 6 and September 22.
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535 U.S. 928
LARKINv.JOHNSON ET AL.
No. 01-981.
Supreme Court of the United States.
March 18, 2002.
1
Ct. App. Tex., 14th Dist. Certiorari denied. Reported below: 44 S. W. 3d 188.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5107
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEFFREY LEE GORE, a/k/a Jeff,
Defendant - Appellant,
versus
CINDY JONES; JOYCE GORE; EARLENE WOODS;
CAROLYN GORE; FIRST VIRGINIA CREDIT SERVICES,
INCORPORATED; MAREEAL HEMINGWAY; SOUTH
CAROLINA DEPARTMENT OF REVENUE AND TAXATION;
CHARLES SHACKLEFORD; SUSAN SHACKLEFORD; W. P.
JOHNSON; WACHOVIA BANK, National Association
as successor to First Union Wachovia Bank, NA;
DELORIS SWEARINGEN; RUDOLPH COCHRAN; SOUTH
CAROLINA DEPARTMENT OF REVENUE,
Parties in Interest.
No. 06-5116
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VANDER MOORE GORE, JR., a/k/a Vander More
Gore,
Defendant - Appellant,
versus
CINDY JONES; JOYCE GORE; EARLENE WOODS;
CAROLYN GORE; FIRST VIRGINIA CREDIT SERVICES,
INCORPORATED; MAREEAL HEMINGWAY; SOUTH
CAROLINA DEPARTMENT OF REVENUE AND TAXATION;
CHARLES SHACKLEFORD; SUSAN SHACKLEFORD; W. P.
JOHNSON; WACHOVIA BANK, National Association
as successor to First Union Wachovia Bank, NA;
DELORIS SWEARINGEN; RUDOLPH COCHRAN; SOUTH
CAROLINA DEPARTMENT OF REVENUE,
Parties in Interest.
Appeals from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (4:01-cr-00627-CWH)
Submitted: November 2, 2007 Decided: November 20, 2007
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jack B. Swerling, LAW OFFICES OF JACK B. SWERLING, Columbia, South
Carolina; William I. Diggs, LAW OFFICE OF WILLIAM ISAAC DIGGS,
Myrtle Beach, South Carolina, for Appellants. Reginald I. Lloyd,
United States Attorney, Rose Mary Parham, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
- 2 -
PER CURIAM:
Jeffrey Lee Gore pled guilty to a drug trafficking
conspiracy involving fifty grams or more of cocaine base and five
kilograms or more of powder cocaine and was sentenced to 360
months’ imprisonment. Vander Moore Gore, Jeffrey Lee Gore’s
father, was convicted by a jury of conspiracy to distribute five
kilograms or more of powder cocaine and less than fifty kilograms
of marijuana and was sentenced to life imprisonment. We affirmed
their convictions, but the Supreme Court vacated the judgments and
remanded both cases for further consideration in light of United
States v. Booker, 543 U.S. 220 (2005). See United States v. Gore,
102 F. App’x 292 (4th Cir. 2004) (unpublished), vacated, 544 U.S.
958 (2005) (Vander Moore Gore); United States v. Gore, 93 F. App’x
569 (4th Cir. 2004) (unpublished), vacated, 543 U.S. 1105 (2005)
(Jeffrey Lee Gore).
Following the Supreme Court’s remand, we vacated the
Gores’ sentences and remanded the cases to the district court for
resentencing in light of Booker. The district court resentenced
to the identical terms of imprisonment it had previously imposed.
Both defendants have appealed, challenging their sentences.
After Booker, a sentencing court is no longer bound by
the range prescribed by the sentencing guidelines. United States
v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). In a post-Booker
sentencing such as those at issue, the district court must
- 3 -
calculate the appropriate guidelines range, consider that range in
conjunction with other relevant factors under the guidelines and 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and impose a sentence.
United States v. Green, 436 F.3d 449, 455-56 (4th Cir.), cert.
denied, 126 S. Ct. 2309 (2006). We have observed that “specific
reference [at sentencing] to § 3553 [is] certainly not required.”
United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). A
post-Booker sentence must be “within the statutorily prescribed
range and . . . reasonable.” Hughes, 401 F.3d at 546-47 (citations
omitted). “[A] sentence within the properly calculated Guidelines
range . . . is presumptively reasonable.” Green, 436 F.3d at 457
(internal quotation marks and citation omitted); see Rita v. United
States, 127 S. Ct. 2456 (2007).
Jeffrey Lee Gore (No. 06-5107) asserts the district court
erroneously applied a two-level firearm enhancement pursuant to
U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(1). Gore’s
plea agreement stipulated this enhancement was appropriate,
however. We therefore find Gore failed to demonstrate the factual
basis for the enhancement was clearly erroneous. Furthermore, Gore
asserts the length of his sentence was unreasonable. A sentence
may be unreasonable for both substantive and procedural reasons.
United States v. Moreland, 437 F.3d 424, 434 (4th Cir.), cert.
- 4 -
denied, 126 S. Ct. 2054 (2006). We find Gore failed to rebut the
presumption that his within-guidelines sentence was reasonable.*
Vander Moore Gore (No. 06-5116) asserts the drug quantity
for which he was held responsible at sentencing was erroneous,
leading the district court to assign an improper base offense level
of thirty-eight. Although we previously found the district court’s
judicial factfinding violated the Sixth Amendment under Booker, we
did so in the context of a mandatory sentencing guidelines scheme.
In contrast, when a district court treats the sentencing guidelines
as advisory, it may find facts supporting enhancements using the
preponderance of the evidence standard. See United States v.
Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert. denied, 127 S. Ct.
121 (2006). We conclude Gore failed to demonstrate the district
court’s factual finding was clearly erroneous. See United States
v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006).
*
Gore contends the district court’s remark at his initial
sentencing hearing that a 360-month sentence was “a lot of time .
. . more than enough in this particular case” demonstrates this
term of imprisonment is unreasonable. At the resentencing hearing,
the district court clarified it made this statement “in an entirely
different ballpark as far as sentencing was concerned” and
reflected the statement was inspired by “[its] personal feelings at
that time” on how the sentencing guidelines were calculated. The
district court offered Gore ample opportunity to demonstrate how a
sentence below the guidelines range would be appropriate, and the
transcript of the resentencing hearing reflects the court
considered these arguments but ultimately rejected them. Although
Gore claims the district court’s consideration of the relevant
sentencing factors was insufficient, we note the district court
need not “robotically tick through § 3553(a)’s every subsection.”
Johnson, 445 F.3d at 345.
- 5 -
Accordingly, we affirm both Jeffrey Lee Gore’s and Vander
Moore Gore’s sentences. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
- 6 -
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939 A.2d 75 (2007)
SHANNON
v.
U.S.
No. 95-CF-340.
District of Columbia Court of Appeals.
December 17, 2007.
Decision without published opinion. Affirmed.
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321 F.Supp. 639 (1970)
OREGON BOOKMARK CORPORATION, Plaintiff,
v.
Terry SCHRUNK, Mayor, Lloyd Anderson, Connie McCready, Francis Ivancie and Mark Grayson, Commissioners, all members of the Council of the City of Portland, Marian Rushing, City Attorney of the City of Portland, and Donald McNamara, Chief of Police of the City of Portland, Defendants.
Civ. No. 70-294.
United States District Court, D. Oregon.
November 19, 1970.
Howard R. Lonergan, Portland, Or., for plaintiff.
Marian C. Rushing, Richard A. Braman, Portland, Or., for defendants.
OPINION
ALFRED T. GOODWIN, District Judge.
This is a declaratory proceeding to determine whether a city can use its business-license powers to institute censorship of books and magazines. There is also a prayer for injunctive relief.
The plaintiff magazine dealer asserts that the Mayor and the City Council of the City of Portland are withholding a business license in violation of the free-press guarantee of the First Amendment to the United States Constitution and the Civil Rights Acts, 42 U.S.C. §§ 1981-1988. Jurisdiction is premised on 28 U. S.C. §§ 1331 and 1343.
The facts are not in dispute. Plaintiff is an Oregon corporation engaged in the retail sales of magazines and books in Portland. Plaintiff has, in the past, received a business license from the City of Portland. The City recently refused to renew the license, on the ground that the plaintiff's business is a public nuisance. The magazines sold by plaintiff are objectionable to the City Council, and are probably "obscene" under the rule of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The legal question, however, is whether *640 a city has the constitutional power to employ its nuisance laws for the purpose of censoring undesirable publications.
The Charter of the City of Portland grants to the City Council the power to grant or withhold business licenses, to declare what shall constitute a nuisance, to abate public nuisances, to define what literature and other material is obscene, and to prevent the sale and circulation of obscenity.
On December 11, 1969, the City Council passed Emergency Ordinance No. 130172, which includes a definition of obscenity quoted from ORS 167.151, and declares that any place exhibiting obscene material is a public nuisance.
The Director of the Bureau of Licenses initially refused plaintiff's application for renewal because of complaints about the materials offered for sale, and plaintiff appealed to the City Council. In a hearing at which plaintiff was represented by counsel, the City Council examined two magazines purchased by a police officer from one of plaintiff's stores. The City Attorney advised the Council on the Oregon statutory definition of obscenity and the applicable city ordinances. At the close of the hearing, the Council declared plaintiff's establishment to be a public nuisance, refused to renew the license, and advised plaintiff to discontinue its operation on pain of prosecution. Plaintiff nonetheless continued to operate its business, and its agents have been arrested and charged in Municipal Court with operating a business without a license.
The City has urged this court to find that, as a matter of law, the material being offered for sale by the plaintiff is obscene and therefore, under Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), is not protected by the First Amendment. The City then argues that it cannot be compelled to license a business which is a public nuisance.
It is immaterial, however, whether the books examined by the Council are obscene. I assume that they are. But the ordinance is unconstitutional on its face. It therefore makes no difference that the ordinance sweeps up the obscene in this case. It is capable of sweeping up the nonobscene as well. The defect in the ordinance is that it permits a type of censorship which depends upon the uncontrolled discretion of the City Council as censor. Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).
Censorship began in Europe before printing was invented. The official licensing of printers followed immediately upon the success of that invention. After a century and a half of colonial experience with licensing acts, the American Republic set its face against this form of censorship. The language of the First Amendment was carefully selected to prevent federal censorship. The Fourteenth Amendment has been held to bar arbitrary state censorship. Jacobellis v. Ohio, 378 U.S. 184, 187, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1963). Censors are not easily discouraged, however, and the law reports abound with later cases arising out of official indignation with scandalous or unpopular materials. See, e. g., Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). It is settled, however, that suppression of books is not permitted without a judicial hearing and a finding that the book is obscene. Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957).
It is of no legal consequence that the censor in this case did its work by refusing to renew a license rather than by refusing to issue one or by canceling an unexpired license. The assertion by a city of the power to grant or withhold a license to disseminate books is the essence of this censorship scheme.
The books involved here are trash. On aesthetic grounds the city is well rid *641 of them. But the federal constitution denies cities the power to license printers or booksellers as a control over the content of the material printed or sold. If the printer or bookseller commits a crime, he can be indicted and tried for that crime. I am aware that Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), and Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L. Ed.2d 515 (1967), have strictly limited the prosecutor's range in the criminal area but this does not permit me to overlook the grave constitutional infirmities inherent in this civil licensing procedure.
The "chilling effect" of a licensing act upon the exercise of the First Amendment rights is obvious: only those books and magazines likely at any given time to be approved by the incumbent city councilmen could safely be stocked on the bookshelves of Portland. Few booksellers would continue to carry questionable books on their shelves if they believed that in doing so they would risk loss of license to do business. In Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963), the Court stated:
"* * * [T]he Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. It is characteristic of the freedoms of expression in general that they are vulnerable to gravely damaging yet barely visible encroachments * * *.
"* * *
"Herein lies the vice of the system. The Commission's operation is a form of effective state regulation superimposed upon the State's criminal regulation of obscenity and making such regulation largely unnecessary. In thus obviating the need to employ criminal sanctions, the State has at the same time eliminated the safeguards of the criminal process. Criminal sanctions may be applied only after a determination of obscenity has been made in a criminal trial hedged about with the procedural safeguards of criminal process. The Commission's practice is in striking contrast, in that it provides no safeguards whatever against the suppression of the nonobscene, and therefore constitutionally protected, matter. It is a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law." 372 U.S. at 66-70, 83 S.Ct. at 639.
The City contends that the Council, in making its determination of obscenity after an open hearing at which plaintiff was represented by counsel, was acting in a judicial capacity and therefore the exhibits then before the Council were "judicially determined" to be obscene as required by Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).
The Council's procedure, however, did not include the procedural safeguards necessary to ensure proper sensitivity to freedom of expression. The burden of proof, for example, was placed upon the bookseller, whereas the burden of proof in a criminal case can properly be placed only upon the prosecution. Freedman v. Maryland, 380 U.S. at 58, 85 S.Ct. at 734. Also, it is clear from the transcript of the hearing in this case that the Council did not consider itself a judicial body, nor did it consider itself bound by the due-process standards applicable in a court of law. Furthermore, the Council did not consider the First Amendment implications of its licensing act.
The City contends that no prior restraint of speech or press occurred in this case, because no administrative restrictions were imposed and no seizures were made prior to the City Council hearing. However, the Council itself *642 acted as the administrative censor in refusing to renew plaintiff's license. The purpose of the refusal to license was to suppress publications without the necessity of a court trial. This is prior restraint in its classic form.
The City also urges that the court should not require the City of Portland to license a public nuisance. But this argument is circular, and it begs the question of whether traditional nuisance-regulation is consistent with First Amendment rights. It is one thing to abate the sale of filthy food and another to abate the sale of filthy books. The food business is not protected by the First Amendment. Smith v. California, 361 U.S. 147, 152-153, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959).
It is true that this court's judgment will give the plaintiff and others similarly situated a right to a business license upon the payment of the prescribed fee, but this result merely eliminates presale censorship. The free flow of ideas has special protection. Strasser v. Doorley, 432 F.2d 567 (1st Cir., 1970). Censorship by any name cannot survive unless the scheme satisfies the First Amendment as construed by the Supreme Court. The scheme involved in this case has been struck down every time it has reached that tribunal. See, e. g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631 (1963), and cases cited therein.
I find that Emergency Ordinance No. 130172 of the City of Portland is unconstitutional on its face. As applied to the plaintiff, the inherent unconstitutionality justifies injunctive relief. The City is permanently enjoined from prosecuting the plaintiff for operating its business without a license, so long as the plaintiff tenders the license fee and violates no legitimate public-safety ordinance.
This opinion shall constitute findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).
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Case: 13-40686 Document: 00512526384 Page: 1 Date Filed: 02/07/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-40686 FILED
Summary Calendar February 7, 2014
Lyle W. Cayce
Clerk
CHARLES RAY NOBLE,
Plaintiff – Appellant
v.
LEAR SIEGLER SERVICES, INC.,
Defendant – Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:11-CV-181
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
Appellant Charles Noble (“Noble”), an African-American male, appeals
the dismissal of his claims of employment discrimination and retaliation under
Title VII, 42 U.S.C. § 2000e, et seq., against Appellee Lear Siegler Services, Inc.
(now known as URS Federal Support Services, Inc.) (“URS”). Noble was hired
by URS, a federal contractor to the Red River Army Depot (“RRAD”) in
Texarkana, Texas, in August 2006 as a Motor Equipment Metal Mechanic, and
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-40686 Document: 00512526384 Page: 2 Date Filed: 02/07/2014
No. 13-40686
worked onsite RRAD until his employment was terminated in April 2010. In
his complaint, Noble alleged that URS terminated him based on his race and
retaliated against him after he filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”) in February 2010. URS moved for
summary judgment, arguing that Noble was terminated as a result of a
reduction in work force required by the federal government. The district court
adopted a comprehensive and careful magistrate judge report, and granted
URS’s motion and dismissed Noble’s claims. Having little to add to the opinion
below, we now affirm.
We review the district court’s grant of summary judgment de novo,
applying the same standards as the district court. St. Paul Surplus Lines Ins.
Co. v. Settoon Towing, L.L.C. (In re Settoon Towing, L.L.C.), 720 F.3d 268, 275
(5th Cir. 2013). Summary judgment is appropriate when “the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We must view
all facts and evidence in the light most favorable to the non-moving party when
considering a motion for summary judgment. Dameware Dev., L.L.C. v. Am.
Gen. Life Ins. Co., 688 F.3d 203, 206-07 (5th Cir. 2012) (citation omitted).
In analyzing Noble’s Title VII claims, we apply McDonnell Douglas Corp.
v. Green’s three-step, burden-shifting framework. Aldrup v. Caldera, 274 F.3d
282, 286 (5th Cir. 2001) (citing McDonnell Douglas Corp. v. Green , 411 U.S.
792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Under McDonnell Douglas, Noble
must first raise a genuine issue of fact as to each element of his prima facie
case. See Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 317 (5th Cir. 2004).
Then, URS must articulate a legitimate, nondiscriminatory reason for the
underlying employment action. Id. Finally, Noble must raise a genuine issue
of material fact as to whether URS’s proffered reason was merely a pretext for
2
Case: 13-40686 Document: 00512526384 Page: 3 Date Filed: 02/07/2014
No. 13-40686
unlawful action. Id. To establish a prima facie case of wrongful termination
under Title VII, Noble must show that (1) he belongs to a protected group, (2)
he was qualified for his position, (3) he suffered an adverse employment action,
and (4) he was treated less favorably than a similarly situated employee
outside of his protected class or was otherwise terminated because of a
protected characteristic. See Rutherford v. Harris Cnty, Tex., 197 F.3d 179,
179 (5th Cir. 1999). To establish a prima facie case of retaliation, Noble must
show that (1) he participated in a Title VII protected activity, (2) he suffered
an adverse employment action, and (3) there is a causal connection between
the protected activity and the adverse action. Stewart v. Mississippi Transp.
Comm’n, 586 F.3d 321, 331 (5th Cir. 2009).
With respect to the wrongful termination claim, Noble has not
established that he was treated less favorably than a similarly situated
employee outside of his protected class or that he was terminated because he
is African-American. Although Noble asserts that five Caucasian men in his
unit kept their jobs, he does not show that these comparators were under
“nearly identical circumstances.” Okoye v. The University of Texas Houston
Health Center, 245 F.3d 507, 514 (5th Cir. 2001). Noble presents no evidence
regarding the comparators’ job descriptions, qualifications, experience, work
and disciplinary history, or other information that would indicate that they
were similarly situated. As Noble submits no other evidence demonstrating
that he was terminated on account of his race, he has not raised a genuine
issue of material fact as to each element of his prima facie case.
Noble also cannot make out a prima facie retaliation claim. The district
court ruled that Noble’s failure to respond to URS’s request for admissions
constituted an admission of the facts covered by the request. Because Noble
3
Case: 13-40686 Document: 00512526384 Page: 4 Date Filed: 02/07/2014
No. 13-40686
does not argue that the district court erred in admitting these facts, he has
waived any objection to them on appeal. Cinel v. Connick, 15. F.3d 1338, 1345
(5th Cir. 1994). These facts include, inter alia, that URS did not retaliate
against Noble on the basis of race, that Noble’s termination was supported by
a legitimate non-discriminatory reason, and that the termination was not in
retaliation for protected conduct under Title VII. As a result of these
admissions, Noble cannot show a causal link between his EEOC claim and his
termination, which is necessary to make out a prime facie retaliation claim.
Accordingly, we AFFIRM the judgment of the district court.
4
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335 F.Supp. 557 (1971)
In the Matter of Michael LUKICH as sole stockholder and sole owner of L & L Fire Fighting Equipment Company.
United States District Court, N. D. Ohio, E. D.
December 21, 1971.
*558 Albert J. Morehead, Cleveland, Ohio, for movant.
Carl Steinhouse and Robert McNew, Dept. of Justice, Antitrust Div., Cleveland, Ohio, for the Government.
MEMORANDUM OPINION AND ORDER
BATTISTI, Chief Judge.
Michael Lukich, the sole stockholder and sole owner of L & L Fire Fighting Equipment Company has moved this Court for an order quashing the grand jury subpoena served on him on the grounds that the subpoena violates the Fourth Amendment, requires him to violate the Fifth Amendment, and is a harassment and interference with his business operations.
The protections of the Fourth Amendment extend to insulate a corporation from an unreasonable search and seizure. See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). The applicant has not shown that the enforcement of the subpoena would be unreasonable. While the applicant contends that the summons is overly broad and that there is no basis for the probable existence of the records, he states merely a conclusion. This is not sufficient. From the face of applicant's motion and memorandum, no supporting statements appear to substantiate these conclusions. See Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906) where such contentions were made and substantiated. In the absence of such a showing, the subpoena per se does not violate the Fourth Amendment. The Supreme Court in Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208-209, 66 S.Ct. 494, 505, 90 L.Ed. 614 (1945) stated:
". . . The Fourth (Amendment), if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be `particularly described' . . . . The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable."
Inasmuch as the purpose of the subpoena is lawful and no indefiniteness or overbreath has been shown, enforcement does not constitute an unreasonable search and seizure.
Applicant additionally contends that the enforcement of the subpoena would violate his Fifth Amendment privilege against self-incrimination. The applicant correctly asserts that the protections of the Fifth Amendment are not available to corporations. However, he claims that this proposition should not apply to him in his capacity as sole owner and shareholder of such a "tiny business enterprise as this." The Supreme Court in Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L. Ed. 771 (1911) has held that the custodian of corporate records could not refuse to produce the records on Fifth Amendment grounds even though he might be personally incriminated by those documents. See also, United States v. Hopps, 331 F.2d 332, 340 (4th Cir. 1964). In Grant v. United States, 227 U.S. 74, 33 S.Ct. 190, 57 L.Ed. 423, the court denied the right of a corporation to assert the privilege even when the corporation had one stockholder. Since this is a corporation, the custodian of the corporate records cannot refuse to produce the records. If, however, this were some other type of organization to which the Fifth Amendment would apply, the keeper of the records could only testify after a grant of immunity. The motion to quash is denied.
It is so ordered.
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IN THE
SUPREME COURT OF THE STATE OF ARIZONA
WILLIAM R. CHEATHAM AND MARCUS HUEY,
Plaintiffs/Appellees,
v.
SAL DICICCIO IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE PHOENIX CITY
COUNCIL; CITY OF PHOENIX; PHOENIX LAW ENFORCEMENT ASSOCIATION,
Defendants/Appellants,
_____________________
THOMAS COX; VICTOR ESCOTO; RICHARD V. HARTSON; VIVIAN REQUE;
AND DAVID K. WILSON,
Intervenors/Appellants.
_____________________
WILLIAM R. CHEATHAM AND MARCUS HUEY,
Plaintiffs/Appellees,
v.
PHOENIX LAW ENFORCEMENT ASSOCIATION,
Defendant/Appellant.
No. CV-15-0287-PR
Filed September 13, 2016
Appeal from the Superior Court in Maricopa County
The Honorable Katherine M. Cooper, Judge
No. CV2011-021634
REVERSED
Opinion of the Court of Appeals, Division One
238 Ariz. 69, 356 P.3d 814 (App. 2015)
VACATED
COUNSEL:
Jonathan Riches (argued), Scharf-Norton Center for Constitutional
CHEATHAM V. DICICCIO, ET AL.
Opinion of the Court
Litigation at the Goldwater Institute, Phoenix, Attorneys for William R.
Cheatham and Marcus Huey
Brad Holm, Phoenix City Attorney, Phoenix; and John Alan Doran, Lori
Wright Keffer, Matthew A. Hesketh, Sherman & Howard L.L.C., Phoenix,
Attorneys for Sal DiCiccio and City of Phoenix
Michael Napier (argued), Cassidy L. Bacon, Napier, Coury & Baillie, P.C.,
Phoenix, Attorneys for Phoenix Law Enforcement Association
Barbara LaWall, Pima County Attorney, Regina L. Nassen, Deputy
County Attorney, Tucson, Attorneys for Amicus Curiae Pima County
David L. Abney, Knapp & Roberts, P.C., Scottsdale, Attorneys for Amicus
Curiae PORAC Legal Defense Fund
Larry H. James, Crabbe, Brown & James, LLP, Columbus, OH; and Robert
E. Yen, Yen Pilch & Landeen, P.C., Phoenix, Attorneys for Amicus Curiae
National Fraternal Order of Police
James S. Burling, Pacific Legal Foundation, Sacramento, CA, Attorneys for
Amicus Curiae Pacific Legal Foundation
Roopali H. Desai, Shelley Tolman, Coppersmith Brockelman PLC,
Phoenix, Attorneys for Amici Curiae United Phoenix Firefighters
Association, Local 493, Professional Fire Fighters of Arizona, and
International Association of Fire Fighters
Gerald Barrett, Ward, Keenan & Barrett, P.C., Phoenix, Attorneys for
Amicus Curiae National Association of Police Organizations
Susan Martin, Jennifer Kroll, Martin & Bonnett, PLLC, Phoenix; Nicholas
J. Enoch, Lubin & Enoch, P.C., Phoenix, Attorneys for Amici Curiae
American Federation of State, County and Municipal Employees, Locals
2384 and 2960
2
CHEATHAM V. DICICCIO, ET AL.
Opinion of the Court
CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER and JUDGE HOWARD joined, and
JUSTICES BRUTINEL and TIMMER dissented.
CHIEF JUSTICE BALES, opinion of the Court:
¶1 The Gift Clause of Arizona’s Constitution bars cities and other
public entities from “mak[ing] any donation or grant, by subsidy or
otherwise, to any individual, association, or corporation.” Ariz. Const. art.
9, § 7. For decades, the City of Phoenix has contracted in collective
bargaining agreements with police officers to allow “release time,” that is,
to pay officers for certain time spent on behalf of their authorized
representative (a police union) rather than regular police duties. We hold
that the release time provisions at issue here do not violate the Gift Clause.
I.
¶2 Police officers employed by the City of Phoenix (“the City”)
are divided into units. Relevant here is Unit 4, which comprises
approximately 2,500 officers, of whom nearly ninety percent are members
of the Phoenix Law Enforcement Association (“PLEA”). PLEA is an
employee organization or, more colloquially, a police union. Pursuant to
the Phoenix City Code, PLEA is the recognized representative for the Unit
4 officers and, every other year, it negotiates with the City the terms of
employment for those officers, whether PLEA members or not. See Phx.
City Code Art. XVII § 2-209. The agreed upon terms are embodied in a
collective bargaining agreement called a Memorandum of Understanding
(“MOU”), which governs the officers’ wages, hours, and general
employment conditions. Since 1977, every MOU has included provisions
for release time, that is, times when officers will be excused from usual
police duties, but are still paid by the City, while they perform PLEA
activities and conduct PLEA business.
¶3 This litigation began in 2011, when William R. Cheatham and
Marcus Huey (collectively “Taxpayers”) sued the City, alleging that four
Justice Clint Bolick has recused himself from this case. Pursuant to article
6, section 3, of the Arizona Constitution, the Honorable Joseph W. Howard,
Judge of the Arizona Court of Appeals, Division Two, was designated to sit
in this matter.
3
CHEATHAM V. DICICCIO, ET AL.
Opinion of the Court
release time provisions in the 2010–2012 MOU violated the Gift Clause.
Taxpayers challenged three provisions that authorized six full-time officers
to each receive full pay, benefits, and 160 hours of overtime per year and
allocated to other officers a bank of 1,583 release time hours per year for
“legitimate [a]ssociation business,” including preparing for negotiations
with the City. 2010-2012 MOU § 1-3(G), (I), (Q). The fourth challenged
category allotted a total of fifteen days of paid leave per year for officers to
attend PLEA seminars, lectures, and conventions. Id. § 1-3(K). In June 2012,
the trial court granted a preliminary injunction after concluding that at least
some of the challenged provisions violated the Gift Clause.
¶4 Shortly thereafter, the 2010–2012 MOU was superseded by
the 2012–2014 MOU, which contained similar release time provisions.
Under the new MOU, the six full-time officers, instead of each receiving 160
hours of overtime, could draw on a bank of 960 hours of overtime for time
spent serving on city committees or task forces and the general bank of
release time was increased to 1,859 hours. 2012-2014 MOU § 1-3(B)(3), (Q).
The 2012-2014 MOU also allowed PLEA to designate up to forty-two
representatives who, without losing pay or benefits, and subject to normal
departmental scheduling and assignment, could attend grievance meetings
and other specified meetings and hearings, when the Unit 4 officer involved
in the proceeding designates PLEA as his or her representative. Id. § 1-
3(B)(2)(a). Time spent by these representatives for purposes other than
attending the identified hearings or meetings, such as gathering
information or otherwise preparing, would be charged against the bank of
release time. Id. § 1-3(B). Finally, PLEA was allowed to appoint a legislative
representative who would receive 500 hours of release time, provided the
officer “has agreed to work with and assist the [C]ity’s legislative lobbyist.”
Id. § 1-3(C).
¶5 Taxpayers amended their complaint to challenge the 2012–
2014 provisions. The trial court preliminarily enjoined the provisions and,
after a bench trial, later issued a permanent injunction, ruling that the
provisions violate the Gift Clause because they lack a public purpose and
are not supported by adequate consideration. Additionally, the trial court
permanently enjoined the City and PLEA from entering into future MOUs
with release time provisions absent certain conditions.
¶6 The City and PLEA appealed. Without deciding whether the
release time provisions serve a public purpose, the court of appeals held
4
CHEATHAM V. DICICCIO, ET AL.
Opinion of the Court
that they are not supported by adequate consideration, inasmuch as the
MOU does “not obligate PLEA to perform any specific duty or give
anything in return for the release time.” Cheatham v. Diccicio, 238 Ariz. 69,
74-75 ¶¶ 16, 20, 356 P.3d 814, 819-20 (App. 2015). The court of appeals
affirmed the trial court’s order “to the extent that it enjoins the 2012–2014
MOU release time provisions and that it enjoins the City and PLEA from
entering into future MOUs or agreements with release time, unless they
imposed upon PLEA binding obligations.” Id. at 76 ¶ 27, 356 P.3d at 821.
¶7 We granted review because whether the Gift Clause bars
release time provisions in collective bargaining agreements for public
employees is a legal issue of statewide importance. We have jurisdiction
pursuant to article 6, section 5(3), of the Arizona Constitution and
A.R.S. § 12-120.24.
II.
A.
¶8 We review a trial court’s grant of an injunction for an abuse
of discretion, Valley Med. Specialists v. Farber, 194 Ariz. 363, 366 ¶ 9, 982 P.2d
1277, 1280 (1999), and the interpretation and application of constitutional
provisions de novo. Ross v. Bennett, 228 Ariz. 174, 176 ¶ 6, 265 P.3d 356, 358
(2011).
¶9 The Gift Clause provides: “Neither the state, nor any county,
city, town, municipality, or other subdivision of the state shall ever give or
loan its credit in the aid of, or make any donation or grant, by subsidy or
otherwise, to any individual, association, or corporation.” Ariz. Const. art.
9, § 7. The clause has two primary purposes – preventing the “depletion of
the public treasury or inflation of public debt by engagement in non-public
enterprise” and protecting public funds against use for “the purely private
or personal interest of any individual.” Kromko v. Ariz. Bd. of Regents, 149
Ariz. 319, 320–21, 718 P.2d 478, 479–80 (1986) (internal quotations,
emphasis, and citations omitted); Wistuber v. Paradise Valley Unified Sch.
Dist., 141 Ariz. 346, 349, 687 P.2d 354, 357 (1984) (“The constitutional
prohibition was intended to prevent governmental bodies from depleting
the public treasury by giving advantages to special interests[.]”).
¶10 A two-prong test determines whether a challenged
government expenditure violates the Gift Clause. See Turken v. Gordon, 223
5
CHEATHAM V. DICICCIO, ET AL.
Opinion of the Court
Ariz. 342, 348 ¶ 22, 224 P.3d 158, 164 (2010); Wistuber, 141 Ariz. at 349, 687
P.2d at 357. The expenditure will be upheld if (1) it has a public purpose,
and (2) the consideration received by the government is not “grossly
disproportionate” to the amounts paid to the private entity. Turken, 223
Ariz. at 345, 348 ¶¶ 7, 22, 224 P.3d at 161, 164. In evaluating Gift Clause
challenges, “[a] panoptic view of the facts of each transaction is required,”
and “courts must not be overly technical and must give appropriate
deference to the findings of the governmental body.” Wistuber, 141 Ariz. at
349, 687 P.2d at 357.
B.
¶11 Our analysis begins by recognizing that the challenged
release time provisions are part of the MOU, a collective bargaining
agreement between the City, PLEA as the authorized representative of the
Unit 4 officers, and the officers who are subject to the MOU. The MOU in
turn must be understood in light of the governing provisions of the Phoenix
City Code.
¶12 The City Code’s Meet and Confer Ordinance recognizes the
right of public employees to representation by an employee organization of
their choosing and “to meet and confer through an authorized employee
organization with their public employer” when negotiating employment
terms such as wages or hours. Phx. City Code Art. XVII §§ 2-214(B), 2-
210(11). The “authorized representative” – here, PLEA – is formally
recognized by the City as representing a majority of the employees of the
appropriate unit – here, Unit 4 – and “is authorized to participate in the
meet and confer process on behalf of the appropriate unit for the purpose
of meeting and conferring on wages, hours, and working conditions.” Id. §
2-210(2). The Code also requires PLEA, as the employees’ representative,
to engage in discussions with the City “to resolve grievances and disputes
relating to wages, hours, and working conditions.” Id. § 2-209.
¶13 All agreements arrived at by the City and the employees’
authorized representative are recorded in an MOU and presented to the
City Council and the employee members of the authorized organization for
approval. Id. § 2-210(12). Thus, a finalized MOU is an agreement that binds
the City as the employer, the authorized representative for the employees,
and the employees themselves.
6
CHEATHAM V. DICICCIO, ET AL.
Opinion of the Court
¶14 Under the MOU for Unit 4, release time is a component of the
overall compensation package negotiated between the City and PLEA on
behalf of the police officers. Before negotiating the specific terms of the
2012–2014 package, the City allocated $660 million for the total
compensation of Unit 4 officers. The parties then negotiated the allocation
of that amount for various purposes (e.g., hourly compensation, overtime,
and paid leave time). In lieu of increased hourly compensation or other
benefits, PLEA negotiated for release time provisions worth about $1.7
million over a two-year period, or $322 annually per unit member. One of
the City’s negotiators testified, without contradiction, that if the City had
not agreed to pay for release time, the corresponding amounts would have
otherwise been part of the total compensation available. The MOU itself
acknowledges that “[t]he cost to the City for these release positions,
including all benefits, has been charged as part of the total compensation
contained in this agreement in lieu of wages and benefits.” 2012-2014 MOU
§ 1-3(B). Interpreting the MOU is a legal question, and our conclusion that
release time is part of the negotiated total compensation package is not
affected by the trial court’s observing that officers could not simply divide
total compensation however they wished or that the MOU does not discuss
release time under “Compensation/Wages.” Similarly, we do not think
that the MOU’s characterization of release time as part of total
compensation is undermined by one Councilman’s statements (made long
after the Council had approved the MOU) that different components of
compensation are negotiated separately and the agreement does not
identify the cost of total compensation. Cf. Taylor v. State Farm Mut. Auto.
Ins. Co., 175 Ariz. 148, 153, 854 P.2d 1134, 1139 (1993) (noting that courts
seek to interpret contracts to give effect to parties’ expressed intent).
¶15 The MOU describes the general purposes of release time.
Noting the benefits of “harmonious and cooperative relationships between
the City and its employees,” the MOU states that the full-time release
positions, and release hours, afford “an efficient and readily available point
of contact for addressing labor-management concerns.” 2012-2014 MOU §
1-3(B). Examples of how officers spend release time include representing
Unit 4 officers “in administrative investigations and grievance/disciplinary
appeal meetings with management; participating in collaborative labor-
management initiatives . . . ; serving on Police Department task forces and
committees; facilitating effective communication between City and
Department management and unit employees; assisting unit members in
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Opinion of the Court
understanding and following work rules; and administering the provisions
of the [MOU].” Id.
¶16 The MOU also identifies various rights and obligations with
respect to release time. For example, the use of paid release hours is subject
to “Departmental operational and scheduling factors,” and requires at least
twenty-four hours written advance notice. Id. § 1-3(B)(3)(c). Release hours
must be used for “legitimate [PLEA] business.” Id. § 1-3(B)(3). The full-
time release positions must be filled by full-time, sworn officers who “will
at all times remain qualified to perform” normal police duties and who
remain bound by “the City’s and the Police Department’s rules, regulations,
and operations orders[.]” Id. § 1-3(B)(1). All Unit 4 officers are entitled to
have PLEA serve as their meet and confer representative under the City
Code and to be represented by PLEA concerning grievances and other
matters relating to employment rights and obligations. Id. § 1-4(A), (B).
¶17 It is not unusual for collective bargaining agreements to
include provisions requiring employers to pay certain employees for time
spent on union activities. As noted earlier, Phoenix has included provisions
for release time in its MOU for Unit 4 for decades. The City’s Meet and
Confer Ordinance has provisions similar to those of the federal National
Labor Relations Act with regard to the right of employees to bargain
collectively with respect to “wages, hours, and working conditions.”
Compare Phx. City Code Art. XVII § 2-214(B) with 29 U.S.C. § 158(d). Federal
courts have recognized that employer payments for time spent by
employees during working hours on certain union activities, such as
handling grievances or negotiating with the employer, are a mandatory
subject of collective bargaining because such payments relate to the
employees’ “wages, hours, and other terms and conditions of
employment.” See NLRB v. BASF Wyandotte Corp., 798 F.2d 849, 852-53 (5th
Cir. 1986); Axelson, Inc. v. NLRB, 599 F.2d 91, 95 (5th Cir. 1979); cf. Int’l Ass’n
of Machinists & Aerospace Workers v. BF Goodrich Aerospace Aerostructures
Grp., 387 F.3d 1046, 1055-56 n. 13 (9th Cir. 2004) (noting disagreement
among federal courts whether Labor Management Relations Act allows
full-time release payments as distinct from paid time off for union duties).
¶18 That the release time provisions at issue here are part of the
negotiated compensation package between the City, PLEA, and the Unit 4
officers is the beginning but not the end of our analysis. The lower courts,
and Taxpayers, erroneously characterized the $1.7 million value of the
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Opinion of the Court
release time merely as a “payment to PLEA” which must be assessed
relative to what the MOU “obligated PLEA to provide the City in return.”
Cheatham, 238 at 75 ¶ 20, 356 P.3d at 820. To be sure, PLEA benefits from
the City’s agreement to pay officers for time (some full-time) spent on
behalf of PLEA. But the release time provisions must be assessed in light
of the entire MOU, including the obligations imposed not only on PLEA but
also on the employees for whom it is the authorized representative. Doing
otherwise would conflict with the requirement that courts adopt a
“panoptic view” of the transaction in assessing Gift Clause challenges.
¶19 We also reject PLEA’s argument that the release time
provisions are not subject to Gift Clause scrutiny because they are part of
the compensation package negotiated on behalf of the Unit 4 officers. That
a public entity is making payments to employees (here, payments for time
spent on union-related activities) pursuant to a collective bargaining
agreement does not necessarily obviate the concerns underlying the Gift
Clause. Public funds conceivably could be expended for private purposes
or in amounts grossly disproportionate to the benefits received even under
a collective bargaining agreement. Accordingly, we turn to our usual Gift
Clause analysis in evaluating Taxpayers’ challenge to the release time
provisions. Cf. Turken, 223 Ariz. at 346 ¶ 10, 224 P.3d at 162 (noting that Gift
Clause seeks to prevent subsidies of private interests putatively serving
quasi-public purposes).
C.
¶20 Taxpayers argue that the release time provisions do not serve
a public purpose because they “foster or promote the purely private or
personal interests” of PLEA. Cf. Kromko, 149 Ariz. at 321, 718 P.2d at 480
(analyzing public purpose before assessing adequacy of consideration)
(emphasis omitted).
¶21 In determining whether a transaction serves a public purpose,
courts consider the “reality of the transaction” and not merely “surface
indicia of public purpose.” Wistuber, 141 Ariz. at 349, 687 P.2d at 357. This
inquiry, however, must reflect appropriate deference to the governmental
entity that has considered and approved the transaction. “[W]e have
repeatedly emphasized that the primary determination of whether a
specific purpose constitutes a ‘public purpose’ is assigned to the political
branches of government, which are directly accountable to the public.”
Turken, 223 Ariz. at 165 ¶ 28, 224 P.3d at 349. For Gift Clause purposes, a
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Opinion of the Court
public purpose is lacking “only in those rare cases in which the
governmental body’s discretion has been unquestionably abused.” Id.
(internal quotation marks and citations omitted).
¶22 Consistent with these principles, we have found the existence
of a public purpose in various situations. See id. at 348 ¶ 23, 224 P.3d at 164
(finding that the purchase of parking spaces constituted a public purpose);
City of Glendale v. White, 67 Ariz. 231, 240, 194 P.2d 435, 441 (1948) (finding
that city acted with a public purpose when it joined the Arizona Municipal
League); Humphrey v. City of Phoenix, 55 Ariz. 374, 387, 102 P.2d 82, 87 (1940)
(finding that slum clearance program served public purpose).
¶23 The MOU, including its release time provisions, serves a
public purpose. It procures police services for the City. Furthermore, the
City Council recognized that the MOU identifies PLEA as the authorized
representative of Unit 4 officers with whom the City can deal on all labor-
related matters; under the MOU and the City’s ordinance, PLEA is obliged
to represent and serve all Unit 4 officers, whether or not they are PLEA
members. Moreover, the City benefits from more efficient negotiations
because it collectively negotiates with PLEA, rather than with individual
employees.
¶24 Such provisions obviously may benefit the officers who,
collectively, have chosen PLEA as their representative in dealings with their
employer (one officer testified that he views the release time provisions as
analogous to insurance benefits). The provisions, even considered in
isolation, also benefit the City insofar as they are a benefit offered to current
or prospective employees and they can facilitate the resolution of
grievances and other employee-employer issues under the City’s Meet and
Confer Ordinance. Cf. Int’l Ass’n of Machinists & Aerospace Workers, 387 F.3d
at 1057-58 (recognizing, for purposes of federal labor laws, that employer-
paid union “shop steward” provides services that “benefit union and
corporation alike”).
¶25 The dissent, like the trial court, concludes that release time
does not serve a public purpose but instead benefits PLEA as a “private
entity.” Infra ¶¶ 46, 51. But this position views the release time benefits in
isolation rather than as part of the MOU as a whole, which provides police
services to the public. Wistuber, 141 Ariz. at 349, 687 P.2d at 357 (“panoptic
view” required). This also views too narrowly both the role of public
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Opinion of the Court
employee unions and the public’s interest. PLEA, as the authorized
representative chosen by a majority of Unit 4 officers, serves not only its
own interests, but also those of its members. While the City may sometimes
be in an adversarial role relative to the union (sitting across the table, so to
speak, in labor negotiations or employment-related disputes), the City – as
its own ordinance recognizes – may also benefit as an employer by having
an identified representative of the Unit 4 officers for employment-related
issues. See Phx. City Code Art. XVII § 2-209 (“It is also the purpose of this
ordinance to promote the improvement of employer-employee relations”
by recognizing public employees’ right to be represented by an
organization of their choosing in their “employer-employee dealings with
the City”). Further, as a governmental entity, the City has interests broader
than a private employer based on “the unique fact that the public employer
was established by and is operated for the benefit of all the people . . . .”
Phx. City Code Art. XVII § 2-209(4).
¶26 Moreover, it is well established that labor unions, which have
existed in the United States for over two hundred years, generally work to
advance the employment interests of represented employees. See, e.g.,
Charles B. Carver, The Impact of Labor Unions on Worker Rights and on Other
Social Movements, 26 ABA J. Lab. & Emp. L. 267, 269-70 (2011). Contrary to
the dissent’s contention, a public purpose may be served by PLEA’s
representational activities to the extent they promote improved labor
relations and employment conditions for public safety officers. Phx. City
Code Art. XVII § 2-209(1) (“The people of Phoenix have a fundamental
interest in the development of harmonious and cooperative relationships
between the City government and its employees.”).
¶27 The City Council did not abuse its discretion in concluding
that the MOU, including the release time provisions, serves a public
purpose by specifying the “wages, hours, and working conditions” for Unit
4 officers, recognizing the role of PLEA as the officers’ authorized
representative, and by providing, as part of the aggregate compensation,
that certain officers will be paid for release time spent on behalf of PLEA.
D.
¶28 Because we hold that the MOU serves a public purpose, we
next examine whether the consideration paid by the City under that
agreement is grossly disproportionate to the benefits the City receives.
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Opinion of the Court
¶29 Consideration is a “performance or return promise” that is
bargained for in exchange for the other party’s promise. Schade v. Diethrich,
158 Ariz. 1, 8, 760 P.2d 1050, 1057 (1988) (citing Restatement (Second) of
Contracts § 71 (Amer. Law Inst. 1981)). Although courts do not normally
scrutinize the adequacy of consideration between parties contracting at
arm’s length, we appropriately examine consideration when analyzing a
contract under the Gift Clause “because paying far too much for something
effectively creates a subsidy from the public to the seller.” Turken, 223 Ariz.
at 350 ¶ 32, 224 P.3d at 166.
¶30 In analyzing the adequacy of consideration, courts also adopt
a “panoptic view” of the transaction. See id. at 352 ¶ 47, 224 P.3d at 168
(noting that Wistuber’s language “was thus meant to reject an overly
technical view of the transaction”); State v. Nw. Mut. Ins. Co., 86 Ariz. 50, 54,
340 P.2d 200, 202 (1959) (using term “panoptic” in rejecting contention that
a mutual insurance company’s return of excess premiums to its members,
including a school district, established that the initial premium payments
violated the Gift Clause). Such an approach is particularly appropriate with
respect to a collective bargaining agreement, which is not merely an
exchange of discrete promises, but instead is “a long-term relational
contract” governing the whole employment relationship. Int’l Union of
Operating Eng’rs, Local 139, ALF-CIO v. J.H. Findorff & Son, Inc., 393 F.3d 742,
746 (7th Cir. 2004); see Consol. Rail Corp. v. Ry. Labor Execs.’ Ass’n, 491 U.S.
299, 312 (1989).
¶31 Thus, when considering a Gift Clause challenge to provisions
of a collective bargaining agreement, we cannot consider particular
provisions in isolation. For example, if such an agreement provided for
paid vacation or personal leave time for public employees, the adequacy of
the consideration received by the employer would not be evaluated by
asking if the employees must use their time in a way that benefits the
employer. In that situation, the consideration received by the employer is
the work the employees generally agree to provide under the agreement,
not only during their paid leave or vacation times.
¶32 Our analysis therefore recognizes that the MOU is an
agreement between not only the City and PLEA but also the Unit 4 officers,
who approved and are bound by its terms. Even if PLEA is viewed as the
primary beneficiary of the release time provisions, in gauging whether the
City has received consideration for those provisions it is necessary to
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Opinion of the Court
consider what the Unit 4 officers have agreed to do – to work under the
wages, hours, and conditions specified in the MOU – in exchange for the
compensation package (which includes the release time provisions). This
reflects the general contractual principle that one party’s performance
(here, the City’s agreement to pay release time) may be supported by
“consideration” in the form of performance or a return promise by either
the promisee (arguably PLEA) or another person (the Unit 4 officers). See
Restatement (Second) of Contracts § 71(4), cmt. e (Amer. Law Inst. 1981); cf.
Turken, 223 Ariz. at 350 ¶ 33, 224 P.3d at 166 (relying on contract law to
conclude that anticipated indirect benefits, when not bargained for as part
of the contracting party’s performance, are not consideration for Gift Clause
purposes).
¶33 The City’s payments for release time are supported by
consideration both in terms of PLEA’s obligations under the MOU and the
City Code as the employee’s authorized representative and the agreement
by the Unit 4 employees to work under the terms and conditions of the
MOU. There is no contention that the $660 million the City pays under the
MOU is grossly disproportionate to the services to be provided by police
officers. Viewed in the context of the MOU overall, the $1.7 million for
release time payments is not “grossly disproportionate,” Turken, 223 Ariz.
at 350 ¶ 35, 224 P.3d at 166, to the value of what PLEA and the Unit 4 officers
have agreed to provide in return.
¶34 The dissent twice observes that there is no showing that
absent release time, the City would be unable to employ police
officers. Infra ¶¶ 47, 52. But the same could be said about various forms of
benefits ranging from vacation time to life insurance. The pertinent issue
for a Gift Clause analysis is not whether a particular expenditure is the only
way to achieve a public purpose, but instead whether a comprehensive
examination of the agreement reveals that the expenditure is grossly
disproportionate to the benefit the public receives. Turken, 223 Ariz. at 350
¶ 35, 224 P.3d at 166.
¶35 In applying the “consideration” prong of the Gift Clause, just
as in assessing “public purpose,” courts must give due deference to the
decisions of elected officials. “The Gift Clause is violated when [the]
consideration, compared to the expenditure, is ‘so inequitable and
unreasonable that it amounts to an abuse of discretion.’” Id. at 349 ¶ 30, 224
P.3d at 165 (quoting Wistuber, 141 Ariz. at 349, 687 P.2d at 357). The
13
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Opinion of the Court
Taxpayers have the burden of proving gross disproportionality of
consideration, Wistuber, 141 Ariz. at 350, 687 P.2d at 358, and they have not
met that burden here.
¶36 Our decision in Wistuber is not to the contrary. The court of
appeals cited Wistuber in holding that the MOU’s release time provisions
lacked consideration. 238 Ariz. at 75 ¶ 20, 356 P.3d at 820. In that case, this
Court upheld a provision in a school district’s collective bargaining
agreement providing release time for a teacher who was the president of
the teacher’s association. The contract provisions specified how the teacher
would spend her release time. In rejecting a Gift Clause challenge, Wistuber
noted that “the duties imposed upon [the association’s president] are
substantial, and the relatively modest sums required to be paid by the
District [were] not so disproportionate as to invoke the constitutional
prohibition.” 141 Ariz. at 350, 687 P.2d at 358. Here, the court of appeals
noted that, “[u]nlike the detailed, mandatory contractual provisions upheld
in Wistuber,” the MOU does “not obligate PLEA to provide any specific
duty in exchange for release time.” Cheatham, 238 Ariz. at 75 ¶¶ 20, 22, 356
P.3d at 820.
¶37 Wistuber, however, did not hold that, as a general proposition,
release time provisions can only be upheld if they impose specific duties on
the employees involved. Nor does Wistuber stand for the proposition that
in evaluating the adequacy of consideration for benefits (such as release
time) afforded under a collective bargaining agreement, a court should
consider only the performance by the authorized representative, exclusive
of the represented employees.
¶38 Moreover, the court of appeals and the trial court erred as a
matter of law insofar as they construed the MOU as not limiting how
officers can use release time. Cf. Powell v. Washburn, 211 Ariz. 553, 555 ¶ 8,
125 P.3d 373, 375 (2006) (noting that contractual interpretation generally is
a matter of law). Collective bargaining agreements, like other contracts,
should be construed to avoid making their provisions illusory. Ariz.
Laborers, Teamsters & Cement Masons Local 395 Health & Welfare Trust Fund v.
Hatco, Inc., 142 Ariz. 364, 367, 690 P.2d 83, 86 (App. 1984).
¶39 The MOU here, particularly when construed in light of the
City Code provisions, clearly contemplates that release time will be used
for activities related to PLEA’s role as the authorized representative for the
14
CHEATHAM V. DICICCIO, ET AL.
Opinion of the Court
Unit 4 officers, even if it does not specify minutely how release time will be
used. (This includes the provision affording release time for a legislative
representative, who is “to work with and assist the [C]ity’s legislative
lobbyist.” 2012-2014 MOU § 1-3(C).)
¶40 We accordingly disagree with the dissent in its characterizing
the use of release time as “almost unchecked.” Nor is the dissent right to
contend that release time involves “diverting officers from safeguarding the
public.” Infra ¶ 46. The MOU acknowledges that the costs to the City
associated with release time were in lieu of wages and benefits; had the
release time provisions been omitted, the officers might have received other
benefits under the compensation package, such as personal time or paid
vacation time. Notably, after the trial court enjoined the use of release time
under the 2012-2014 MOU, the City agreed that the remaining release time
would be allocated to police officers as additional vacation time. Thus,
while it is true that particular officers will not be engaged in their usual
police duties while using release time, it is incorrect to suggest that the
MOU, by including release time, reduces total on-the-job time by Unit 4
officers. (The MOU also requires officers to obtain approval to absent
themselves from duties to use release time and such approval is “subject to
Departmental operational and scheduling factors.” 2012-2014 MOU § 1-
3(B)(3)(c).)
¶41 Nor is our conclusion affected by Taxpayers’ arguments that
release time under prior MOUs was used in some instances for reasons
unrelated to PLEA’s representational role. Even if those assertions are
correct (an issue we do not reach), the improper use of release time would
not establish that the MOU violates the Gift Clause (just as the prospect of
a breach does not mean a contract is contrary to public policy or lacks
consideration), but instead that the Unit 4 officers or the City might have
reason to complain of PLEA’s violation of the collective bargaining
agreement. See id. § 1-5(F) (noting that penalties, pursuant to the City Code,
may be assessed against PLEA for breach of obligations); see also Vaca v.
Sipes, 386 U.S. 171, 195 (1967) (“The appropriate remedy for a breach of a
union’s duty of fair representation must vary with the circumstances of the
particular breach.”). Although one could reasonably argue that greater
specificity regarding the use of release time would better serve the City –
and perhaps the Unit 4 officers themselves – such issues of labor-
management relations should be decided through the collective bargaining
process rather than dictated by the courts under the guise of the Gift Clause.
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Opinion of the Court
¶42 We also reject Taxpayers’ assertion that our decision in Turken
establishes that the release time provisions violate the Gift Clause. In
Turken, we held that the City’s agreement to pay a developer as much as
$97.4 million for the use of garage parking spaces in a mixed-use project
likely violated the Gift Clause. 223 Ariz. at 350-51 ¶¶ 40-43, 224 P.3d at 166-
67. Our opinion clarified that indirect benefits, when “not bargained for as
part of the contracting party’s promised performance,” do not satisfy the
“consideration” prong of the Gift Clause analysis. Id. at 350, ¶ 33, 224 P.3d
at 166. In this respect, Turken is inapposite because here the consideration
received by the City is not indirect benefits, but instead the obligations the
MOU itself imposes on both PLEA and the Unit 4 officers.
¶43 Finally, we note the limits of our holding. Our conclusion that
the release time provisions do not violate the Gift Clause reflects our
consideration of the MOU in its entirety, viewed in light of the City’s Meet
and Confer Ordinance. From this perspective, we cannot find that the City
Council abused its discretion in determining that the MOU, including its
release time provisions, serves a public purpose and that the City’s
payments are reasonable in light of the benefits it receives. We do not
comment on the desirability of such provisions as a matter of labor relations
or public policy. Nor do we address Taxpayers’ arguments, which were
not raised in the trial court, that the release time provisions violate either
the “right to work” provisions of article 25 of the Arizona Constitution and
A.R.S. §§ 23-1301 through 1307 or the First Amendment rights of non-PLEA
members.
IV.
¶44 Because the challenged release time provisions do not violate
the Gift Clause, we reverse the trial court’s judgment and entry of a
permanent injunction and vacate the opinion of the court of appeals.
16
CHEATHAM V. DICICCIO, ET AL.
JUSTICE TIMMER, joined by JUSTICE BRUTINEL, Dissenting
TIMMER, J., joined by BRUTINEL, J., dissenting.
¶45 By permitting the City to subsidize PLEA simply because the
release time terms are tucked within a collective bargaining agreement, the
majority undercuts the Gift Clause’s aim “to prevent governmental bodies
from depleting the public treasury by giving advantages to special interests
. . . or by engaging in non-public enterprises.” Wistuber, 141 Ariz. at 349,
687 P.2d at 357. I respectfully dissent.
¶46 The substantial benefits bestowed on PLEA are allowable
under the Gift Clause only if they serve a public purpose. See Turken, 223
Ariz. at 345 ¶ 7, 224 P.3d at 161. No public purpose is served by diverting
officers from safeguarding the public to work almost unchecked for PLEA.
The City has no control over how PLEA directs the officers on release time
and is not even told what the officers do for PLEA. Cf. Kromko, 149 Ariz. at
321, 718 P.2d at 480 (stating that “the fear of private gain or exploitation of
public funds envisioned by the drafters of our constitution” is absent when
private entity’s operation of public hospital is subject to the control and
supervision of public officials). As a testifying labor expert put it, “[PLEA
officials] are given a blank check to do . . . as they determine is appropriate
to meet the needs of their organization.” Officers on release time can lobby
the legislature for and against laws that interest PLEA and its members,
campaign for elected officials who support PLEA, attend PLEA functions,
manage PLEA elections, and engage in any activities that promote PLEA’s
private interests, even if it is to the City’s detriment. While these activities
may benefit officers and certainly benefit PLEA, they do not serve a public
purpose. Cf. Small v. Operative Plasterers’ & Cement Masons’ Int’l Ass’n Local
200, AFL-CIO, 611 F.3d 483, 486 (9th Cir. 2010) (“After all, the very purpose
of labor unions is to advocate zealously for their members.”).
¶47 The majority finds that the release time provisions serve a
public purpose because they are set forth in the MOU, which in turn serves
the public by enabling the City to hire and collectively negotiate with Unit
4 officers. See supra ¶¶ 23, 25. In my view, the majority conflates the public
purpose served by securing City employees through collective bargaining
with the public purpose served by the terms reached through such efforts.
The City may derive some benefits from negotiating with Unit 4 officers
through a single representative rather than by negotiating with individual
officers. But the public benefit resulting from collective bargaining does not
mean that the release time provisions agreed to through that process
17
CHEATHAM V. DICICCIO, ET AL.
JUSTICE TIMMER, joined by JUSTICE BRUTINEL, Dissenting
necessarily serve a public purpose. If that were so, public entities could
easily circumvent the Gift Clause simply by placing a gift within a collective
bargaining agreement. And nothing suggests that PLEA would not have
negotiated an MOU for Unit 4 officers absent those provisions. Why else
would officers pay approximately $1.7 million in annual dues to PLEA to
represent them in determining wages, hours, and working conditions if not
for PLEA to negotiate on their behalf?
¶48 The majority’s stronger argument is that the release time
provisions promote a public purpose by serving as a component of the
compensation package for Unit 4 officers. See supra ¶ 24. The majority
emphasizes that the City originally allocated $660 million for Unit 4 officer
compensation before negotiating with PLEA to use a “chunk” of that
money for release time. See supra ¶ 14. A City negotiator testified that this
“chunk” was “costed” against the compensation package as a whole, and if
it was not used for release time, it would be folded back into the
compensation package. As the City had included release time provisions
in its MOUs since 1977, however, it is hardly surprising that it built release
time moneys into its Unit 4 allocation. Nothing indicates that the City
would have allocated $660 million for Unit 4 officers if release time was off
the table. Indeed, before negotiations for the 2010-2012 MOU commenced,
the police department suggested to City negotiators that “[a] reduction in
cost of City funded PLEA operations” would “increas[e] funds available for
mission-critical functions;” the department did not suggest that a reduction
would free up money to increase officer benefits.
¶49 Other evidence supports the trial court’s finding that the
MOU provisions were negotiated individually and “not as a total package
offered to Unit 4 with those members being allowed to divide it how they
wished.” See Shooter v. Farmer, 235 Ariz. 199, 200 ¶ 4, 330 P.3d 956, 957 (2014)
(“We defer to the trial court’s findings of fact unless they are clearly
erroneous.”). City Councilman Sal DiCiccio testified that the MOU
provisions were “separately negotiated” rather than as part of a “total
package.” The MOU does not require that unused release time be paid to
officers. And release time cannot be accurately “costed” to officers’ salaries
because a large amount of release time – representation hours – are
unlimited. Tellingly, after the court preliminarily enjoined the release time
provisions in the 2010-2012 MOU, the City did not use the funds designated
for release time under that MOU to compensate Unit 4 officers. (After the
court found that release time is not compensation, in part because the City
18
CHEATHAM V. DICICCIO, ET AL.
JUSTICE TIMMER, joined by JUSTICE BRUTINEL, Dissenting
did not treat it as such after the preliminary injunction, and entered the
permanent injunction, the City and PLEA amended the 2012-2014 MOU to
provide additional vacation time to officers equaling the number of unused
release time hours. This belated act does not vitiate the evidence before the
court at the time of its ruling that the City did not treat release time as
compensation.).
¶50 The majority cites language in the MOU providing that
release time is funded “in lieu of wages and benefits.” See supra ¶ 14.
Declaring this does not make it so. If we look no further than a self-serving
contractual provision, private subsidies could escape Gift Clause scrutiny
whenever the parties agree that subsidies are “compensation.” Cf. Wistuber,
141 Ariz. at 349, 687 P.2d at 357 (stating that in determining the existence of
a public purpose, the court should consider the “reality of the transaction”
and not just the “surface indicia of public purpose”).
¶51 Even if the money designated for release time would have
otherwise been paid to officers, it does not necessarily follow that release
time serves a public purpose as “compensation.” Following the majority’s
logic, the City could compensate officers by giving money to a private
business to establish a coffee house near a police station for the officers’
enjoyment. If “public purpose” can be stretched this far, the Gift Clause,
at least in the public employment context, has met its end.
¶52 The majority characterizes my position as positing that
release time benefits violate the Gift Clause because they benefit a private
organization. See supra ¶ 25. Not true. Payments to a private entity to
provide benefits to public employees undoubtedly can serve a public
purpose by providing an incentive for public employment. Benefits such
as health insurance, gym memberships, and emergency child care for
employees fall within this category. Without attempting to precisely define
what payments to private entities constitute employee compensation for
Gift Clause purposes, at a minimum, such payments must substitute for the
moneys an employee would otherwise pay for the benefit provided directly
to the employee by the third party. Thus, payments to PLEA to represent
an officer in grievance proceedings could be compensation because the
officer would otherwise have to pay money to hire a representative. But
when public resources given to a private entity can be used for any purpose
directed by the entity, as here, and the public expenditure does not
19
CHEATHAM V. DICICCIO, ET AL.
JUSTICE TIMMER, joined by JUSTICE BRUTINEL, Dissenting
substitute for an expense the employee would otherwise pay, that
expenditure cannot be considered compensation.
¶53 Alternatively, I agree with the trial court and the court of
appeals that the release time provisions violate the Gift Clause because the
City does not receive sufficient consideration in return for its $1.7 million
outlay. Cf. Turken, 223 Ariz. at 345 ¶ 7, 224 P.3d at 161 (stating that to
comply with the Gift Clause, a governmental entity must receive
consideration in return for expenditure that “is not so inequitable and
unreasonable that it amounts to an abuse of discretion”) (citation and
internal quotation marks omitted). Whether the City receives sufficient
consideration turns on “the objective fair market value” of what PLEA
promised to provide. See id. at 350 ¶ 33, 224 P.3d at 166. The record does
not reflect such a value. Indeed, the City lacks a mechanism to quantify the
value of benefits it receives from the release time provisions.
¶54 I cannot see how any value the City receives from the release
time provisions approaches a fair market value of $1.7 million. The MOU
does not obligate PLEA to provide any services to the City. Any promotion
of employer-employee relations, see supra ¶ 25, fostered by the release time
provisions are indirect benefits that cannot constitute consideration. Cf. id.
(rejecting assertion that “indirect benefits” constitute consideration). The
majority concludes that Unit 4 officers’ agreement to work as police officers
in exchange for a compensation package that includes release time
provisions is sufficient consideration. See supra ¶ 32. Because I agree with
the courts below that the extensive benefits given to PLEA do not serve as
officer compensation, I likewise reject the majority’s reasoning here.
Nothing in the record suggests that the City could not employ police
officers without subsidizing PLEA with release time benefits. And any
release time that could be compensation, for example, time used to
represent officers in grievance proceedings, has neither been quantified nor
assigned a monetary value.
¶55 To subsidize a labor organization under the guise of
employee compensation violates the Gift Clause. That is what has occurred
here. In light of the lack of any contractual assurance that PLEA release
time actually serves a public purpose, this generous benefit cannot be
considered anything other than a gift to PLEA prohibited by the Gift
Clause. I would uphold the trial court’s injunction.
20
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668 F.2d 407
9 Fed. R. Evid. Serv. 1210
UNITED STATES of America, Appellee,v.Robert HANDY, Appellant.
No. 81-1902.
United States Court of Appeals,Eighth Circuit.
Submitted Dec. 17, 1981.Decided Jan. 6, 1982.
Law Offices of J. Martin Hadican by J. Martin Hadican, argued, Joyce Yulkey MacDonald, Clayton, Mo., for appellant.
Thomas E. Dittmeier, U.S. Atty., Frederick R. Buckles, argued, Asst. U.S. Atty., St. Louis, Mo., for appellee.
Before LAY, Chief Judge, and HENLEY and ARNOLD, Circuit Judges.
LAY, Chief Judge.
1
Robert Handy was convicted in 1980 of fifteen counts of mail fraud and one count of conspiracy in connection with the death of Peter J. Halm. The convictions of Handy and his coconspirators arose from their involvement in an alleged scheme to defraud insurance companies by insuring the life of Peter J. Halm, killing him and collecting the insurance proceeds. Handy and a coconspirator, Glennon Engleman, were tried jointly and convicted. This court reversed Handy's conviction on appeal on the ground that failure to sever Handy's trial constituted an abuse of discretion. United States v. Engleman, 648 F.2d 473 (8th Cir. 1981). Upon retrial Handy was convicted of 14 counts of mail fraud and one count of conspiracy. On this appeal he alleges that the trial court erred in: (1) admitting the statements of certain coconspirators against him under Fed.R.Evid. 801(d)(2)(E); (2) admitting the statement of a coconspirator against him as an adoptive admission under Fed.R.Evid. 801(d)(2) (B); and (3) in denying his motion for acquittal based on insufficient evidence that Handy knowingly participated in the conspiracy.
2
We affirm for the reasons stated below.
3
Handy first objects to the admission of several statements elicited through the testimony of Carmen Miranda Halm regarding statements made to her by Engleman. She testified that "when she asked Engleman who would know about the plan to murder Halm and collect the insurance Engleman responded that Handy would help him."
4
Another statement occurred following their first meeting after Halm's death. Carmen and Engleman were discussing the day of the shooting and she stated Engleman expressed anger at Handy for some mistake that he had made in the course of the events that day leading up to the shooting. Engleman also told her that Handy had driven the car the day of the killing. During this meeting, Carmen and Engleman also discussed the fact that she had not heard from the insurance companies. Engleman stated that they had to contact her soon and that she should let him know as soon as they did because he had to pay Handy.
5
Handy urges that the statements relating to the events that occurred the day of the shooting were mere narrative accounts of past incidents and thus inadmissible under the coconspirator exception to the hearsay rule. The remaining statements he argues were not made in furtherance of a conspiracy and should not have been admitted. We hold that the trial court did not err in the admission of these statements under Fed.R.Evid. 801(d)(2)(E).
6
Statements of a coconspirator identifying a fellow coconspirator are considered to be made in furtherance of the conspiracy. United States v. Williams, 604 F.2d 1102, 1113 (8th Cir. 1979). The statements were clearly made during the course of the conspiracy. These statements clearly help identify the role of one coconspirator to another. Thus not only is the progress of the conspiracy revealed but by the testimony an explanation of payment is involved as well. Cf. United States v. Goodman, 605 F.2d 870, 877-78 (5th Cir. 1979); United States v. Overshon, 494 F.2d 894, 899 (8th Cir.) cert. denied 419 U.S. 853, 95 S.Ct. 96, 42 L.Ed.2d 85 (1974). The court may consider not only the nature of the statement but take into account the time and circumstances under which they were made in determining whether they were intended to further the scheme's ultimate objective-collection of the insurance proceeds. We find the court did not err in admitting Carmen's testimony.
7
Handy also charges that the trial court erred in admitting the statement of Nicholas Miranda describing a conversation between himself, Engleman and Handy. In that conversation Nicholas described an abortive attempt at killing Peter Halm during which he and Handy were attacked by a dog just as Engleman was about to shoot Halm. Engleman stated that they had to beat a hasty retreat at that point. Handy interjected, "Yes, we did." The trial court found the statement admissible as an adoptive admission under Fed.R.Evid. 801(d)(2)(B). Handy contends that his interjection was taken out of context and that it should have been clear from the circumstances of the conversation that he did not intend to adopt Engleman's statement. We disagree. Contrary to Handy's contention, the context of the conversation seems sufficiently clear as does Handy's acquiescence in Engleman's statement. The trial court was correct in admitting the statement under Rule 801(d)(2)(B).
8
Finally, Handy urges that the district court erred in denying his motion for a judgment of acquittal which was based on his allegation that the evidence was insufficient as a matter of law to establish that he knowingly participated in the conspiracy. Upon review we are required to view the evidence in the light most favorable to the verdict, United States v. Littlefield, 594 F.2d 682, 684 (8th Cir. 1979). It is also necessary to accept as established all reasonable inferences that tend to support the verdict. United States v. Overshon, supra, 494 F.2d at 896.
9
A review of the record reveals that there was evidence introduced at trial to show that Handy purchased the gun used to murder Peter Halm and that he was present during at least one of the abortive murder attempts and on the day on which Halm's murder actually took place. Furthermore, there was other evidence to indicate that Handy was familiar with the financial aspects of the scheme. Accordingly, we find that as a matter of law there was sufficient evidence to support Handy's conviction. The conviction is affirmed.
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Citation Nr: 1736702
Decision Date: 08/31/17 Archive Date: 09/06/17
DOCKET NO. 12-28 913 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California
THE ISSUES
1. Entitlement to service connection for bilateral wrist/hand disabilities, claimed as tendon damage.
2. Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
S. J. Sico, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Navy from November 2006 through November 2010.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.
In an August 2002 substantive appeal, the Veteran requested a Board hearing by live video conference, to be held at the RO. The record shows that the Veteran was scheduled for a May 2016 videoconference hearing. However, a notice dated April 2016 informing him of the hearing was returned to VA as undelivered. As a result, the Veteran did not appear, nor did he withdraw his hearing request and the matter was relisted for May 2017. It was at this time the Veteran appeared before the undersigned by live video conference. The transcript of this hearing has been made part of the record.
Here, the issue of service connection for bilateral wrist disabilities, claimed as tendon damage, has been recharacterized to include bilateral hand disabilities, and that of bilateral hearing loss, all of which require additional development. Consequently, all are REMANDED to the Agency of Original Jurisdiction (AOJ) as a result. VA will notify the Veteran if further action is required
REMAND
The Veteran contends he is entitled to service connection for bilateral wrist/hand disabilities and bilateral hearing loss.
Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).
Bilateral wrist/hand disabilities
The Veteran asserts that his hand and wrist problems are due to the construction work he performed in service on the exterior hulls of navy ships.
Here, the Veteran was seen for a VA examination in June 2012 for his hands and wrists. Although the examination appeared to cover the Veteran's range of motion in the hand, it hinted that additional diagnostic testing was required to determine the presence of arthritis. Further, there is little, to no indication, to what extent if any, the tendons in the hands or wrists are damaged as the Veteran claims. Most importantly a diagnosis is missing, and, as such, frustrates Board review and requires further development. At the video hearing, this question was discussed by the undersigned with the Veteran. The undersigned asked, and the Veteran agreed, to attend a new VA examination so that these critical questions can be answered.
The Veteran must be afforded a new VA examination to assess the nature, symptomology, etiology and a diagnosis provided for any disabilities for one or both hands and/or one or both wrists. The examiners discussion must include, but is not limited to, if any, tendon damage in the hands and wrists bilaterally. Further, any limitations to ranges of motion, pain, functionality and strength must be examined. In addition, it would be very helpful to know to what extent, if any; his arthritis in his hands or wrists is attributable to service. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).
Bilateral hearing loss
In the present case a VA audiological evaluation was done in June 2012. The examiner indicated the test results were not valid for rating purposes, this is inadequate. This issue was discussed by the Veteran through his representative at the video hearing with the undersigned. It was discussed how the results were found to be invalid due to "inconsistent pure tone testing in both ears and...poor agreement between responses to speech in the tones." The Veteran requested a new examination, and the undersigned concurs with the request.
On remand, the Veteran should be afforded a new VA examination to assess any severity of any hearing loss, in one or both ears, and the VA examination must include an etiological opinion and diagnosis for same. A new examination and opinion must be based on a full review of the record and supported by stated rationale which is needed to fairly resolve the Veteran's claims. See 38 U.S.C.A.
§ 5103A (West 2014); 38 C.F.R. § 3.159 (2016); McLendon v. Nicholson, infra.
Accordingly, the case is REMANDED for the following action:
1. Obtain copies of all outstanding treatment records the Veteran has received at the La Jolla VA San Diego Healthcare System.
2. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his claimed disabilities of the hands and wrists.
After review of the claims file, and interview and examination of the Veteran, the examiner is asked to respond to the following:
a) Does the Veteran have a disability of one or both hands or wrists, including the claimed tendon damage?
b) State whether any disability of the hands or wrist is at least as likely as not (50 percent or greater probability) due to an event, injury, or disease in service.
The examiner is asked to provide a rationale for all opinions. All pertinent evidence, including both lay and medical, must be considered.
3. Schedule the Veteran for a VA audiological examination for the purpose of determining the nature and etiology of his claimed bilateral hearing loss.
Following review of the claims file, and interview and examination of the Veteran, the examiner is asked to offer an opinion as to the following:
a) Does the Veteran have a current diagnosis of any hearing loss in one or both ears as defined by VA regulations? 38 C.F.R. § 3.385.
b) Is it at least as likely as not (a 50 percent or higher degree of probability) that the claimed bilateral hearing loss had its onset during his period of service. For purposes of this opinion, the Veteran's in-service noise exposure is conceded.
The examiner is asked to provide a rationale for all opinions. All pertinent evidence, including both lay and medical, must be considered.
4. After completion of the above, the AOJ should review the expanded record and determine if the appeal can be granted. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case. After an opportunity to respond, the case should be returned to the Board for appellate review.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
_________________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).
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478 F.2d 369
UNITED STATES of America, Appellee,v.Gene Arlyn WILLIAMS, Appellant.UNITED STATES of America, Appellee,v.Robert Brice ELLIOTT, Sr., Appellant.
Nos. 72-1828, 72-1829.
United States Court of Appeals,Fourth Circuit.
Submitted Jan. 9, 1973.Decided May 7, 1973.
Frank Patton Cooke, Gastonia, N. C., (on brief) for appellant in No. 72-1828.
Arthur Goodman, Jr., Charlotte, N. C., (on brief) for appellant in No. 72-1829.
Keith S. Snyder, U. S. Atty., and David B. Sentelle, Asst. U. S. Atty. (on brief) for appellee in Nos. 72-1828 and 72-1829.
Before BRYAN, Senior Circuit Judge, and FIELD and WIDENER, Circuit Judges.
PER CURIAM:
1
These appellants were tried together by a jury in the United States District Court for the Western District of North Carolina. They were found guilty of the first five counts of a seven count indictment charging them with embezzling, abstracting and purloining the moneys, funds and credits of a federally insured bank, in violation of 18 U.S.C. Secs. 656 and 2.1 Count six was dismissed during trial and the jury found them not guilty as to count seven. They allege that various errors were committed during the course of their trial and seek reversal of their convictions and an acquittal or, alternatively, a new trial. For reasons that will be set forth in this opinion, we agree that the appellants are entitled to a new trial.
2
* Appellant Williams was employed as a Vice-President of the Security Bank and Trust Company of Salisbury, North Carolina. He was also the branch manager of Security's Belmont, North Carolina branch bank. This was a small branch and was operated by Williams, two cashiers, and perhaps a bookkeeper.
3
Appellant Elliott was the managing officer of Shoreline Provision Company, a refrigerated trucking company that specialized in transporting refrigerated products from the East to the West Coast.
4
In May, 1969, Elliott opened an account, in the name of Shoreline, at Security Bank and Trust Company. Shoreline had other accounts at the Citizens National Bank in Cramerton, North Carolina. Elliott also had established an account in the name of MEW Brokerage Company at the Mechanics and Farmers Bank in Charlotte, North Carolina. MEW Brokerage was a factoring corporation, founded by Elliott, whose purpose was to finance the Shoreline Company.
5
Subsequent to the opening of the Shoreline account with Security in May, 1969, the Belmont branch of Security issued numerous cashier's checks to Shoreline. Williams, as branch manager, had to approve these checks. The indictments against the appellants arose from certain of these transactions.
6
The first five counts involved situations where Williams would deliver a Security cashier's check to Elliott, which check was made payable to Shoreline. The consideration to Security for these cashier's checks were checks, at least equal in amount to the appropriate cashier's checks, delivered by Elliott and drawn on Shoreline's various accounts or on the new account of MEW Brokerage. It seems that the checks Elliott gave to Security for which Shoreline received cashier's checks were drawn on insufficient accounts and that Security has never received payment for them. The above events occurred during the period of October 14 to October 21, 1969.
7
Counts six and seven are not involved in this appeal since count six was dismissed during trial and the appellants were found not guilty as to count seven.
II
8
During the course of the trial, the government called Mrs. Peggy Farris Byrd, a Security employee at the Belmont branch, as one of its witnesses. Her testimony related to the cashier's check referred to in count two of the indictment. It showed that the cashier's check in issue, number 826, had been issued for $57,000 on Friday, October 17, 1969, but was not recorded on her work sheet until Monday, October 20, 1969. She had no independent recolleclection of the transaction. She further testified that, under normal banking procedure, the check would have appeared on her work sheet either on Friday, October 17, or Saturday, October 18, 1969. The inference the government sought to show from this was that Williams had issued the check on the 17th, and then held it out until the 20th, causing a false entry of the transaction on Peggy Byrd's work sheet, so Elliott could cover the bad check he had given Williams in consideration of the cashier's check. The object obviously was to show Williams' bad intent from this testimony, as well as the facts concerning the specific transaction.
9
The defense attorneys sought to test Peggy Byrd's recollection by cross-examining her as to how well she remembered the physical layout and other details of the operation of the Belmont branch bank. The government objected to such questions, and the trial court sustained the objections, refusing to allow the defense the opportunity to test the recollection of the witness except as to matters precisely covered on direct examination.
10
The right to cross-examine the prosecution's witnesses is a fundamental constitutional right under the Sixth Amendment. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). Although the scope of cross-examination is within the discretion of the trial court and usually limited to matters brought out on direct,2 there are exceptions. One of these exceptions is where the cross-examiner challenges the credibility of a witness by testing the individual's memory. United States v. Hoffman, 415 F.2d 14 (7th Cir. 1969), cert. den. 396 U.S. 958, 90 S.Ct. 431, 24 L.Ed.2d 423 (1969); 3A Wigmore on Evidence (1970) Sec. 995. See also Loesch v. Federal Trade Commission, 257 F.2d 882, 885 (4th Cir. 1958), cert. den. 358 U.S. 883, 79 S.Ct. 125, 3 L.Ed.2d 112 (1958). While the scope of the questioning concerning a witness' credibility may be within the discretion of the trial court, we believe that a denial of all such cross-examination designed to test the recollection of a witness is improper. In our opinion, the questions posed to Peggy Byrd by the appellants' attorneys were pertinent to her credibility and the disallowance of them by the trial court was erroneous. ". . . [T]he range of evidence that may be elicited for any purpose of discrediting is to be very liberal . . . . " 3A Wigmore on Evidence (1970) Sec. 944.
III
11
Toward the end of the trial, the government called Leonard V. Dahl, an FBI agent, as a witness. His testimony revealed that he had gone to Williams' house on November 17, 1969 to talk to him about the matters involved in these cases. Dahl testified that he advised Williams of his constitutional rights and that Williams signed a waiver. He further testified that he questioned Williams about the cases and that Williams answered his questions. The prosecutor then asked Dahl if Williams told him what experience he had had in banking prior to working for Security. Dahl said that Williams had told him he had fourteen years prior experience in banking. Then, on cross-examination, Williams' counsel asked Dahl to read the rest of his notes as to the content of the conversation. The prosecutor objected and the court sustained the objection, refusing to allow any part of the notes to be read except that which may have touched on the questions asked on direct examination. Although the statement was proffered into evidence and ordered filed by the trial judge, it does not appear with the record.
12
In Banning v. United States, 130 F.2d 330 (6th Cir. 1942), cert. den. 317 U.S. 695, 63 S.Ct. 434, 87 L.Ed. 556 (1943), the court said:
13
"It frequently happens that on direct examination of a witness as to a conversation, transaction or other matter, counsel will bring out only such parts as are favorable to the party he represents. When this occurs, it is the right of the cross-examiner to put the trial court in possession of the full details respecting the matters within the scope of the direct examination." 130 F.2d at 338.
14
Dahl's testimony, of course, by showing Williams' experience in the banking business, sought inferentially to prove intent and bad purpose. Any statement of Williams' made to Dahl at the time going to show lack of intent or bad purpose should have been admitted, and Williams was entitled to show it by the witness Dahl. VII Wigmore on Evidence (1940) Sec. 2115. The denial of the right of the defendant to show statements from which innocence could be inferred along with those which tended to show guilt was error.
IV
15
In the present cases, the appellants were indicted for embezzling, abstracting and purloining money from Security in violation of 18 U.S.C. Secs. 656 and 2. The trial court instructed the jury on the charge of embezzling.
16
The court charged the jury that they could find the defendants guilty if they found that Williams "knew or should have known by understanding the affairs of the banking world and familiarizing himself with the accounts on deposit, that he issued a cashier's check and, by so doing, embezzled . . ." [Emphasis added]. Another part of this instruction said: ". . .; fourth, that he, knowing that it was not his own, converted it to his own use or to the use of some third person, not the true owner." [Emphasis added]. Although no objections were made to these instructions, they are obviously erroneous.
17
It is true that criminal intent must be inferred from the facts and circumstances of the case. Hall v. United States, 286 F.2d 676 (5th Cir. 1961), cert. den. 366 U.S. 910, 81 S.Ct. 1087, 6 L.Ed.2d 236 (1961). However, we are of opinion that, since intent is an essential element under Sec. 656, the trial court misled the jury by using the phrase "should have known" in its instructions on intent. By giving effect to such a phrase, the jury could have convicted appellants if they found that Williams was guilty of nothing more than negligence in the handling of the bank's affairs. This will not support an embezzlement conviction under the statute. The government must show that the acts were done willfully and intentionally, not by inadvertence or carelessness.
18
We are further of opinion that the embezzlement charge given by the trial court was too broad. One of the elements of the crime of embezzlement as used in the statute is that the money or property embezzled be converted to the embezzler's own use or benefit. United States v. Northway, infra; 120 U.S. 327, 333, 7 S.Ct. 580, 30 L.Ed. 664;3 Black's Law Dictionary 4th Ed. p. 614. Thus, the definition of embezzlement used by the trial court was erroneous in that it permitted conviction for embezzlement although the funds may have been put to the use of a third person.
19
While the court did not instruct the jury as to the meaning of abstracting under the statute, unless it may be inferred from the charge which was given, we note that United States v. Northway, 120 U.S. 327, 7 S.Ct. 580, 30 L.Ed. 664 (1887), defines the word abstract to mean ". . . to take or withdraw from so that to abstract the funds of the bank, or a portion of them, is to take and withdraw from the possession and control of the bank the moneys and funds alleged to be so abstracted." 120 U.S. 327, 334, 7 S.Ct. 580, 584. Of course, it is not unlawful to merely take or withdraw the funds of a bank by a person having the authority so to do. What is unlawful is to take and withdraw from the possession and control of the bank moneys in the bank's possession and control without its knowledge and consent and which will deprive the bank of its lawful possession and control of such moneys. A mere negligent act would not be enough under the statute to convict for abstracting. The act would have to be done willfully and intentionally, secretly or dishonestly, and with the knowledge of the person causing the withdrawal of the funds that he was without authority so to do. See Northway, supra; Webster's New International Dictionary, 2nd Ed., Unabridged.
V
20
On retrial, we trust the jury will be instructed with the elements of the offense charged. The attorneys, of course, have a right to submit suggested jury charges to the court.
21
Judges Bryan and Field are of opinion a new trial is required by Part IV of the opinion, believing it to be plain error, especially insofar as the submission to the jury allowed them to convict for Williams' carelessness. F.R.Cr.P. 52(b). They believe the error mentioned in parts II and III of the opinion is harmless. F.R.Cr.P. 42(a).
22
Judge Widener believes a new trial is required because of parts II and III of the opinion. He believes the error mentioned in Part IV should not be noticed because not objected to in the trial court. F.R.Cr.P. 30.
23
Since we are of opinion that a new trial is required, we do not reach the other assignments of error, including the challenge to the favor of a juror.
24
Reversed and remanded for a new trial.
1
Williams was indicted as principal; Elliott for aiding. 18 U.S.C. Sec. 656 reads as follows:
Theft, embezzlement or misapplication by bank officer or employee, Title 18 U.S.C. Sec. 656
"Whoever, being an officer, director, agent or employee of, or connected in any capacity with any Federal Reserve bank, member bank, national bank or insured bank, or a receiver of a national bank, or any agent or employee of the receiver, or a Federal Reserve Agent, or an agent or employee of a Federal Reserve Agent or of the Board of Governors of the Federal Reserve System, embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank or any moneys, funds, assets or securities intrusted to the custody or care of such bank, or to the custody or care of any such agent, officer, director, employee or receiver, shall be fined not more than $5,000 or imprisoned not more than five years, or both; but if the amount embezzled, abstracted, purloined or misapplied does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both. As used in this section, the term 'national bank' is synonymous with 'national banking association'; 'member bank' means and includes any national bank, state bank, or bank and trust company which has become a member of one of the Federal Reserve banks; and 'insured bank' includes any bank, banking association, trust company, savings bank, or other banking institution, the deposits of which are insured by the Federal Deposit Insurance Corporation. June 25, 1948, c. 645, 62 Stat. 729."
18 U.S.C. Sec. 2 reads as follows:
"Sec. 2. Principals
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States is punishable as a principal."
2
See Bell v. United States, 185 F.2d 302, 310 (4th Cir. 1950), cert. den. 340 U.S. 930, 71 S.Ct. 492, 95 L.Ed. 671 (1951); Smith v. Illinois, supra; Carpenter v. United States, 264 F.2d 565 (4th Cir. 1959), cert. den. 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548 (1959); 3A Wigmore on Evidence Sec. 944
3
Northway was decided under Rev.Stat. Sec. 5209, a predecessor of Sec. 656
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 19, 2008
No. 07-10714
Conference Calendar Charles R. Fulbruge III
Clerk
AUSTIN SHOPE
Plaintiff-Appellant
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; PRICE DANIEL UNIT;
COGDELL MEMORIAL HOSPITAL; WARDEN EILEEN KENNEDY;
STEPHEN J. MCILROY; I. CANALES; DR. WYATT HOWELL, Deceased; DR.
N.F.N. BAILEY; DR. N.F.N. WHITEHORN; DONNA VALLIE
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:06-CV-286
Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Austin Shope, Texas prisoner # 1339346, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint as frivolous. The district court’s
dismissal of Shope’s complaint is reviewed for an abuse of discretion. Norton v.
Dimazana, 122 F.3d 286, 291 (5th Cir. 1997).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-10714
Shope argues that the defendants have been deliberately indifferent to his
serious medical needs regarding his knee, in violation of the Eighth Amendment.
This claim was properly dismissed. Even if we assume that Shope’s alleged knee
pain gives rise to a serious medical need, Shope has not alleged the requisite
official dereliction as he has neither asserted that he has been deliberately
denied treatment with the intent to cause harm, nor alleged that he has in fact
suffered any harm as a result. See Farmer v. Brennan, 511 U.S. 825, 839-41, 847
(1994); Reeves v. Collins, 27 F.3d 174, 176-77 (5th Cir. 1994). The record
demonstrates that Shope has repeatedly been monitored, evaluated, and treated
for his alleged knee problem. Shope’s argument that he has received inadequate
medical care is essentially a disagreement with the level or choice of care that
he has received. Such disagreements do not rise to the level of an Eighth
Amendment violation. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991).
Shope also asserts that the district court erred in dismissing his complaint
before allowing him an opportunity to amend or serve his complaint and conduct
discovery. Pursuant to 28 U.S.C. § 1915(e)(2), the district court “shall dismiss
the case at any time” if it determines that the in forma pauperis ( IFP) complaint
is frivolous or fails to state a claim. The facts underlying Shope’s complaint do
not rise to the level of a viable constitutional claim. See Jones v. Greninger, 188
F.3d 322, 327 (5th Cir. 1999). Additionally, Shope was permitted to develop the
factual basis of his claims during his hearing held in accordance with Spears v.
McCotter, 766 F.2d 179 (5th Cir. 1985). See Adams v. Hansen, 906 F.2d 192, 194
(5th Cir. 1990). Further, on appeal, Shope does not allege what facts he would
include in an amended complaint. Therefore, Shope has not shown that the
district court abused its discretion in dismissing his complaint. See Ashe v.
Corley, 992 F.2d 540, 542 (5th Cir. 1993).
Additionally, in his civil rights complaint, Shope alleged that the prison
officials failed to maintain an effective and proper grievance system and failed
2
No. 07-10714
to properly investigate and address his grievances. The district court dismissed
these claims as frivolous. On appeal, Shope fails to challenge the district court’s
decision as to these claims. Although this court liberally construes pro se briefs,
see Haines v. Kerner, 404 U.S. 519, 520 (1972), this court requires arguments to
be briefed in order to be preserved. Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993). Because Shope has failed to identify an error in the district court’s
dismissal of these claims, Shope has waived these issues on appeal, see Hughes
v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999), and this court need not address
them. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987).
Shope’s appeal is without arguable merit and thus frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Therefore, it is dismissed as
frivolous. See 5TH CIR. R. 42.2. The district court’s dismissal of Shope’s
complaint as frivolous and this court’s dismissal of Shope’s appeal count as two
strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996). Shope is cautioned that if he accumulates three
strikes, he will no longer be allowed to proceed 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 § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
3
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542 So.2d 1301 (1988)
Thomas ROYER, Jr.
v.
STATE.
8 Div. 766.
Court of Criminal Appeals of Alabama.
April 26, 1988.
Rehearing Denied February 24, 1989.
Certiorari Denied April 28, 1989
*1302 Randall O. Gladden, Huntsville, for appellant.
Don Siegelman, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 88-646.
McMILLAN, Judge.
The appellant, Thomas Royer, Jr., was found guilty of driving under the influence of alcohol in Madison County District Court; he thereafter appealed to the Circuit Court of Madison County. He was charged with the violation of § 32-5A-191(a)(1) and (2). He was found guilty and sentenced to one year's imprisonment, suspended for two years and was fined $1,000 and costs. The trial court conditioned the suspended sentence on the priviso that the appellant serve 60 days on the Madison County Work Release Program and pay the fine and costs.
The prosecutor and defense counsel entered a stipulation as to the facts as follows:
"[O]n July 6, 1986, the Defendant was observed driving or in actual physical control of a motor vehicle here in Madison County. He was stopped by Trooper Jimmy Smith. Trooper Smith would testify that he has seen intoxicated persons on several occasions and that in his opinion the Defendant was intoxicated. The Defendant was given a test with an Intoxilizer 5000 by Trooper Jimmy Smith. Trooper Smith is certified by the State Board of Health to perform such a test. The Intoxilizer 5000 has been approved both by the State Board of Health and the Alabama State Troopers as a proper test to measure a person's blood alcohol content. The Defendant was under the observation of Trooper Jimmy Smith for 20 minutes prior to the test and the Defendant had had nothing to eat or drink during that period of time. The Trooper followed the procedure set forth by the State Board of Health, and the results of that test were .26, which is over the legal limit."
I
The defendant argues that he was illegally convicted because, he says, he "was charged with two provable parts of a criminal statute, i.e. Sections 32-5A-191(a)(1) and 32-5A-191(a)(2), Code of Alabama (1975)." The appellant argues that the complaint did not adequately confer subject matter jurisdiction or personal jurisdiction over him upon the municipal court. The Alabama Uniform Traffic Ticket and Complaint issued against the appellant indicates that the officer checked the box designating, as a description of the offense, driving under the influence of alcohol rather than controlled substances. He further marked in "test type" "2" and filled in a blank to indicate a blood alcohol content level of .26 percent. Further, the ticket shows that the appellant was charged with a violation of "§ 32-5A-191 2-A-1-A" of the State Code. See Collier v. State, 544 So.2d 981 (Ala.Cr.App.1987) ("There is no subsection `(A)(1)(2)' to § 32-5A-191" as was charged; however, the defendant was properly charged with a violation of subsection (a)(2) of § 32-5A-191). Although the appellant contends that the charge under the U.T.T.C. was duplicitous, there is no showing in the record that this issue was raised until the appellant filed a motion to dismiss or, in the alternative, motion for acquittal in circuit court. The appellant's brief on appeal contains a copy of another such motion filed in district court alleging that the U.T.T.C. was fatally defective for failing to apprise the appellant of the charges against him. However, exhibits attached *1303 to briefs are not part of the record and cannot be considered by this court. Martin v. State, 449 So.2d 801 (Ala.Cr.App. 1984). See also Anderson v. State, 455 So.2d 957 (Ala.Cr.App.1984); Dean v. City of Dothan, 516 So.2d 854 (Ala.Cr.App. 1987).
"A warrant does not require the same particularity which is demanded in indictments. Brazleton v. State, 66 Ala. 96, 98 (1880). Even `[a]n indictment need not set out the statute a defendant is charged under.' Canada v. State, 421 So.2d 140, 144 (Ala.Cr.App.1982). See also Ex parte Bush, 431 So.2d 563, 564 (Ala.), cert. denied, Bush v. Alabama, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983)."
City of Dothan v. Holloway, 501 So.2d 1175, 1176-77 (Ala.Cr.App.1986). Cf. Rule 15.2(b), Alabama Temporary Rules of Criminal Procedure which addresses indictments.
Where a prosecution is based upon an affidavit and warrant, the offense may be designated by name or by words from which it may be inferred. Ex parte McElroy, 241 Ala. 554, 555-56, 4 So.2d 437 (1941). "`[T]he warrant must "designate" the misdemeanor in such manner that the man of ordinary intelligence may know what offense he is called upon to answer.' Slater v. State, 230 Ala. 320-21, 162 So. 130 (1935)." City of Dothan, supra, at 1176.
"[I]n a criminal prosecution technical accuracy in the description of the offense, either in the complaint or warrant, is not required.' Wilson v. State, 18 Ala.App. 375, 92 So. 508 (1922). A warrant must state the offense either by name or so that it can be clearly inferred. Spraggins v. State, 139 Ala. 93, 35 So. 1000, 1003 (1904).
"`The affidavit and warrant are far from perfect, and would be insufficient as an indictment, but the same particularity is not required in prosecutions of this character before a magistrate, and it is sufficient to designate the offense, either in the complaint or warrant, by name only, or by words from which it may be inferred. Brown's case, 63 Ala. 97; Adams v. Coe, 123 Ala. 664, 26 South. 652 ...' Nolen v. Jones, 200 Ala. 577, 578, 76 So. 935 (1917).
"Criminal charges brought by affidavit and warrant are `in a large measure informal.' Bonner v. State, 28 Ala.App. 406, 407, 187 So. 643 (1938), cert. denied, 237 Ala. 446, 187 So. 645 (1939)."
Jones v. State, 513 So.2d 50, 51 (Ala.Cr. App.1986).
The incorrect citation of a Code section does not void an indictment which otherwise states an offense, and, "in the absence of a showing of actual prejudice to the defendant, reference to the erroneous Code section will be treated as mere surplusage." Ex parte Bush, 431 So.2d 563, 564 (Ala.), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983). See also Tinsley v. State, 485 So.2d 1249, 1251 (Ala. Cr.App.1986).
This court in Corum v. City of Huntsville, 491 So.2d 1091 (Ala.Cr.App.1986), stated that the "mere inclusion of the applicable Code section in a charging instrument is [in]sufficient `to put the defendant on notice that he [is] charged with violation of any provable part of the statutory provision.'" Id. at 1093, quoting Ex parte Washington, 448 So.2d 404, 407 (Ala.1984); Ex parte Hightower, 443 So.2d 1272 (Ala. 1983). "Instead, the offense must be designated with specificity." Id. In Corum, the issuing officer failed to circle or mark the appropriate square in order to designate the charged offense. The court noted that although the notations "Test Type 2" and "BAC .216%" implied that the appellant was being charged with driving under the influence of alcohol, "the essentials of an offense must be explicitly charged, and may not be left to inference or aided by intendment." Id. at 1092. "An information is fatally defective where `it does not specify whether the defendant was driving under the influence of alcohol, under the influence of a controlled substance, or under the combined influence of alcohol and a controlled substance.'" Id., quoting Smith v. State, 435 So.2d 158 (Ala.Cr.App. 1983).
*1304 This court in Knight v. City of Gardendale, 500 So.2d 1257 (Ala.Cr.App.1986), held that the "form UTC-1" of the Alabama Uniform Traffic Ticket and Complaint, the same form as used in the case sub judice, "when properly filled out, does not run afoul of the rule in Smith v. State [stated supra]. The ticket, in fact, clearly states that the charge made is driving while under the influence of alcohol." Knight v. City of Gardendale, supra, at 1257-58. In Knight, offense number 4, which refers to alcohol, was marked, the blank for "test type" was filled out, as well as the blank for blood alcohol content level. These facts are consistent with those in the case at hand. Moreover, in Knight the issuing officer described the offense as a violation of § 32-5A-191, without specifying the applicable subsection. However, because of the information included under the "Description of the Offense," this court held that the U.T.T.C. legally charged the offense of driving while under the influence of alcohol.
II
The appellant argues that the complaint issued against him in circuit court was unsworn and unverified and that he was charged with "the new charge of being in actual physical control of a vehicle." The complaint brought against the appellant in circuit court for a trial de novo was signed by the District Attorney. "A prosecution under a state statute on trial de novo requires that the complaint be signed by the District Attorney. Section 12-22-113, Code of Alabama (1975); Williamson v. City of Greenville, 39 Ala.App. 237, 97 So.2d 600; Pearson v. City of Huntsville, 42 Ala.App. 458, 168 So.2d 24; Whitehead v. City of Russellville, 54 Ala.App. 289, 307 So.2d 94 (1975)." Mays v. City of Prattville, 402 So.2d 1114, 1117 (Ala.Cr. App.1981).
The appellant argues that he was charged with a different offense at circuit court, in that the U.T.T.C. charged the appellant with a violation of "§ 32-5A-191 2A-1A," whereas the complaint at circuit court charged him with a violation of §§ 32-5A-191(a)(1) and § 32-5A-191(a)(2). The original complaint charged the appellant with driving while under the influence of alcohol with a blood alcohol content of .26%. The complaint in the circuit court on appeal charged that the appellant "did unlawfully drive or was in actual control of a vehicle while under the influence of alcohol" and "did unlawfully drive or was in actual control of a vehicle while there was 0.10% or more by weight of alcohol in his blood."
This additional language constituted an amendment prohibited by Rule 15.5, Alabama Temporary Rules of Criminal Procedure.
"The fact that the amendment was in violation of the rule does not, however, mandate automatic reversal. Rule 45, A.R.A.P., provides:
"`No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.'"
Mason v. City of Vestavia Hills, 518 So.2d 221, 223-24 (Ala.Cr.App.1987) (emphasis added in Mason).
The appellant was not harmed by the amendment in this case, because he went to trial on a stipulation of the facts and presented no defense. Thus, he was not misled to his detriment by the additional language. "Similarly because the State's evidence proved both allegations, there was no variance between the charge and the proof, as existed in Ex parte Hightower, 443 So.2d 1272 (Ala.1983)." Mason v. City of Vestavia Hills, supra, at 224. In Mason, this court also noted that the original proposal that eventually became Rule 15.5 read as follows: "The court may permit a charge to be amended, without the *1305 defendant's consent, at any time before a verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." Proposed Rule 13.5, Alabama Rules of Criminal Procedure (A.L.I. Advisory Committee Draft 1977).
"An indictment must specify the conduct sought to be condemned so that the defendant may have an opportunity to prepare a defense if one is available." Ex parte Hightower, 443 So.2d 1272, 1273 (Ala.1983) and cases cited therein. The original complaint charged that the appellant was guilty of driving under the influence of alcohol and showed a blood alcohol level of .26%. This was sufficient to charge the appellant with violations of subsections (a)(1) and (a)(2) of § 32-5A-191, as stated in the complaint in the circuit court.
III
The appellant argues that the trial court should not have allowed the amendment of the complaint from a violation of "§ 32-5A-191 2-A-1-A" to a violation of § 32-5A-191(a)(1) and 32-5A-191(a)(2). Rule 15.5(a), Alabama Temporary Rules of Criminal Procedure, reads:
"A charge may be amended by order of the court with the consent of the defendant in all cases except to change the offense or to charge new offenses not included in the original indictment, information or complaint."
However, Rule 15.5(c)(2) states:
"No charge shall be deemed invalid, nor shall the trial, judgment, or other proceedings thereon be stayed, rested, or in any manner affected, for any defect or imperfection in the charge which does not tend to prejudice the substantial rights of the defendant upon the merits."
The substantial rights of the appellant were not prejudiced by the amendment. See Griffin v. State, 428 So.2d 213 (Ala.Cr. App.1983) ("[a] reference to a statutory source in an indictment is a `matter of convenience and not of substance.'"); Bice v. State, 472 So.2d 440 (Ala.Cr.App.1985) ("reference to [an] erroneous code section will be treated as mere surplusage"); Ex parte Bush, 431 So.2d 563 (Ala.1983) ("[m]iscitation of a code section does not void an indictment which otherwise states an offense."). See also Abbott v. State, 494 So.2d 789, 791 (Ala.Cr.App.1986), wherein this court held that the State was properly allowed to amend its complaint on appeal from district court, where the appellant had been charged with "driving while under the influence of alcohol," to a charge that the appellant "did on or about November 13, 1983 ... drive or was in actual physical control of a vehicle while under the influence of alcohol, in violation of § 32-5A-191, Code of Alabama 1975...." This court reasoned, "There is no change in the nature of the prosecution against the appellant on appeal to the circuit court." Abbott v. State, supra, at 791. See also Mason v. City of Vestavia Hills, 518 So.2d 221 (Ala.Cr.App.1987).
IV
The appellant argues that the circuit court failed to have jurisdiction in that the district court indicated that the appellant was found "guilty as charged" on the back of the U.T.T.C., but did not fill in the blank stating that he was found "guilty of ______." The appellant notes that, according to Rule 8(a), Alabama Temporary Rules of Criminal Procedure:
"Judgment shall be pronounced in open court, shall be reduced to writing signed by the judge, filed, and recorded. A judgment of conviction shall set forth the plea, the verdict, and findings, if any, and the adjudication. If the defendant is found not guilty, or for any other reason is entitled to be discharged, judgment shall be entered accordingly."
The U.T.T.C. shows that the appellant pleaded guilty as charged and that under "Finding of the Court" the block marked "guilty of ______" was marked. It was thereafter ordered by the court that the appellant serve 60 days in jail and pay $1,000 and costs of $44. Also included in the record is a notice of appeal from district court to circuit court stating:
"Notice is hereby given that Thomas Dean Royer, Jr. appeals to the Circuit *1306 Court of Madison County, Alabama from the judgment of conviction entered by the District Court in this case on (Date) 1/22/87, adjuding the defendant to be guilty of the offense of D.U.I. and as punishment therefore sentencing the defendant as follows: sixty days m.c. jail, $1,000 fine, court costs."
Moreover, the appellant's attorney signed this notice of appeal and thereby acknowledged the appellant's conviction.
The U.T.T.C. contained a writing signed by the judge, setting forth the appellant's plea, the verdict of guilt, and the pronouncement of sentence. Thus, the material requirements of Rule 8(a), Alabama Temporary Rules of Criminal Procedure, were satisfied.
AFFIRMED.
All the Judges concur.
ON APPLICATION FOR REHEARING
McMILLAN, Judge.
After this Court's original opinion in this case, the Alabama Supreme Court released Sisson v. State, 528 So.2d 1159 (Ala.1988), which further supports the finding that the appellant's argument that the complaint was duplicitous has no merit. In Sisson, it was determined that subsections (a)(1) and (a)(2) of § 32-5A-191, Code of Alabama (1975), do not constitute two separate offenses, but rather two alternative methods of proving one offense. Because the appellant in the present case was consistently charged with violating both subsections, which was also supported by the evidence, the rule set forth in Sisson, supra, concerning the amendment of the charge does not apply in this case. See also McLaughlin v. City of Homewood, [Ms. 6 Div. 608, August 23, 1988] (Ala.Cr.App.1988).
OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.
All Judges concur.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0616n.06
Case Nos. 16-4200/17-3187 FILED
Nov 08, 2017
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RICHARD MARTINEZ, )
)
Plaintiff-Appellant/Cross-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
CITY OF CLEVELAND; MARTIN FLASK, ) OHIO
Individually and in his Official Former )
Capacity as Director, Department of Public )
Safety; MICHAEL MCGRATH, Individually )
and in his Official Former Capacity as Chief )
of Police, )
)
Defendants-Appellees/Cross-Appellants. )
)
BEFORE: SILER, KETHLEDGE, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. Sergeant Richard Martinez wants to become a lieutenant in the
City of Cleveland’s Police Department. So he took the department’s civil service exam—the
means historically used to rank aspiring lieutenants—and finished seventh. When the
department promoted the six people ahead of him in rank order, Martinez hoped his time for
promotion had arrived.
But when Martinez’s turn came, the department passed him over. The department did so
by applying its “one-in-three” policy to bypass Martinez for a lower-scoring candidate. The
“one-in-three” policy allows the department to select any one of the top three scoring candidates
Case Nos. 16-4200/17-3187
Martinez v. City of Cleveland
to fill a vacant position. See Cleveland, Ohio, Charter § 133 (2015). And when additional
vacancies opened up, the department applied “one-in-three” to pass Martinez over again: three
more times in fact. This happened, according to Martinez, in spite of the department’s “past
practice and de facto policy” to promote whoever had the highest score. Martinez’s test score
ultimately expired, and he was removed from the eligibility list without a promotion.
Martinez raised his grievance with his union. But when the union tried to arbitrate with
the department, the department obtained an injunction barring arbitration. So Martinez filed a
complaint in federal district court, claiming that the City and several local officials violated his
due process rights when they failed to promote him. He also sought a writ of mandamus
ordering the defendants to promote him to lieutenant. The district court dismissed his complaint
for failure to state a claim, and Martinez now appeals. We review the district court’s dismissal
de novo. La. Sch. Emps.’ Ret. Sys. v. Ernst & Young, LLP, 622 F.3d 471, 477 (6th Cir. 2010).
Procedural Due Process. To survive a motion to dismiss on his procedural due process
claim, Martinez needed to plead facts that, if proven to be true, would support a finding that
(1) the defendants deprived him of a constitutionally protected interest and (2) he was not
provided adequate procedural rights to protect that interest. See Hahn v. Star Bank, 190 F.3d
708, 716 (6th Cir. 1999).
The protected-interest element is easy: This court has previously found that a plaintiff
adequately pleaded a protected property interest in a nearly identical case. In Paskvan, a police
officer was passed over for a promotion despite his examination score and resulting rank.
Paskvan v. City of Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1234 (6th Cir. 1991). The
officer alleged that the department violated his procedural due process rights by failing to
promote him, but the district court dismissed his claim. Id. at 1234–35. This court reversed,
-2-
Case Nos. 16-4200/17-3187
Martinez v. City of Cleveland
finding that the officer had adequately alleged a deprivation of a protected property interest. Id.
at 1237. So too here. And although defendants ask us to reconsider Paskvan, a prior panel
decision remains binding until the Supreme Court or the Sixth Circuit sitting en banc says
otherwise. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985).
The remaining question is whether Martinez received adequate process. Neither side
disputes that the department did not give Martinez notice or a hearing before promoting lower-
scoring candidates over him. But lack of pre-deprivation process is not dispositive—post-
deprivation process may suffice. Parratt v. Taylor, 451 U.S. 527, 538 (1981), overruled on other
grounds by Daniels v. Williams, 474 U.S. 327 (1986). And in the procedural due process
context, an adequate remedy available under state law constitutes post-deprivation process.
Zinermon v. Burch, 494 U.S. 113, 125–26 (1990).
Here, Martinez had numerous state-law remedies available to him. D’Amico v. City of
Strongsville, 59 F. App’x 675, 678 (6th Cir. 2003) (per curiam). For example, he could have
brought a declaratory judgment action to determine his rights to a promotion or a breach of
contract suit, requested an investigation and hearing before the civil service commission, or
sought a writ of mandamus. Id.; see Shirokey v. Marth, 585 N.E.2d 407, 413–14 (Ohio 1992).
And while Martinez disputes whether some of these remedies were available or adequate, he
sought a writ of mandamus in this very action. Because Martinez had at least one adequate state-
law remedy available to him, no due-process violation occurred.
Martinez suggests that the district court erred in refusing to accept his allegation that
state-law remedies were inadequate. He is mistaken. His legal conclusion did not bind the
district court. Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (noting that
a “‘legal conclusion couched as a factual allegation’ need not be accepted as true on a motion to
-3-
Case Nos. 16-4200/17-3187
Martinez v. City of Cleveland
dismiss” (quoting Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009))); Jackson v.
City of Columbus, 194 F.3d 737, 745, 749–51 (6th Cir. 1999) (noting that a district court need
not accept a plaintiff’s “summary allegations or unwarranted legal conclusions” at the pleading
stage and affirming the court’s rejection of plaintiff’s allegation that state-law remedies were
inadequate), abrogated on other grounds by Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002);
see also Locurto v. Safir, 264 F.3d 154, 170 (2d Cir. 2001) (“Whether a post-deprivation remedy
is adequate presents a question of law.”). The district court thus properly dismissed his claim.
Writ of Mandamus. Martinez also asked the district court to issue a writ of mandamus
ordering the defendants to promote him to lieutenant. The district court dismissed his claim,
reasoning that he could not seek a writ as a freestanding cause of action. The district court’s
reasoning was incorrect: As both sides concede, Ohio law does permit a party to seek a writ of
mandamus as an independent cause of action. See Ohio Rev. Code Ann. § 2731.02; Shirokey,
585 N.E.2d at 414. The district court’s misapplication of Ohio law demonstrates why there is a
“strong presumption” in favor of declining to exercise jurisdiction over supplemental state-law
claims after dismissing federal anchor claims under Rule 12(b)(6). See 28 U.S.C. § 1367(c)(3);
Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1255 (6th Cir. 1996). This
presumption follows from the common-sense recognition that our state-court brethren are better
equipped to address issues of state law. On remand, the district court can consider whether it
will exercise its discretionary jurisdiction over this claim.
-4-
Case Nos. 16-4200/17-3187
Martinez v. City of Cleveland
* * *
For these reasons, we AFFIRM the district court’s dismissal of Martinez’s procedural
due process claim. We VACATE its dismissal of Martinez’s petition for a writ of mandamus
under Ohio law and REMAND with instructions to consider this claim consistent with this
opinion.
-5-
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Case: 18-50886 Document: 00515014745 Page: 1 Date Filed: 06/28/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-50886 FILED
Conference Calendar June 28, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SADIE SOLIS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:18-CR-112-2
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Sadie Solis has moved for leave to
withdraw and has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Solis
has not filed a response. We have reviewed counsel’s brief and the relevant
portions of the record reflected therein. We concur with counsel’s assessment
that the appeal presents no nonfrivolous issue for appellate review.
* 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: 18-50886 Document: 00515014745 Page: 2 Date Filed: 06/28/2019
No. 18-50886
Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is
excused from further responsibilities herein, and the APPEAL IS DISMISSED.
See 5TH CIR. R. 42.2.
2
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60 N.W.2d 521 (1953)
STATE ex rel. LITTLE et al.
v.
OWENS et al.
No. 48374.
Supreme Court of Iowa.
October 20, 1953.
Bannister, Carpenter, Ahlers & Cooney, of Des Moines, for appellants.
Fey H. Moody, of Des Moines, for appellees.
OLIVER, Justice.
Consolidated Independent School District of Saydel, in Polk County, lies immediately north of Des Moines. It was organized in 1952, under the procedure provided by Chapter 276, Code of Iowa 1950, I.C.A. It was a consolidation of all the five school districts in Saylor civil township, and also of Berwick Independent District and Delaware Township sub-district No. 3, both of which were in Delaware civil township.
Relators assailed the validity of the organization of the consolidated district upon *522 two grounds. The trial court adjudged neither asserted defect invalidated the organization. Hence, this appeal by relators who have set up two propositions for reversal.
I. The first proposition for reversal is:
"The establishment of Saydel Consolidated School District was illegal because it left the Delaware Township School District with less than four government sections of land."
The rough plat of Delaware Township here set out shows the several school districts of that township immediately prior to the Saydel consolidation. Of these, Berwick Independent and Delaware Township District No. 3 (sometimes referred to as Norwoodville), which are contiguous to and east of Saylor Township, were included in the consolidation. Bondurant Consolidated District which extends north and east into other townships, was not included and is not involved in this case. West Independent District was not included and is not here involved.
Delaware No. 3 and Delaware No. 5 were the only remaining sub-districts of Delaware Township School District. Each of these sub-districts covered about two government sections of land. They were not contiguous but were separated one and three-fourth miles by West Independent District. The Saydel consolidation included Delaware No. 3 but did not include Delaware No. 5. It may be noted Delaware No. 5 was not contiguous to any part of Saydel consolidated and, hence, could not have been included in it, without the intermediate territory.
The general history of Delaware subdistricts 3 and 5 may be outlined without much difficulty. It is fair to conclude the first school corporation was coterminous with Delaware civil township. As stated in Rural Independent School District No. 3 v. McCracken, 1930, 212 Iowa 1114, 1123, 1124, 233 N.W. 147, 152:
"The oldest form of school district in Iowa to-day is the school township composed of subdistricts. Before there were any independent school districts in this state there was a statute that still remains as section 4130, Code 1927 [I. C.A. § 274.12], in almost its exact original form, requiring that, `when a new civil township is formed, the same shall constitute a school township.' For this reason independent districts have never been formed from virgin territory; that is, from territory not included in some other form of school district.
*523 They have always been formed out of the territory of districts, or parts of same, already in existence, and originally at the voluntary instigation of the territory to be made independent."
The foregoing quotation refers to independent districts. Statutes authorizing consolidated independent districts were enacted later. As indicated by the name, consolidated districts are formed out of the territory of other districts. Hence, the earliest school corporation in the township was Delaware Township School District which covered the entire township. Thereafter, parts of the township school district had been taken in connection with the formation of Berwick Independent, Bondurant Consolidated and West Independent, leaving only the two Delaware township sub-districts No. 3 and No. 5, which were one and three-fourth miles apart.
Appellants' precise complaint here is that the Saydel consolidation was invalid because in taking sub-district No. 3, it left in Delaware Township School District only sub-district No. 5 which had an area of less than four government sections, contrary to section 276.20, Code of 1950, I.C.A., which provided in part, with reference to a consolidated school corporation:
"Minimum territory * * *. No remaining portion of any school corporation from which territory is taken to form a new district shall contain an area of less than four government sections which shall be so situated as to form a suitable corporation."
Although similar provisions had appeared in statutes governing other school districts the first provision of this nature in statutes relating to the organization of consolidated independent school districts was made in Acts 1911, 34 G.A., Ch. 143, section 1. Similar provisions were retained in the various statutes and amendments thereafter enacted or in effect prior to 1953. See Code Sup. 1913 and Supplemental Sup.1915, section 2794-a; Codes of 1924 to 1939, section 4173.
Appellees contend the applicable statute was Code section 276.21, I.C.A., which stated:
"Organization of remaining territory. Where, after the formation of a consolidated corporation, one or more parts of the territory of a school township is left outstanding, each piece shall constitute a rural independent school corporation and be organized as such unless two or more contiguous subdistricts are left * * *."
The original of this provision first appeared in Acts 1915, 36th G.A., Ch. 342, section 1, and was placed in section 2794-a, Supplemental Sup.1915. It stated:
"And where after the formation of such consolidated school corporation, whether heretofore or hereafter formed, there is left in any school township one or more sub-districts each of such sub-districts containing four (4) or more government sections, each of such pieces of territory shall thereby become a rural independent school corporation, * * *." Italics supplied.
In Acts 1917, 37th G.A., Ch. 432, section 1 this provision was changed to state:
"And where after the formation of such consolidated school corporation, there is left in any school township one or more pieces of territory containing four or more government sections, each of such pieces of territory shall thereon become a rural independent school corporation, unless two or more sub-districts remain in a contiguous body, * * *." Italics supplied.
In Acts 1919, 38th G.A., Ch. 149, section 1 in which the statute was again revised, this part of it was rewritten. The language used was the same as in the part of the statute it superseded, and limited its effect to pieces of territory containing four or more sections.
The change relied upon by appellees occurred when the statute, as theretofore amended, was repealed by Acts 1921, 39th *524 G.A., Ch. 175, section 21, which provided in lieu thereof:
"Where, after the formation of a consolidated corporation, one or more parts of the territory of a school township is left outstanding, each piece shall constitute a rural independent school corporation and be organized as such unless two or more contiguous sub-districts are left, * * *."
This language was not changed in the Code of 1924 and was carried through in section 4174 Codes of 1924 to 1939 and in section 276.21 Codes of 1946 and 1950, I.C.A. The legislature in 1915, again in 1917 and a third time in 1919 wrote into this part of the statute the requirement that the territory of a school township left after the formation of a consolidated corporation must contain four or more government sections for it to become a rural independent school corporation. In 1921 the legislature omitted this requirement that such territory contain four or more government sections and no subsequent legislature replaced it.
From the legislative history of this statute it appears this omission must have been made deliberately. Appellants argue that, because of the four section limitation in the last preceding Code section (later section 276.20 Code of 1950, I.C.A.) the legislature must have considered it unnecessary to retain a like provision in what was later section 276.21 Code of 1950, I.C.A. Although this argument has considerable force it overlooks the fact that two legislatures, the 37th and 38th, rewrote the statute and included both provisions. Hence, it may be fairly presumed that neither these legislatures nor 39th G. A. which omitted the four section requirement from the "Organization of remaining territory" statute, considered the two provisions covered the same ground. Moreover, in the case at bar the two sub-districts of Delaware Township School District were so far apart that they did not strictly comply with the requirement of section 276.20 and previous statutes that they "be so situated as to form a suitable corporation." They were merely the remaining fragments of the school corporation which had formerly consisted of the entire civil township.
Appellants state that, under the statutes in effect at the time of the Saydel consolidation, the situation of these two Delaware township sub-districts was such "that they could not legally be included as a part of some consolidated school district." Were this statement correct the statutes in question would have deprived sub-districts thus situated of the right to become parts of a consolidated district, not because of any act of such sub-districts but because of the formation of other school districts which took away all parts of the school district except the isolated sub-district in question. We do not believe the legislature intended that the statutes be interpreted as contended by appellants.
An opinion of the attorney general at page 81 of the report of that officer for 1952, relates to the consolidation here involved. It concludes that of two noncontiguous sub-districts, each containing less than four sections, one can be consolidated with another area as a part of a consolidated district without including the other, under section 276.21 Code of 1950, I.C.A. Although not binding upon the court this opinion is entitled to respectful consideration. It appears to be correct. We agree with the conclusion of the distinguished trial court that the four section limitation in section 276.20 Code of 1950, I.C.A., did not invalidate the establishment of Consolidated Independent School District of Saydel with its boundaries fixed as herein stated to include Delaware subdistrict No. 3, and that upon such establishment Delaware sub-district No. 5 became a rural independent school corporation under the provisions of section 276.21 Code of 1950, I.C.A.
II. The second proposition relied upon for reversal is:
"The Saydel election was illegal because the provisions of Chapter 276, Code of Iowa, requiring a separate vote in urban territory and requiring that said election *525 carry by a majority of votes in both urban and rural territory were violated."
This proposition is broader than relators' pleadings. The pleadings alleged only that within the boundaries of the consolidated district was the village of Norwoodville or Norwood, which contained more than two hundred population and that contrary to Code section 276.13, I.C.A., the special election did not provide for a separate vote in that village and no separate vote was taken. Code section 276.13, I.C.A., provided:
"When it is proposed to include in such district a school corporation containing a city, town, or village with a population of two hundred or more inhabitants, the voters residing upon the territory outside the limits of such school corporation shall vote separately upon the proposition to create such new corporation."
In support of their contention appellants cite Haines v. Board of Directors, etc., 184 Iowa 401, 405, 164 N.W. 887, 167 N.W. 192. The statute in question in that case, and also in State ex rel. Beu v. Lockwood, 181 Iowa 1233, 1238, 165 N.W. 330, and in State ex rel. Thompson v. Booth, 169 Iowa 143, 145, 149 N.W. 244, 151 N.W. 56, was section 2794-a Code Supplement 1913, Ch. 143, 34th G.A. It required that voters residing outside the village vote separately. The statute here involved was section 276.13 Code of 1950, I.C.A. It required only that voters residing outside the limits of the school corporation which contained the village, vote separately. The record here shows a separate ballot box was provided in and for the school district in which the village in question was situated, as well as in each of the other school districts. Although this would not have constituted compliance with the earlier statute, it did comply with section 276.13 Code of 1950, I.C.A., which required only that residents of the school district containing the village vote separately from residents of the other school districts. Hence, there was no factual basis for the claimed violation of this statute. However, appellants now charge the balloting and counting did not comply with other sections of Chapter 276. This contention was not pleaded nor raised in the trial court and will not be considered upon appeal.
We hold neither proposition presented by appellants is sufficient to invalidate the organization of the consolidated district. It may be noted that Chapters 275, 276, and certain sections of Chapter 274, Code of 1950, were repealed by Acts 1953, 55th G. A., Ch. 117, I.C.A. § 275.1 et seq., and notes.
Affirmed.
GARFIELD, SMITH, WENNERSTRUM, MULRONEY, BLISS and THOMPSON, JJ., concur.
HAYS, C. J., dissents to Division I and would reverse.
LARSON, J., takes no part.
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296 So.2d 712 (1974)
STATE of Alabama
v.
Hugh GARRIS et al.
SC 628.
Supreme Court of Alabama.
June 20, 1974.
*713 McCorquodale & McCorquodale, Jackson, for the State.
Edward P. Turner, Jr., Chatom, and Adams, Gillmore & Adams, Grove Hill, for appellees.
FAULKNER, Justice.
The State of Alabama appeals from a judgment of the Circuit Court of Washington County, entered in a highway condemnation suit.
The commissioners appointed by the Probate Court fixed the compensation at $33,797.00. The State appealed to the Circuit Court, demanding a trial by jury. The jury fixed the compensation at $40,000.00.
During the Circuit Court proceedings, both sides stipulated the necessity of acquiring the property. The only issue before the Circuit Court was the amount of compensation owed to the landowner for the taking of his property.
The appeal to this court is predicated upon one assignment of error involving the overruling of an objection to a question propounded to a witness for Garris. The other assignment of error was waived by the State. For reasons stated the judgment of the Circuit Court is affirmed.
During the trial a witness for the State gave testimony concerning prices paid for land in two earlier private sales of supposedly comparable tracts in the same vicinity. Such evidence is admissible provided the tracts are of the same quality and kind, in the same locality, and the sale is not too remote in time to provide a valid comparison, and was voluntarily made. This is called the "Massachusetts" rule *714 which has been adopted in this State. State v. Boyd, 271 Ala. 584, 126 So.2d 225 (1960); Southern Electric Generating Company v. Leibacher, 269 Ala. 9, 110 So. 2d 308 (1959). When Garris presented his evidence in the case, he put on a witness who testified to a third private sale of a comparable nature which "was about four years ago." This witness had, in fact, been the vendee in one of the earlier sales testified to by the witness for the State. The third sale involved a part of one of the parcels of land discussed by the State's witness. It was during the questioning of the witness for Garris that the alleged error was committed.
"Q. Well, now, would you tell the jury what you paid Porter McKenzie for that piece of property?
"MR. McCORQUODALE: Judge, I object on the ground it is not a comparable sale . . .
"JUDGE LINDSEY: Overrule the objection.
"MR. McCORQUODALE: Except.
"Q. What did you pay Porter McKenzie for that less than an acre that you were talking about, the first purchase?
"A. Twenty-three hundred dollars.
"Q. Twenty-three hundred dollars?
"A. Right."
This court has said on numerous occasions that when one side objects to a question, and the court rules on the objection, and the question is asked again in a slightly different manner, an objection must be made again or it is waived. Pardue v. Citizens Bank & Trust Company, 287 Ala. 50, 247 So.2d 368 (1971); Madison Highlands Development Company v. Hall, 283 Ala. 333, 216 So.2d 724 (1968); State v. Hodge, 280 Ala. 422, 194 So.2d 827 (1967); Southern Electric Generating Company v. Leibacher, supra. In Madison a witness was asked a question to which respondent objected. The objection was overruled and the question was never answered. A similar question was then asked, but no objection was made. This court held there was no error in overruling the objection, because any error in asking the question was harmless since it was never answered. Failure to object to the second question or answer constituted a waiver. The scenario here mirrors that in Madison. Failure to object to the second question constituted a waiver.
This court is of the opinion that the ruling by the trial court had no adverse effect on the State's case. The testimony of the witness for Garris tended to support the lowest valuation placed on the land by any previous witness from either side. A witness for the State placed a value of $2,500 per acre for the condemned property after taking all factors into consideration. Obviously, the jury did not consider the testimony of the Garris witness who testified as to the third "comparable sale," or they would have come in with a lower award if based on the various prices discussed by the witnesses. It appears the State is trying to "burn the candle at both ends." Rule 45, Rules of Supreme Court, provides that there can be no reversal unless ". . . it should appear that the error complained of has probably injuriously affected substantial rights of the parties." Cf. Blackwell v. Sewall, 280 Ala. 359, 194 So.2d 519 (1967); State v. Hodge, supra; Occidental Life Insurance Company v. Nichols, 266 Ala. 521, 97 So.2d 879 (1957).
Affirmed.
MERRILL, HARWOOD and McCALL, JJ., concur.
HEFLIN, C. J., concurs in the result.
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612 F.2d 363
MISSOURI PUBLIC SERVICE COMPANY, Appellant,v.HENNINGSEN STEEL PRODUCTS CO., INC., Appellee.
No. 79-1271.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 5, 1979.Decided Jan. 3, 1980.
Harry P. Thomson, Jr. and Thomas G. Kokoruda, Shughart, Thomson & Kilroy, Kansas City, Mo., and Judith P. Rea, Missouri Public Service Co., Kansas City, Mo., for appellant.
Clyde G. Meise, and Mark A. Thornhill, Meise, Cope & Coen, Kansas City, Mo., for appellee.
Before LAY, BRIGHT and McMILLIAN, Circuit Judges.
BRIGHT, Circuit Judge.
1
Missouri Public Service Company (MPS), plaintiff-appellant, brought this separate action for indemnity or contribution against Henningsen Steel Products Company (Henningsen), defendant-appellee, in state court. The case was removed to federal court and then dismissed on Henningsen's motion. MSP brings this appeal. We affirm.
2
I. Factual and Procedural Background.
3
MPS commenced the present suit seeking indemnity or contribution from Henningsen for potential MPS liability as a defendant in another lawsuit brought against MPS (and others) by one Donald Conlon. Donald Conlon had sustained severe burns when his body came into contact with an MPS high voltage wire located near the construction site where he was working. In the underlying lawsuit, Conlon had sued MPS and the owner of the building on the site, Royal Industries, Inc., in federal district court.
4
At the time of the accident, Conlon was working for Henningsen, an Iowa contractor. Conlon resided in Iowa and claimed workmen's compensation benefits against Henningsen under Iowa law.1 Henningsen's workmen's compensation insurer has commenced benefit payments pursuant to Iowa law.
5
Iowa workmen's compensation law limits an injured employee's recovery against his employer to workmen's compensation benefits. Iowa Code Ann. § 85.3(1) (West Supp.1979). Iowa does, however, permit an employee to bring action against third party tortfeasors; Iowa law subrogates the employer to the rights of the employee to the extent of the employer's benefit payments. Iowa Code Ann. § 85.22 (West Supp.1979). Missouri similarly limits recovery against employers, allows suits against third parties, and subrogates employers to employee rights to the extent of benefit payments. See Mo.Ann.Stat. §§ 287.120 (Vernon Supp.1979), 287.150 (Vernon 1965).
6
MPS, as defendant in Conlon's federal court suit to recover damages for his injuries, filed a third party complaint against the employer, Henningsen. MPS sought indemnity from Henningsen on two theories:
7
1) Any liability incurred by MPS would be the result of a breach of Henningsen's duty to advise MPS that it was constructing a building addition in close proximity to MPS's power lines.
8
2) Any negligence on the part of MPS was passive, whereas Henningsen's actions must be construed as active negligence that of creating a dangerous condition.
9
Henningsen filed a motion to dismiss the third party complaint, asserting that Iowa Code Ann. § 85.3 bars all third party actions for indemnification where the employer-third party defendant has paid workmen's compensation benefits. MPS opposed that motion, contending that Missouri law controls and that Missouri law authorizes a passively negligent party to be indemnified by an actively negligent employer. Alternatively, MPS argued that if the Missouri statute bars the claim, that statutory bar is unconstitutional. MPS also made similar arguments under the Iowa law.
10
The issues thus framed came before the District Court for the Western District of Missouri (Judge Elmo B. Hunter). Judge Hunter treated Henningsen's motion as one for summary judgment; hence, he considered affidavits, depositions and other matters outside the pleadings. Judge Hunter determined that Iowa law governed the right of MPS to assert a third party claim against Henningsen and held that Iowa law does not permit indemnity on a theory of active versus passive negligence.2 Although Iowa law recognizes a right to indemnity arising out of an independent duty owed by an employer to a defendant (such as MPS), Judge Hunter determined that no such independent duty appeared from the pleadings and records in this case. Judge Hunter further observed:
11
In order for an independent duty to establish a basis for indemnity against an employer providing benefits under the Iowa Workmen's Compensation Act, the duty must be of a specific, defined nature. Hysell v. Iowa Public Service Co., supra, (8th Cir.) 534 F.2d (775) at 782; see Western Cas. & Sur. Co. v. Grolier, Inc., supra (8th Cir., 501 F.2d 434). Under the facts of this case, where there was no agreement, express or implied, requiring Henningsen to inform MPS of the construction, and no relationship between Henningsen and MPS from which a duty to indemnify might arise, Henningsen owed MPS only the general duty that every member of society owes to every other member the duty not to harm him through tortious acts. "Such a general duty does not support a right of indemnity in a case where the would-be indemnitor is an 'employer' covered by the Workmen's Compensation Law." Western Cas. & Sur. Co. v. Grolier, Inc., supra, 501 F.2d at 438.
12
Thus, under Iowa law and the facts presented herein, MPS has no right of action for indemnity against Henningsen.
13
Judge Hunter also ruled against MPS on its constitutional claim that the Iowa statute violates due process and equal protection rights of MPS. Based on his reading of Blackford v. Sioux City Dressed Pork, Inc., 254 Iowa 845, 118 N.W.2d 559 (1962), and Iowa Power & Light Co. v. Abild, 259 Iowa 314, 144 N.W.2d 303 (1966), Judge Hunter concluded that Iowa law does not unreasonably restrict indemnity actions against employers and "(t)he fact that Iowa law does not provide a right of indemnity in situations of active-passive negligence does not render (Iowa Code Ann.) § 85.1 Et seq. unconstitutional."
14
Accordingly, Judge Hunter ruled that MPS could not press its indemnity claim under Iowa law and dismissed MPS's third party action against Henningsen. Judge Hunter's interlocutory order could not be appealed, as Judge Hunter declined to issue a certificate permitting an appeal under 28 U.S.C. § 1292(b).
15
MPS thereafter sought an alternative avenue of relief for its indemnity-contribution claim against Henningsen by instituting the instant separate action for indemnity in a Missouri state court. Henningsen removed the case to federal court and moved for dismissal of the action. That motion and other matters came before Judge William R. Collinson. Although the issues on Henningsen's motion for dismissal were the same as those on the prior motion before Judge Hunter, MPS reiterated its contention that Missouri law governed the controversy and added that a recently announced decision of the Missouri Supreme Court, Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo.Sup.Ct.1978) (En banc ), permitted the third party action.
16
Judge Collinson disagreed and in an unpublished opinion reasoned as follows:
17
MPS does not contend that the issues in this separate action against Henningsen are in any way different from the issues in its third-party claim which was previously dismissed. Its contention is that Missouri law governs the controversy and that under the principles set forth in Whitehead & Kales it is entitled to assert a claim for non-contractual indemnity against Henningsen. Assuming without deciding that Missouri law governs the presented issues, the Court holds that there is no legal basis for MPS' claim and, accordingly, Henningsen's motion for summary judgment will be granted.
18
It is undisputed that Henningsen, as plaintiff Conlon's employer, has made premium payments to a workman's compensation insurance carrier. The insurer made certain payments to plaintiff Conlon on behalf of Henningsen. The Court holds that these payments discharge any liability of Henningsen based on Conlon's injuries in the absence of an independent duty, such as an express or implied contractual obligation. No such duty has been alleged or shown to exist in this case.
19
Prior to Whitehead & Kales, an employer could not be joined as a third-party defendant in an action against a putative tortfeasor, in the absence of the breach of an independent duty, when the employer had complied with the relevant provisions of the Missouri Workman's Compensation Act. Kansas City Southern Ry. v. Payway Feeds, 338 S.W.2d 1 (Mo.1960). In McDonnell Air Corp. v. Hartman-Hanks-Walsh P. Co., 323 S.W.2d 788 (Mo.1959), defendants sought to assert a third-party claim against an employer who had complied with its obligations under the Workman's Compensation Act. In denying the right to assert such a claim, the court stated: "We think the language of Sec. 287.120(1), 'shall be released from all other liability Therefor whatsoever,' means all other liability 'for personal injury or death of the employee. . . .' " Id. at 796. The court went on to find an express contract for indemnity and permitted joinder of the employer, but clearly stated that joinder would be inappropriate in the absence of such a finding.
20
The Court is convinced that the McDonnell dicta was not changed by Whitehead & Kales. The Missouri Supreme Court clearly did not intend to overrule or in any way modify the principles set forth in McDonnell since the latter case was cited with approval in the Whitehead & Kales opinion. Missouri Pacific Railroad Co. v. Whitehead & Kales Co., supra at 470. Furthermore, these principles have been applied in analogous situations in cases subsequent to McDonnell. See, E. g., State ex rel. Laclede Gas Company v. Godfrey, 468 S.W.2d 693, 699 (Mo.App.1971).
21
Accordingly, Judge Collinson ordered that a final judgment be entered dismissing the MPS suit for contribution or indemnity. MPS brought this appeal from the judgment, pressing arguments similar to those presented to Judges Hunter and Collinson. On appeal, MPS maintains the following:
22
1) That the record raises at least a question of fact as to whether Henningsen breached an independent duty giving rise to an action for indemnity.
23
2) That any interpretation of workmen's compensation laws which bars the indemnity action is unconstitutional.
24
3) That Missouri law controls and under Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo.Sup.Ct.1978) (En banc ), MPS may claim partial or total indemnity.
25
We reject these contentions for reasons set forth below. We deal with these three issues in inverse order.
26
II. Analysis.
27
A. Indemnity, Total or Partial, Under Missouri Law.
28
Whitehead & Kales, cited by appellant, does not apply. The Missouri Supreme Court has recently made it clear that Whitehead & Kales does not authorize a defendant, in a suit brought by one who was injured in the course of employment, to seek contribution or indemnity from the plaintiff's employer. Missouri ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferris, 588 S.W.2d 489 (Mo.Sup.Ct.1979) (En banc ). The Missouri Supreme Court said on this issue:
29
The statute, supra, is clear and unambiguous. It operates to release the employer from all other liability. In McDonnell Air Corp. v. Hartman-Hanks-Walsh P. Co., 323 S.W.2d 788 (Mo.1959), the court allowed the non-employer defendant to maintain an indemnity action against the employer of the injured employee but only on the basis that the employer defendant (Hartman) had breached a duty it expressly agreed (contracted) to perform with the non-employer (McDonnell). The rationale of the McDonnell case, Supra, supports the conclusion that, aside from the exception noted therein, the employer is not liable to the non-employer defendant for any sums that non-employer party is liable for to the injured plaintiff-employee in tort. (Id. at 490.)
30
The Missouri Supreme Court, relying on Seaboard Coast Line R. Co. v. Smith, 359 So.2d 427 (Fla.1978), also rejected the constitutional due process challenge to section 287.120.1, Mo.Rev.Stat.1978, the provision of Missouri law which immunizes an employer from third party liability apart from contractual indemnity.
31
The Ferris case, Supra, is dispositive of MPS's claims for contribution or indemnity against Henningsen under Missouri law. Accordingly, Judge Collinson did not err in dismissing these claims under Missouri law.
32
B. Indemnity Under Iowa Law.
33
Similarly, we conclude that, for the reasons adduced by Judge Hunter in his unpublished order of April 10, 1978, as amended April 25, 1978, MPS could not recover contribution or indemnity from Henningsen under Iowa negligence principles.
34
C. Independent Duty.
35
Finally, we have reviewed the pleadings and record. We agree with the determination of both district judges that the pleadings and record unequivocally show no independent duty, such as an express or implied contractual obligation, that would give rise to a right of indemnity under either Iowa law (as decided by Judge Hunter) or under Missouri law (as decided by Judge Collinson).
36
Accordingly, we affirm the judgment dismissing MPS's complaint seeking contribution or indemnity against Henningsen.
1
Alternatively, Conlon could have claimed benefits under similar statutes in Missouri, the place of the accident. See Mo.Ann.Stat. § 287.110 (Vernon Supp.1979)
2
See Iowa Power & Light Co. v. Abild Construction Co., 259 Iowa 314, 144 N.W.2d 303 (1966)
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97 Mich. App. 416 (1980)
296 N.W.2d 49
PEOPLE
v.
TRUPIANO
Docket No. 47346.
Michigan Court of Appeals.
Decided May 6, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Robert F. Davisson, Assistant Prosecuting Attorney, for the people.
Paul G. Valentino, J.D., P.C. (by Larry A. Smith), for defendant on appeal.
Before: D.C. RILEY, P.J., and R.B. BURNS and N.J. KAUFMAN, JJ.
PER CURIAM.
Defendant pled guilty to delivery of between 50 and 225 grams of cocaine in violation of MCL 333.7401; MSA 14.15(7401). He was sentenced to 10 to 20 years imprisonment, with a two day credit for time previously served. From this conviction and sentence, defendant appeals as of right under GCR 1963, 806.1.
Defendant raises three claims of error which we shall address seriatim. First, defendant contends that the statute under which he was convicted violates the title-object clause of Const 1963, art 4, § 24.
The title-object clause provides in pertinent part:
*418 "No law shall embrace more than one object, which shall be expressed in its title."
In Bragg v Kalamazoo, 86 Mich App 700, 702; 273 NW2d 530 (1978), this Court analyzed the title-object clause thusly:
"The purpose of the title-object clause is to assure fair notice to legislators and the public of a statute's content and to prevent deceit and subterfuge. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 465; 208 NW2d 469 (1973). In effectuating these purposes, courts must construe an act's title reasonably, not in a narrow and technical sense."
In accord: People v Sharif, 87 Mich App 196, 199; 274 NW2d 17 (1978), wherein it is stated that a statute is "presumptively constitutional".
The title-object clause embodies two separate concepts, each of which is a prerequisite to statutory validity. As stated in Advisory Opinion on Constitutionality of 1975 PA 227, 396 Mich 123, 128; 240 NW2d 193 (1976), these concepts are:
"1. That the law shall not embrace more than one object and
"2. That the object which the law embraced shall be expressed in its title."
With this as background, then, we shall examine the Public Health Code and the statutory section under which defendant was convicted.
The Public Health Code indicates that it is:
"AN ACT to protect and promote the public health; to codify, revise, consolidate, classify, and add to the laws relating to public health; to provide for the prevention and control of diseases and disabilities; to provide for the classification, administration, regulation, *419 financing, and maintenance of personal, environmental, and other health services and activities; to create or continue, and prescribe the powers and duties of, departments, boards, commissions, councils, committees, task forces, and other agencies; to prescribe the powers and duties of governmental entities and officials; to regulate occupations, facilities, and agencies affecting the public health; to promote the efficient and economical delivery of health care services, to provide for the appropriate utilization of health care facilities and services and to provide for the closure of hospitals or consolidation of hospitals or services; to provide for the collection and use of data and information; to provide for the transfer of property; to provide certain immunity from liability; to provide for penalties and remedies; and to repeal certain acts and parts of acts."
The statutory portion of the Public Health Code under which defendant was convicted, MCL 333.7401; MSA 14.15(7401), provides in pertinent part:
"(1) Except as authorized by this article, a person shall not manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. A practitioner licensed by the administrator under this article shall not dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner, licensee, or applicant.
"(2) A person who violates this section as to:
"(a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv) and:
* * *
"(iii) Which is in an amount of 50 grams or more, but less than 225 grams, of any mixture containing that substance is guilty of a felony and shall be either imprisoned for not less than 10 years nor more than 20 years or placed on probation for life."
*420 The first concept to be addressed is whether or not the Public Health Code embraces more than one object. The Supreme Court has recognized a wide degree of discretion in reviewing legislative enactments which constitute a "code". In Advisory Opinion re Constitutionality of 1972 PA 294, supra, the Court noted at 463:
"Emphasis is given to the fact that the subject matter constitutes a code and that inherently the scope of a code must be broad enough to encompass the various facets necessary to the drafting of a unified law. If we fail to permit such a design codes may not be enacted in Michigan so long as the `one-object' limitation is present in the constitution."
In view of the foregoing, we conclude that the body of the Public Health Code does not violate the one-object doctrine. The act's reference to the protection and promotion of the public health as its purpose necessarily includes proscriptions and penalties on the use of controlled substances. Conversely, we find that the object embraced by the statute under which defendant was convicted is expressed in the title clause of the Public Health Code.
In his second allegation of error, defendant contends that the trial court improperly relied upon a prior constitutionally infirm juvenile drug conviction to enhance his sentence. The constitutional infirmity of this prior conviction, according to defendant, is that it was obtained without affording defendant his right to counsel under Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799; 93 ALR2d 733 (1963). Defendant cites United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972), and People v Moore, 391 Mich 426; 216 NW2d 770 (1974), for the proposition that such *421 a conviction cannot be used either to support guilt or to enhance punishment for a subsequent offense.
In People v Moore, supra, at 440, the Supreme Court stated:
"The rule which we glean from what the United States Supreme Court did in Tucker is that where the record shows that the sentencing judge considered a conviction invalid under Gideon an appellate court will remand for resentencing."
In accord: People v Watroba, 89 Mich App 718, 723; 282 NW2d 196 (1979).
We have reviewed the sentencing transcript and found no mention of defendant's juvenile drug conviction. Moreover, additional review of the transcript of defendant's motion to withdraw his plea or set aside his conviction suggests no specific consideration of defendant's juvenile conviction by the trial court. Therefore, we find defendant's allegation to be without support.
Defendant's third and final claim of error is that he was denied effective assistance of counsel in that defense counsel did not lodge objections to the aforementioned errors as they occurred. In view of the fact that we have already concluded that defendant's first two allegations of error were unfounded, we find that defense counsel's inaction did not constitute ineffective assistance.
Affirmed.
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Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 12, 2019
The Court of Appeals hereby passes the following order:
A20A0132. BOBBY RAY DYER v. THE STATE.
Bobby Ray Dyer filed a petition for expungement of his arrest record and
motion to proceed in forma pauperis, which the trial court denied on June 14, 2019.
Dyer filed this direct appeal on July 25, 2019. We, however, lack jurisdiction.
A notice of appeal must be filed within 30 days after the entry of the trial
court’s order. OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal
is an absolute requirement to confer appellate jurisdiction on this Court. Rowland v.
State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Dyer’s notice of appeal, filed 41
days after entry of the order he wishes to appeal, was untimely. Accordingly, this
appeal is hereby DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/12/2019
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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570 So.2d 1006 (1990)
METROPOLITAN DADE COUNTY, Etc., et al., Appellants,
v.
FONTAINEBLEAU GAS & WASH, INC., Etc., et al., Appellees.
No. 90-1802.
District Court of Appeal of Florida, Third District.
October 9, 1990.
Rehearing Denied January 3, 1991.
Robert A. Ginsburg, County Atty., and Craig H. Coller, Asst. County Atty., John G. Fletcher, South Miami, for appellants.
Fine, Jacobson, Schwartz, Nash, Block & England and Gary S. Brooks, Miami, for appellees.
Before NESBITT, BASKIN and GODERICH, JJ.
NESBITT, Judge.
Metropolitan Dade County seeks reversal of the trial court's decision to enter a temporary injunction against the county. We reverse upon the following analysis.
In 1975, Trafalgar Developers filed an application with the county requesting a change in zoning from RU-5A Semi-professional Office to BU-1A Limited Business *1007 and a variance of zoning regulations pertaining to a wall requirement as to a parcel of land in Dade County. In the letter of intent accompanying the application, Trafalgar's lawyer indicated that the company would voluntarily offer a written covenant restricting use of the property to a bank or savings and loan. The county commission rezoned the subject property. A preamble to the zoning resolution clearly expressed that the county commission granted rezoning only for a bank or savings and loan and accepted the property owner's offer of a restrictive covenant and the county's option to enforce this restriction. No such restrictive covenant was ever recorded. Fifteen years and several owners later, appellees purchased the property, successfully sought all the necessary permits, and constructed a gas station. When construction was almost complete, the illegal use of the property was discovered. The county issued a stop work order. The present owners sought injunctive relief which was thereafter granted. The county then filed this appeal.
At the outset we observe that the county commission has entertained this matter and determined it would devote all its resources to stopping the gas station's construction. Therefore, the futility of requiring any further administrative action is apparent. See City of Miami Beach v. Sunset Islands 3 & 4 Property Owners Ass'n, Inc., 216 So.2d 509 (Fla. 3d DCA 1968); Cook v. Di Domenico, 135 So.2d 245 (Fla. 3d DCA 1961).
Owners are deemed to purchase property with constructive knowledge of applicable land use regulations. Namon v. Dept. of Environmental Regulation, 558 So.2d 504, 505 (Fla. 3d DCA 1990), review denied, 564 So.2d 1086 (Fla. 1990). See Allstate Mortgage Corp. of Florida v. City of Miami Beach, 308 So.2d 629 (Fla. 3d DCA), cert. denied, 317 So.2d 763 (Fla. 1975), citing McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 831 (1926). The Dade County Code contains clear provisions of which all property owners are on notice. The code creates various zoning categories, including the BU-1A, Limited Business District, section 33-246 Dade County Code, which is the basic set of regulations applicable to the subject property. If unrestricted, this category would permit a gas station on the subject property. Additionally, however, are the sections providing for further restrictions as to specific properties. Thus section 33-33 of the code provides that applications "may be granted subject to all reasonable restrictions and conditions deemed necessary... ." This power to subject property to further restriction is emphasized in section 33-315 of the code where the board of county commissioners is authorized to "take final action upon any and all matters and requests contained in the application... ." This section further provides that when final action has been taken by the board:
its record, together with a certified copy of its minutes and resolution pertaining to such action shall be transmitted to the Department for filing, and the same shall be open to the public... .
The application that was under consideration by the board when it enacted Resolution No. Z-93-75 was solely for the explicit use of the property as a bank or savings and loan. The county acted on that specific matter before it and approved, by resolution, the property's use as a bank or savings and loan. Pursuant to section 33-315 of the code, this resolution became part of the public record. Such a restriction on the property's use which was made in the public interest became binding upon the property. Walberg v. Metropolitan Dade County, 296 So.2d 509 (Fla. 3d DCA 1974).
Code section 33-3 provides for zoning maps to be kept in the Building and Zoning Department and for all modifications to be shown on these maps. Section 33-305 provides the board shall by resolution adopt, approve, and ratify the maps as originally adopted and as modified, amended, and changed by subsequent resolutions and also provides that the director shall maintain these maps.
Thus the public is on notice that the county applies the basic code provisions by resolution; that these resolutions which are *1008 passed subsequent to public hearing can modify districts and restrict property use; and that the rights of property owners can thus be limited. Anyone attempting to learn what, if any, use limitations apply to his property need only turn to the applicable resolution. The zoning map in the instant case contained a clear reference directing the reader's attention to Resolution Z-93-75.
Finally, since the property owners were bound by law to be on notice of the provisions of Section 33, they cannot claim detrimental reliance on the permit inadvertently issued by the county. See Godson v. Town of Surfside, 150 Fla. 614, 8 So.2d 497 (Fla. 1942). Resolution Z-93-75 demonstrates on its face that construction of a gas station would be illegal and that the property is limited to use as a bank or savings and loan. Therefore, while building permits were subsequently issued by government officials, estoppel will not lie for prohibited acts. Dade County v. Gayer, 388 So.2d 1292 (Fla. 3d DCA 1980), review denied, 397 So.2d 777 (Fla. 1981); see Greenhut Constr. Co. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971); City of Miami Beach v. Meiselman, 216 So.2d 774 (Fla. 3d DCA 1968); cert. denied, 225 So.2d 533 (Fla. 1969) (city was not estopped to revoke "roof sign" building permit which was in violation of city ordinance). As pointed out in Gayer, while application of the rule may appear harsh,
it would be inconceivable that public officials could issue a permit, either inadvertently, through error, or intentionally, by design, which would sanction a violation of an ordinance adopted by the legislative hand of the government. Only the duly constituted members of the Metropolitan Dade County Commission enjoy that prerogative and then only in accordance with established procedure.
388 So.2d at 1294.
Accordingly, the temporary injunction is reversed.
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76 So.3d 307 (2011)
TURNER COAST. CO.
v.
E & F CONTRACTORS, INC.
No. 3D11-1905.
District Court of Appeal of Florida, Third District.
November 4, 2011.
DECISION WITHOUT PUBLISHED OPINION
Voluntarily dismissed.
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739 F.Supp.2d 1127 (2010)
UNITED STATES of America, Plaintiff,
v.
Jalal Nimer ASAD, Mohamed Rebhi Qattoum, Imad Ribhi Abdallah, Nader Jamil Qatoum, Rebhi A. Qattoum, Raeda A. Kattom, and Nuha Imad Abdallah, Defendants.
Case No. 09-CR-20017.
United States District Court, C.D. Illinois, Urbana Division.
September 3, 2010.
*1130 Patrick J. Chesley, U.S. Attorney, Springfield, IL, Elham M. Peirson, U.S. Attorney, Urbana, IL, for Plaintiff.
*1131 Steven A. Sutton, Sutton Law Office, Kevin F. Sullivan, Jerry A. Serritella, William R. Kelly, Peoria, IL, Thomas Schanzle-Haskins, Brown Hay & Stephens, Springfield, IL, Elisabeth Pollock, Beckett & Webber PC, John C. Taylor, Federal Public Defender, Urbana, IL, for Defendants.
OPINION
MICHAEL P. McCUSKEY, Chief Judge.
This case is before the court for ruling on Motions to Suppress (# 48, # 76) filed by Defendants Imad Ribhi Abdallah and Mohamed Rebhi Qattoum. This court has carefully considered the evidence presented at the evidentiary hearing and the arguments presented by the parties. Following this court's careful and thorough review, the Motions to Suppress (# 48, # 76) are DENIED.
BACKGROUND
On October 7, 2009, Defendants Jalal Nimer Asad, Mohamed Rebhi Qattoum, Imad Ribhi Abdallah, Nader Jamil Qatoum, Rebhi A. Qattoum, Raeda A. Kattom, and Nuha Imad Abdallah, were charged in a 28-count Second Superseding Indictment (# 52). The seven Defendants were charged with various offenses including: conspiracy to defraud the United States and violate the tax laws, in violation of 18 U.S.C. § 371; tax evasion, in violation of 26 U.S.C. § 7201; signing false corporation income tax returns, in violation of 26 U.S.C. § 7206(1); mail fraud, in violation of 18 U.S.C. § 1341; witness tampering, in violation of 18 U.S.C. § 1512(b); making false statements to obtain health care benefits, in violation of 18 U.S.C. § 1035(a); and making false statements to federal agents, in violation of 18 U.S.C. § 1001(a).
Defendant Imad Ribhi Abdallah (Abdallah) was charged with one count of conspiracy, three counts of tax evasion, four counts of signing a false corporation tax return, six counts of mail fraud, one count of making false statements to obtain health care benefits, and two counts of making false statements to federal agents. Defendant Mohamed Rebhi Qattoum (Qattoum) was charged with one count of conspiracy, five counts of tax evasion, six counts of mail fraud, two counts of witness tampering and one count of making false statements to federal agents.
MOTIONS TO SUPPRESS
On September 9, 2009, Abdallah filed a Motion to Suppress Evidence and Quash Warrant (# 48). On October 2, 2009, Abdallah filed a Memorandum (# 51) in support of his Motion. In his Motion and Memorandum, Abdallah stated that he is "an owner/operator" of Price Rite # 1 Food and Liquor Store (Price Rite) and has standing to challenge the search and seizure of documentary evidence from that location. Abdallah argued that the search warrant authorizing the search of Price Rite was unconstitutionally deficient because it authorized law enforcement personnel to conduct a general search of Price Rite. Abdallah contended that the search warrant was impermissibly overbroad because it should have instructed police officers to seize only those items associated with or indicating activity associated with the illegal possession of cannabis. Abdallah argued that all evidence and fruits of evidence obtained or secured as the result of the search should be suppressed because the search warrant failed to describe with particularity the items to be seized. Abdallah also argued that the search should not be upheld on a "good faith" basis because "law enforcement should not be able to benefit and capitalize by acting upon a general search warrant and seizing evidence wholly unrelated to this cannabis investigation."
*1132 On October 23, 2009, the Government filed a Memorandum in Opposition to the Motion to Suppress Evidence and Quash Warrant (# 59). The Government argued that the documents were properly seized and should not be suppressed. It argued that the search warrant established probable cause to believe that cannabis possession and distribution was taking place at Price Rite and the agents executed the warrant according to the terms of the warrant and complaint. The Government acknowledged that the warrant initially only mentioned evidence related to the offense of possession of cannabis. However, the Government pointed out that the warrant, supported by the information in the complaint, went on to permit the seizure of evidence related to drug trafficking. The Government argued that, since it logically follows that you must possess cannabis to traffic in it, evidence of trafficking is relevant to the possession offense. The Government also contended that Abdallah suffered no harm from any violation of the Fourth Amendment so that suppression would be a disproportionate penalty and further argued that the "good faith" exception applies in this case.
On December 31, 2009, Qattoum filed a Motion to Suppress (# 76) and Memorandum in Support (# 77). Qattoum argued that the search grossly exceeded the scope of the search warrant so that all evidence seized should be suppressed. He also argued that the warrant was "facially invalid" because it lacked probable cause as it failed to include evidence of "drug trafficking by any employee or agent of Price Rite."
On January 29, 2010, the Government filed its Memorandum in Opposition to Qattoum's Motion to Suppress (# 81). The Government first argued that Qattoum, an employee of Price Rite, did not establish that he had a reasonable expectation of privacy both in the documents seized and the premises searched. The Government noted that Qattoum does not claim any ownership interest in Price Rite and Abdallah claims to be the only owner of the business. The Government also noted that, although some of the documents seized belonged to Qattoum, they were not kept private but were found in an unlocked desk in an office/storage area behind the counter in the store where they were available to Abdallah and all other store employees. The Government then argued that, even considering Qattoum's arguments, there is no basis for suppressing the evidence seized during the search of Price Rite. The Government argued that the search warrant was facially valid, as the complaint contained evidence of two drug trafficking transactions that occurred at Price Rite. The Government also argued that the documents were properly seized pursuant to the search warrant.
EVIDENTIARY HEARING
An evidentiary hearing was held on June 11, 2010. The Government called Trevor Stalets, a detective with the City of Decatur Police Department, as its only witness. Stalets testified that, during his 20 years with the police department, he investigated drug cases for approximately 8½ years. Stalets testified that he has been assigned to the Joint Terrorism Task Force with the FBI for approximately seven years.
Stalets testified that, in April 2004, he was involved in a drug-related investigation concerning Price Rite. Stalets testified that he spoke to one source "who indicated that they were present at the store and witnessed an individual conduct two separate transactions within a short period of time where they were distributing small amounts of cannabis." Stalets testified that he spoke to another informant who stated that the informant had been in the store a short time prior to providing the *1133 information and was told that Qattoum, an employee at Price Rite, "would find quantities of cannabis either inside the store or out in the parking lot that he would keep for his personal use."
Stalets testified that, based upon this information, he believed there was probable cause to search Price Rite and prepared a complaint for search warrant and also prepared the search warrant itself. These documents were introduced into evidence at the hearing. In the complaint for search warrant, which he signed under oath, Stalets stated:
2. Your affiant states between the dates of April 27, 2004 and April 30, 2004 he had an occasion to speak with Jane Doe (Assumed Name) concerning a drug investigation. Your affiant states Doe knew the affiant to be a police officer. Your affiant states Doe indicated she had an occasion to be inside the business of Price Rite # 1 Food & Liquor, 1260 North Jasper Street, Decatur, Illinois between the dates of April 27, 2004 and April 30, 2004. Your affiant states Doe indicated during this time, she observed an unknown subject do two separate transactions with two other subjects. Doe explained these transactions were for the sell/purchase of quantities of cannabis. Doe states she knows what cannabis looks and smells like from her previous life experience.
Stalets stated that "Doe is considered a reliable source, who has previously provided law enforcement officials with information on at least five or more different occasions" and that "this information has lead to the convictions of individuals in both state and federal court, and the seizure of illegal drugs, money and weapons."
Stalets also stated in the affidavit:
4. Your affiant states Pat Smith (Assumed Name) has provided affiant with information concerning the employees at Price Rite #1 Food & Liquor, 1260 North Jasper Street, Decatur, Illinois. Your affiant states between April 25, 2004 and April 30, 2004 he met with Smith, who knows the affiant to be a police officer. Your affiant states during this meeting, Smith indicated she knows from frequenting this business, that one of the [employees] is a[ ] user of cannabis. Your affiant states Smith indicated she knows from talking with this employee, who is known by the name of Mohammed Qattoum, that he will find cannabis or other illegal drugs inside the store or in the parking lot of the store and keep them [for] his own personal use. Your affiant states Smith also indicated she knows from being in the store approximately two or three months ago that a handgun is kept at the store for protection.
Stalets stated in the complaint that "Smith is also considered a reliable source who has previously provided information to law enforcement officials that has been corroborated through other sources and other investigative techniques." Stalets stated that the information provided by Smith "has yet to lead to any arrest or convictions in a criminal court, but the investigation is still on-going."
Stalets testified that he contacted one of the assistant state's attorneys in the Macon County State's Attorney's Office and presented the complaint and search warrant he prepared for review. The assistant state's attorney approved the paperwork. On April 30, 2004, Stalets presented the complaint and search warrant to Macon County Judge Thomas Little. Judge Little reviewed the documents prepared by Stalets and then issued the search warrant for the search of Price Rite. The search warrant authorized a search of Price Rite for evidence of the offense of unlawful possession of cannabis *1134 and specifically authorized the seizure of the following items:
1. Any and all Cannabis. 2. Any and all drug paraphernalia associated with drug use or drug trafficking, including firearms and ammunition. 3. Any United States currency associated with drug trafficking. 4. Any and all documents associated with drug trafficking, including but not limited to bank records, electronic records contained in various types of electronic equipment or devices, such as computers, cellular phones, electronic organizer, tax records, etc ... 5. Any and all documents indicating possession or ownership of the premise.
Stalets testified that the search warrant was executed the same day, April 30, 2004. Stalets identified a diagram of the interior of the Price Rite store he had prepared and also identified photographs of the interior of the store. The diagram and photographs were admitted into evidence. Stalets testified that four employees of Price Rite were present at the time of the search, and three of the employees were behind a bullet-proof glass partition where customers could not go. Stalets testified that the officers executing the warrant found cannabis on one of the customers inside the store and found approximately one-half gram of crack cocaine on the person of another customer inside the store. Stalets testified that they seized the drugs and also seized currency found on these two customers. Stalets testified that, underneath the counter where the cash registers were located (behind the bullet-proof glass), they found two handguns, along with assorted ammunition, a box containing postal scales or gram scales and another box containing hundreds of individual Ziploc mini plastic bags. Stalets testified that the Ziploc bags were stapled to a piece of cardboard which listed the size of the mini plastic bags and the cost for the individual bags.
Stalets testified that they also found and seized documents located in an office area at the back of the store. Stalets testified that this area did not have a door, just an opening leading to the room. Stalets testified that the room contained a desk, which was not locked, and a filing cabinet. In addition, merchandise was stored in this room. A restroom for the employees of the store was located off the office area, and employees would have to walk through the office area to get to the restroom. Stalets testified that the desk and filing cabinet contained documents which would probably fill four to five banker's boxes. He testified that they seized a stack of documents from the desk approximately four to five inches in height. Stalets testified that no documents were taken from the file cabinet. Stalets testified that he personally reviewed all of the documents to determine if they were within the scope of the search warrant before they were seized. Stalets testified that he put the term "etc." in the warrant by mistake because the documents encompassed by the search warrant were adequately described by the phrase in the warrant "[a]ny and all documents associated with drug trafficking." The documents seized included:
Spiral-bound notebook.
Steno Pad.
Ayat 1, Inc. state and federal tax returns for 2001, 2002, and 2003.
Sarra, Inc., state and federal tax returns for 2003.
Mohamed and Raeda Qattoum personal tax return for 1999.
Loan documents for the Qattoums at Southside Bank.
Agreement for Deed between Imad Abdallah and Una Mae Eldridge.
Bank document from Morton Community Bank addressed to Abdallah.
Check stubs from check book, some with Arabic notations.
*1135 Bank statements for Ayat 1, Inc.
Correspondence between Michael Owens and Mike Asad re Freedom Oil properties.
Bank statements from Citizens Community Bank for Sarra, Inc. with individual pages with financial ledger written out for Sarra, Inc. Calling card.
3 documents from Arab Jordan Investment Bank indicating check transfers to Abdallah from Sana Aljarkasi.
Real Estate purchase contract for Mohamed and Raeda Qattoum's home in Decatur.
Balance Sheets (total of 5) for Ayat 1, Inc. and Sarra, Inc.
Merchant Services credit card statements for Price Rite.
Confidentiality Agreement between Jalal and Mike Asad and Kwik.
Bank document for Abdallahr-Moath, Inc. in the name Abdallah Kattoum.
Expense invoices/documents/notations for Price Rite, some with Arabic notations.
Two 1099-Int from First Midwest Bank to Wasfia Abdallah.
Tennessee Birth Certificate from Sherri Anita Lake.
Letter from USDA re Food Stamp Program.
During cross examination, Stalets admitted that, as part of his work with the joint task force investigating various crimes related to terrorism, he was working with an individual in investigating Qattoum and some conversations were recorded during the investigation in early 2004. Qattoum introduced into evidence the documents seized during the search and Stalets was asked to review these exhibits. Stalets testified that tax records can be relevant to drug dealing because "some drug dealers have utilized businesses to funnel the, money-launder their illegal proceeds through and potentially use as write-offs for the businesses, showing profits or losses for their businesses...." Stalets testified that the warrant authorized him to collect evidence in a drug trafficking case "to include records that were involved as possible evidence for delivery of cannabis or drug trafficking." Stalets testified that Qattoum and his wife arrived at Price Rite during the search. Stalets stated that Qattoum said he was affiliated with Price Rite. Stalets testified that he was aware that Sarra, Inc. was a corporation formed by Qattoum's wife which basically owned Grand Food & Liquor.
Stalets further testified that, when discussing the information he received from Smith in the complaint for search warrant, he meant that Qattoum found cannabis both inside the store and in the parking lot. Stalets testified that is what he meant when he used the term "or." Stalets testified that the Price Rite was located in the inner city part of Decatur where gangs are present.
During redirect examination, Stalets stated that there were some documents included in the documents seized that were taken mistakenly that had no "evidentiary purpose." Stalets explained that he believed those documents were attached to or stuck to the other documents. Defendants did not present any testimony at the hearing.
Following the hearing, this court set a schedule for the parties to file proposed findings of fact and conclusions of law. On July 2, Abdallah filed his Memorandum: Findings of Fact and Conclusions of Law (# 90) and Qattoum filed his Proposed Findings of Fact and Conclusions of Law (# 91). On July 23, 2010, the Government filed its Proposed Findings of Fact and Conclusions of Law (# 92).
ANALYSIS
This court initially notes that it found Stalets' testimony at the evidentiary hearing *1136 to be credible. This court's ruling is based upon the credible testimony provided by Stalets and the documents introduced into evidence.
QATTOUM'S MOTION TO SUPPRESS
Qattoum has argued that, based upon the evidence presented at the hearing, the evidence seized during the execution of the search warrant should be suppressed. In response to the Government's argument that he does not have standing to challenge the search, Qattoum noted that the complaint prepared by Stalets indicated that Qattoum was an employee at Price Rite. Qattoum also noted that Stalets testified that the documents were found in an area that was not open to the public where only three employees were working at the time of the search. Qattoum argued that this "indicates that the number of people who had access to the area was limited." Qattoum also argued that the office area where the documents were found was "not an area in which all employees would be working in servicing the customers" because the primary function of the business "would be dealing with customers in the area behind the bulletproof glass." Qattoum argued that he had a legitimate expectation of privacy in documents seized from the desk, including his personal papers, based upon Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) and O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987).
The use of "the word `standing' in the context of Fourth Amendment rights" is "shorthand to refer to a defendant's ability to challenge a search or seizure based on a reasonable expectation of privacy in the property." United States v. Crowder, 588 F.3d 929, 934 n. 5 (7th Cir. 2009). A defendant must show that he had a reasonable expectation of privacy because the Fourth Amendment's protection against illegal searches and seizures is "a personal right" that can only be invoked by the individual whose rights are violated. See United States v. Swift, 220 F.3d 502, 510 (7th Cir.2000), quoting Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). Therefore, a "defendant who objects to the search of a particular area bears the burden of proving a legitimate expectation of privacy in the area searched." United States v. Mendoza, 438 F.3d 792, 795 (7th Cir.2006), citing Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); see also United States v. Villegas, 495 F.3d 761, 767 (7th Cir.2007). A defendant must show a privacy interest not only in the seized item, but also in the area where the item was found. Mendoza, 438 F.3d at 795. Therefore, even though some of the documents seized were Qattoum's personal papers, he must show that he had a privacy interest in the office area of Price Rite where the documents were found.
"A reasonable expectation of privacy is present when (1) the defendant exhibits an actual or subjective expectation of privacy, and (2) the expectation is one that society is prepared to recognize as reasonable." United States v. Amaral-Estrada, 509 F.3d 820, 827 (7th Cir.2007) see also United States v. Marrocco, 578 F.3d 627, 631 n. 4 (7th Cir.2009). In determining whether the defendant held a subjective expectation of privacy, the court looks at the defendant's efforts to conceal and keep private that which was the subject of the search. Villegas, 495 F.3d at 767. "To say that society is prepared to recognize an expectation of privacy as reasonable, `recognizes the everyday expectations of privacy that we all share.'" Villegas, 495 F.3d at 767, quoting Minnesota v. Olson, 495 U.S. 91, 98, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). In making this determination, this court must keep in mind that the United States Supreme Court has made clear that "[a]n expectation of privacy *1137 in commercial premises ... is different from, and indeed less than, a similar expectation in an individual's home." Carter, 525 U.S. at 90, 119 S.Ct. 469, quoting New York v. Burger, 482 U.S. 691, 700, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987); see also O'Connor, 480 U.S. at 725, 107 S.Ct. 1492; Lesser v. Espy, 34 F.3d 1301, 1305 (7th Cir.1994).
The cases cited by Qattoum to support his standing to challenge the search hold only that an employee of a business can have a reasonable expectation of privacy under some circumstances. See O'Connor, 480 U.S. at 718-19, 726-28, 107 S.Ct. 1492 (doctor had reasonable expectation of privacy in his desk and file cabinets which were located in his private office; however, question remained whether search by employer was reasonable); Mancusi, 392 U.S. at 368-69, 88 S.Ct. 2120 (union official had standing to challenge seizure of records where he had custody of papers at the moment of their seizure and papers were located in private office he shared with other union officers). In this case, this court concludes that Qattoum has not established that he had a legitimate expectation of privacy in the area searched.
This court concludes that Qattoum did not show that he had an actual or subjective expectation of privacy in the area which was searched. The documents seized were located in an unlocked desk in an office area which did not have a door and through which all employees of the store had to go to reach the rest room. While Qattoum has argued that only three employees were working in the back area of the store at the time of the search, no evidence was presented about the number of employees employed by Price Rite who would have had access to the office area and the documents in the unlocked desk. In any case, at least three employees besides Qattoum had access to the area where the unlocked desk was located, as well as Abdallah, the owner of Price Rite. This court additionally notes that Qattoum presented no evidence that he made any efforts to conceal and keep private the documents which were the subject of the search. As noted, the desk was not locked and was located in an open area accessible to Abdallah and the other employees. Qattoum therefore cannot challenge the search and his Motion to Suppress (# 76) is DENIED.
ABDALLAH'S MOTION TO SUPPRESS
Abdallah has argued that the evidence seized during the search should be suppressed because: (1) the information contained in the complaint for search warrant prepared by Stalets was inconsistent with the confidential information he received and the complaint for search warrant failed to establish probable cause to believe that an employee of Price Rite engaged in the criminal offense of drug trafficking; (2) the search warrant impermissibly permitted law enforcement personnel to conduct a general search; and (3) the "good faith" exception does not apply in this case.
I. VALIDITY OF SEARCH WARRANT
In arguing that the search warrant is invalid, Abdallah has pointed out that Stalets testified that Doe told him the quantities of cannabis were "small," but he failed to put that detail into his complaint for search warrant. Abdallah also pointed out that the complaint for search warrant stated that Smith said that Qattoum would find cannabis in Price Rite's parking lot or store, but Stalets testified that this meant he would find cannabis in both locations. Abdallah also argued that the information Stalets provided in the complaint for search warrant was not adequate to establish probable cause to believe that Qattoum *1138 or anyone else associated with Price Rite was trafficking in illegal drugs.
The Fourth Amendment states that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. Accordingly, a warrant must be issued based upon probable cause. Probable cause is a commonsense, nontechnical inquiry, and an affidavit submitted in support of a search warrant application will be sufficient to support a finding of probable cause if, "based on the totality of the circumstances, the affidavit sets forth sufficient evidence to induce a reasonably prudent person to believe that a search will uncover evidence of a crime." United States v. Dismuke, 593 F.3d 582, 586 (7th Cir.2010), quoting United States v. Peck, 317 F.3d 754, 756 (7th Cir.2003). Moreover, "after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's `determination of probable cause should be paid great deference by reviewing courts.'" Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); see also United States v. Billian, 600 F.3d 791, 792 (7th Cir.2010).
Based upon the applicable standard, this court concludes that the discrepancies relied upon by Abdallah were minor and have no effect on the determination of probable cause. This court concludes that Stalets provided adequate information in the complaint regarding the information provided by the informants, and the basis for believing the information provided to be reliable, to establish probable cause for the issuance of a search warrant allowing a search for evidence of drug possession and trafficking. The Government is correct that it is not important whether the complaint established that an employee or agent of Price Rite was involved in drug trafficking.[1] "The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific `things' to be searched for and seized are located on the property to which entry is sought." Wyoming v. Houghton, 526 U.S. 295, 302, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). In this case, the complaint contained information regarding two drug trafficking transactions that occurred at Price Rite as well as information regarding possession of cannabis by Qattoum, an employee of Price Rite. This court therefore concludes that the information included in the complaint was adequate to establish probable cause to believe that evidence of cannabis possession and trafficking were located at Price Rite.
Abdallah also argued that the scope and breadth of the search warrant far exceeded the probable cause to support it. Abdallah argued that the information Stalets included in the complaint did not even suggest that documentary evidence of drug usage or trafficking even existed or would be located within Price Rite.
This court agrees with the Government, however, that it is common for persons involved in drug transactions to maintain records of such transactions and it is common to include in drug investigation search warrants a request to seize *1139 documents and records of drug trafficking or transactions. See United States v. Orozco, 576 F.3d 745, 748-49 (7th Cir.2009). The Government has also argued, citing case law from other jurisdictions, that tax records or business documents showing the amount of money reported by a business to the IRS is relevant in establishing the extent of drug trafficking conducted at the business. See United States v. Vigneau, 337 F.3d 62, 66 (1st Cir.2003) (at the defendant's trial, where he was convicted of conspiracy to distribute marijuana, the Government's evidence included a drug ledger and tax records establishing a lack of other income); United States v. Walser, 275 F.3d 981, 983-94 (10th Cir.2001) (in drug investigation, the search warrant provided for seizure of tax returns). In addition, the Government argued that the records seized were relevant to show Abdallah's and Qattoum's connection to the store.
In its Memorandum in Opposition to the Motion to Suppress Evidence and Quash Warrant (# 59), the Government stated that the only documents seized which it intends to introduce into evidence at trial are: (1) the steno pad and spiral-bound notebook, both of which appeared to be business ledgers and contained writings in Arabic; (2) tax returns for Ayat 1, Inc., Sarra, Inc., and the 1999 tax return for Mohamed and Raeda Qattoum; and (3) the loan documents for the Qattoums at Southside Bank. The Government stated that the steno pad and notebook were seized as "documents associated with drug trafficking," noting that the notebook included a column that contained "other income." The Government stated that the tax returns and loan documents were seized as "tax records" and records "indicating possession or ownership of the premise."
This court agrees with the Government that the seizure of the documents the Government intends to introduce as evidence did not exceed the scope of the warrant. This court further agrees that the fact that a small number of documents were seized that were not covered by the warrant does not require the suppression of items properly seized pursuant to the warrant. See United States v. Hargus, 128 F.3d 1358, 1363 (10th Cir.1997); cf. United States v. Medlin, 842 F.2d 1194, 1196-98 (10th Cir.1988) (court found district court properly suppressed evidence where deputy seized 667 items of property related to state offenses, none of which were identified in the warrant authorizing the search). This court therefore concludes that suppression of the evidence is not warranted based upon Abdallah's arguments attacking the validity and scope of the warrant.
II. PARTICULARITY REQUIREMENT
Abdallah has also argued that the description of the items to be seized was too broad and allowed an impermissible general search of Price Rite for items which had no possible relevance to the crime of drug possession. Abdallah has specifically focused on the inclusion of "tax records, etc." in the list of items to be seized. Abdallah argued that this item does not relate to the possession of cannabis and is "a vague description capable of various interpretations."
A warrant's description of the items to be seized must be specific enough to allow the officers executing the warrant to identify the things to be seized with reasonable certainty. See Russell v. Harms, 397 F.3d 458, 464 (7th Cir.2005). It is not necessary that such description be "elaborately detailed," Russell, 397 F.3d at 464, United States v. Somers, 950 F.2d 1279, 1285 (7th Cir.1991), or that it "minutely identify" every item to be seized, United States v. Prewitt, 553 F.2d 1082, *1140 1086 (7th Cir.1977). It must be as specific as the circumstances and the nature of the activity under investigation permit. United States v. Shoffner, 826 F.2d 619, 630-31 (7th Cir.1987). The inquiry is whether an officer executing the warrant would reasonably know what items are to be seized. United States v. Hall, 142 F.3d 988, 996 (7th Cir.1998).
"The requirement of particular description is conventionally explained as being intended to protect against `general, exploratory rummaging in a person's belongings.'" United States v. Sims, 553 F.3d 580, 582 (7th Cir.2009), quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). However, the Seventh Circuit pointed out in Sims that it also serves to prevent circumvention of the requirement of probable cause by limiting the discretion of officers executing a warrant to determine the permissible scope of their search. Sims, 553 F.3d at 582. Therefore, police officers who have probable cause to believe that drug activity was occurring in a business cannot use a search warrant to authorize a search for evidence of another crime, such as tax evasion. See Sims, 553 F.3d at 582 (pointing out that probable cause to search a house for drugs does not allow police officers to search for counterfeit money if they have suspicion short of probable cause to believe that the house may contain counterfeit money).
The Government has argued that the description of items to be seized was adequate to meet the particularity requirement in this case. The Government pointed out that, if detailed particularity is impossible, "generic language is permissible if it particularizes the types of items to be seized." See Hall, 142 F.3d at 996 (emphasis added); see also United States v. Malik, 680 F.2d 1162, 1165 (7th Cir. 1982) ("books, papers, (and) documents" held to be a sufficient description). The Government further argued that the inclusion of "tax records, etc." was not improper because Stalets testified that the tax records that could be seized needed to relate to drug trafficking. The Government pointed out that nothing was seized based upon the "etc." included in the list of items to be seized because all of the documents, except a few documents which were attached to other documents and taken by mistake, were properly seized as documents associated with drug trafficking or documents indicating possession or ownership of the premise. The Government argued that the words "tax records, etc." were limited by the words that preceded them and for that reason only applied to records related to drug trafficking.
This court agrees with the Government's arguments and concludes that the search warrant adequately described the items to be seized and did not allow unfettered discretion in the seizure of documents. See United States v. Vitek Supply Corp., 144 F.3d 476, 480-81 (7th Cir. 1998) (court found warrant which authorized seizure of "any and all records" of smuggling and distribution of adulterated and misbranded foods was not impermissibly broad); United States v. Vanichromanee, 742 F.2d 340, 347 (7th Cir.1984) (court upheld warrant, attacked as being over broad, that allowed the seizure of any "writings" related to a conspiracy to import heroin but did not specify precise documents). This court concludes that the description in this case was "specific enough to enable the agents executing the warrant to identify with reasonable certainty the things to be seized." See United States v. Jimenez, 2003 WL 22038575, at *3 (N.D.Ill.2003), citing United States v. Sleet, 54 F.3d 303, 307 n. 1 (7th Cir.1995). Accordingly, this court rejects Abdallah's *1141 argument that the evidence must be suppressed on this basis.
III. GOOD FAITH EXCEPTION
This court further agrees with the Government that, even if there are some problems with the search warrant in this case, the good faith exception applies here. In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the United States Supreme Court "articulated the good faith exception to the exclusionary rule, holding that evidence obtained in violation of the Fourth Amendment is nonetheless admissible if the officer who conducted the search acted in good faith reliance on a search warrant." United States v. Pappas, 592 F.3d 799, 801-02 (7th Cir.2010), citing Leon, 468 U.S. at 922-23, 104 S.Ct. 3405. Accordingly, "the fruits of a search based on an invalid warrant may be admitted at trial if the executing officer relied on the invalid warrant in good faith." Orozco, 576 F.3d at 750, citing Leon, 468 U.S. at 922, 104 S.Ct. 3405. "An officer's decision to seek a warrant is prima facie evidence that the officer was acting in good faith." Dismuke, 593 F.3d at 586; see also United States v. Koerth, 312 F.3d 862, 868 (7th Cir.2002). Consulting "with the prosecutor prior to applying for [a] search warrant provides additional evidence of [that officer's] objective good faith." Pappas, 592 F.3d at 802, quoting United States v. Bynum, 293 F.3d 192, 198 (4th Cir.2002). "A defendant may rebut the prima facie evidence of good faith by presenting evidence to establish that (1) the issuing judge wholly abandoned his judicial role and failed to perform his neutral and detached function; (2) the affidavit supporting the warrant was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (3) the issuing judge was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth." Pappas, 592 F.3d at 802.
In this case, a prima facie case for the good faith exception exists because Stalets not only decided to seek a search warrant but also had the documents he prepared reviewed by an assistant State's Attorney before presenting the paperwork to Judge Little. This court concludes that Abdallah cannot rebut the prima facie evidence of good faith in this case. Abdallah has not even argued that Judge Little abandoned his judicial role and failed to perform his neutral and detached function. Instead, Abdallah has argued that the search warrant was "facially deficient" and the good faith exception should not apply because the executing officers transformed the warrant into a general warrant. This court concludes that Abdallah's arguments do not rebut the prima facie evidence of good faith because he has not shown that Stalets was reckless or dishonest in preparing the supporting affidavit or that the affidavit prepared by Stalets was so lacking in the indicia of probable cause that reliance on it was unreasonable.
IT IS THEREFORE ORDERED THAT:
(1) The Motions to Suppress (#48, # 76) are DENIED.
(2) This case remains scheduled for a status conference on September 8, 2010, at 11:00 a.m.
NOTES
[1] This court notes that it agrees with the Government that employees of Price Rite were not excluded as possible participants in the drug transactions that did occur.
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479 F.2d 58
Tony RICE et al., Appellants,v.The UNITED STATES of America et al., Appellees.
No. 72-1738.
United States Court of Appeals,Eighth Circuit.
Submitted March 15, 1973.Decided April 20, 1973.
George T. Dynes, Dickinson, N. D., for appellants.
Lawrence E. Shearer, Atty., Dept. of Justice, Washington, D. C., and Charles A. Feste, Fargo, N. D., for appellees.
Before MATTHES, Chief Judge, and ROSS and STEPHENSON, Circuit Judges.
PER CURIAM.
1
This is an action brought by appellants to review a decision of the Board of Land Appeals approving the grant of an oil and gas lease on Burlington Northern, Inc. railroad right-of-way in Stark County, North Dakota. Judge VanSickle entered judgment affirming the decision of the Board of Land Appeals. We affirm.
2
The predecessor to Burlington Northern, Inc., Northern Pacific Railway Co., was granted a 400-foot wide strip of land from Lake Superior to Puget Sound under an Act of Congress passed July 2, 1864. This 400-foot wide strip passed through Section 8, Township 139 North, Range 98 West of the 5th P.M. in Stark County, North Dakota. In 1904 and in 1910 patents were issued to Mr. O'Connell and Mr. Gillman for 160-acre tracts of land within said Section 8. Although the railroad right-of-way crossed those two tracts, no mention was made in the patents of the railroad right-of-way or of the mineral rights attendant thereto. The appellants are successors in title to Mr. Gillman and Mr. O'Connell.
3
No question is raised as to the ownership of the right-of-way, as such, but appellants claim to own the oil and gas rights under the right-of-way. Their theory is that under United States v. Union Pacific R.R., 353 U.S. 112, 77 S. Ct. 685, 1 L.Ed.2d 693 (1957), title to oil and gas rights did not pass from the United States to Northern Pacific, and that since the descriptions in the patents given their predecessors in title included the entire 160-acre tracts without excluding the railroad right-of-way, they are the lawful owners of all of the interest that the United States retained in the railroad right-of-way, including oil and gas rights.
4
The trial court held that under Northern Pacific Ry. v. Townsend, 190 U.S. 267, 23 S.Ct. 671, 47 L.Ed. 1044 (1903) the 400-foot strip of land conveyed to the railroad was taken out of the category of public land subject to preemption and sale and that the land department therefore could not have conveyed any interest in it to the appellants' predecessors in title when the patents were issued.
5
We have carefully considered the record and the briefs of the parties and conclude that the trial court correctly decided the factual and legal issues presented. We therefore affirm on the basis of Judge VanSickle's well-reasoned memorandum opinion. Rice v. United States, 348 F.Supp. 254 (D.N.D. 1972).
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-3135
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Alejandro Jesus Rodriguez
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Des Moines
____________
Submitted: May 8, 2020
Filed: May 13, 2020
[Unpublished]
____________
Before KELLY, WOLLMAN, and STRAS, Circuit Judges.
____________
PER CURIAM.
Alejandro Rodriguez pleaded guilty to possession with intent to distribute
methamphetamine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and received a within-
Guidelines-range sentence of 235 months in prison. In an Anders brief, Rodriguez’s
counsel requests permission to withdraw and suggests that the sentence is
substantively unreasonable. See Anders v. California, 386 U.S. 738 (1967). In a pro
se brief, Rodriguez argues that his sentence is unfair, primarily because another
unnamed offender received a lower sentence than he did.
We conclude that Rodriguez’s sentence is substantively reasonable. See
United States v. Callaway, 762 F.3d 754, 760 (8th Cir. 2014) (stating that a within-
Guidelines-range sentence is presumptively reasonable). The record establishes that
the district court 1 sufficiently considered the statutory sentencing factors, 18 U.S.C.
§ 3553(a), and did not rely on an improper factor or commit a clear error of
judgment. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en
banc).
Rodriguez’s pro se arguments also have no merit. He has not established a
sentencing disparity, see United States v. Carr, 895 F.3d 1083, 1091 (8th Cir. 2018)
(requiring the defendant to show a comparator with a similar record who engaged in
similar conduct), and to the extent he argues that he received ineffective assistance
of counsel during plea negotiations, we will not consider this issue now. See United
States v. Ramirez-Hernandez, 449 F.3d 824, 826–27 (8th Cir. 2006) (explaining that
ineffective-assistance-of-plea-counsel claims “are usually best litigated in collateral
proceedings”).
Finally, we have independently reviewed the record under Penson v. Ohio,
488 U.S. 75, 82–83 (1988), and conclude that there are no other non-frivolous issues
for appeal. Accordingly, we affirm the judgment and grant counsel permission to
withdraw.
______________________________
1
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
-2-
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587 F.3d 1274 (2009)
UNITED STATES of America, Plaintiff-Appellant,
v.
Kenneth K. LIVESAY, Defendant-Appellee.
No. 08-14712.
United States Court of Appeals, Eleventh Circuit.
November 16, 2009.
*1275 Michael Boysie Billingsley, Ramona C. Albin, Birmingham, AL, for U.S.
Sam Heldman, The Gardner Firm, Washington, DC, for Livesay.
*1276 Before DUBINA, Chief Judge, and BIRCH and SILER,[*] Circuit Judges.
DUBINA, Chief Judge:
I. BACKGROUND
A. The Fraud Conspiracy:
The charges filed against Defendant-Appellee Kenneth Livesay ("Livesay") arose out of a massive accounting fraud conspiracy at HealthSouth Corporation ("HealthSouth"), headquartered in Birmingham, Alabama. This massive fraud has been described in many of our previous decisions. See, e.g., United States v. Livesay, 484 F.3d 1324, 1326 (11th Cir. 2007) ("Livesay II"); United States v. Martin, 455 F.3d 1227, 1230-31 (11th Cir. 2006); United States v. McVay, 447 F.3d 1348, 1349-50 (11th Cir.2006) ("McVay I"). Suffice it to say that Livesay's participation in an illegal scheme to artificially inflate HealthSouth's earnings and to falsely report HealthSouth's financial condition is at the heart of the fraud. Senior officials at HealthSouth issued instructions as to the desired earnings per share and Livesay and members of the accounting staff would meet to discuss ways to artificially inflate HealthSouth's earnings. Once they decided upon the means of inflating earnings, Livesay instructed HealthSouth's accounting staff to manipulate various accounts to accomplish this purpose. False and fraudulent entries were made to accounts in HealthSouth's books and records including, but not limited to (1) the property plant and equipment account; (2) the cash account; (3) the inventory account; and (4) the intangible asset (goodwill) accounts. Livesay knew that there was no justification in fact or under generally accepted accounting principles for these entries. Additionally, Livesay participated in the preparation of HealthSouth's 1998 quarterly and annual reports filed with the Securities and Exchange Commission ("SEC"), including HealthSouth's 10-Ks. Livesay and others caused HealthSouth to file these reports publicly with the SEC, knowing that the reports materially misstated, among other things, HealthSouth's net income, revenue, earnings per share, assets, and liabilities. As a result of the scheme, HealthSouth's revenue and earnings were inflated by hundreds of millions of dollars in the publicly filed reports.
Finally, Livesay knowingly caused, directly and indirectly, to be transmitted by wire, from Birmingham, Alabama, to Washington, D.C., the 10-Qs and 10-Ks for HealthSouth in 1998, knowing that the financial results and financial condition related in those reports were materially false or that the reports omitted material information.
B. Procedural History:
Whoever said "third time's a charm" was apparently unfamiliar with the history of this case. On April 3, 2003, the government filed a three-count information in the Northern District of Alabama charging Livesay with conspiracy to commit wire fraud, securities fraud, and falsifying books and records; falsely certifying financial information filed with the SEC; and a forfeiture count related to count one.
Livesay entered into a plea agreement with the government. Pursuant to the agreement, in exchange for waiver of his right to indictment and his plea of guilty to all three counts in the information, the government agreed to recommend that Livesay *1277 receive a three-level reduction to his offense level for his acceptance of responsibility and be sentenced at the low end of the Sentencing Guideline range as determined by the district court. In addition, the government agreed to file a motion for a downward departure pursuant to § 5K1.1 of the United States Sentencing Guidelines and 18 U.S.C. § 3553(e) (2006) if Livesay provided substantial assistance to the government in the investigation and/or prosecution of another person who had committed an offense related to the HealthSouth conspiracy.
On April 3, 2004, Livesay pled guilty to all three charges in the information before Judge U.W. Clemon. Livesay's first sentencing hearing occurred in June 2004. The pre-sentence investigation report ("PSI") determined that Livesay's offense level was 28 and his criminal history category I, which resulted in a Sentencing Guidelines imprisonment range of 78 to 97 months, a supervised release period of 2 to 3 years, and a fine range of $12,500 to $1 million. Pursuant to the plea agreement, the government recommended a downward departure of approximately 3 levels and a sentence of 60 months imprisonment. The district court granted the government's motion for a downward departure, but departed well below the recommended departure to a level 10, which when combined with a criminal history category of I resulted in a sentencing imprisonment range of 6 to 12 months. Judge Clemon sentenced Livesay to 60 months probation. The government appealed and we reversed, holding that the district court failed to state the reasons supporting the extent of its departure, leaving this court to speculate regarding that reasoning. See United States v. Livesay, 146 Fed. Appx. 403, 405 (11th Cir.2005) (unpublished) ("Livesay I").
Livesay testified for four days at the trial of HealthSouth founder Richard Scrushy and two days at the related trial of another HealthSouth executive-Hannibal Sonny Crumpler. Scrushy was acquitted and Crumpler was convicted. During Livesay's second sentencing hearing, held in December 2005, the government informed the district court of Livesay's cooperation, renewed its motion pursuant to § 5K1.1, and recommended a sentence of 20 months in custody due to the additional cooperation. Judge Clemon imposed the same sentence of probation that he did at the first sentencing. Once again the government appealed and we reversed. See Livesay II, 484 F.3d at 1325-26. In Livesay II, we held that both the extent of the district court's departure and the ultimate sentence imposed by the district court were unreasonable given Livesay's key role in the massive fraud. Id. at 1332-34. Livesay filed a petition for writ of certiorari. The Supreme Court granted the petition, vacated our decision, and remanded for reconsideration in light of Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). See Livesay v. United States, ___ U.S. ___, 128 S.Ct. 872, 169 L.Ed.2d 712 (2008).
After remand from the Supreme Court, we again vacated Livesay's sentence. See United States v. Livesay, 525 F.3d 1081 (11th Cir.2008) ("Livesay III"). In Livesay III, we held that the district court committed procedural Gall error by basing the extent of its § 5K1.1 departure on an impermissible consideration: specifically, Livesay's repudiation of or withdrawal from the conspiracy. Id. at 1092. Once again, we remanded the case to the district court for resentencing. Id. at 1094. This time around, Judge Clemon recused himself and District Judge Karon O. Bowdre was assigned the case for resentencing. Judge Bowdre confirmed that the total offense level was 28, the criminal history *1278 category I, and the Sentencing Guidelines range was 78 to 97 months imprisonment. The district court again granted the government's § 5K1.1 motion and imposed a term of 5 years probation. For the third time, the government appealed the sentence.
II. STANDARD OF REVIEW
We review a criminal sentence for procedural and substantive reasonableness under an abuse of discretion standard. Gall, 128 S.Ct. at 594.
III. DISCUSSION
In McVay II, a case involving the sentence of one of Livesay's co-conspirators, this court held:
The government's challenge in this case is limited to the reasonableness of the sentence the district court imposed. In light of the factors enumerated in 18 U.S.C. § 3553(a), including the seriousness of the offense, the need to promote respect for the law, and the need for just punishment, a non-custodial sentence for a key participant in a corporate fraud that exceeded a loss of a billion dollars and left victims too numerous to be counted is, argued by the government, unreasonable. We agree.
After considering what the Supreme Court said in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and after reviewing what the district court did on resentencing in this case, we conclude that the district court abused its discretion when it wholly failed to consider, among other things, the seriousness and full implications of McVay's criminal conduct.
A sentence of probation for a high-ranking officer in a corporation where over a billion dollars of fraud was perpetrated on an unsuspecting work force and investing public is not reasonable, given the criteria found in § 3553(a) for determining an appropriate sentence. Probation does not account for the seriousness of McVay's conduct. It does not punish him sufficiently. It does not deter the defendant's future misconduct. It does not deter other similarly situated individuals from engaging in criminal conduct. It does nothing to encourage respect for the court system in this country. Post-Gall, a district court need not justify an extraordinary departure with extraordinary reasons, but it must still provide a compelling justification for the sentence it selects. In our view, that was not done in this case.
United States v. McVay, 294 Fed.Appx. 488, 489-90 (11th Cir.2008) ("McVay II")(emphasis added). The same can be said for the probationary sentence imposed in this case. As in McVay II, we conclude that the sentence imposed by the district court in this case is patently unreasonable in light of Livesay's role in this massive corporate fraud.
Title 18, Section 3553(a)(2) of the United States Code provides that, in determining the particular sentence to be imposed, the sentencing court shall consider the need for the sentence imposed
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner ....
18 U.S.C. § 3553(a)(2). In this case, these statutory factors strongly cut against the reasonableness of the probationary sentence imposed. As to the first factorthe need for the sentence to reflect the seriousness *1279 of the offense, to promote respect for the law, and to provide just punishment for the offensewhen imposed upon a high-ranking corporate officer that helped bilk over a billion dollars from the company's innocent shareholders, a sentence devoid of any meaningful period of incarceration simply does not reflect these goals.
As to the next factorthe need for the sentence to afford adequate deterrenceit is difficult to imagine a would-be white-collar criminal being deterred from stealing millions of dollars from his company by the threat of a purely probationary sentence, regardless of how much probation that person received. As we noted in Livesay III, the legislative history of § 3553 reveals that Congress "viewed deterrence as `particularly important in the area of white collar crime.'" 525 F.3d at 1093-94 (quoting United States v. Martin, 455 F.3d 1227, 1240 (11th Cir.2006)). In particular, in enacting § 3553, "Congress was especially concerned that prior to the Sentencing Guidelines, `[m]ajor white collar criminals often [were] sentenced to small fines and little or no imprisonment.'" Martin, 455 F.3d at 1240 (quoting S.Rep. No. 98-225, at 76 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3259) (emphasis added) (alteration in original). Based on this statutory purpose and legislative history, we concluded in Martin that a seven-day prison sentence imposed upon another high-level HealthSouth executive that took part in the same conspiracy as Livesay was utterly inadequate from a deterrence perspective. Id.
In Martin, we noted that "[b]ecause economic and fraud-based crimes are `more rational, cool, and calculated than sudden crimes of passion or opportunity,' these crimes are `prime candidate[s] for general deterrence.'" Id. (quoting Stephanos Bibas, White-Collar Plea Bargaining and Sentencing After Booker, 47 Wm. & Mary L.Rev. 721, 724 (2005)) (second alteration in original). We went on to reason that "[d]efendants in white collar crimes often calculate the financial gain and risk of loss, and white collar crime therefore can be affected and reduced with serious punishment." Id. (emphasis added). If a would-be white-collar criminal could steal millions of dollars, place the money in an off-shore bank account, serve his probationary sentence, and then be free to start a new life with his newly-acquired fortune, this court sees little incentive for that person to think twice before concocting such a scheme. As we stated in Martin, the message of such a sentence "is that would-be white-collar criminals stand to lose little more than a portion of their ill-gotten gains and practically none of their liberty." Id. As the threat of a seven-day prison sentence was not adequate to deter the criminal conduct at issue in Martin, even more so the threat of spending time on probation simply does not, and cannot, provide the same level of deterrence as can the threat of incarceration in a federal penitentiary for a meaningful period of time.
Accordingly, because the sentence imposed in this case is not reasonable in light of the sentencing factors outlined in § 3553(a), we once again vacate the sentence and remand this case to the district court for resentencing. Not only do we hold that the particular sentence imposed below is unreasonable, but we also hold that any sentence of probation would be unreasonable given the magnitude and seriousness of Livesay's criminal conduct. As we stated in Martin, only the imposition of a meaningful period of incarceration will meet the goals that Congress laid out in the sentencing statute.
VACATED and REMANDED.
NOTES
[*] Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation.
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Case: 11-40542 Document: 00511921586 Page: 1 Date Filed: 07/16/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 16, 2012
No. 11-40542
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
LUIS PALOMO,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:99-CR-392-2
Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.
PER CURIAM:*
Luis Palomo challenges the 24-month term of imprisonment imposed
following the revocation of his supervised release for the underlying crime of
aiding and abetting the taking of a motor vehicle by force, violence, and
intimidation. He contends the revocation sentence, which exceeds the advisory
Sentencing Guidelines range of 15 to 21 months, but nevertheless is within the
statutory maximum of 24 months, is procedurally unreasonable because the
district court failed expressly to consider the advisory Guidelines range and
*
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: 11-40542 Document: 00511921586 Page: 2 Date Filed: 07/16/2012
No. 11-40542
failed to articulate reasons for the sentence. We review for plain error. Because
Palomo has not shown that the claimed errors either affected his substantial
rights or seriously affected the fairness or integrity of the judicial proceeding, we
affirm.
I.
In 2000, Palomo was convicted of aiding and abetting the taking of a motor
vehicle by force, violence, and intimidation (carjacking) in violation of 18 U.S.C.
§§ 2, 2119. The district court sentenced him to 96 months of imprisonment, to
be followed by three years of supervised release. Palomo began his supervised
release term in November 2007. In June 2009, the probation officer filed a
petition to revoke supervised release, alleging that Palomo violated conditions
of his supervised release by (1) committing a new law violation of murder, and
(2) leaving the district without permission. The petition alleged that in May
2009, the murder victim was outside his home talking with a neighbor when a
vehicle approached, and one of the passengers in that vehicle began shooting in
his direction, fatally wounding him. Numerous witnesses identified Palomo as
the shooter. The record reflects that some time after the filing of the petition,
but prior to the revocation hearing, Palomo pleaded guilty to the Texas murder
offense and was sentenced to 20 years of imprisonment.
At the revocation hearing, Palomo pleaded true to both allegations in the
petition. The Government requested that the district court impose a two-year
term of imprisonment upon revocation, to run consecutively to the 20-year term
imposed for the state murder conviction. The Government asserted that Palomo
had “exhibited a frightening degree of violence” more than once, and that, “he
basically laid in wait and killed someone who posed no threat to [him].” The
Federal Public Defender (FPD) requested that the court impose a revocation
sentence to run concurrently with the sentence imposed for the state murder
conviction or, alternatively, requested a sentence below the statutory maximum.
2
Case: 11-40542 Document: 00511921586 Page: 3 Date Filed: 07/16/2012
No. 11-40542
The district court concluded that Palomo had violated both conditions of
supervised release as alleged, revoked supervised release, and sentenced him to
24 months of imprisonment to run consecutively to the 20-year state sentence.
The court stated only that it relied “on the nature of the allegations” as the basis
for the revocation and for ordering the sentence to run consecutively to the state
sentence. Palomo filed a timely notice of appeal.
II.
As Palomo concedes, because he did not object in district court to the
court’s alleged failure to consider the applicable Guidelines range or to the
adequacy of reasons supporting the sentence, review is for plain error. Puckett
v. United States, 556 U.S. 129, 135 (2009); United States v. Whitelaw, 580 F.3d
256, 259-60 (5th Cir. 2009). Parenthetically, however, Palomo seeks to preserve,
for possible further review, the issue whether a post-sentence objection is
required to preserve error. Under plain error review, Palomo must show a clear
or obvious error that affected his substantial rights. Puckett, 556 U.S. at 135.
This court has discretion to correct such an error, but only if it seriously affects
the fairness, integrity, or public reputation of the judicial proceeding. Id.
Even assuming that the district court clearly or obviously erred by failing
to expressly consider the advisory Guidelines range, or by failing to articulate
reasons for the sentence, or both, Palomo’s challenge fails because he has not
shown that his substantial rights were affected. In the sentencing context, for
a clear or obvious error to have affected a defendant’s substantial rights, the
error must have “affected the sentencing outcome.” Whitelaw, 580 F.3d at 262-
63. This showing may be made by demonstrating a reasonable probability that,
but for the district court’s error, the defendant would have received a lesser
sentence. United States v. Garcia-Quintanilla, 574 F.3d 295, 304 (5th Cir. 2009).
Palomo does not contend that if the case were remanded for resentencing, the
district court could not impose the same 24-month revocation sentence, nor does
he contend that it would be reasonably probable that, but for the error, he would
3
Case: 11-40542 Document: 00511921586 Page: 4 Date Filed: 07/16/2012
No. 11-40542
have received a lesser sentence. United States v. Davis, 602 F.3d 643, 647 & n.6
(5th Cir. 2010). And given the seriousness of one of Palomo’s supervised release
violations—murder—and the district court’s express rejection of his request for
a sentence below the statutory maximum, the record does not indicate that
Palomo’s sentence would have been any different had the district court expressly
considered the advisory Guidelines range or provided more detailed reasons for
the sentence.
Also unavailing is Palomo’s reliance on Whitelaw to contend that the
claimed errors affected his substantial rights because they deprived him of
meaningful appellate review. In that case, we recognized the D.C. Circuit and
the Second Circuit’s holding, in cases involving, as here, above-Guideline
sentences, that a failure to explain a sentence affects a defendant’s substantial
rights insofar as it “affects the appellate court’s ability to perform a meaningful
review of the sentence.” 580 F.3d at 263. But, we also recognized that “[o]ther
circuits have declined to follow that lead,” and considered the theory only
arguendo. Id. at 263-64.
At any rate, Palomo has not shown that our court’s ability to review the
sentence has been affected. Even if not explicitly stated by the district court, our
review of the record reveals the basis for Palomo’s sentence. In the revocation
hearing, the district court heard the Government’s argument that a 24-month
sentence was appropriate in the light of Palomo’s exhibition of a “frightening
degree of violence on more than one occasion,” including the recent murder. The
FPD expressly conceded that the court had a duty to protect the public from
individuals like Palomo. And the court identified the “nature of the allegations
. . . as the basis for this revocation and the order that [the sentence] . . . be
served consecutively.” It is obvious that the court based the revocation sentence
upon the serious nature of Palomo’s supervised release violation, namely,
committing murder. In short, Palomo has not shown that his substantial rights
were affected.
4
Case: 11-40542 Document: 00511921586 Page: 5 Date Filed: 07/16/2012
No. 11-40542
Finally, even if Palomo could establish that the claimed errors affected his
substantial rights, he has not shown that the errors “‘seriously affect[ed] the
fairness, integrity or public reputation of judicial proceedings.’” Davis, 602 F.3d
at 651 (quoting Puckett, 556 U.S. at 135). As stated, one of Palomo’s supervised
release violations was the commission of murder, and the difference between the
maximum Guidelines sentence and Palomo’s within-the-statutory-maximum
sentence was only three months. See id. at 651 (“[W]hether a sentencing error
[fails the third prong of plain error review] is dependant upon the degree of the
error and the particular facts of the case.”) (internal quotation marks omitted).
And although the court’s comments were brief, the record reflects that the court
determined that the nature of the violation merited the imposition of the
statutory maximum upon revocation.
Therefore, because Palomo has not shown that claimed procedural errors
in sentencing affected his substantial rights or seriously affected the fairness or
integrity of the judicial proceeding, his sentence is
AFFIRMED.
5
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60 F.3d 830NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.
Timothy JOHNSON, Appellant,v.CO-I HODGE; Bill Armontrout; -Sydow, Housing Unit Manager;Michael Dixon, Appellees.
No. 94-2124
United States Court of Appeals,Eighth Circuit.
Submitted: June 15, 1995Filed: July 3, 1995
Before McMILLIAN, LOKEN and HANSEN, Circuit Judges.
PER CURIAM.
1
Timothy Johnson appeals from the final judgment entered in the District Court1 for the Western District of Missouri upon a jury verdict in favor of prison officers Gerard Hodge and Michael Dixon, in this 42 U.S.C. Sec. 1983 excessive-force action stemming from a cell gate being slammed closed on his leg. He also appeals from the final order2 dismissing his claim against warden Armontrout under 28 U.S.C. Sec. 1915(d). For reversal, Johnson argues the district court erred in (1) dismissing his claim against the warden; (2) denying his request for an impartial court-appointed expert witness; (3) denying a non-party witness request; (4) admitting his grievance and medical reports at trial; (5) allowing defense counsel to refer to him and his witnesses as convicted felons; (6) submitting flawed verdict-directing jury instructions over his objections; and (7) failing to declare a mistrial when a juror complained of an inability to hear six hours into the trial, and when one of the defendants openly admitted he was committing perjury. For the reasons discussed below, we affirm the judgment of the district court.
2
We conclude the district court did not abuse its discretion in dismissing Johnson's claim against Armontrout. See Cokeley v. Endell, 27 F.3d 331, 332 (8th Cir. 1994) (standard of review). Johnson never alleged any basis for imputing liability for Hodge's conduct to Armontrout. See Mark v. Nix, 983 F.2d 138, 139-40 (8th Cir. 1993) (per curiam) (Sec. 1983 liability requires some personal involvement or responsibility).
3
We also conclude the district court did not abuse its discretion in denying Johnson's request for a court-appointed expert. See United States Marshals Serv. v. Means, 741 F.2d 1053, 1058-59 (8th Cir. 1984) (court's discretionary power to order United States in civil case to advance fees for expert witnesses later to be taxed as costs, is to be exercised only under compelling circumstances). Johnson called as his own witness defendants' prison locksmith, and his inquiry included questions aimed at bringing out any bias in favor of defendants. Nor did the district court abuse its discretion in denying Johnson's request to call Armontrout as a witness to testify concerning the danger posed by the operation of the cell gates. Cf. Williams v. Carter, 10 F.3d 563, 566 (8th Cir. 1993) (standard of review).
4
Johnson's evidentiary objection concerning the admission of his prison medical records focused on his inability to cross-examine the physician. The parties, however, stipulated to the admissibility of the medical records, and we find no abuse of discretion in the admission of Johnson's prison medical report. Cf. Hogan v. American Tel. & Tel. Co., 812 F.2d 409, 410 (8th Cir. 1987) (per curiam) (standard of review). There is no indication Johnson's grievance was admitted into evidence.
5
Johnson himself elicited testimony concerning his witnesses' prior convictions, and he never objected at trial to questions concerning his own prior convictions. He also failed to object to defense counsel's reference during closing argument to Johnson's and his witnesses' convictions in the context of their credibility. We find no plain error.
6
Johnson's objection to the use of the word "sadistically" in the jury instructions was properly overruled. See Cummings v. Malone, 995 F.2d 817, 822 (8th Cir. 1993) (in excessive force claim, jury must consider whether force was applied maliciously and sadistically for purpose of causing harm). Johnson's other arguments concerning the jury instructions are either not preserved or frivolous.
7
Finally, there is no support in the record for Johnson's characterization of events that he argues warranted a mistrial.
8
Accordingly, we affirm the judgment of the district court.
1
The Honorable William A. Knox, United States Magistrate Judge for the Western District of Missouri, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. Sec. 636(c)
2
The Honorable Scott O. Wright, Senior United States District Judge for the Western District of Missouri, adopting the report and recommendation of the Honorable William A. Knox, United States Magistrate Judge for the Western District of Missouri
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193 P.3d 310 (2008)
Moises AVILA, Petitioner,
v.
The INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
Asset Landscaping, Respondent Employer,
Special Fund Division/No Insurance Section, Respondent Party in Interest.
No. 1 CA-IC 07-0016.
Court of Appeals of Arizona, Division 1, Department D.
May 13, 2008.
*311 Robert J. Hommel, P.C. By George V. Sarkisov, Scottsdale, Attorneys for Petitioner Employee.
Laura L. McGrory, Chief Counsel, The Industrial Commission of Arizona, Phoenix, Attorney for Respondent.
Jones, Skelton & Hochuli, P.L.C. By Terrence Kurth, Phoenix, Attorneys for Respondent Employer.
Industrial Commission of Arizona, Phoenix Special Fund Division/No Insurance Section By Suzanne Scheiner Marwil, Phoenix, Attorney for Respondent Party in Interest.
OPINION
THOMPSON, Judge.
¶ 1 This is a special action review of an Industrial Commission of Arizona (ICA) award and decision upon review for unscheduled permanent partial disability benefits. Two issues are presented on appeal:
(1) whether the administrative law judge (ALJ) erred by allowing the uninsured respondent employer, Asset Landscaping (Asset), to appear in the proceedings; and
(2) whether the ALJ erred by including the dishwasher position in her loss of earning capacity (LEC) calculation.
Because we find that the ALJ did not err by allowing the respondents to have separate representation and that the dishwasher position was within the petitioner employee's (claimant's) accepted physical limitations, we affirm the award.
JURISDICTION AND STANDARD OF REVIEW
¶ 2 This court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(2) (2003), 23-951(A) (1995), and Arizona Rule of Procedure for Special Actions 10. In reviewing findings and awards of the ICA, we defer to the ALJ's factual findings but review questions of law de novo. Young v. Indus. Comm'n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App.2003). We consider the evidence in the light most favorable to upholding the award. Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App.2002).
PROCEDURAL AND FACTUAL HISTORY
¶ 3 At the time of his injury, the claimant worked as a laborer for Asset. While applying fertilizer, he slipped and fell on wet concrete and struck his right shoulder. Greg Keller, M.D., operated on the claimant's shoulder to repair a rotator cuff tear and an impingement.
¶ 4 The claim was closed with an unscheduled permanent partial impairment. The ICA entered an award for an unscheduled permanent partial disability. It found that the claimant had sustained a 24.40% reduction in his monthly earning capacity, which entitled him to receive $156.89 per month. The claimant timely requested a hearing, and an ICA hearing was held for testimony from the claimant, Dr. Keller, an independent medical examiner, Irwin Shapiro, M.D., and three labor market experts. The ALJ entered an award adopting Dr. Shapiro's physical limitations for the claimant and finding three different jobs as suitable and reasonably available employment.
¶ 5 The relevant finding provides in pertinent part:
The undersigned adopts the opinion of Larry Mayer that applicant's limitations would not preclude him from working as an office cleaner or a dishwasher based upon Dr. Shapiro's limitations. Working as an office cleaner, applicant could earn $820.24 per month based upon a 30 hour work week, earning $6.31 per hour on a rollback basis. Working as a dishwasher, applicant's earning capacity could be as much as $1,032.99 per month based upon a forty hour work week, earning $5.96 per *312 hour on rollback basis. The undersigned adopts David Janus's opinion that applicant can work as [a] door hanger.[[1]] Working as a door hanger, applicant can earn as much as $736.04 per month based upon a 30 hour work week, earning $5.67 per hour on a rollback basis.
The undersigned calculated applicant's monthly entitlement by averaging the monthly earning capacities as follows: $820.24 + $1,032.99 + $236.68 = $2,090.91 divided by 3 = $696.97 average monthly earning capacity. $1,169.19 average monthly wage - $696.97 monthly earnings - 472.22 × 55% = $259.72 per month permanent award.
¶ 6 The award subsequently was corrected by an order nunc pro tunc:
The Decision is corrected to read: The monthly earning capacity for a door hanger is $736.04. Applicant's entitlement is calculated by adding the monthly earning capacities of office cleaner ($820.24) dish washer ($1,032.99) and door hanger ($736.04). The total is $2,589.27. Then [sic] amount divided by three equals $863.09. $1,169.19 average monthly wage - $863.09 = $306.10 × 55% = $168.36 per month permanent award.
The award was supplemented and affirmed on administrative review, and the claimant brought this special action.
DISCUSSION
¶ 7 The claimant first argues that the ALJ erred by allowing the claimant's uninsured employer, Asset, to appear in the proceedings with separate counsel in light of the Special Fund Division's (Special Fund) participation. He asserts that it was unduly burdensome for him to have to litigate a single claim against two separate attorneys. Both Asset and the Special Fund respond that their interests are not the same and each has the right to independent representation. The Special Fund adds that it does not represent Asset's interests, and because Asset is the party ultimately responsible for any benefits expended on the claimant's behalf, it would violate due process[2] to refuse it separate representation. See A.R.S. § 23-907(E) (Supp.2006) (employer to be notified of its liability to the Special Fund periodically and notice shall include ten percent penalty of amounts expended).
¶ 8 Parties to a review of a workers' compensation award usually include the injured worker, the ICA, the employer, and, if the employer is insured, the employer's insurance carrier. See generally A.R.S. § 23-901(10) (Supp.2006) (defining an "interested party"). Although the ICA is a nominal party to every ICA special action, it only appears as an advocate when it must to defend the Special Fund or its general interests. See Evertsen v. Indus. Comm'n, 117 Ariz. 378, 382, 573 P.2d 69, 73 (App.1977) approved and adopted, 117 Ariz. 342, 572 P.2d 804 (1977); 1 Ariz.App. Handbook § 5.8.2, at 5-14 (Supp.2006). One instance in which this occurs is when the employer is uninsured. See, e.g., Konichek v. Indus. Comm'n, 167 Ariz. 296, 297, 806 P.2d 885, 886 (App.1990). When the ICA legal division participates, its counsel represents the interests of the ICA. See Ariz. Admin. Code (A.A.C.) R20-5-162.
¶ 9 One of the express purposes for the adoption of the Arizona Workers' Compensation Act was to curtail litigation between the employer and the employee and place the burden upon industry for compensating work-related injuries. Pressley v. Indus. Comm'n, 73 Ariz. 22, 28, 236 P.2d 1011, 1015 (1951).[3] Thus, an employer that complies with the statutory mandate to secure workers' compensation insurance receives immunity from being sued by its employees "at common law or by statute." See A.R.S. § 23-906(A) (Supp.2006). But an employer that fails to secure this coverage "shall not be entitled to the benefits of this chapter during the period of noncompliance, but shall *313 be liable in an action under any other applicable law of the state." See A.R.S. § 23-907(A).
¶ 10 The claimant argues that Asset's failure to carry workers' compensation coverage statutorily precludes it from the "benefits" of the Workers' Compensation Act. Specifically, he contends that an uninsured employer is precluded, by A.R.S. § 23-907(A), from enjoying the benefit of the right to appear with counsel at a proceeding. We conclude that the "benefits" precluded by reason of Asset's uninsured status do not include representation.[4] We can discern nothing in the statutory scheme or the cases interpreting it, that would bar an uninsured employer from appearing with separate legal representation at the proceedings. Although it is true that the Special Fund is in the first instance liable for the payment of benefits to an employee of an uninsured employer, the statute provides that the amount paid by the Special Fund shall act as a judgment against the employer. A.R.S. § 23-907(C).
¶ 11 The claimant has not provided us with any specific authority supporting his position. He directs our attention to Kessen v. Stewart, 195 Ariz. 488, 990 P.2d 689 (App.1999). In Kessen, the uninsured employer protested the ICA's approval of a lump-sum commutation awarded to the claimant. This court held that the statute requiring consent of the "carrier liable to pay [the] claim" referred to the Special Fund, which was primarily liable for the claim, and not to the uninsured employer who was secondarily liable to the Special Fund. Id. at 491, ¶¶ 9-10, 990 P.2d at 692. We noted that this provision was consonant with the uninsured employer's due process rights since the employer was afforded notice and a hearing in which its objection was considered and which protest was presented by the employer's attorney. Id. at 492-93, ¶¶ 16-17, 990 P.2d at 693-94.
¶ 12 We note, as a practical matter, that although Asset and the Special Fund both sent the claimant interrogatories, the claimant underwent only one deposition and one independent medical examination. With regard to interrogatories in a workers' compensation proceeding, the rules provide:
A. After a party files a request for hearing with the Commission, any party may serve written interrogatories upon another party. A party shall serve written interrogatories at least 40 days before the scheduled hearing.
B. A party shall not serve more than 25 interrogatories, including subsections.
A.A.C. R20-5-144. Since both Asset and the Special Fund were parties to this ICA proceeding, this rule allows each to send separate interrogatories.
¶ 13 We next address the claimant's argument that the ALJ erred by relying on the dishwasher job in calculating his LEC. In establishing the LEC, the object is to determine as nearly as possible whether the claimant can sell his services in the open, competitive labor market, and for how much. Davis v. Indus. Comm'n, 82 Ariz. 173, 175, 309 P.2d 793, 795 (1957). The burden of proving LEC is on the claimant. See, e.g., Zimmerman v. Indus. Comm'n, 137 Ariz. 578, 580, 672 P.2d 922, 924 (1983).
¶ 14 The claimant can meet this burden by presenting evidence of his inability to return to his date-of-injury employment and by making a good faith effort to obtain other suitable employment or by presenting testimony from a labor market expert to establish his residual earning capacity. See D'Amico v. Indus. Comm'n, 149 Ariz. 264, 266, 717 P.2d 943, 945 (App.1986). In determining a claimant's residual earning capacity, the ALJ must consider "any previous disability, the occupational history of the injured employee, the nature and extent of the physical disability, the type of work the injured employee is able to perform subsequent to the injury, any wages received for work performed subsequent to the injury, and the age of the employee at the time of injury." A.R.S. § 23-1044(D) (Supp.2006).
*314 ¶ 15 The labor market expert's role is to receive medical input from the treating physician regarding the claimant's physical capabilities and to match them to the requirements of specific jobs in the open labor market. See Tucson Steel Div. v. Indus. Comm'n, 154 Ariz. 550, 556, 744 P.2d 462, 468 (App.1987). In order to establish residual earning capacity, there must be evidence of job opportunities that are (1) suitable, i.e., that the claimant would reasonably be expected to perform considering his physical capabilities, education, and training; and (2) reasonably available. Germany v. Indus. Comm'n, 20 Ariz.App. 576, 580, 514 P.2d 747, 751 (1973).
¶ 16 The claimant argues that the dishwasher position is not suitable employment for him based on his residual physical limitations. Specifically, he argues that the position is inconsistent with a limitation contained in Dr. Keller's February 9, 2005 medical report that he not work with his right arm extended. In this case, the ALJ relied on Dr. Shapiro's evaluation of claimant's physical limitations when selecting suitable employment on which to base her LEC calculation. See Le Duc v. Indus. Comm'n, 116 Ariz. 95, 98, 567 P.2d 1224, 1227 (App.1977) (ALJ determines weight to be accorded a labor market expert's opinion). While we recognize that Dr. Shapiro stated that the claimant's physical limitations were essentially the same as those found by Dr. Keller, Dr. Shapiro did not provide any limitation on the claimant working with his right arm extended. For these reasons, the ALJ did not err by utilizing the dishwasher position in her LEC calculation.
CONCLUSION
¶ 17 For the foregoing reasons, the award is affirmed.
CONCURRING: DIANE M. JOHNSEN, Presiding Judge and SUSAN A. EHRLICH, Judge.
NOTES
[1] A "door hanger" distributes advertising flyers door to door.
[2] See, e.g., Kessen v. Stewart, 195 Ariz. 488, 492, 990 P.2d 689, 693 (App.1999) (procedural due process requires an adequate opportunity to fully present factual and legal claims).
[3] We also note that Article 18, Section 8, of the Arizona Constitution places the responsibility of compensating injured workers on the employer and not on the insurance carrier. See Culver v. Indus. Comm'n, 23 Ariz.App. 540, 543, 534 P.2d 754, 757 (1975).
[4] There is evidence in the record that supports Asset's assertion that it attempted to procure workers' compensation coverage and there is a third-party action resulting from the failure to procure that coverage. Asset's belief it was insured is relevant to whether it ultimately is assessed a penalty by the Special Fund for being uninsured. See A.R.S. § 23-907(K).
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461 Pa. 336 (1975)
336 A.2d 313
COMMONWEALTH of Pennsylvania
v.
Paul R. SMITH, Appellant.
Supreme Court of Pennsylvania.
Submitted January 21, 1974.
Decided April 17, 1975.
*337 Anthony P. Baratta, Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., James J. Wilson, Asst. Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty. for Law, F. Emmett Fitzpatrick, Dist. Atty., Philadelphia, for appellee.
*338 Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
MANDERINO, Justice.
The appellant, Paul R. Smith, pled guilty to murder on January 30, 1961. Following a degree of guilt hearing, he was found guilty of murder in the first degree, and sentenced to life imprisonment. No appeal was taken from the judgment of sentence.
In 1964, appellant filed an uncounseled habeas corpus petition in the trial court. Relief was denied. An appeal to this Court was filed but subsequently withdrawn by appellant. In 1967, appellant filed an uncounseled petition under the Post Conviction Hearing Act. Relief was denied, and an appeal was taken to this Court. We remanded for the appointment of counsel and a hearing on appellant's post-conviction petition. Counsel was appointed and a hearing was subsequently held on January 29, 1970. Relief was denied and this appeal followed.
Appellant contends that he was denied his right of appeal following the judgment of sentence entered in 1960. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). During the January 29, 1970, hearing, testimony was received on this issue, however, the trial court's opinion did not address itself to the issue. Normally we would remand for a consideration of the claim raised. In this case, however, testimony given at the post-conviction hearing by appellant and by appellant's trial counsel was to the effect that appellant was not advised of any appeal rights. Trial counsel additionally indicated that an appeal would not have been advisable because if a retrial were granted, appellant would be faced with a possibility of the death sentence. See Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969); Commonwealth v. Floyd, 451 Pa. 366, 304 A.2d *339 131 (1973). This testimony was uncontradicted. Furthermore, the prosecution makes no claim that appellant was properly advised of his appellate rights following the judgment of sentence in 1960. From the testimony on the record before us, we conclude that the appellant was not advised of his Douglas rights.
The prosecution, however, contends that even though appellant raised this issue in his 1967 post-conviction petition, he waived his Douglas rights because he failed to raise them in his 1964 habeas corpus petition. We must reject this argument for two reasons. First, appellant's 1964 habeas corpus petition was an uncounseled petition, and, second, prior to the Post Conviction Hearing Act, failure to raise an issue in a petition for habeas corpus did not constitute a waiver precluding the raising of the issue in a later collateral proceeding. Commonwealth v. Melton, 449 Pa. 223, 296 A.2d 727 (1972); Commonwealth v. Butler, 442 Pa. 476, 276 A.2d 536 (1971).
Appellant also contends that his confession should be suppressed because it was obtained during a period of unnecessary delay. This issue was raised by the appellant in the PCHA proceeding, but no determination was made by the trial court. We do not, therefore, consider the issue at this time. It may be raised in post-verdict motions on remand. See Commonwealth v. Williams, 459 Pa. 589, 330 A.2d 854 (1975).
The prosecution contends that in the interest of judicial economy, this Court should undertake to review the trial record in order to determine whether any error exists which would warrant a new trial. The review of the record in the first instance, however, must be the review of an advocate representing the appellant, not the review of a court without the benefit of an advocate's assistance. We therefore grant appellant the right to file post-trial motions as though timely filed. Following the *340 disposition of these motions, the parties will be entitled to pursue the normal appellate procedure.
This matter is remanded for proceedings consistent with this opinion.
EAGEN, POMEROY and NIX, JJ., concurred in the result.
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677 F.2d 1297
Fed. Sec. L. Rep. P 98,721SECURITIES AND EXCHANGE COMMISSION, Plaintiff,v.The SEABOARD CORPORATION, etc., et al., Defendants.ADMIRALTY FUND; Admiralty Fund Growth Series LitigationTrust and The Admiralty Fund Insurance SeriesLitigation Trust, Cross-Claimants/Appellants,v.Alton TABOR, Cross-Defendant/Appellee.
No. 79-3819.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Sept. 8, 1981.Decided May 24, 1982.
Stephen H. Marcus, Greenberg, Bernhard, Weiss & Karma, Los Angeles, Cal., for cross-claimants/appellants.
Grace M. Mitsuhata, Loo, Merideth & McMillan, Los Angeles, Cal., for cross-defendant/appellee.
Appeal from the United States District Court for the Central District of California.
Before WRIGHT and WALLACE, Circuit Judges, and EAST,* Senior District Judge.
EUGENE A. WRIGHT, Circuit Judge:
1
On this appeal from summary judgment for cross-defendant Alton Tabor, we reverse because we find a material issue of fact regarding Tabor's scienter.
FACTUAL BACKGROUND
2
In count five of its second amended cross-claim, Admiralty Fund and Seaboard Leverage Fund (hereinafter "Funds") alleged that Tabor and others engaged in a scheme to defraud the Funds.
3
The basic facts are undisputed. In 1971, the president of the Funds, Jerome Randolph, met John Gordy, president and controlling shareholder of Visual Sounds, Inc. (hereinafter VSI), a small, closely held corporation engaged in the audio-visual business. Gordy wished to make a public offering of VSI stock and Randolph agreed to help through his connection with the Funds.
4
In 1972, VSI made a Regulation A offering of 100,000 shares at $5 each. The Funds immediately bought 4,300 shares.
5
Tabor first heard of the offering at the home of Patrick MacIntyre, the controlling shareholder of broker-dealer P. N. MacIntyre & Co. and Tabor's business associate. Randolph and Gordy discussed the offering and Tabor was encouraged to buy. When the offering was made, Randolph telephoned to encourage the purchase again.
6
Randolph proposed that, if Tabor would buy 7,500 shares, Randolph would guarantee against loss and he and Tabor would split profits from eventual sale. Tabor would take the profit on 2,500 of the shares and Randolph, the rest. Tabor borrowed $37,500 from MacIntyre and bought the stock.
7
Randolph made similar deals with John Rawlings and Harry Turner. They gave Randolph power of attorney to sell their stock at will and they too would split their profits with him.
8
Before and during the offering, Randolph and Turner induced at least three broker-dealers to create an aftermarket for the securities. Within two months of the offering, Randolph exercised his power of attorney to sell at a substantial profit part of the stock bought in Turner's name. Shortly thereafter, Tabor's stock was sold at a profit. The buyers on these and other occasions were the Funds.
9
The Funds eventually owned nearly 40% of the securities floated in the offering. They complained that they were locked into this "investment" because the VSI stock was "illiquid." Within 11 months after the offering, the Funds sold their VSI stock for $1 per share, a loss of about $440,000.
10
Tabor moved for summary judgment based upon the Funds' inability to show scienter necessary to make out a cause of action. In his affidavit supporting the motion, he swore that he had no knowledge that Randolph was employed by the Funds or engaged in the manipulation of the price of VSI stock in the secondary market. Had he known that Randolph's actions were illegal, he would not have bought the stock.
11
In response to the motion, the Funds presented a memorandum that reviewed the arrangement between him and Randolph and that asserted additional facts, supported by citations to depositions, to suggest the presence of scienter.
12
The district court found that Tabor had no knowledge that Randolph was involved in a conspiracy to manipulate the price of the VSI stock or to defraud the Funds and that Tabor did not buy with knowledge of any scheme or with any intent to deceive, manipulate, or defraud. From these findings, the court concluded that there were no genuine issues of fact about scienter and that Tabor was entitled to dismissal.
DISCUSSION
13
Appellants describe the primary issue of this appeal as whether there is a genuine issue in this record regarding Tabor's scienter.
14
Randolph apparently admitted the facts underlying the VSI transaction and judgment was entered against him for violation of § 12(2) of the Securities Act (15 U.S.C. 77l (2) ), § 10(b) of the Exchange Act (15 U.S.C. § 78j(b) ) and Rule 10b-5 (17 C.F.R. § 240.10b-5), § 17(a) of the Investment Company Act (15 U.S.C. § 80a-17(a) ), California Corporations Code § 25401, and common law fraud. According to appellants, the question is whether Tabor may also be liable under these provisions as a coconspirator or as an aider and abettor of Randolph.
I. Scienter
15
Summary judgment is proper only where there is no genuine issue as to any material fact. All inferences that can be drawn from the supporting documents must be viewed in a light most favorable to the party opposing summary judgment. Spectrum Financial Companies v. Marconsult, Inc., 608 F.2d 377, 380 (9th Cir. 1979), cert. denied, 446 U.S. 936, 100 S.Ct. 2153, 64 L.Ed.2d 788 (1980).
16
Where intent is a primary issue, summary judgment is generally inappropriate. Drawing inferences favorably to the nonmoving party, summary judgment will be granted only if all reasonable inferences defeat the plaintiff's claims. Vaughn v. Teledyne, Inc., 628 F.2d 1214, 1220 (9th Cir. 1980). The moving party's burden is therefore a heavy one.
17
We believe Tabor has not met his burden and that summary judgment was improper.
18
Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), held that a showing of scienter was required to make out a claim under § 10(b) and Rule 10b-5. It defined scienter as a "mental state embracing intent to deceive, manipulate, or defraud."1 Id. at 193 n.12, 96 S.Ct. at 1381 n.12.
19
Fringe participants in illegal securities transactions have been brought within the scope of the securities laws with the application of criminal and tort theories of liability. Alleged coconspirators have been held liable for the acts of direct violators of § 10(b) and Rule 10b-5, when they knew of the fraud and assisted the overall scheme. See, e.g., Dasho v. Susquehanna Corp., 380 F.2d 262 (7th Cir.), cert. denied, 389 U.S. 977, 88 S.Ct. 480, 19 L.Ed.2d 470 (1967); Texas Continental Life Ins. Co. v. Dunne, 307 F.2d 242 (6th Cir. 1962); Kardon v. National Gypsum Co., 69 F.Supp. 512 (E.D.Pa.1946).
20
Aider and abettor liability has been implied in the terms of § 10(b) and Rule 10b-5 when (1) a primary violator has committed a securities law violation, (2) the defendant knew of the violation, but (3) nonetheless knowingly and substantially assisted the primary violator.2 See Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38 (2d Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1978); Woodward v. Metro Bank of Dallas, 522 F.2d 84 (5th Cir. 1975). Cf. Landy v. Federal Deposit Insurance Corp., 486 F.2d 139, 162 (3rd Cir. 1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974) ("independent wrong" instead of independent securities violation).
21
Considering this range of potential liability, we hold that there remains a material issue concerning Tabor's knowledge and his participation in the scheme.
22
Several facts support the inference that Tabor knew or should have known that the purpose of his involvement was to conceal Randolph's interest. A reasonably cautious investor would find strange Randolph's profit-splitting proposal. He would wonder why Randolph, who had the ability to guarantee against loss, did not simply purchase the stock in his own name and keep all the profit for himself.
23
It is also unusual that Tabor would not tell MacIntyre, his longtime business partner, broker, and financier, of the Randolph arrangement. It is reasonable to conclude that if Tabor did not know or suspect that the purpose of his involvement was to shield Randolph's interest, he would have consulted MacIntyre, especially since the VSI offering circular indicated this to be a high risk investment and since Tabor's losses were to be guaranteed by someone he supposedly knew little about.
24
It may be further inferred that Tabor actually knew of the scheme to manipulate the VSI market. His failure to document his agreements with Randolph and MacIntyre is suspicious. Though such a failure is not uncommon, it may imply that Tabor was certain his investment would not result in loss and that he was conscious of impropriety. Tabor's willingness to devote $37,500 of borrowed money for only one-third of the profits and his selling through Snodgrass rather than his friend MacIntyre are also suspicious and give rise to inculpatory inferences.
25
Though alternative inferences may be drawn,3 this ambiguity convinces us that Tabor has failed to meet his burden and that an issue remains regarding his scienter. Drawing inferences favorable to the Funds from his affidavit alone, we hold that summary judgment was improper.
II. Duty
26
Tabor argues that summary judgment was proper because he owed no duty of disclosure to the Funds.
27
It is true that where a defendant trades on inside information, he will not be liable under § 10(b) unless he owes a duty to his buyer or seller. Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980). But this is not a case of insider trading like Chiarella. There the Supreme Court held that mere possession of nonpublic market information does not give rise to a duty to disclose under § 10(b). More than possession of "inside information" has been alleged here, viz., a scheme to manipulate stock prices.
28
Even if a duty to disclose arising from mere knowledge of the scheme did not precede the sale, a duty to disclose arose when he knowingly or recklessly assisted or participated. Strong v. France, 474 F.2d 747, 752 (9th Cir. 1973) (knowing assistance of or participation in fraudulent scheme gives rise to duty to disclose).
29
Because his affidavit does not foreclose the possibility that in his borrowing, buying, and selling Tabor knew or should have known of Randolph's scheme, we hold that summary judgment is not compelled by a lack of duty to the Funds.
III. Other Provisions of the Securities Laws
30
Our analysis has related to § 10(b) of the 1934 Act and Rule 10b-5 thereunder. Because we believe there exist genuine issues regarding Tabor's scienter and participation within the range of potential liability under this section and rule, we do not consider the application of similar analysis to other federal and state provisions under which AF's claims against Tabor have been pleaded. We leave to the trial court the determination of the full extent of Tabor's liability.4
31
We reverse the summary judgment for Tabor, remand for trial, and direct that the district court first decide the status of implied secondary liability. See footnote 2, supra.
32
REVERSED.
*
Of the District of Oregon
1
The Court specifically left open the question whether "in some circumstances" reckless behavior is sufficient for liability under this section and rule. In a case that involved misrepresentations and omissions in connection with the sale of stock, we have decided that recklessness is sufficient for direct violator liability. See Nelson v. Serwold, 576 F.2d 1332 (9th Cir.), cert. denied, 439 U.S. 970, 99 S.Ct. 464, 58 L.Ed.2d 431 (1978)
2
Our inquiry relates only to whether summary judgment was proper on claims against Tabor as a coconspirator and aider and abettor of Randolph. We assume, as we have before, see Little v. Valley National Bank, 650 F.2d 218 (9th Cir. 1981); Strong v. France, 474 F.2d 747 (9th Cir. 1973), the existence of such "secondary" liability. We have noted elsewhere today, however, that the status of implied secondary liability under the securities laws is in doubt. See Admiralty Fund v. Hugh Johnson & Co., No. 79-3820, --- F.2d ---- at ---- n.12 (9th Cir. May 24, 1982)
We do not now decide the status of secondary liability in this circuit because the issue was not briefed or argued and because, given the current development of the record, it should be considered in the first instance by the district court. The district court on remand will decide first if, as a legal matter, secondary liability survives.
3
Tabor argues that his and MacIntyre's failure to draw a loan and security agreement does not support the inculpatory inference that he and MacIntyre knew of the scheme and were certain of its outcome. He points to several facts that explain the absence of the agreement: (1) he and MacIntyre were long-time friends and business associates; (2) loans to him from MacIntyre were customarily never documented; (3) MacIntyre was assured against risk because he always had recourse against the profits of their joint horse-breeding enterprise
Though these facts suggest that noninculpatory inferences may be drawn from the absence of an agreement, the district court's obligation is to draw inferences in favor of the non-moving party. Adickes v. S. H. Kress and Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970). With this obligation, it properly drew inculpatory inferences from the absence of the agreement.
4
The existence of conspirator and aider and abettor liability under these other provisions is doubtful. While § 10(b) and Rule 10b-5 are more elastic in language and have historically supported the implication of a broad private right of action, these remaining sections are more specific and rigid in their terms
For example, applying the strict statutory construction approach dictated by the Supreme Court's recent decisions, see Admiralty Fund v. Hugh Johnson & Co., No. 79-3820, --- F.2d at ---- (9th Cir., May 24, 1982), the existence of aider and abettor liability under § 17(a) of the Investment Company Act is doubtful. This section prohibits, in the absence of SEC clearance, affiliated persons from selling their own securities to investment companies.
Even if a private right of action could be implied within the terms of this section, its terms read in conjunction with § 48 (which provides that an affiliated person violates the Act when he causes another to do what for him would be a violation) indicate that Congress intended only affiliated persons themselves to be liable.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CATHLEEN R. BROWN, No. 17-35232
Plaintiff-Appellant, No. C16-5244-JPD
v. MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
James P. Donohue, Magistrate Judge, Presiding
Submitted May 24, 2018**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Cathleen R. Brown appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of her application for supplemental
security income under Title II of the Social Security Act. We have jurisdiction
under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review the district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
order de novo and the agency’s decision for substantial evidence and legal error.
Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012). We affirm.
The ALJ did not err in evaluating Brown’s testimony. The ALJ proffered
specific, clear, and convincing reasons, supported by substantial evidence, for
discounting portions of Brown’s testimony. See Trevizo v. Berryhill, 871 F.3d 664,
679 (9th Cir. 2017) (ALJ must provide specific, clear, and convincing reasons for
rejecting the claimant’s testimony about the severity of her symptoms); see also
Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (“Where evidence is
susceptible to more than one rational interpretation, the ALJ’s decision should be
upheld.” (citation and internal quotation marks omitted)); Bray v. Comm’r Soc.
Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (finding no error where the ALJ
considered inconsistencies between the claimant’s testimony and objective medical
evidence as one of many reason for discounting the testimony). Even if the ALJ
erred by discounting Brown’s testimony based on her failure to seek treatment, any
error was harmless because the ALJ provided other valid reasons for discounting
the testimony and substantial evidence supports the ALJ’s conclusions. See
Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)
(explaining harmless error analysis); Orn v. Astrue, 495 F.3d 625, 636-38 (9th Cir.
2007) (although an ALJ may discount a claimant’s testimony based on a failure to
seek treatment, the failure must be “unexplained, or inadequately explained” and
2
“disability benefits may not be denied because of the claimant’s failure to obtain
treatment [s]he cannot obtain for lack of funds”).
Brown’s omission of additional testimony concerning her sleep apnea does
not demonstrate that the ALJ neglected her duty to fully and fairly develop the
record. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (claimant
bears the burden of proving disability; “An ALJ’s duty to develop the record
further is triggered only when there is ambiguous evidence or when the record is
inadequate to allow for proper evaluation of the evidence.”).
Even if the ALJ erred by failing to provide substantial evidentiary support
for discounting lay witness testimony by Brown’s husband, Peter Brown, any error
was harmless because the testimony described substantially similar limitations as
Brown’s testimony, and the “ALJ’s reasons for rejecting [Brown’s] testimony
apply with equal force to the lay testimony.” Molina, 674 F.3d at 1122.
The ALJ did not err in formulating Brown’s RFC by failing to include in the
hypothetical to the vocational expert restrictions that Brown’s attorney added when
questioning the vocational expert. See Magallanes v. Bowen, 881 F.2d 747, 756-57
(9th Cir. 1989) (“The ALJ is not bound to accept as true the restrictions presented
in a hypothetical question propounded by a claimant’s counsel. Rather, the ALJ is
free to accept or reject those restrictions as long as they are supported by
substantial evidence.” (citation and internal quotation marks omitted)). Having
3
determined that Brown was not disabled, the ALJ was not obligated to proceed to
Step Five. See Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010).
We decline to address Brown’s contention that the ALJ’s analysis of
Brown’s testimony about fibromyalgia symptoms violated Social Security Ruling
12-2p because Brown failed to argue this issue with any specificity in her briefing.
See Carmickle, 533 F.3d at 1161 n.2.
AFFIRMED.
4
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194 Ga. App. 395 (1990)
390 S.E.2d 637
ANDERSON
v.
THE STATE.
A89A1765.
Court of Appeals of Georgia.
Decided February 5, 1990.
James W. Bradley, for appellant.
Keith Martin, Solicitor, Jackie N. Stanton, Assistant Solicitor, *397 for appellee.
BEASLEY, Judge.
Defendant appeals her sentence for speeding, urging that the trial court erred by refusing to permit withdrawal of her guilty plea after sentence was pronounced.
OCGA § 17-7-93 (b) grants defendant an absolute right to withdraw a guilty plea "before judgment is pronounced." Orally announcing the sentence constitutes a pronouncement under that code section. Coleman v. State, 256 Ga. 77, 78 (1) (343 SE2d 695) (1986); State v. Germany, 246 Ga. 455 (271 SE2d 851) (1980). "After pronouncement of sentence, a ruling on a motion to withdraw a plea of guilty is within the discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of such discretion." Betancourt v. State, 177 Ga. App. 738, 740 (341 SE2d 239) (1986).
At the time defendant offered her guilty plea, the trial court, by means of a plea statement, informed her of her rights and questioned defendant as to her understanding of the charges against her and the consequences of her plea. However, the court was not told that defendant contended the State had agreed to make a certain sentence recommendation. The court indicated that defendant would be sentenced after she was tried on another related charge. After that trial, in which defendant was acquitted, the court pronounced the sentence for speeding: one year's probation, a $400 fine and 40 hours of community service. Again, no mention was made concerning a negotiated *396 plea.
The following day, defense counsel sought to withdraw the guilty plea for the reason that the State had offered to recommend a $100 fine if she pled guilty. The trial court denied the motion, finding that defendant had failed to inform the court about the plea bargain on the two prior occasions and that defendant had been warned that in passing sentence the trial court would not be bound by any State recommendation as to sentence.
Germany, supra at 456, held that when a plea is offered, "the trial court shall, on the record, require the disclosure of any plea agreement which has been reached by the state and defendant." Germany furthermore mandated that if the court intended to reject the plea agreement it must inform defendant: "(1) the trial court is not bound by any plea agreement, (2) the trial court intends to reject the plea agreement presently before it, (3) the disposition of the present case may be less favorable to the defendant than that contemplated by the plea agreement, and (4) that the defendant may then withdraw his or her guilty plea as a matter of right." Accord Gordon v. State, 190 Ga. App. 414 (2) (379 SE2d 221) (1989).
Germany places the burden squarely upon the trial court to inquire if there is an outstanding plea agreement and, if there is one, to advise defendant of the four requisite factors.
On the day the trial court accepted defendant's guilty plea to the charge of speeding, defendant and her counsel executed a document which recited: "that if I plead `guilty' ... to the charges against me, I give up all rights guaranteed to me and the court may sentence me to the same punishment as if I pled `not guilty'" and was convicted; "that the punishment which the law provides ... is up to 12 months imprisonment and up to a $1,000.00 fine"; "I declare that no one has made any promise of any kind to me, or within my knowledge to anyone else, that I will receive a lesser sentence, or probation, or any other form of leniency if I plead guilty." This constituted compliance with the Germany, supra, requirement that the court ascertain if any plea agreement was reached by the State and defendant. Moreover, defendant should not be permitted to disavow the statement without a showing demonstrating a good reason to disregard it, which was not here made.
Judgment affirmed. Carley, C. J., and McMurray, P. J., concur.
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564 P.2d 1025 (1977)
278 Or. 471
Walter V. REMINGTON, Respondent,
v.
Patrick L. WREN and Joyce A. Wren, husband and Wife, Appellants.
Supreme Court of Oregon, Department 2.
Argued and Submitted January 6, 1977.
Decided May 31, 1977.
Kaye D. Brand of Craig & Brand, McMinnville, argued the cause and filed a brief for appellants.
H.W. Devlin, McMinnville, argued the cause for respondent. With him on the brief was Terrence D. Mahr, McMinnville.
Before DENECKE, C.J., and BRYSON, LINDE and MENGLER, JJ.
DENECKE, Chief Justice.
The plaintiff contracted in writing to build a home for the defendants Wren for a price of $20,953. Payments were to be made during the course of construction with the final payment on completion.
Mrs. Wren called plaintiff and asked for the final bill. Plaintiff's wife told Mrs. Wren it was $29,270.55 and Mrs. Wren said there must be a mistake. Plaintiff sent defendants a bill in that amount showing subcontractors' and suppliers' charges. Plaintiff called defendants several times thereafter and asked for payment. The defendants said the money would be paid when it came from the Veterans Administration where they were getting a loan. Three months after the defendants were first informed of the amount of plaintiff's bill, defendants sent plaintiff a check in an *1026 amount representing the contract price, plus extras of about $1,300, less the instalments previously paid, less a credit. The amounts of the extras, previous payments and credit apparently are not in dispute except for a few dollars.
Plaintiff brought this action and alleged in his complaint that "an account was stated between" the parties in the amount of plaintiff's billing of $29,270.55, less the amount previously paid. The trial court found for the plaintiff in the amount prayed for. The defendants appeal.
The defendants contend that the plaintiff cannot maintain an action based upon an account stated when there was an express contract to pay a specific amount of money. The defendants are correct and the judgment must be reversed.
In Halvorson v. Blue Mt. Prune Growers Co-op., 188 Or. 661, 670, 214 P.2d 986, 990, 217 P.2d 254 (1950), we stated, at least by way of dictum:
"* * * In such case, if the account [stated] is at variance with the terms of the contract, its receipt and retention by the debtor without objection raises no implication of assent by such debtor to its correctness. * * *."
In Edwards, Guardian v. Hoevet, 185 Or. 284, 294-295, 200 P.2d 955, 960, 6 A.L.R.2d 104 (1949), we quoted:
"`Neither is it proper to rest a stated account upon a liquidated demand already agreed upon and which either party is bound to pay, as, for instance, a promissory note alone.'" Murphy v. Oregon Engraving Co., 94 Or. 534, 537, 186 P. 12, 13 (1919).
We view a liquidated demand contained in a negotiable instrument to be legally similar to an agreed price in a contract.
Williston and Corbin also state this as a principle of law. 15 Williston, Contracts (3d ed.) 576, § 1863, nn. 18-20; 6 Corbin, Contracts 238, § 1304, n. 10.
Account stated is based upon an implied promise to pay arising because of the debtor's tacit assent to pay the amount billed by the creditor. Without other circumstances there is no consideration for a promise to pay an amount greater than the amount agreed upon in a contract and, therefore, such promise is unenforceable.
Corbin states:
"While an existing debt or legal duty is a sufficient reason for enforcing a promise to pay that debt, or any part of it, or to perform the duty, it is not a sufficient reason for enforcing a promise to do anything else. The new promise must be coextensive with the existing debt or other duty, or must be to render a performance that is wholly and exactly included within that debt or duty. Thus an existing overdue debt of $100 is a sufficient basis to sustain the debtor's promise to pay $100 to the creditor, or to pay $80 or any other sum less than $100; but it is not a sufficient basis for a promise to pay $101. * * *." 1A Corbin, Contracts 282, § 212.
In a section entitled, "Liquidated Money Debts and Account Stated," Corbin writes:
"Only a few words need be said about the relation of account stated to a simple debt consisting of one item, a sum certain that is due and payable. Usually it is assumed that there can be no account stated in the case of such a debt; and yet the creditor may, and frequently does, send his bill for the amount due and the debtor may expressly or tacitly assent thereto and promise to pay. As we have seen in other chapters herein, such a promise is itself an enforceable contract. * * *.
"Such a new promise by the debtor is a contract without the necessity of either assent or consideration. Nothing is given in exchange for it. Its validity rests solely upon the pre-existing debt, commonly called a `past consideration.' The obligation of the new promise is limited in two ways: first, by its own terms; and secondly, by the amount of the pre-existing debt. * * * [I]f the new promise is to pay an amount larger than the pre-existing debt it is not enforceable as to that excess." 6 Corbin, Contracts 237-238, § 1304.
*1027 We are of the opinion that any implied promise by the defendants to pay an amount in excess of the contract price which might otherwise support an account stated was without consideration and, therefore, unenforceable.
Plaintiff also asserts that defendants are estopped to deny plaintiff's claim. He bases this on evidence that he did not file a mechanic's lien within the time required because he was misled by defendants' seeming assent to his bill. The trial court found plaintiff had established this defense but did not rely upon it in deciding for plaintiff.
We conclude that the defendants' conduct did not estop defendants from denying they owed plaintiff the amount he is claiming. If plaintiff had filed a lien, he would have had to prove an account stated in the foreclosure suit, just as he has attempted and failed to do in the present litigation. His filing a lien would not have aided plaintiff in attempting to prove an account stated.
Reversed.
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Case: 16-11389 Document: 00514404544 Page: 1 Date Filed: 03/27/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11389
FILED
March 27, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
SARAH KIRKPATRICK,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-271-4
Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
Sarah Kirkpatrick pleaded guilty to conspiracy to possess, with intent to
distribute, methamphetamine, in violation of 21 U.S.C. §§ 841 and 846. She
was sentenced to 100 months’ imprisonment. In the single issue presented on
appeal, Kirkpatrick claims the district court erred by increasing her offense
level by two for possessing a firearm in connection with the offense (the issue).
U.S.S.G. § 2D1.1(b)(1).
* 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: 16-11389 Document: 00514404544 Page: 2 Date Filed: 03/27/2018
No. 16-11389
“Where a defendant has intentionally relinquished or abandoned a
known right, the issue is waived” and we “cannot address it”. United States v.
Rico, 864 F.3d 381, 383 (5th Cir.), cert. denied, 138 S. Ct. 487 (2017). As in
Rico, Kirkpatrick, after her initial objection to the presentence investigation
report (PSR), in which she included the issue, did not pursue the issue in
district court. Rico, 864 F.3d at 383–84.
In that regard, the court issued a tentative written ruling against
Kirkpatrick’s objections to assist the parties in their preparation for the
sentencing hearing, but repeatedly asked Kirkpatrick at sentencing if she had
objections other than those she asserted at the hearing. Id. By her silence on
the issue in her further written objections to the PSR and at sentencing, and
especially her advising the court at sentencing that it did not need to be
concerned with the original objections to the PSR, which included the issue
now presented on appeal, Kirkpatrick waived her challenge to the issue. Id.
AFFIRMED.
2
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104 F.3d 72
UNITED STATES of America, Plaintiff-Appellee,v.Charles PARKER, Jr., Defendant-Appellant.
No. 94-10557.
United States Court of Appeals,Fifth Circuit.
Jan. 14, 1997.
Kathleen A. Felton, Department of Justice, Washington, D.C., Frank D. Able, Assistant U.S. Attorney, Office of the United States Attorney, Dallas, TX, for plaintiff-appellee.
Peter Michael Fleury, Federal Public Defender's Office, Fort Worth, TX, for defendant-appellant.
Appeal from the United States District Court for the Northern District of Texas.
Before POLITZ, Chief Judge, and KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
1
We granted rehearing en banc to consider whether the district court correctly instructed the Appellant Charles Parker, Jr.'s ("Parker") jury on the elements of a Hobbs Act offense, 18 U.S.C. § 1951, and whether, if the instruction was erroneous, the error was subject to a harmless error analysis.
2
The panel opinion on petition for rehearing, relying on United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), concluded that the trial judge erred by reserving for himself the question of whether or not the alleged acts of Appellant Parker affected interstate commerce. Having reviewed the record and the briefs and arguments of the parties, we have determined that the trial court committed no Gaudin-type error. Any error that existed in the charge given below was harmless. We therefore leave for another day the question whether Gaudin error, i.e. a failure to submit an essential element of a crime to the jury, is subject to a harmlessness analysis.
3
The remaining portions of the panel opinion on petition for rehearing, including the discussions of the denial of Parker's motion to reopen, the interstate commerce element in the indictment and double jeopardy, are reinstated. See United States v. Parker, 73 F.3d 48, 53-55 (5th Cir.1996).
4
We AFFIRM Parker's Hobbs Act convictions, REVERSE his § 924(c) convictions, VACATE his sentence, and REMAND this cause to the district court for further proceedings consistent with this opinion.
5
AFFIRMED IN PART, REVERSED IN PART, VACATED and REMANDED.
6
DeMOSS, Circuit Judge, dissenting.
7
Parker robbed six retail business establishments in Fort Worth, Texas, within a two-week period in the fall of 1993.1 His total take was approximately $500. He was charged in federal court with "obstructing, delaying or affecting" interstate commerce by robbery, and with use of a firearm, during two of the robberies. Parker pleaded not guilty and the cases were tried to a jury. The jury found him guilty of all eight counts. The district court then sentenced Parker to serve 430 months.2
8
The district court instructed the jury as follows:
9
If you believe beyond a reasonable doubt the government's evidence regarding the handling of cash proceeds from the Payless Shoe Store referred to in Count 1 of the indictment, that is, that monies obtained from the operations of such store were routinely wired or electronically transferred from the State of Texas for deposit in a bank in another state, then you are instructed that the interstate commerce element, which I have just referred to as the third element of the offense charged by Count 1 of the indictment has been satisfied.3
10
Parker filed these written objections to the court's charge:
11
The finding by the court that certain facts establish the interstate commerce nexus deprives the defendant of due process, and the right to trial by jury. Counsel recognizes Fifth Circuit law allows this procedure under the theory the interstate commerce element is jurisdictional. However, counsel believes current Fifth Circuit law to be in conflict with the logic of Supreme Court precedent. In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270 [4 L.Ed.2d 252] (1960), the Supreme Court unequivocally stated:
12
"[T]here are two essential elements of a Hobbs Act crime: interference with commerce, and extortion [in this case, robbery]. Both elements have to be charged. Neither is surplusage and neither can be treated as surplusage. The charge that interstate commerce is affected is critical since the Federal Government's jurisdiction of this crime rests only on that interference." (alteration in Parker's written objection).4
13
In United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), decided after Parker's trial, the Supreme Court unanimously held that "[t]he Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged." Gaudin, 515 U.S. at ----, 115 S.Ct. at 2314. In Gaudin, the district court instructed the jury that, to convict the defendant, the government was required to prove, inter alia, that the alleged false statements were material. However, the court further instructed that " '[t]he issue of materiality ... is not submitted to you for your decision but rather is a matter for the decision of the court. You are instructed that the statements charged in the indictment are material statements.' " Id. at ----, 115 S.Ct. at 2313. The Supreme Court upheld the reversal of Gaudin's conviction because the jury's constitutional responsibility is not merely to determine the facts but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence. Id. at ----, 115 S.Ct. at 2315.
14
The government contends that Gaudin differs from this case in that, in Gaudin, the trial court took a factual element away from the jury entirely, while in this case the jury was instructed that they--not the judge--had to believe beyond a reasonable doubt the evidence supporting an interstate commerce finding. That is not how I read Gaudin.
15
The language from the Gaudin opinion describing the jury instruction clearly refers to the statements in question as "alleged," leaving the factual issue of whether or not the statements had been made for the jury to decide. Id. at ----, 115 S.Ct. at 2313. Additionally, the argument advanced by the government in Gaudin belies the interpretation proposed by the government here. In Gaudin, the government argued that the requirement that the jury decide all elements of a criminal offense applies only to the factual components of the essential elements and not to mixed questions of fact and law. Id. at ----, 115 S.Ct. at 2314. The Supreme Court rejected this argument, holding that even mixed questions of law and fact were the province of the jury. Id. The question taken away from the jury by the trial court in Gaudin is analogous to the circumstance in the present case. The trial court charged the jury with deciding if the alleged acts occurred and improperly reserved for itself the question of whether or not the alleged acts affected interstate commerce.
16
The government next attempts to distinguish Parker's case from Gaudin on the basis that a different element of the crime was taken away from the jury by the trial court. In Gaudin, it was materiality; in this case, it was the finding of an effect on interstate commerce. The government contends that, because the interstate commerce element is necessary for jurisdiction, it is appropriately a matter for the judge's determination. In the Fifth Circuit, prior to Gaudin, the trial court determined whether the facts alleged met the statutory requirement of affecting interstate commerce. United States v. Hyde, 448 F.2d 815, 839-841 (5th Cir.1971), cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745 (1972).5 However, Gaudin makes it clear that, although the court must instruct the jury on the law, criminal defendants have a constitutionally guaranteed right to demand that the jury decide guilt or innocence on every element, including any application of the law to the facts. Gaudin, 515 U.S. at ----, 115 S.Ct. at 2315. In finding constitutional error, Gaudin provides no basis for distinguishing "materiality" from "an effect on interstate" commerce by labeling the latter jurisdictional.
17
Chief Justice Rehnquist, in his concurring opinion, referred to the "syllogistic neatness" of the Gaudin decision: "every element of an offense charged must be proven to the satisfaction of the jury beyond a reasonable doubt; 'materiality' is an element of the offense charged under § 1001; therefore, the jury, not the Court, must decide the issue of materiality." Gaudin, 515 U.S. at ----, 115 S.Ct. at 2320. In applying Gaudin to the Hobbs Act in Parker's case, we must determine whether the second premise of the syllogism holds up, i.e., whether affecting interstate commerce is an element of a Hobbs Act violation. The government in Gaudin did not contest that materiality was an element of the offense charged. Likewise, the government in this case does not contest that affecting interstate commerce is an element of a Hobbs Act violation. Therefore, under Gaudin, it was error for the trial judge to decide the element of effect on interstate commerce.
18
Finally, the government contends that the instructions in this case can be distinguished from the instructions in Gaudin because the instructions in this case "did not entirely remove" the element of "effects on commerce" from the jury's consideration, while the instruction in Gaudin entirely removed the element of materiality. Unfortunately, in my view, the en banc majority swallowed this distinction hook, line and sinker, without so much as one citation to any case or any elaborations of what reasoning they used to arrive at this conclusion. A determination that "the trial court committed no Gaudin-type error," which is the heart of the majority's opinion, gives no indication whatsoever to the Bench and bar of this Circuit (i) as to what "a Gaudin-type error" is nor (ii) how elements of a crime which involve mixed questions of fact and law should be submitted after the Supreme Court's decision in Gaudin. This is the second occasion (see United States v. McGuire, 99 F.3d 671 (1996)) on which our Court has, in my view, ducked its obligation to give guidance to judges and practitioners as to developing legal issues.
19
I respectfully dissent from the conclusory disposition of this case.
20
DENNIS, Circuit Judge, dissenting.
21
I respectfully dissent from the majority's decision that "no Gaudin-type error" occurred and to "leave for another day the question whether a Gaudin error, i.e. a failure to submit an essential element of a crime to the jury, is subject to a harmlessness analysis".
1
The robberies involved in this case were typical garden variety robberies which occur routinely in cities, towns, and villages across this land and are customarily dealt with by the local police departments and the state's prosecutorial offices. The date, place, persons robbed, and cash taken in each count of the indictment are as follows:
Count 1 October 29, 1993 Payless Shoe Store
Saida Cervera $136.00
Count 2 November 4, 1993 Chevron Station
Nancy Dold $ 27.00
Count 3 November 5, 1993 Chief Auto Parts Store
David Fleming $ 40.00
Count 4 Use of gun in regard to Count 3
Count 5 November 5, 1993 Fina Station
Gilbert Neal $ 50.00
Count 6 Use of gun in Count 5
Count 7 November 6, 1993 Diamond Shamrock Service Station
Rhonda Taylor $ 97.00
Count 8 November 11, 1993 Edwards Drug Store
Lisa Edwards $109.00
2
130
months each as to Counts 1, 2, 3, 5, 7 and 8 to run concurrently
60
months as to Count 4 to run consecutively to Counts 1, 2, 3, 5, 7 and 8
240
months as to Count 6 to run consecutively to prior sentences
----
430
months total to serve
3
Similar instructions were given as to each of the robberies charged
4
It is important to note that this case involves a claim of error raised by timely objection in the district court and we assess the impact of such error under the terms of Rule 52(a) as to whether it affected a substantial right. As this Court held in United States v. Pettigrew, 77 F.3d 1500 (1996), failure to submit to the jury an element of the crime for its determination beyond a reasonable doubt cannot possibly be "harmless error."
5
Thus, the trial judge's instruction was entirely proper at the time it was given under existing Fifth Circuit precedent
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Filed 2/2/16 P. v. Mitchell CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B262417
(Super. Ct. No. 1406034)
Plaintiff and Respondent, (Santa Barbara County)
v.
ERNEST RAYMOND MITCHELL,
Defendant and Appellant.
The question here is whether a defendant who has been released from prison
but placed on post-release community supervision (PRCS) is still serving his sentence for
the purposes of Proposition 47. We conclude that he is. Thus the trial court has the
discretion to place him on parole for one year. (Pen. Code, § 1170.18, subds. (a) & (d).)1
We modify the sentence to place the defendant on parole instead of PRCS.
In all other respects, we affirm.
FACTS
Ernest Raymond Mitchell pled guilty to one count of felony possession of
methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) He also admitted he
suffered a prior serious or violent conviction (§ 1192.7, subd. (c)); suffered a prior strike
conviction (§§ 667, subds. (b)–(i); 1170.12 subds. (a)–(d)); and served two prior prison
terms (§ 667.5, subd. (b)).
1
All statutory references are to the Penal Code unless otherwise stated.
On April 11, 2013, the trial court sentenced Mitchell to the low term of 16
months on possession of methamphetamine, doubled under the three strikes law, plus one
year for a prior prison term for a total of three years eight months. The disposition of the
second prior prison term allegation is not reflected in the record. The court granted 512
days of presentence custody credits.
Mitchell was released from prison on November 25, 2014, and placed on
PRCS.
On December 1, 2014, Mitchell filed an application to have his felony
conviction designated a misdemeanor pursuant to Proposition 47. (§ 1170.18, subds. (f) &
(g).) The trial court granted the petition, subject to Mitchell remaining on PRCS for one
year.
DISCUSSION
Mitchell contends the trial court's order that he remain on PRCS is unlawful.
Proposition 47 is codified in part in section 1170.18, subdivision (a), which
allows a person "currently serving a sentence" for a qualifying felony conviction to
petition for a recall of the sentence. Subdivision (b) requires the trial court to resentence a
person qualifying under subdivision (a) to a misdemeanor unless the court determines the
person would pose an unreasonable risk of danger to public safety. Subdivision (d) gives
the trial court discretion to subject a person resentenced under subdivision (b) to parole for
one year following the completion of his sentence.
Section 1170.18, subdivision (f) allows a person who has completed his or
her sentence for a qualifying felony to petition the court to have the conviction designated
a misdemeanor; subdivision (g) requires the trial court to designate the offense a
misdemeanor. Unlike subdivision (a) and (b), applicable to those currently serving a
sentence, subdivisions (f) and (g) contain no provision for parole.
Mitchell contends he qualifies under subdivisions (f) and (g) because he had
completed his sentence. He cites People v. Espinoza (2014) 226 Cal.App.4th 635 for the
proposition that PRCS is not a part of his sentence.
2
But Espinoza holds no such thing. It merely notes the difference in PRCS
and parole in explaining why the defendant is not entitled to custody credits. (People v.
Espinoza, supra, 226 Cal.App.4th at pp. 638-640.)
Section 3000, subdivision (a)(1) states in part, "A sentence resulting in
imprisonment in the state prison pursuant to section 1168 or 1170 shall include a period of
. . . postrelease community supervision . . . ." Thus PRCS is part of Mitchell's sentence.
Section 1170.18, subdivision (d) applies.
The People concede that Mitchell has one point. Section 1170.18,
subdivision (d) provides for one year of parole. The trial court sentenced Mitchell to one
year of PRCS. The People suggest that we remand the case to the trial court for
resentencing.
But there is nothing to indicate that the trial court that sentenced Mitchell to
one year of PRCS would not have sentenced him to one year of parole. We can amend the
sentence on appeal.
DISPOSITION
The sentence is amended from one year on PRCS to one year on parole. In
all other respects, we affirm.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
3
James F. Iwasko, Judge
Superior Court County of Santa Barbara
______________________________
Richard B. Lennon, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez,
Garett A. Gorlitsky, Deputy Attorneys General, for Plaintiff and Respondent.
4
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786 F.2d 1165
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.J. FORD ROCHE & COMPANY, Plaintiff-Appellant and Cross-Appelleev.A & E PLASTIK PAK COMPANY, INC., Defendant-Appellee andCross-Appellant.
84-1433, 84-1499
United States Court of Appeals, Sixth Circuit.
2/25/86
E.D.Mich.
AFFIRMED
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
Befored MERRITT and MARTIN, Circuit Judges; and HOGAN,* Senior District Judge.
PER CURIAM.
1
This rather convoluted diversity contract dispute, between the J. Ford Roche & Company and the A & E Plastik Pak Company, Inc., is before us for a second time. We held the district court erred on the first appeal and remanded the case for a trial on damages. A review of the record before us and the rulings made by the district court leads to but one conclusion, and that is that the judgments of the district court should be affirmed.
2
The initial agreement, out of which this litigation began, was signed on February 21, 1972. Roche & Company agreed in writing with Plastik Pak, that Roche & Company would be the exclusive agent for the sale, lease and maintenance of Plastik Pak commercial signs in the state of Michigan. The agreement was subsequently amended when on May 13, 1974, Plastik Pak limited Roche & Company to those signs that were to be acquired by the General Motors Corporation. The agreement provided for payment of commission of one or two percent of gross sales depending on the product sold or leased. In the termination clause, it was provided that the contract would continue until December 31, 1975 and would thereafter automatically renew itself, unless cancelled, for successive three-year periods, as long as J. Ford Roche obtained sales averaging $500,000 a year for the previous three-year period. It is undisputed that Roche & Company obtained such sales, and that they greatly exceeded the required amount. The agreement continued until May 1, 1976 when Plastik Pak terminated the agreement. Under the provisions of the contract the agreement would have terminated itself on December 31, 1978.
3
The issues before the Court in the first appeal, and again in this appeal, were such as to warrant limited precedential value, and therefore the earlier opinion was not published. A review of the record now leads us to believe that this second per curiam should also remain unpublished because the law of the state of Michigan is relatively clear, and the facts and law to be determined apply only to these two parties. It should be further pointed out that because of either animosity or other ill feeling the case has remained extremely confusing, and even now, the court finds it difficult to determine precisely how the parties attack the judgments of the district court. For our purposes, we therefore redefine the issues and first consider whether damages should extend past the period of December 31, 1978.
4
On that issue, our earlier opinion is fairly clear that damages, pursuant to the contract, terminate as of that date. We specifically denied the request of Roche & Company that specific performance past that date be granted, and we can see no reason now for allowing damages beyond that date. Therefore, the district court was correct in finding Roche & Company's supplemental interrogatories, which sought information about Plastik Pak's sales from 1979-1981, irrelevant.
5
The next issue was address involves the amount of damages recoverable by Roche & Company after the breach. A review of the record before us indicates that Roche & Company and Plastik Pak agree that the issue of damages must be resolved under Michigan law. This is true even though the substantive contract issues were to have been resolved under the law of Texas. See Rubin v. Gallagher, 294 Mich. 124 (1940). The record esablishes, and we agree, that the damages which Roche & Company suffered must be composed of the gross commissions his company would have earned during the period following the breach through December 31, 1978, less the expenses which the company would have incurred to earn those commissions but, which were saved as a result of Plastik Pak's breach. See Benfield v. Porter, 1 Mich. App. 543, 547 (1965). Throughout the proceedings before the district court, and here, there has been a basic disagreement as to exactly which expenses should be deducted in making this calculation. As we noted in our earlier opinion, certain deductions for overhead were appropriate in the computation of damages. We review and approve for the purposes of this appeal the findings made by the district court as to this issue. On the issue of the law to be applied, we can find no error with the determinations made.
6
To begin with, it should be pointed that a contract, similar to that one entered into between Roche & Company and Plastik Pak, had existed prior to 1972. Roche & Company had hired Charles Handley to assist in servicing Plastik Pak's General Motors account. At that time Roche spent very little time working on the General Motors account, but was available if necessary to assist Handley in the servicing of the General Motors account. Handley remained with Roche until 1975. Beginning in 1975, Roche himself handled most of the day-to-day operations for General Motors. Handley had been paid prior to 1975 a salary of approximately $12,000 a year. According to the testimony in the trial on damages, Roche spent approximately 10-12 hours a week servicing the General Motors account and spent additional time attempting to develop other business. The deductibility of Roche's salary appears to have been a principle matter which presented the district court with a difficult choice. In this area it appears that during the years 1972 through 1975 Roche was paid an average salary of $47,000 a year. During the same period, the net income before taxes of the J. Ford Roche Company averaged about $10,000 a year. The gross commissions received by J. Ford Roche from Plastik Pak during the years up to the termination averaged approximately $100,000 a year. Expenses other than J. Ford Roche's salary as president of the J. Ford Roche & Company in the period 1972 through 1975 approximated $40,000 per year.
7
After the breach took place in 1976, J. Ford Roche, even though he had little business other than the General Motors account, elected to continue in business, and in the 1976-78 period maintained his offices and incurred many of the overhead and other expenses which he had incurred during the 1972-75 period. Mr. Roche testified that substantial efforts toward obtaining new business were made during this period but without avail.
8
At trial, Plastik Pak sought a ruling that all of these overhead expenses were related to work done on the General Motors account, and that they should have ended when the breach occurred. Plastik Pak also sought a ruling that gross commissions be reduced by an amount equal to the salary paid Roche. Roche & Company, on the other hand, argued that no salary deductions be made.
9
The district court instructed the jury with respect to the expenses that
10
[Y]our responsibility is to determine what expenses plaintiff would not have had--what it saved because it was not required to service the General Motors account . . . and when you arrive at that figure you should deduct it from the commission . . .
11
* * *
12
* * *
13
As to salaries, you should deduct the amount you find under the circumstances of this case would have been paid by the corporation to a person, whether the person is an officer or shareholder or merely an employee, to handle the account.
14
The verdict reached by the jury was as follows:
15
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
TABLE
16
As we read Benfield, a question of fact was presented as to salaries and expenses, which was to be determined solely on the basis of the jury's decision. This is a damage case involving the question of the reasonable value of Roche's contracted services for the period beginning with the breach through the last day the contract could have operated, which was December 31, 1978. The question is one of 'reasonable value' and was correctly submitted to the jury under appropriate instructions under Michigan law. Thus, the determination of the jury was appropriate under the facts of the case.
17
The final issue relates to interest paid on the verdict of $129,894. The relevant Michigan statute provides
18
(1) Interest shall be allowed on any money judgment recovered in a civil action, as provided in this section.
19
(2) For complaints filed before June 1, 1980, in an action involving other than a written instrument having a rate of interest exceeding 6% a year, the interest on the judgment shall be calculated from the date of filing the complaint to June 1, 1980 at the rate of 6% a year and on and after June 1, 1980 to the date of satisfaction of the judgment at the rate of 12% per year compounded annually . . ..
20
Mich. Comp. Laws Sec. 600.6013.
21
In interpreting the statute, Michigan courts have held that interest does not begin to run from the date of the filing of the complaint in every case. The Michigan courts have consistently held that an award of interest is not for the purpose of punishment, but to compensate the plaintiff for the loss of the use of money with its attendant expense and delay. See Foremost Life Insurance Company v. Waters, 125 Mich. App. 799 (1983). In the present case, the jury held that commissions were to be paid to Roche & Company on sales to General Motors. Until General Motors paid those commissions to Plastik Pak, it had nothing to pay Roche & Company. Interest should begin to accrue on damages on the specific dates in the three-year period when the commissions became due and payable to Roche & Company. Thus, Roche & Company is entitled to the following awards of interest: Interest at the rate of 6% on $35,546 from December 31, 1976 until June 1, 1980, and thereafter at 12% until paid. Interest at the rate of 6% on $38,845 from December 31, 1977 until June 1, 1980, and thereafter at 12% until paid. Interest at the rate of 6% on $55,503 from December 31, 1978 until June 1, 1980, and thereafter at 12% until paid.
22
Based on the foregoing reasons, the judgment of the district court is hereby affirmed as to all issues raised on this appeal.
*
Honorable Timothy S. Hogan, Senior United States District Judge for the Southern District of Ohio, sitting by designation
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186 Ariz. 529 (1996)
924 P.2d 1048
STATE of Arizona, Appellee,
v.
Richard Lee THOMPSON, Appellant.
No. 1 CA-CR 95-0682.
Court of Appeals of Arizona, Division 1, Department A.
September 26, 1996.
*530 Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, and Jack Roberts, Assistant Attorney General, Phoenix, for Appellee.
John C. Williams, Prescott, for Appellant.
OPINION
FIDEL, Judge.
Defendant Richard Lee Thompson was convicted in a jury trial of aggravated assault, unlawful flight, and theft. Accepting these convictions, Defendant argues on appeal that his sentences were improperly enhanced. The trial court, citing two prior felony convictions in Colorado, sentenced Defendant to enhanced prison terms under Arizona Revised Statutes Annotated ("A.R.S.") § 13-604, Arizona's sentencing provision for repetitive offenders.[1] Defendant argues on appeal that, because the Colorado statute underlying his prior convictions encompassed conduct that would not have been felonious in Arizona, his Colorado convictions did not qualify as prior felonies to enhance the sentences that he appeals.
To utilize an out-of-state conviction as a prior felony under section 13-604, the sentencing court must determine that the defendant was convicted of a crime that would have constituted a felony under Arizona law. This case concerns what the sentencing court may consider in making that determination.
I.
The trial court enhanced Defendant's Arizona sentences on the ground that, on two previous occasions, Defendant had been convicted in Colorado of second degree burglary, a felonious offense. Underlying Defendant's Colorado convictions, Colorado Revised Statutes ("C.R.S.") § 18-4-203(1)(1973) provides:
*531 A person commits second degree burglary, if he knowingly breaks an entrance into, or enters, or remains unlawfully in a building or occupied structure with intent to commit therein a crime against a person or property.
(Emphasis added.)
In contrast to Colorado's statute, Arizona's second degree burglary statute requires more than an intent to commit a "crime"; under Arizona's statute, a defendant must enter with an intent to commit a "theft" or "felony." A.R.S. § 13-1507(A) (1989) provides:
A person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein.
(Emphasis added.) Comparing the elements of the statutes, Defendant argues, and the State concedes, that Colorado's statute encompasses conduct that would not constitute a felony under Arizona law.
The Colorado statute, however, elevates second degree burglary, ordinarily a class 4 felony, to a class 3 felony if
(a) It is a burglary of a dwelling; or
(b) It is a burglary, the objective of which is the theft of a controlled substance ... lawfully kept within any building or occupied structure.
C.R.S. § 18-4-203(2)(1982).
Among the trial exhibits, certified copies of Defendant's Colorado judgments of conviction demonstrate that both were for second degree burglary, a class 3 felony. The question therefore arises whether the class 3 felony of second degree burglary in Colorado encompasses only conduct that would constitute a felony under Arizona law. Without addressing that question, the State argues that the trial court was entitled to consider certified copies of Colorado charging documents establishing that each of the Colorado convictions arose from a charge that Defendant had committed burglary with intent to commit theft of a controlled substance an offense that clearly constitutes a felony under Arizona law. The Defendant, likewise failing to analyze the elements of the class 3 felony of second degree burglary in Colorado, argues that the trial court was not entitled to consider charging documents or, indeed, to look beyond the four corners of the broad Colorado statute making second degree burglary a crime.
II.
In State v. Clough, this court stated:
[T]here must be strict conformity between the elements of the [out-of-state] felony statute and the elements of some Arizona felony before A.R.S. § 13-604(I) can apply.... [A] court must be sure that the fact finder in the prior case actually found beyond a reasonable doubt that the defendant had committed every element that would be required to prove the Arizona offense.
171 Ariz. 217, 219-20, 829 P.2d 1263, 1265-66 (App. 1992).
Defendant, quoting this statement, argues that, to qualify an out-of-state conviction for enhancement purposes, the sentencing court must confine itself to comparative statutory analysis and may not consider evidence concerning the actual conduct the defendant was proven to commit.
State v. Schaaf, 169 Ariz. 323, 819 P.2d 909 (1991), gives Defendant's argument some support. There, our supreme court stated that to establish, as an aggravating circumstance, that a defendant was previously convicted of a crime involving the use or threat of violence, courts may consider "only the statute that [a] defendant is charged with violating; it may not consider other evidence, or bring in witnesses...." Id. at 334, 819 P.2d at 920 (citing State v. Hinchey, 165 Ariz. 432, 437, 799 P.2d 352, 357 (1990)); see also State v. Gillies, 135 Ariz. 500, 511, 662 P.2d 1007, 1018 (1983) (precluding the State from calling the victim of a prior crime to testify that it had been committed with violence on the grounds that the court would not "allow what is, in effect, a second trial on defendant's prior conviction....").
It is one thing, however, to preclude the State from "bring[ing] in the victim of the prior crime, long after its commission," to establish the nature of the prior crime. Id. *532 It is another to preclude the State from introducing documentary evidence defining the nature of the prior conviction. Thus, in recent cases, our supreme court has held that, by establishing a particular subsection under which a defendant was convicted of aggravated assault, the State may prove that the prior conviction involved violence or threat of violence, an aggravating circumstance under A.R.S. § 13-703(F)(2). See, e.g., State v. Ramirez, 178 Ariz. 116, 129-30, 871 P.2d 237, 250-51 (1994); State v. Kiles, 175 Ariz. 358, 369-70, 857 P.2d 1212, 1223-24 (1993); State v. Fierro, 166 Ariz. 539, 549-50, 804 P.2d 72, 82-83 (1990). We find no inconsistency between these cases, which permit the State to pinpoint the statutory basis of a prior conviction, and the proscription of Schaaf, Gillies, and Clough against making the conduct underlying the prior conviction the subject of a second trial.
We therefore hold that the State may qualify an out-of-state conviction as an enhancing prior felony by establishing that the defendant was convicted under a particular subsection of a foreign statute, if that subsection encompasses only conduct that would constitute a felony in Arizona. It follows that, by establishing through judgments of conviction that Defendant was convicted in Colorado of second degree burglary, a class 3 felony, the State narrowed the frame of reference from C.R.S. § 18-4-203 the broad second degree burglary statute as a whole to C.R.S. § 18-4-203(2) the particular subsection that limits class 3 burglaries to those "of a dwelling" or those "the objective of which is the theft of a controlled substance."
The question remains whether a conviction under subsection 18-4-203(2) of the C.R.S. necessarily entailed conduct that would have constituted a felony in Arizona. To narrow the question further, we may conclude, by facial comparison of the Colorado and Arizona second degree burglary statutes, that burglary with the objective of theft of a controlled substance would clearly constitute "burglary with the intent to commit any theft," a class 3 felony in Arizona. See A.R.S. § 13-1507. Thus, the question becomes whether "burglary of a dwelling," an offense within the scope of C.R.S. § 18-4-203(2), would necessarily constitute a felony in Arizona.
Sidestepping this question, however, the State attempts to narrow Defendant's prior convictions to burglaries with the objective of theft of a controlled substance. For this purpose, the State introduced at the time of sentencing, and the trial court relied upon, copies of Colorado charging documents establishing that Defendant was charged in each case with burglary with the objective of theft of a controlled substance. We therefore consider whether the trial court was entitled to rely on charging documents to establish the nature of either of Defendant's prior convictions.
We first consider Defendant's conviction of March 2, 1983. The judgment recording that conviction not only reflects that Defendant was convicted of second degree burglary, a class 3 felony, but further specifies that the conviction was pursuant to Count I of the Information. Count I of the Information in turn charges Defendant expressly with second degree burglary with the objective of theft of a controlled substance. In this instance, because the judgment of conviction effectively incorporated Count I of the charging document by reference, we conclude that the trial court properly considered that charging document in determining the precise nature of Defendant's conviction. And because the judgment of conviction and charging document established in combination that Defendant was convicted in Colorado of a crime that would have constituted a felony in Arizona, we conclude that the trial court properly considered Defendant's March 2, 1983, conviction for the purpose of sentence enhancement under A.R.S. § 13-604.
We next consider Defendant's conviction of November 17, 1983. Here, in contrast to the March conviction, the judgment reflects only that Defendant was convicted of second degree burglary, a class 3 felony; the judgment does not refer to the charging document in any respect. We conclude in this instance that the trial court could not rely upon the charging document to determine the nature of Defendant's conviction. Although Defendant was indeed initially *533 charged with burglary with the objective of theft of a controlled substance, initial charges can be amended at trial or in change of plea proceedings. See, e.g., Ariz. R.Crim. P. 13.5(b), 17 A.R.S. (charge may be amended to correct mistakes of fact or technical defects, or if a defendant consents); Colo. R.Crim. P. 7(e), Title 16 C.R.S. (form and substance of information may be amended before trial; form may be amended before verdict or finding). As Defendant correctly asserts, the case law unequivocally emphasizes the conviction not merely the charge. See, e.g., Ramirez, 178 Ariz. at 130, 871 P.2d at 251; Kiles, 175 Ariz. at 369, 857 P.2d at 1223. The trial court was unable in this instance to rule out the possibility that Defendant may have been convicted of the class 3 felony of second degree burglary of a dwelling.
We therefore return to the question whether burglary of a dwelling under Colorado's statute necessarily constitutes a felony in Arizona. We conclude that it does. Colorado defines "a dwelling" as "a building which is used, intended to be used, or usually used by a person for habitation." C.R.S. § 18-1-901(3)(g). This definition falls within what the Arizona Revised Statutes refer to as "a residential structure."
Under A.R.S. § 13-1504(A)(1), Arizona's statute for criminal trespass in the first degree:
A person commits criminal trespass in the first degree by knowingly ... [e]ntering or remaining unlawfully in or on a residential structure or in a fenced residential yard.
Subsection 13-1504(B) further classifies criminal trespass in the first degree as a felony if "it is committed by entering or remaining unlawfully in or on a residential structure...." Under A.R.S. § 13-1501(7)(1995), "`Residential structure' includes any structure, movable or immovable, permanent or temporary, adapted for both human residence and lodging whether occupied or not."
Because Arizona's statutory definition of "residential structure" necessarily encompasses Colorado's definition of "a dwelling," we are satisfied that the Colorado felony of entering or remaining unlawfully in the dwelling of another is also a felony in Arizona. Compare C.R.S. § 18-4-203(2) with A.R.S. § 13-1504(A). Consequently, it is immaterial whether, when convicted of the class 3 felony of second degree burglary in November 1983, Defendant was found to have committed the specific act of burglary with the objective of obtaining a controlled substance or the specific act of burglary of a dwelling. In either event, Defendant was convicted of an act that would have constituted a felony in Arizona; and his conviction was therefore properly considered by the trial court as an enhancing prior felony under A.R.S. § 13-604.
III.
For the foregoing reasons, the judgment and sentences of the trial court are affirmed.
NOYES, P.J., and McGREGOR, J., concur.
NOTES
[1] A.R.S. § 13-604(C) and (D) establish enhanced ranges of sentence for felony convictions for persons who have "two or more historical prior felony convictions." Subsection 13-604(N)(1995) (formerly A.R.S. § 13-604(I)) provides, in pertinent part: "A person who has been convicted in any court outside the jurisdiction of this state of an offense which if committed within this state would be punishable as a felony ... is subject to the provisions of this section."
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
STEVE A. GIBSON, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-3087
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed October 6, 2014
An appeal from the Circuit Court for Escambia County.
Ross Goodman, Judge.
Steve A. Gibson, pro se, Appellant.
Pamela Jo Bondi, Attorney General, Charlie McCoy, Assistant Attorney General,
Tallahassee, for Appellee.
PER CURIAM.
AFFIRMED.
VAN NORTWICK, RAY, and OSTERHAUS, JJ., CONCUR.
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196 F.2d 300
RUDEENv.LILLY et al.
No. 12910.
United States Court of Appeals Ninth Circuit.
April 30, 1952.
Robert D. Wennergren, Preston, Idaho, Gus Carr Anderson and Walter H. Anderson, Pocatello, Idaho, for appellant.
Thomas H. Tongue, III, Portland, Or., U. S. Balentine, Klamath Falls, Or., Hicks, Davis & Tongue, Portland, Or., for appellees.
Before HEALY, BONE and POPE, Circuit Judges.
BONE, Circuit Judge.
1
Appellees who are co-partners and citizens of Oregon, instituted this action to foreclose a mortgage dated August 4, 1948 and executed in their favor by Great West Lumber Corporation, an Idaho corporation. The action was originally commenced in the Circuit Court of Oregon for Klamath County and later removed to the lower court. The property covered by a mortgage was a tract of land described as "NE-¼ of SE-¼ Section 13, Township 23, South Range 9 East Willamette Meridian," located in Klamath County, Oregon and
2
"a complete sawmill installed thereon with buildings consisting among other things as follows: 2 circular saw headrakes, edger, automatic trim saw, conveyors, conveyor chains, numerous gas engines and other equipment in connection therewith."
3
The mortgage was executed, signed and delivered to appellees on behalf of Great West Lumber Corporation by R. O. Camozzi acting in the capacity of "President and General Manager" thereof, and it recited that it was intended to secure the payment of a debt of $10,000.00 due to appellees from said corporation in accordance with the tenor of a promissory note for said amount made payable to appellees. The mortgage was executed on behalf of said corporation1 and signed by the said Camozzi as, and acting in the capacity of "President and General Manager" thereof. The said note also bore date of August 4, 1948; default in payment thereof resulted in the bringing of the foreclosure action above noted.
4
In the instant mortgage foreclosure action, Great West Lumber Corporation, Carl Rudeen (a resident of Idaho) and Klamath County, Oregon, were named as defendants. One of the allegations of the complaint was that appellant Carl Rudeen claimed "some right, title, interest and lien in and on the property" referred to in the mortgage instrument, and that such claim of interest, if any, was inferior in time and right to appellees' superior lien upon the said property. The complaint further alleged that Klamath County, Oregon, claimed a lien for taxes upon some or all of the property covered by the mortgage; the prayer was that the court ascertain the amount of such taxes and that the claim therefor be segregated and applied to specific properties and that the tax liens, if any, which were prior to appellees' lien, be paid.
5
Great West Lumber Corporation and Klamath County, Oregon defaulted and did not appear in this action.
6
Appellant Rudeen answered and defended on several grounds which we summarize as follows: That Camozzi attempted to execute the note and mortgage without actual or apparent authority so to do; that the indebtedness represented by the note has been fully paid; that prior to January 27, 1949 the defendant Great West Lumber Corporation was the owner of a complete sawmill situated on the real property described in the mortgage; that between August 4, 1948 and January 27, 1949, notices of tax liens for internal revenue taxes due the Federal Government from Great West Lumber Corporation were filed with the County Clerk of Klamath County, Oregon and pursuant to notice, said real property and said sawmill located thereon was offered for sale by the United States Internal Revenue Service to satisfy said liens for such taxes; that at such sale held on January 27, 1949, Rudeen was the highest bidder for said real and personal property and purchased the same (with additional personal property) for $8,000.00 and received certificates of purchase for said property; that he is the owner thereof, and is in possession of the same subject only to the right of redemption of Great West Lumber Corporation.
7
Further averments of Rudeen, by way of defense, were that R. O. Camozzi executed the said note and mortgage to secure appellees upon a pre-existing debt then due them from Great West Lumber Corporation and that the said acts of Camozzi were not the acts of the corporation he purported to represent; that appellees' said mortgage clouds Rudeen's title acquired under the Government sale to satisfy the lien of internal revenue taxes and this cloud should be removed by the decree of the court.
8
The pleadings were superseded by a pretrial order, and upon trial the lower court made and entered comprehensive Findings of Fact which covered all material issues in evidence. Because of their length they are here summarized: —
9
The court found that Camozzi was the President and General Manager of Great West Lumber Corporation and the sole and only officer of that (Idaho) corporation present in Oregon during the times involved in this action; that the stockholders and directors thereof became inactive and failed to hold regular meetings or to take an active part in the affairs of the said corporation or to supervise the activities of its said President and General Manager but acquiesced in all of his acts, and under the by-laws of said corporation and the custom and practice thereunder, said stockholders and directors conferred and delegated both actual and apparent authority upon its said President and General Manager to take charge of, operate, manage and control all of the affairs of the corporation in Oregon, including the operation of the sawmill in Klamath County here involved, and also including all things which he considered to be necessary or proper in connection therewith; that as to the mortgage here involved such actual and apparent authority included power to execute the mortgage dated August 4, 1948, to plaintiffs (appellees) to secure a promissory note payable to plaintiffs under the same date, in the sum of $10,000 of which the sum of $9,546.63 is still due and owing on the principal thereof and that said mortgage was duly recorded in said Klamath County on August 5, 1948; that at and prior to the time of execution of the said note and mortgage plaintiffs (appellees) had filed suit against said corporation to recover the sum of $15,134.97 and had secured an attachment against the lumber produced by its sawmill and awaiting sale, and their preliminary injunction secured in that suit had restrained all sales of lumber by said corporation; that as a result thereof the said sawmill was forced to cease operations and only resumed operations when the mortgage was executed and the attachment released and the injunction dismissed; that plaintiffs (appellees) declined to release said attachment and/or dismiss said injunction unless provided with security for said obligation by way of a mortgage; that to call a meeting of directors in Idaho to consider said matter would have required a delay of several days and it was not practicable to call such a meeting under the circumstances; that Camozzi had substantial reason to believe that such an emergency existed as to seriously threaten the affairs of said corporation unless said mortgage was executed immediately and without such delay; that its execution was reasonably necessary to prevent substantial loss and that the execution thereof enabled said corporation to secure the release and dismissal of the said attachment and injunction in order to resume sales of lumber and escape the danger of closing its sawmill operations all of which was of substantial benefit to said corporation, its directors and stockholders.
10
The court further found that at the time of the execution of the said mortgage and immediately thereafter the directors of the corporation had reason to know of all of the facts relating thereto and full opportunity to inform themselves as to all of said facts; that on November 17, 1948 the directors held a special meeting at which they considered the matter of the said note and mortgage but did not then, or at any time thereafter, take any action to rescind or reject the said mortgage or deny that it was a duly authorized, valid and existing obligation of the said corporation, and the execution of the mortgage has been ratified by them; that said corporation was served with summons and complaint in this action and has failed to deny any of the allegations of the complaint or contest the entry of a decree as prayed therein and is now in default.
11
The court further found that Rudeen was a stockholder and director of Great West Lumber Corporation at and following the time of the execution of the said note and mortgage, and after the execution of said mortgage Rudeen attempted to reorganize the affairs of the said corporation; that he bid upon the assets of the corporation at a sale conducted on January 27, 1949, by the Collector of Internal Revenue pursuant to warrants of distraint for unpaid Federal internal revenue taxes levied upon the real and personal property of said corporation in Klamath, Oregon, including the property described in the said mortgage, but notices of tax liens for said unpaid taxes were not filed in said Klamath County until after the recording of the said mortgage; that at the said tax sale Rudeen submitted a bid of $8,000 for the real and personal property of said corporation subject to said tax liens, which said property was originally purchased and constructed by said corporation at a cost in excess of $200,000 and was the successful bidder at said tax sale; that prior to said tax sale Rudeen had full and complete knowledge of all facts relating to the execution of said mortgage and with this knowledge mailed a letter to plaintiffs (appellees) recognizing the existence and validity of their said mortgage, stating that the corporation had no funds to pay it and that the said tax sale would be subject to the said mortgage; that at the sale and thereafter Rudeen further recognized the existence and validity of the said mortgage and that said tax sale was made subject thereto; that plaintiffs (appellees) had reason to and did rely upon the aforesaid conduct and representations of Rudeen, and Rudeen was not an innocent or bona fide purchaser and is estopped to deny the validity of the said mortgage which was intended to and did cover the real property described therein together with a long list of items of sawmill equipment enumerated by the court and which the court held had been equipment used in the operation of the said sawmill and was covered by the said mortgage.
12
The court further found that the plaintiffs, Rudeen and Klamath County, Oregon, had stipulated that no real property taxes are due on the real property here involved but that personal property taxes in the sum of $3,369.322 are due and have not been paid; that an attorney's fee of $1250.00 to be allowed plaintiffs is a reasonable fee.
13
The Conclusions of Law were consistent with the Findings. They recited in general that the stockholders and directors had subsequently ratified the execution of the mortgage and were estopped to deny its validity; that the defendant corporation was in default; that Rudeen had failed to establish that his purchase at the tax sale was a bona fide transaction or by an innocent purchaser or for an adequate consideration and that he is estopped to deny the validity of the mortgage which is a valid and subsisting lien on the properties described therein and a lien prior in time and superior to any claim of Rudeen or the defendant corporation; that plaintiffs (appellees) are entitled to have said mortgage foreclosed and the property described therein sold and the proceeds applied to payment of monies due them on the mortgage debt and for attorney's fees, with interest at 6% per annum; that personal property taxes in the sum of $3,369.32 are due Klamath County, Oregon.
14
The decree of foreclosure was in accord with the findings and conclusions and directed sale of the property described and referred to in the findings by the United States Marshal, and included the further direction that from the proceeds of such sale the Marshal should pay the sum of $3,369.32 (see footnote 2) to Klamath County, Oregon. All parties were authorized to purchase at said sale, and defendants in the action and all persons claiming under or from them were forever barred and foreclosed of and from all equity of redemption and a claim in or to said property and all parts thereof, except such right of redemption as they may have by law from said sale.
15
In the points on which he intends to rely on appeal, Rudeen urges that the evidence does not support the findings and for this reason they are clearly erroneous; that the evidence would support only findings of fact and conclusions of law which required a decree in his favor.
16
The record fails to support these contentions. The evidence before the court was substantial and of such a convincing character that its findings cannot be said to be clearly erroneous. There was also evidence which justified inclusion of the more particular description of property in the findings and decree as against the more general description thereof appearing in the mortgage.
17
Certain specifications of error are also urged in appellant's brief as a reason for reversal. One is that since Klamath County did not appear or assert said taxes "there is no sufficient evidence establishing the amount adjudicated by the Court." (See footnote 2.) Other objections in the specifications are that the corporate seal was not attached to the mortgage which deprived the mortgage of the right to be recorded and thus made the Government's tax lien prior to the said mortgage; that the court did not "settle" Rudeen's "rights" predicated upon his purchase at the tax sale of January 27, 1949; that the evidence does not establish that certain property described in detail by the court was upon real estate described in the mortgage and decree. In light of all the evidence these specifications of error lack merit.
18
As we have indicated (footnote 2) we think that the inadvertent misstatement by the lower court of the amount of personal property taxes which had been stipulated as actually due and owing Klamath County on the property here involved is an error which does not, in the present posture of the case, adversely affect substantial and just rights of any of the parties to this action and affords no sound reason for disturbing the judgment. Rule 61, Rules of Civil Procedure, 28 U.S.C.A.
19
Upon the entire record we conclude that appellant had a fair trial and that the judgment should be affirmed. It is so ordered.
Notes:
1
The corporate seal of Great West Lumber Corporation was not attached to this mortgage
2
The parties had stipulated in writing the personal property taxes in the amount of $2860.19 were due in favor of Klamath County, Oregon. Since Klamath County made no appearance and was at best but a purely nominal party in this action whatever error appears in the court's appraisal of the exact amount of personal property taxes due Klamath County (whether it be the greater or lesser figure) does not prejudice any of the parties. The proper amount of such taxes is and will be a lien on the said property regardless of who acquires it at the Marshal's sale ordered by the court and the Marshal will merely pay the lesser sum to Klamath County from the proceeds of the sale if such sum is the correct amount of such taxes. This transaction affords no possible basis for a reversal in this case
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11 P.3d 931 (2000)
Eugene P. SMITH III, Appellant (Petitioner),
v.
STATE of Wyoming ex rel. WYOMING DEPARTMENT OF TRANSPORTATION, Appellee (Respondent).
No. 00-71.
Supreme Court of Wyoming.
October 4, 2000.
*932 Representing Appellant: R. Michael Vang of Kirkwood, Nelson & Vang, P.C., Laramie, Wyoming.
Representing Appellee: Gay Woodhouse, Attorney General; Rowena L. Heckert, Deputy Attorney General; and Dennis M. Coll, Senior Assistant Attorney General.
Before LEHMAN, C.J., and THOMAS, GOLDEN, HILL & KITE, JJ.
KITE, Justice.
Appellant Eugene P. Smith III was arrested by Laramie Police Officer Charles Donnelly *933 for driving while under the influence of alcohol. He refused to take the chemical tests as required by Wyoming's implied consent law which resulted in an automatic six-month suspension of his driver's license for a first offense. Subsequent to a contested case hearing, the Office of Administrative Hearings issued an Order Upholding Implied Consent Suspension. Mr. Smith filed a Petition for Judicial Review contending lack of foundation for admission of the field sobriety tests and lack of requisite probable cause for the arrest. The district court upheld the license suspension, and we affirm.
ISSUES
Mr. Smith presents these issues for our review:
Was a proper foundation established for admission of the standardized field sobriety maneuvers utilized by the arresting officer to create his probable cause to arrest Mr. Smith, where the arresting officer failed to follow the necessary procedures for giving these tests?
Absent the field sobriety tests, did the arresting officer have probable cause to make a DWUI arrest?
Appellee State of Wyoming ex rel. Wyoming Department of Transportation restates the issues as follows:
I. Were the procedures and results of the field sobriety tests and the HGN test admissible under Rule 702, Wyo.R.Evid.?
II. Did Officer Donnelly have probable cause to arrest Smith for DWUI and request him to submit to a chemical test of breath?
FACTS
On May 15, 1999, at approximately 7:18 p.m., Officer Donnelly stopped Mr. Smith for driving his vehicle forty-two miles per hour in a thirty-mile-per-hour zone. As Officer Donnelly approached the vehicle, Mr. Smith rolled down his window approximately two inches and attempted to pass his driver's license and insurance papers out through the opening. Because Mr. Smith experienced difficulty putting the papers through the narrow space, Officer Donnelly asked him to roll the window down further, and Mr. Smith complied. Officer Donnelly took the driver's license and noticed that Mr. Smith's eyes were bloodshot and glassy and there was an odor of an alcoholic beverage coming from inside the vehicle. He asked Mr. Smith if he had been drinking, and Mr. Smith replied that he consumed a couple of drinks with dinner. The officer asked Mr. Smith to step out of his vehicle. Mr. Smith hesitated and then asked Officer Donnelly to write him a ticket for speeding and let him go. Officer Donnelly again told Mr. Smith to exit the vehicle. Mr. Smith got out of the vehicle, and Officer Donnelly conducted three standardized field sobriety tests-the horizontal gaze nystagmus[1] test, the walk and turn test, and the one-leg stand test.
Officer Donnelly scored Mr. Smith a six on the horizontal gaze nystagmus test (zero to six with zero reflecting no impairment), a three on the walk and turn test (zero to nine with zero reflecting no impairment), and no points on the one-leg stand test (zero to five with zero reflecting no impairment).[2] On the bases of the speeding violation, the admitted alcohol consumption, the odor of alcohol, the general observations of Mr. Smith's behavior, and the results of the field sobriety tests, Officer Donnelly determined that he had *934 probable cause to believe Mr. Smith was operating a motor vehicle while intoxicated to a degree which rendered him incapable of driving the vehicle safely.
Mr. Smith was transported to the Albany County Detention Center and was read the implied consent form. He refused to submit to chemical tests. He was then read his Miranda rights, and he declined to answer any questions. Mr. Smith was issued citations for speeding and driving while under the influence of alcohol and was also issued a notice of suspension of his driver's license.
STANDARD OF REVIEW
Mr. Smith claims the foundation for the field sobriety tests was inadequate for admission. Absent the results of those tests, he contends there was insufficient evidence of probable cause for a warrantless arrest and, therefore, his suspension should be reversed. We noted in Nellis v. Wyoming Department of Transportation, 932 P.2d 741, 743 (Wyo.1997) (some citations omitted), that the appropriate standard of review for driver's license suspension proceedings presenting issues of this nature is as follows:
Rule 12.09, of the Wyo. R.App. P. provides that judicial review of an action by an administrative agency must be consistent with Wyo. Stat. § 16-3-114(c) (1990), which provides:
"The reviewing court shall:
...
"(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
"(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
"... or
"(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute."
When a case initiated in an administrative agency comes before this court on appeal we do not give any special deference to the decision of the district court. Instead, we review the case as if it came to us directly from the agency. The deference normally accorded the findings of fact by a trial court is extended to an administrative agency, and the agency's determination of the facts will not be overturned unless clearly contrary to the overwhelming weight of the evidence on record. On review, we examine the entire record to determine whether substantial evidence is present to support the findings of fact by the hearing examiner. "Substantial evidence is relevant evidence which a reasonable mind might accept in support of the conclusions of an agency." Stuckey v. State, ex rel. Wyoming Worker's Compensation Div., 890 P.2d 1097, 1099 (Wyo. 1995). There must be more than a mere scintilla of evidence or a simple suspicion for the fact to be established.
DISCUSSION
A. Hearing Examiner Properly Admitted Field Sobriety Test Results
The admissibility of scientific and technical evidence in a judicial proceeding is governed by W.R.E. 702 and the four-part test set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Seivewright v. State, 7 P.3d 24 (Wyo.2000); Bunting v. Jamieson, 984 P.2d 467 (Wyo.1999); Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). It is the "general rule that administrative agencies acting in a judicial or quasi judicial capacity are not bound by technical rules of evidence that govern trials by courts or juries." Story v. Wyoming State Board of Medical Examiners, 721 P.2d 1013, 1018 (Wyo.1986). For this reason, we do not believe a Daubert analysis is necessary to address the evidentiary questions raised in this appeal.
The Wyoming Administrative Procedure Act, Wyo. Stat. §[§ ] 16-3-101 to -115 (1990 & Supp.1995), sets the broad standard for admissibility of evidence at an administrative hearing: The evidence must be of the type that is "commonly relied upon by reasonably prudent men in the conduct of their serious affairs." Section 16-3-108(a).
*935 Thornberg v. State ex rel. Wyoming Workers' Compensation Division, 913 P.2d 863, 867 (Wyo.1996).
We recently described the standard of an abuse of discretion as "reaching the question of reasonableness of the choice made by the trial court." Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). In Vaughn, we confirmed the following definition:
"Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means [exercising] sound judgment ... with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236 (1985)."
Vaughn, 962 P.2d at 151 (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)). This definition is equally useful for all rulings tested by the abuse of discretion standard.
Shryack v. Carr Construction Company, Inc., 3 P.3d 850, 855 (Wyo.2000).
This Court has permitted a hearing examiner to rely on field sobriety tests, including the horizontal gaze nystagmus test, in addition to the officer's personal observations to determine whether the officer had probable cause during the course of a drunk driving stop. Nellis, 932 P.2d at 744; Nesius v. State Department of Revenue and Taxation, Motor Vehicle Division, 791 P.2d 939, 941-42 (Wyo.1990). In the criminal context, a significant number of courts have held that admission of sobriety tests, including the horizontal gaze nystagmus test, is appropriate as long as a proper foundation as to the techniques used and the officer's training, experience, and ability to administer the test has been laid. State v. Ito, 90 Hawai`i 225, 978 P.2d 191, 201 (1999); Ballard v. State, 955 P.2d 931 (Alaska Ct.App.1998); Zimmerman v. State, 693 A.2d 311 (Del.Super.Ct.1997); State v. Taylor, 694 A.2d 907 (Me.1997); Hawkins v. State, 223 Ga.App. 34, 476 S.E.2d 803 (1996); People v. Berger, 217 Mich.App. 213, 551 N.W.2d 421 (1996); Schultz v. State, 106 Md.App. 145, 664 A.2d 60 (1995); Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App.), cert. denied, 513 U.S. 931, 115 S.Ct. 323, 130 L.Ed.2d 284 (1994); People v. Buening, 229 Ill.App.3d 538, 170 Ill.Dec. 542, 592 N.E.2d 1222 (1992), appeal denied, 146 Ill.2d 634, 176 Ill.Dec. 806, 602 N.E.2d 460 (1992); State ex rel. Hamilton v. City Court of City of Mesa, 165 Ariz. 514, 799 P.2d 855 (1990); State v. Murphy, 451 N.W.2d 154 (Iowa 1990); State v. Armstrong, 561 So.2d 883 (La.Ct.App.), writ denied, 568 So.2d 1077 (La.1990); State v. Clark, 234 Mont. 222, 762 P.2d 853 (1988). On this authority, it is reasonable to apply a similar standard in the less stringent evidentiary environment of an administrative hearing. The field sobriety test results are the type of evidence commonly relied upon by reasonably prudent men in the conduct of their serious affairs. We conclude that, if the evidence establishes the tests were properly administered by a qualified person, the foundation is sufficient for admission in an administrative hearing.
Mr. Smith contends that a police officer is competent to testify as to field sobriety test results only if the tests were conducted with strict observance of the procedures established by the U.S. Department of Transportation, National Highway Traffic Safety Administration, Improved Sobriety Testing manual (the National Highway Traffic Safety Administration manual).[3] Considering that there may be other means of law enforcement training available now and in the future, for the purpose of establishing probable cause, a law enforcement officer may testify to the results of field sobriety tests (including the horizontal gaze nystagmus test) if it is shown that the officer has been adequately trained in the administration and assessment of those field sobriety tests and conducted them in substantial accordance with that training. See State v. Baue, 258 Neb. 968, *936 607 N.W.2d 191, 205 (2000); see also Williams v. State, 710 So.2d 24, 32 (Fla.Dist. Ct.App.), review denied, 725 So.2d 1111 (Fla. 1998).
Officer Donnelly, a sixteen-year veteran[4] of the Laramie Police Department, had made hundreds of stops of suspected drunk drivers. He received training in conducting, and instructed others to conduct, the horizontal gaze nystagmus test. He testified that he did not use the test in isolation to determine probable cause and did not attempt to use it as an extrapolation of Mr. Smith's blood alcohol concentration. Officer Donnelly also testified regarding his significant training in standardized field sobriety testing based on studies conducted by the National Highway Traffic Safety Administration.[5] This evidence was a sufficient foundation for the hearing examiner to conclude that the officer was adequately trained in the administration and assessment of the field sobriety tests.
Likewise the record was adequate to conclude that Officer Donnelly conducted the testing and assessment in substantial accordance with his significant training. He explained how the tests are to be administered and how he administered the three tests to Mr. Smith. He also explained the manner in which he determined the results of the tests.
Mr. Smith takes issue with the admissibility of the horizontal gaze nystagmus test results because nystagmus occurs naturally in a percentage of the population and can also be exacerbated by causes other than consumption of alcohol. He criticizes the walk and turn test administered by Officer Donnelly because he was not permitted to continue the test once he stopped and failed to understand the instructions due to windy conditions. He cites Officer Donnelly's failure to ask him if he had any physical impairments which might have impacted his performance on the walk and turn and the one-leg stand[6] tests. Further, Mr. Smith maintains the test results were inaccurate because Officer Donnelly failed to give the horizontal gaze nystagmus test in the manner recommended by the National Highway Traffic Safety Administration manual. As correctly pointed out by the hearing examiner, these purported deficiencies in the administration of the sobriety tests go to the weight accorded the evidence and not to its admissibility.
"The agency, as the trier of fact, is charged with weighing the evidence and determining the credibility of witnesses. The deference normally accorded to the findings of fact by a trial court is extended to the administrative agency, and the agency's decision as to the facts will not be overturned unless it is clearly contrary to the overwhelming weight of the evidence."
Frazier v. State ex rel. Wyoming Workers' Safety and Compensation Division, 997 P.2d 487, 490 (Wyo.2000) (quoting Thomas v. Star Aggregates, Inc., 982 P.2d 714, 716 (Wyo.1999)) (emphasis added & citation omitted).
Mr. Smith provided no evidence that he naturally experienced nystagmus or that he advised Officer Donnelly of any physical impairments or conditions which might have impacted his performance on any of the tests. He testified that he had gout in his toes, but provided no evidence which showed this condition affected his performance of the tests. No evidence was presented to support Mr. Smith's contention that windy conditions prevented him from understanding the walk and turn test instructions. Mr. Smith also asserts the unusual argument that, had he been permitted to complete the walk and turn test, he would have scored better than a three. This test is scored by adding points for every misstep. A zero means the test was performed without mistakes. The number of the score indicates the number of total errors. If the test had been continued, every additional step taken would have posed an *937 additional opportunity for Mr. Smith to err and obtain an increased score. Mr. Smith also provided no evidence that Officer Donnelly's failure to follow the test procedures as recommended in the National Highway Traffic Safety Administration manual rendered the results inaccurate.
Officer Donnelly's testimony was a sufficient foundation for the hearing examiner to determine that he conducted the testing and assessment in substantial accordance with his significant training, and we conclude there was no abuse of discretion by its admission into evidence.
B. Substantial Evidence of Probable Cause Existed Without Field Sobriety Tests
Mr. Smith contends that, without the field sobriety test results, there was insufficient evidence to support the finding of probable cause for the warrantless arrest. Having concluded the tests were properly admitted, we could end our review without addressing this additional issue. However, it may be instructive for Mr. Smith to understand that this argument is equally unpersuasive and his license was lawfully suspended.
The party challenging the sufficiency of the evidence has the burden of demonstrating that the agency's decision was not supported by substantial evidence. Butts v. Wyoming State Board of Architects, 911 P.2d 1062, 1065 (Wyo.1996). "Probable cause for a warrantless arrest exists when, under the totality of the circumstances, a prudent, reasonable, and cautious peace officer would be led to believe that a crime has been or is being committed and that the individual arrested is the perpetrator." Keehn v. Town of Torrington, 834 P.2d 112, 116 (Wyo.1992); see also Nellis, 932 P.2d at 744. As its name implies, probable cause involves probabilities. These are factual, practical considerations of everyday life on which reasonable, prudent people, not legal technicians, act. Seela v. Moore, 603 N.W.2d 480, 484 (N.D.1999).
"[W]e do not disturb the decision of the hearing examiner unless a claimant . . . can demonstrate that it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. This rule affords the petitioner the opportunity to show that the findings of fact ... were contrary to the overwhelming weight of the evidence. When an agency's action or decision is `based on a consideration of relevant factors and is rational,' we will not rule that the action or decision is arbitrary or capricious. Mortgage Guaranty Ins. Corp. v. Langdon, 634 P.2d 509, 520 (Wyo.1981)."
Frazier, 997 P.2d at 490 (quoting Helm v. State ex rel. Wyoming Workers' Safety and Compensation Division, 982 P.2d 1236, 1240 (Wyo.1999)) (emphasis added); see also Shryack, 3 P.3d at 854.
Officer Donnelly testified that he determined he had probable cause to believe Mr. Smith was operating a motor vehicle while intoxicated on the bases of the speeding violation, the admitted alcohol consumption, the odor of an alcoholic beverage, and his general observations of Mr. Smith's behavior in addition to the results of the field sobriety tests. Consistent with that evidence, the hearing examiner concluded probable cause existed based on Mr. Smith's exceeding the speed limit by almost fifty percent; his evasive and furtive behavior in rolling down the window only slightly upon being stopped; his inability to pass his license through the narrow opening demonstrating inadequate eye to hand coordination; his bloodshot, glassy eyes; the odor of an alcoholic beverage; his admission of drinking; and his failure of two out of three of the field sobriety tests.
Even without the field sobriety test results being considered, there is substantial evidence in the record to support the finding of probable cause. Prior to the advent of field sobriety tests, arrests based on probable cause were being made. Field sobriety tests have provided additional screening devices to better ensure the sufficiency of probable cause. They are additional tools, but are not indispensable to the evaluation. Probable cause can still be determined from the totality of the circumstances without consideration of field sobriety test results. See Seela, 603 N.W.2d at 484.
*938 CONCLUSION
The circumstances in this case justified a reasonable person to conclude Mr. Smith was intoxicated to the point that his ability to drive safely was impaired.
Affirmed.
NOTES
[1] Nystagmus is an involuntary jerking or bouncing of the eyeball that occurs when there is a disturbance of the vestibular (inner ear) system or the oculomotor control of the eye. Horizontal gaze nystagmus refers to a lateral or horizontal jerking when the eye gazes to the side. In the impaired driving context, alcohol consumption or consumption of certain other central nervous system depressants-inhalants or phencyclidine-hinders the ability of the brain to correctly control eye muscles, causing the jerk or bounce associated with horizontal gaze nystagmus. As the degree of impairment becomes greater, the jerking or bouncing-i.e., the nystagmus-becomes more pronounced. This is assessed in the horizontal gaze nystagmus test. American Prosecutors Research Institute, National Traffic Law Center, Horizontal Gaze Nystagmus: The Science and the Law, A Resource Guide for Judges, Prosecutors and Law Enforcement (1999).
[2] U.S. Department of Transportation, National Highway Traffic Safety Administration, Improved Sobriety Testing.
[3] The district court was under the impression that Mr. Smith advocated a standard requiring the police officer to be capable of testifying regarding the scientific basis of the tests. On appeal, Mr. Smith asserts that this was not an issue presented in his Petition for Judicial Review. Pursuant to W.R.A.P. 12.09(a), review of administrative decisions is confined to the issues set forth in the petition for review. Although this argument can also be inferred from Mr. Smith's brief, it is not addressed for lack of specific pleading.
[4] Officer Donnelly testified at the contested case hearing about his sixteen years of experience. The Order Upholding Implied Consent Suspension reflects a finding that Officer Donnelly was an eighteen-year veteran. This two-year difference is insubstantial as Officer Donnelly's testimony clearly established that he was an experienced career law enforcement officer.
[5] The National Highway Traffic Safety Administration studies were specifically of the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test.
[6] The record reflects that Mr. Smith performed the one-leg stand test without error.
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655 So.2d 214 (1995)
George TYSON, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 94-1828.
District Court of Appeal of Florida, First District.
May 31, 1995.
Nancy A. Daniels, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., William J. Bakstran, Asst. Atty. Gen., Tallahassee, for appellee.
PER CURIAM.
The state having properly conceded error, we conclude that the trial court lacked jurisdiction to revoke community control and sentence appellant to prison in circuit court case numbers 88-881 and 88-1267 because the affidavits of violation were not filed until after the period of community control previously imposed had expired. Accordingly, on remand, the judgments and sentences entered in those two cases on May 25, 1994, must be vacated. (However, we note that such action will have no effect on appellant's convictions in those two cases, as adjudications of guilt had previously been entered in both cases on December 21, 1992.) The judgment and sentence in circuit court case number 92-1557 are affirmed.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
WEBSTER, MICKLE and LAWRENCE, JJ., concur.
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995 F.2d 232
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.Carol OLDEN, Plaintiff-Appellant,v.INTERNAL REVENUE SERVICE, Defendant-Appellee.Carol OLDEN; Kolden K. Gopher, Plaintiffs-Appellants,v.CONFEDERATED TRIBES AND BANDS OF the YAKIMA INDIAN NATION;Yakima County; State of Washington; United States ofAmerica; City of Seattle; Cowlitz Indian Tribe; NorwegianMinistry; Ford Motor Credit Company, Defendants-Appellees.
No. 92-36685.
United States Court of Appeals, Ninth Circuit.
Submitted May 25, 1993.*Decided June 4, 1993.
Before: HUG, WIGGINS, and THOMPSON, Circuit Judges.
1
MEMORANDUM**
2
In these consolidated appeals, Carol Olden appeals pro se the district court's orders denying her applications to proceed in forma pauperis under 28 U.S.C. § 1915(a) in her actions against the Internal Revenue Service and the Yakima Indian Nation. Olden contends the district court erred by finding that she was not impoverished. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
3
"We review a denial of leave to proceed in forma pauperis for abuse of discretion." O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir.1990). The district court "may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees ... by a person who makes affidavit that [s]he is unable to pay such costs." 28 U.S.C. § 1915(a). The district court has broad discretion in granting or denying leave to proceed in forma pauperis. O'Loughlin, 920 F.2d at 616; see also Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir.) (per curiam) (denying plaintiff's request to proceed in forma pauperis where he gave away the majority of his assets after action was filed against him), cert. denied, 419 U.S. 1090 (1974).
4
Here, in her applications to proceed in forma pauperis, Olden stated that (1) she was receiving $1,152 per month in Social Security benefits for herself and $384 per month for her child, (2) she received approximately $2,500 in child support from June to October 1991, and (3) she had $1,000 worth of family heirlooms. In addition, in her application in case No. CV-92-1286-R, Olden declared that she had part-time employment which paid $5.25 per hour.
5
Olden contends the district court erred by finding she had sufficient funds to pay the court fees. Our review of the record, however, indicates that the district court did not abuse its discretion by denying Olden's request to proceed in forma pauperis. See 28 U.S.C. § 1915(a); see also Venable, 500 F.2d at 1216.1
6
AFFIRMED.
7
Moreover, even if Olden could have made a sufficient showing of indigency, the district court correctly dismissed her complaints as frivolous. See 28 U.S.C. § 1915(d); O'Loughlin, 920 F.2d at 616. Olden's action seeking injunctive relief against the Internal Revenue Service, No. CV-92-1040-Z, is barred by the Anti-Injunction Act. See Elias v. Commissioner, 908 F.2d 521, 523 (9th Cir.1990). In case No. CV-92-1286-R, Olden filed an 80-page complaint naming over 50 defendants and alleging racketeering and conspiracy arising from a child custody dispute. The district court did not abuse its discretion by dismissing this complaint as frivolous. See O'Loughlin, 920 F.2d at 616.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, we deny Olden's request for oral argument
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
Because we find that the district court correctly denied Olden in forma pauperis status based on her financial resources, we do not reach the issue of whether Olden's complaints were frivolous. See Franklin v. Murphy, 745 F.2d 1221, 1226-27 n. 5 (9th Cir.1984) ("This circuit ... grants or denies IFP status based on the plaintiff's financial resources alone and then independently determines whether to dismiss the complaint on the grounds that it is frivolous.")
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96 F.3d 1439
NOTICE: Fourth Circuit Local Rule 36(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 Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Paul Andrew HENSON, Defendant-Appellant.
No. 94-5551.
United States Court of Appeals, Fourth Circuit.
Argued May 10, 1996Decided Sept. 16, 1996
ARGUED: Sam Garrison, Roanoke, Virginia, for Appellant. Joseph William Hooge Mott, Assistant United States Attorney, Roanoke, Virginia, for Appellee. ON BRIEF: Richard Lee Lawrence, Roanoke, Virginia, for Appellant. Robert P. Crouch, Jr., United States Attorney, Roanoke, Virginia, for Appellee.
W.D.Va.
VACATED.
Before WILKINSON, Chief Judge, and HALL and ERVIN, Circuit Judges.
OPINION
ERVIN, Circuit Judge:
1
Paul Andrew Henson challenges his conviction for possession of an unregistered firearm under 26 U.S.C. § 5861(d). He argues that the district court should have instructed the jury that the government was required to prove his knowledge that the weapon had a barrel length triggering a statutory duty to register. In Staples v. United States--decided after Henson's trial--the Supreme Court held that a defendant must be proven to have known that a weapon had characteristics bringing it within the statutory definition of "firearm." 114 S.Ct. 1793 (1994). Accordingly, we vacate Henson's conviction for possession of an unregistered firearm, and remand for a new trial.
I.
2
The Pittsylvania County, Virginia, Sheriff's Office investigated Paul A. Henson as part of an alleged conspiracy involving gambling, manufacturing illegal whiskey, cultivating marijuana, and dealing in chemicals used to make amphetamine. On January 6, 1993, officers obtained a warrant to search Henson's home, and seized--among other items--an "Uzi" semiautomatic rifle. A jury later convicted Henson of conspiracy to distribute marijuana, possession of marijuana, and possession of an unregistered firearm.1 Henson was sentenced to twelve months' imprisonment on the possession of marijuana offense, ninety-six months' on the conspiracy count, and ninety-six months' on the firearms violation, all running concurrently.
II.
3
The National Firearms Act, 26 U.S.C. §§ 5801-5872, makes it "unlawful for any person ... to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." 26 U.S.C. § 5861(d). The statute defines a "firearm" to include "a rifle having a barrel or barrels of less than 16 inches in length." 26 U.S.C. § 5845(a)(3). Henson argues that the Supreme Court's decision in Staples v. United States entitles him to an instruction that the government must prove that he knew his Uzi rifle had characteristics bringing it within the statute's grasp.2
4
In Staples, the defendant was convicted of possessing an unregistered machine gun, defined under the National Firearms Act as "any weapon which shoots ... or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." 26 U.S.C. § 5845(b). A search of the defendant's home uncovered an AR-15 assault weapon--the civilian, semiautomatic version of the military's M-16 automatic. 114 S.Ct. at 1795-96. On the defendant's weapon, a manufacturer's metal stop designed to inhibit conversion to automatic firing capability had been filed away, and the gun had been reassembled with various M-16 parts. Id. Federal Bureau of Alcohol, Tobacco and Firearms ("BATF") agents testified that upon testing, the AR-15 fired more than one shot with a single trigger pull. Id. The defendant testified, however, that the weapon had never fired automatically while in his possession, and that he did not know that the weapon was capable of firing automatically. Id.
5
The Court decided that § 5861(d) required proof that a defendant knew of the characteristics of his weapon that made it a "firearm" under the Act. The Court reasoned that, in the absence of an indication of Congressional intent, the common law favors mens rea as an element of the crime. Id. at 1797. The Court rejected the contention that, like "public welfare" or "regulatory" offenses concerning inherently dangerous items, the National Firearms Act imposes strict criminal liability. Id. at 1800. Guns do not fall in the same category, the Court explained, because of their long tradition of lawful ownership, and thus gun owners cannot be said to be sufficiently on notice of the likelihood of strict regulation. Id. at 1801. The Act's severe penalties, the Court added, strengthen the conclusion that Congress did not intend to eliminate the mens rea requirement. Id. at 1802.
6
The Supreme Court remanded United States v. Starkes--a case involving the possession of an unregistered sawed-off shotgun--to this court for reconsideration in light of its decision in Staples. United States v. Starkes, 32 F.3d 100 (4th Cir.1994). On remand, we interpreted Staples to have overruled circuit precedent holding that proof of a defendant's knowledge of a weapon's salient characteristics under § 5861(d) was not required for a conviction, and we returned the case to the district court for a new trial. Starkes, 32 F.3d at 101. Our decision in Starkes makes untenable the Government's contention that Staples should be limited to characteristics not easily observable--such as firing capacity--and that knowledge of obvious qualities--such as barrel length--should be presumed.
7
In the wake of Staples and Starkes, Henson was entitled to a jury instruction to the effect that the Government was required to put on evidence that he knew that his Uzi had a barrel length bringing it within the scope of the statute. Because the Staples decision changed the elements of the offense, we vacate Henson's conviction, and remand the case for a new trial.3 See Starkes, 32 F.3d at 101 (remanding for new trial rather than entering judgment of acquittal).
VACATED AND REMANDED FOR A NEW TRIAL
1
Henson was acquitted of three other counts: possession of cocaine, possession with intent to distribute marijuana, and possession of a firearm during a drug-trafficking crime. Henson was also tried separately and convicted on four counts related to an illegal distillery. On those counts, Henson received 60 months, to be served concurrently with the other sentences
2
The district court instructed the jury:
It is not necessary for the Government to prove that the defendant knew that the item described in the indictment was a firearm which the law required to be registered. What must be proven beyond a reasonable doubt is that the defendant knowingly possessed the item as charged, that such item was a firearm as defined herein and that it was not then registered to the defendant in the National Firearms Register and Transfer Record.
3
We note in passing that, on appeal, Henson argued that the evidence was insufficient to convict him of possessing an unregistered "firearm" under 26 U.S.C. § 5861(d), because the government did not prove that his Uzi rifle was capable of being fired. At trial, a BATF agent testified that an "operation check" was performed on the weapon; however, the prosecution did not ask about the results of that test. Because the district court did not rule on the issue, we express no opinion on whether the Government was required to adduce evidence that the Uzi was operable or readily restorable
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Slip Op. 00 - 148
UNITED STATES COURT OF INTERNATIONAL TRADE
- - - - - - - - - - - - - - - - - - - x
CRESCENT FOUNDRY CO. PVT. LTD. et al.,
:
Plaintiffs,
:
v.
:
UNITED STATES, : Court No. 95-09-01239
Defendant, :
-and-
:
ALHAMBRA FOUNDRY INC. et al.,
:
Intervenor-Defendants.
:
- - - - - - - - - - - - - - - - - - - x
Memorandum & Order
[Upon plaintiffs' renewed motion, remand to
the International Trade Administration.]
Dated: November 9, 2000
Cameron & Hornbostel LLP (Dennis James, Jr.) for the plain-
tiffs.
David W. Ogden, Assistant Attorney General; David M. Cohen,
Director, and Velta A. Melnbrencis, Assistant Director, Commer-
cial Litigation Branch, Civil Division, U.S. Department of Jus-
tice; and Office of Chief Counsel for Import Administration, U.S.
Department of Commerce (Robert E. Nielsen), of counsel, for the
defendant.
Collier Shannon Scott, PLLC (Paul C. Rosenthal and Robin H.
Gilbert) for the intervenor-defendants.
AQUILINO, Judge: The court is in receipt of a sub-
mission by the International Trade Administration, U.S. Depart-
ment of Commerce ("ITA"), encaptioned Final Results of Redeter-
mination on Remand and stated to be pursuant to the slip opinion
00-21, 24 CIT (Feb. 18, 2000), filed herein, familiarity with
Court No. 95-09-01239 Page 2
which is presumed. This submission, which will be referred to
hereinafter as the "May 2000 Remand Results", is summarized by
the agency (at pages 1 and 19), in part, as follows:
. . . Pursuant to the Court's remand instructions,
the Department has recalculated the program rates
for the subsidies conferred under section 80HHC of
India's Income Tax Act (80HHC) and the company-spe-
cific total ad valorem rates. We have recalculated
the rates, in conformity with the CAFC's September
8, 1998 opinion in Kajaria, using a methodology
which ensures 1) that there is no "double-counting"
of the subsidies that were provided in the form of
Cash Compensatory Support (CCS) over-rebates and 2)
that there is no countervailing of International
Price Reimbursement Scheme (IPRS) rebates provided
with respect to non-subject castings. Finally, we
have recalculated the all-others rate and determined
the company-specific total ad valorem rates pursuant
to the CAFC's . . . opinion.
* * *
The Department has recalculated the subsidy rates
of the 80HHC program pursuant to the instructions of
the CIT and in conformance with the opinion of the CAFC.
The plaintiffs deny this representation in lengthy
written comments which culminate in a request that this court
(1) find that an adjustment for CCS over-rebates should
be made in this review; (2) find that an adjustment for
IPRS received by UMA Iron & Steel Co. should be made;
(3) find that the Remand Results do not eliminate ei-
ther the IPRS or the double-counting of the CCS over-
rebates from the Section 80HHC subsidy, and, (4) . . .
remand this matter with instructions that Commerce re-
do the calculations to correctly implement the CAFC's
and this Court's prior instructions.1
1
Plaintiffs' comments are accompanied by a motion for oral
argument, which need not be granted, given the excellence of the
written submissions on the issues by all parties; ergo, that mo-
tion is hereby denied.
Court No. 95-09-01239 Page 3
In Kajaria Iron Castings Pvt. Ltd. v. United States,
Slip Op. 00-147 (Nov. 9, 2000), this court was constrained to
remand peremptorily the ITA's Final Results of Redetermination
on Remand, dated May 24, 2000 and filed in that related case,
on the ground that that redetermination had not eliminated the
influence of the IPRS or CCS rebates on the calculation of any
§80HHC subsidy.
Since the May 2000 Remand Results filed herein are
based upon the same agency reasoning, the same relief is neces-
sary. Hence, for the reasons stated in slip op. 00-147 in Ka-
jaria, this case is hereby remanded to the ITA for recalculation
of the §80HHC subsidy by subtracting the IPRS rebates and CCS
over-rebates from taxable income before determining any §80HHC
benefit.
The defendant may have 30 days to carry out this remand
and to report the results thereof to the court.
So ordered.
Dated: New York, New York
November 9, 2000
________________________________
Judge
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310 N.E.2d 867 (1974)
Ronald E. CHAFFIN, Plaintiff-Appellant,
v.
John B. NICOSIA, Defendant-Appellee.
No. 574S95.
Supreme Court of Indiana.
May 14, 1974.
*868 Martin H. Kinney, Nick Katich, Addison, Stiles, Greenwald & Kinney, Gary, David F. McNamar, Steers, Klee, Sullivan & Lemay, Indianapolis, for plaintiff-appellant.
Richard J. Lesniak, Given, Dawson & Cappas, East Chicago, Richard L. Fairchild, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for defendant-appellee.
OPINION ON PETITION TO TRANSFER
HUNTER, Justice.
This cause arises upon petition to transfer and presents two issues for our determination:
(1) Whether a statute allowing medical practitioners the special privilege of a two-year time period within which they may be sued is violative of Article 1, § 23 of the Constitution of Indiana;
(2) Whether the two-year statute of limitations for medical malpractice is an exception to, or in irreconcilable conflict with, a statute allowing minors to sue within two years after reaching majority.
Appellant's complaint alleged medical malpractice on the part of appellee arising from appellee's treatment of appellant's mother during her pregnancy and during appellant's birth. More specifically, the complaint alleged the following:
"During 1941, Marjory Chaffin became pregnant and employed Nicosia to care for her through the pregnancy and the birth of her child. She had suffered a prior miscarriage of which Nicosia was aware. He advised her that she would also have trouble carrying this child.
"Approximately four days prior to August 28, 1942, Marjory Chaffin began to have labor pains. Nicosia advised her that he would not do anything until he took x-rays to determine Ronald's position in the womb. Nicosia, however, failed to take the x-rays, failed to prescribe medication, and failed to take any other positive action.
"Marjory Chaffin remained in labor for approximately seventy-two hours, and Ronald was finally born on August 28, 1942. During the delivery process, Nicosia used forceps on both sides of Ronald's head, near his eyes. There were large areas of discoloration on both sides of Ronald's head for several days after birth. For more than one year, he also had dents on both sides of the head. As a result of the way Nicosia used the forceps, Ronald's optic nerve controlling his right eye was severely damaged, resulting in an almost complete loss of eyesight in his right eye. This loss of eyesight continues to the present."
*869 The instant action was filed on August 27, 1965, within two years of appellant's reaching majority, in reliance upon IC 1971, 34-1-2-5:
"Any person being under legal disabilities when the cause of action accrues may bring his action within two years after the disability is removed."
In response, appellee moved for judgment on the pleadings, contending that appellant's action was barred by IC 1971, XX-X-XX-X:
"No action of any kind for damages, whether brought in contract or tort, based upon professional services rendered or which should have been rendered, shall be brought, commenced or maintained, in any of the courts of this state against physicians, dentists, surgeons, hospital, sanitariums, or others, unless said action is filed within two years from the date of the act, omission or neglect complained of."
The trial court sustained appellee's motion since the transaction at issue had occurred twenty-two years prior to the filing of the complaint. The Court of Appeals, Third District, affirmed. Ind. App., 297 N.E.2d 904.
Appellant urges here that the medical malpractice statute is unconstitutional on its face in that it grants special privileges and immunities to medical professionals which do not equally belong to all citizens. Article 1, § 23 of our Constitution reads as follows:
"§ 23. Privileges equal. The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens."
The question of classification under the above section is primarily a question for the legislature. Legislative classification becomes a judicial question only where the lines drawn appear arbitrary or manifestly unreasonable. So long as the classification is based upon substantial distinctions with reference to the subject matter, we will not substitute our judgment for that of the legislature; nor will we inquire into the legislative motives prompting such classification:
"Laws which impose burdens and liabilities, or which grant privileges and immunities must be general in their nature, and not special; but a law is not necessarily special because it applies only to one class of persons to the exclusion of others. If the situation, conditions, and circumstances of the persons included within the class to which the law is made to apply so differ from those of others not so included as to indicate the necessity or propriety of making the law applicable only to those included within its terms, and if the law is so framed as to apply to all to whom the reason applies and to exclude all whom the reason excludes, it will be deemed a general law. Such an act does not conflict with either * * * [the Fourteenth Amendment to the Federal Constitution or Art. 1, § 23 of the Constitution of Indiana]. Natural and reasonable classification is permitted; arbitrary selection is forbidden.
"The power of the Legislature is not without limitations but, necessarily, this power must have a wide range of discretion. There is no precise rule of reasonableness of classification, and the rule of equality permits many practical inequalities. A classification having some reasonable basis is not to be condemned merely because it is not framed with such mathematical nicety as to include all within the reason of the classification and to exclude all others. Exact exclusion and inclusion is impractical in legislation. It is almost impossible to provide for every exceptional and imaginary case, and a Legislature ought not to be required to do so at the risk of having its legislation declared void, even though appropriate and proper as applied to the *870 general subject upon which the law is intended to operate."
Cincinnati, etc., R. Co. v. McCullom (1915), 183 Ind. 556, 561, 109 N.E. 206, 208 (citations omitted).
The classification at issue does not appear unconstitutional per se. There exists a reasonable basis for distinguishing between those rendering medical services and those who do not. Appellant has failed in his burden of showing in what way the two-year limitation period unduly discriminates in favor of medical practitioners. The presumption is in favor of a statute's validity until rebutted by proof of its irrationality.
However, a determination that a statute is constitutionally valid on its face does not end judicial inquiry into its application to particular facts. The limitation statute before us admits of no exceptions: An action is barred unless brought within two years of the act complained of. This statute's application to a given case must not be allowed to produce an absurd result, which the legislature, as a reasonably minded body, could not have possibly intended:
"With so wholesomely logical and intelligent a standard of interpretation, it would be illogical and unintelligent to say that a person who does not know, and cannot know, for example, that a surgeon has negligently left a rubber tube in his body, would be denied damages because his claim for damages was filed, due to delay in learning of the presence of the tube, more than two years after the operation. * * *"
Ayers v. Morgan (1959), 397 Pa. 282, 154 A.2d 788, 789.
Recognizing that a literal application of this limitation would result in possible inequity, this Court held in Guy v. Schuldt et al. (1956), 236 Ind. 101, 138 N.E.2d 891, that fraudulent concealment would toll the medical malpractice statute.
Similarly, in Guthrie v. Wilson (1959), 240 Ind. 188, 162 N.E.2d 79, we held that the medical malpractice statute would not apply retroactively to bar a minor's claim arising from neglect occurring prior to passage of the act.
The trial court sustained appellee's position on the basis of Burd v. McCullough (7th Cir.1954), 217 F.2d 159. This federal court case, interpreting Indiana law, held that because the medical malpractice statute and the legal disability statute were "clearly inconsistent," the former, being later in time, impliedly repealed the latter. Of course, federal cases interpreting state law are merely persuasive authority in this Court and we do not deem them controlling on questions of Indiana law.
The error in the Burd opinion is that the court proceeded on a faulty premise. In order for the federal court to find a repeal by implication, it was first necessary to find "irreconcilable conflict" between the two statutory provisions. This conflict simply does not exist. These statutes do not necessarily run concurrently. The legal disability statute does not come into play until after the medical malpractice statute has run. The legal disability provision does not in any sense "toll" the statute of limitations. It merely provides a reasonable grace period within which to sue once a disability is removed. The legal disability statute is not a statute of limitation, but is instead a legislative recognition of an exception to an otherwise absolute bar on medical malpractice suits. To construe the medical malpractice statute as a legislative bar on all malpractice actions under all circumstances unless commenced within two years from the act complained of (discoverable or otherwise) would raise substantial questions under the Article 1, § 12 guarantee of open courts and redress for injury to every man, not to mention the offense to lay concepts of justice.
The potentially harsh results under the Court of Appeals opinion should not be ignored. *871 This is perhaps the most compelling argument in favor of the appellant's position. Unless the malpractice act, omission, or neglect complained of happens to occur within two years of the minor's reaching his majority, he may effectively be deprived of his cause of action. This extraordinarily harsh result would be particularly inconsistent with the legislature's intention in creating this particular legal disability that is, the protection of minors.
This construction of the statutes at issue in the case at bar is founded upon the only logical basis. It makes practical sense particularly with respect to infants who, because of their youth, cannot be expected to articulate their physical and mental condition or to realize and act timely to preserve their legal rights. It is not difficult to conceive of situations where the results of medical malpractice upon an infant could remain undiscovered for a number of years.
We recognize that by way of dicta in Guy v. Schuldt, et al., supra, Chief Justice Arterburn stated that the medical malpractice statute, being clear and unambiguous, was not susceptible to exception. However, such broad statement was not necessary to the holding in Guy, and, to the extent it appears inconsistent with this opinion, it is, to that extent, distinguished and modified.
Transfer is granted and the cause is reversed and remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
DeBRULER, GIVAN and PRENTICE, JJ., concur.
ARTERBURN, C.J., concurs in result, with opinion.
ARTERBURN, Chief Justice (concurring in result).
I do not agree with the reasoning presented in the majority opinion. I feel the statute of 1941 having a two-year statute of limitation against actions for medical malpractice is unconstitutional on its face since it grants special privileges and immunities to the medical profession, were it to stand by itself. However, I find that in its application in relation to the other statutes in Indiana, it is not special legislation. The 1941 Act was passed to clarify the previous legislation on statutory limitations for personal injuries which was for two years. There was considerable confusion at the time as to whether or not the action of malpractice was brought in tort (with a two-year limitation) or in contract (with a six-year limitation). The 1941 Act which we are considering here merely clarified the existing confusion by providing for the two-year statute of limitation "whether brought in contract or [in] tort." In view of this historical background, I would hold that although the Act of 1941 appears on its face to be in violation of the Indiana Constitutional provisions against special legislation, when viewed in its background and its purpose it merely placed malpractice acts within a statutory limitation of two years as in all cases in all actions "for injuries to person... ." It thus gave medical malpractice acts no special consideration as to the statute of limitations over those of other personal injuries by other individuals. For that reason I found the Act not unconstitutional when viewed with existing statutes. It gives the medical profession no special privileges over those of other persons.
Considering the 1941 Act as merely amendatory, or clarifying the general statute of limitations on personal injuries, it, therefore, follows that the statute giving minors an extended time within which to file a cause of action for personal injuries is applicable to all the statutes alike including the 1941 Act. I would therefore reverse and remand as the majority opinion, but for different reasons.
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NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
MICHELLE F., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, M.B., Appellees.
No. 1 CA-JV 16-0351
FILED 6-6-2017
Appeal from the Superior Court in Maricopa County
No. JD527717
The Honorable Karen L. O’Connor, Judge
AFFIRMED
COUNSEL
Denise L. Carroll, Esq., Scottsdale
By Denise L. Carroll
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
MICHELLE F. v. DCS, M.B.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.
W I N T H R O P, Judge:
¶1 Michelle F. (“Appellant”) appeals the juvenile court’s orders
denying her motion to disestablish/establish paternity and granting DCS’s
motion for change of custody. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Kiyah-Tee Clarice Pease (“Mother”) gave birth to M.B. (“the
child”) in September 2013 and left Arizona shortly thereafter. The child
stayed in Arizona and resided with Bobby Bonwell (“Father”).1 At the time,
Father was involved in a romantic relationship with Appellant, and
Appellant and her minor son lived with Father and the child.
¶3 In May 2014, DCS took the child into temporary physical
custody and alleged he was dependent as to Mother, who was incarcerated
in South Dakota at the time, and Father, due to substance abuse. After
Father moved out of the home he shared with Appellant, the child was
placed with Appellant. Two months after the juvenile court found the child
dependent, Father died. The juvenile court later terminated Mother’s rights
to the child, and the child became eligible for adoption.2
¶4 In March 2015, while the child was still placed with
Appellant, Appellant was involved in a domestic dispute with a man who
was living in her home. Around the same time, Appellant’s minor son
made statements at school that led to a child molestation investigation. The
child was removed from Appellant’s care, but he was ordered returned to
1 Father’s paternity was established through a voluntary
acknowledgment of paternity, and he is listed as the father on the child’s
birth certificate.
2 Mother’s rights are not at issue in this appeal.
2
MICHELLE F. v. DCS, M.B.
Decision of the Court
her two months later, on the condition that a safety monitor reside in the
home.3
¶5 Appellant then began the certification process to adopt the
child. However, in December 2015, DCS moved for a change of physical
4
custody, requesting the child be removed from Appellant’s care.5 The court
did not immediately rule on the motion.
¶6 As part of the adoption certification process, Appellant was
required to participate in a home study. An initial home study report
recommended Appellant be certified to adopt the child, but a subsequent
report recommended against certification due to “numerous
inconsistencies provided by [Appellant] regarding her medical diagnoses,
prescribed medications, income, history of substance abuse[,] and DCS
involvement.” The author of the initial home study report later retracted
her recommendation for certification.
¶7 In March 2016, Appellant revealed that her adult son, Charles
Taylor, was involved in a sexual relationship with Mother at the time the
child was conceived. DNA testing confirmed that Taylor is the biological
father of the child, making Appellant the child’s biological paternal
grandmother. Based on the DNA test results, Appellant moved for court
orders disestablishing the paternity of Father (who had died approximately
eighteen months earlier) and establishing the paternity of Taylor.
¶8 After an evidentiary hearing, the juvenile court denied
Appellant’s motion, concluding that she lacked standing pursuant to
3 DCS also removed Appellant’s minor son from her care and filed a
dependency action.
4 Appellant’s minor son was still in out-of-home care while that
dependency case proceeded, but he was eventually returned to her after she
successfully completed reunification services.
5 As reasons for its request, DCS cited, among other things,
Appellant’s history of being in abusive relationships, her history of
substance abuse, her inability to obtain a fingerprint clearance card due to
prior criminal convictions, and the dependency action involving her minor
son.
3
MICHELLE F. v. DCS, M.B.
Decision of the Court
Arizona Revised Statutes (“A.R.S.”) section 25-803(A) (2017)6 and, even
assuming standing, her motion was untimely under A.R.S. § 25-812(E)
(2017).7 Finding Father “is considered the child’s legal father,” the court
concluded Appellant “is not a legal grandparent under Arizona law.” The
court also granted DCS’s motion to have the child removed from
Appellant’s care.
¶9 Appellant timely appealed, and we have jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9; A.R.S. § 8-235(A)
(2014); and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile
Court.
ANALYSIS
¶10 Appellant argues the juvenile court erred in denying her
motion to disestablish/establish paternity and abused its discretion in
granting DCS’s motion to change physical custody.
I. Motion to Disestablish/Establish Paternity
a. Standard of Review
¶11 Because Father’s voluntary acknowledgment of paternity had
“the same force and effect as a superior court judgment,” see A.R.S. § 25-
812(D), we construe Appellant’s motion to disestablish/establish paternity
as a motion for relief from judgment. See Ariz. R. Civ. P. 60. We review a
juvenile court’s denial of a motion for relief from judgment for an abuse of
discretion, State ex rel. Brnovich v. Culver, 240 Ariz. 18, 19-20, 375 P.3d 83, 84-
85 (App. 2016), but review de novo the interpretation of statutes and rules.
Andrew R. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 453, 456, 224 P.3d 950, 953
(App. 2010).
6 A.R.S. § 25-803(A) provides that proceedings to establish paternity
may be commenced by (1) the mother, (2) the father, (3) the guardian,
conservator, or best friend of a child born out of wedlock, (4) a public
welfare official or agency, or (5) the state.
7 “Pursuant to rule 85(c) of the Arizona rules of family law procedure,
the mother, father or child, or a party to the proceeding on a rule 85(c)
motion, may challenge a voluntary acknowledgment of paternity
established in this state at any time after the sixty day period only on the
basis of fraud, duress or material mistake of fact . . . .” A.R.S. § 25-812(E).
4
MICHELLE F. v. DCS, M.B.
Decision of the Court
b. Standing
¶12 Appellant contends the juvenile court erred in relying on
A.R.S. § 25-803(A) to determine she lacked standing, and instead should
have considered the statutes addressing legal decision-making and
parenting time. According to Appellant, because she stands in loco parentis
to the child, she has standing to commence paternity proceedings pursuant
to A.R.S. § 25-409 (2017). But A.R.S. § 25-409 establishes third party rights
as they pertain to legal decision-making authority or placement of the child.
See A.R.S. § 25-409(A) (stating that, under certain circumstances, “a person
other than a legal parent may petition the superior court for legal decision-
making authority or placement of the child”). Appellant did not seek legal
decision-making authority or placement of the child under Title 25. Rather,
Appellant has commenced paternity proceedings, and a party’s standing to
commence paternity proceedings is established pursuant to A.R.S. § 25-
803(A). Accordingly, the juvenile court did not err in relying on A.R.S.
§ 25-803(A) to determine Appellant lacked standing to commence paternity
proceedings.
¶13 Appellant further asserts that, even assuming A.R.S. § 25-
803(A) applies, the juvenile court incorrectly concluded she lacked standing
because she is “at the minimum, the ‘best friend of a child . . . born out of
wedlock.’” See A.R.S. § 25-803(A)(3). However, Appellant does not
develop this argument or provide support with citations to relevant
authorities. Consequently, that argument is waived. See Polanco v. Indus.
Comm’n, 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391, 393 n.2 (App. 2007) (stating
that the failure to develop and support an argument waives the issue on
appeal).
¶14 Appellant next argues the juvenile court erroneously relied
on A.R.S. § 25-812(D) instead of A.R.S. § 25-812(E) to conclude she lacked
standing. Under A.R.S. § 25-812(D), a properly executed voluntary
acknowledgement of paternity may be filed with Arizona Department of
Economic Security (“ADES”), which shall provide a copy to the
Department of Health Services, and those actions and that affidavit have
“the same force and effect as a superior court judgment.” See also Andrew
R., 223 Ariz. at 457, ¶ 18, 224 P.3d at 954. Here, Father’s name appears on
the child’s birth certificate because, shortly after the child’s birth, Father
signed an affidavit of paternity, which was filed with ADES. Therefore, the
juvenile court did not err in concluding, pursuant to A.R.S. § 25-812(D), that
Father is the child’s legal father and Appellant is not a legal grandparent
under Arizona law.
5
MICHELLE F. v. DCS, M.B.
Decision of the Court
¶15 Appellant relies on A.R.S. § 25-812(E) to support her
argument that the juvenile court should have vacated the judgment of
Father’s paternity and established the paternity of Taylor. A.R.S. § 25-
812(E) states:
Pursuant to rule 85(c) of the Arizona rules of family law
procedure, the mother, father or child, or a party to the
proceeding on a rule 85(c) motion, may challenge a voluntary
acknowledgment of paternity established in this state at any
time after the sixty day period only on the basis of fraud,
duress or material mistake of fact . . . . The court shall order
the mother, her child or children and the alleged father to
submit to genetic testing . . . . If the court finds by clear and
convincing evidence that the genetic tests demonstrate that
the established father is not the biological father of the child,
the court shall vacate the determination of paternity and
terminate the obligation of that party to pay ongoing child
support.
According to Appellant, the DNA test results in this case constituted “clear
and convincing evidence” that Father is not the biological father of the
child, which required the juvenile court to vacate the judgment of Father’s
paternity and establish the paternity of Taylor. But Appellant’s reliance on
A.R.S. § 25-812(E) is misplaced because A.R.S. § 25-812(E), when read in its
entirety, applies only in circumstances where the individual challenging
paternity establishes fraud, duress, or material mistake of fact. Here,
Appellant has not made such claims, instead contending the DNA test
results constitute “newly discovered evidence.” Accordingly, the juvenile
court did not err in denying Appellant’s motion to vacate the judgment
establishing Father’s paternity.
c. Timeliness
¶16 Appellant also argues that, pursuant to Arizona Rule of
Family Law Procedure 85(C), her motion to disestablish/establish paternity
was timely because she filed the motion “sixty days after the DNA tests
revealed her son was the biological father.” Arizona Rule of Family Law
Procedure 85(C)(1)(b) permits a party to move for relief of a final judgment
based on newly discovered evidence, however, such motions must be filed
“not more than six (6) months after the judgment or order was entered.”
Ariz. R. Fam. Law P. 85(C)(2). Here, Father’s paternity was established
around the time of the child’s birth in 2013, and Appellant moved for the
disestablishment/establishment of paternity in 2016, more than two years
6
MICHELLE F. v. DCS, M.B.
Decision of the Court
later. Accordingly, the juvenile court did not err in concluding Appellant’s
motion was untimely.
II. DCS’s Motion to Remove the Child/Change Physical Custody
¶17 Appellant also challenges the juvenile court’s grant of DCS’s
motion for a change of physical custody. We review the juvenile court’s
orders on placement of a child for an abuse of discretion. Antonio P. v. Ariz.
Dep’t of Econ. Sec., 218 Ariz. 402, 404, 187 P.3d 1115, 1117 (App. 2008). The
juvenile court is “in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and make appropriate findings.”
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205
(App. 2002).
¶18 Appellant argues it is not in the child’s best interest to remove
him from her home because she is “the only consistent and loving parent
he ever had.” On the record presented, however, Appellant has not shown
the juvenile court improperly weighed the evidence or failed to consider
the child’s best interest. The juvenile court recognized the child’s bond with
Appellant, noting “[t]he child has been with [Appellant] for the majority of
his young life.” But the court also considered that the child had been
removed from Appellant’s care on two occasions, that Appellant failed to
provide truthful information during the adoption certification process, that
Appellant did not pass the fingerprint clearance requirement for adoption
certification, and that DCS would not consent to the child’s adoption by
Appellant. Accordingly, reasonable evidence supports the juvenile court’s
findings and conclusion that it was in the child’s best interest “to obtain
permanency without further delay,” and we find no abuse of discretion.
CONCLUSION
¶19 The juvenile court’s orders denying Appellant’s motion to
disestablish/establish paternity and granting DCS’s motion to change
physical custody are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
7
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Filed: October 7, 2011
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6535
(1:10-cv-00203-LO-TRJ)
PIPER ANN ROUNTREE,
Petitioner – Appellant,
v.
GENE JOHNSON, of the Dept. of Correction of the Commonwealth
of Virginia,
Respondent – Appellee.
O R D E R
The Court amends its opinion filed October 5, 2011, as
follows:
On page 2, second line of text -- the word “his” is
corrected to read “her.”
For the Court – By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6535
PIPER ANN ROUNTREE,
Petitioner – Appellant,
v.
GENE JOHNSON, of the Dept. of Correction of the Commonwealth
of Virginia,
Respondent – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:10-cv-00203-LO-TRJ)
Submitted: September 29, 2011 Decided: October 5, 2011
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Piper Ann Rountree, Appellant Pro Se. Susan Mozley Harris,
Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Piper Ann Rountree seeks to appeal the district
court’s order denying relief on her 28 U.S.C. § 2254 (2006)
petition. The order is not appealable unless a circuit justice
or judge issues a certificate of appealability. See 28 U.S.C.
§ 2253(c)(1)(A) (2006). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). When the
district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the constitutional
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the petition states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85. We have independently reviewed the record
and conclude that Rountree has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
2
before the court and argument would not aid the decisional
process.
DISMISSED
3
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817 F.2d 757
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.Mildred MORRIS, Plaintiff-Appellant,v.The UNIVERSITY OF MICHIGAN, and Agents Thereof, Robert C.Hughes, Kathleen Beauvias, Defendants-Appellees,John C. Feldkamp, et al., Defendants.
No. 87-1364.
United States Court of Appeals, Sixth Circuit.
May 8, 1987.
Before LIVELY, Chief Judge, and ENGEL and KRUPANSKY, Circuit Judges.
ORDER
1
Appellees move to dismiss this appeal as being untimely filed. Appellant has failed to respond thereto.
2
On June 23, 1986, following a bench trial, the district court entered judgment dismissing appellant's Title VII and 42 U.S.C. Sec.l983 action. The notice of appeal was due within 30 days of entry thereof--July 23, 1986. Rules 4(a) and 26(b), Federal Rules of Appellate Procedure. Appellant did not file her notice of appeal until March 16, 1987, and is, therefore, over seven months late. She did not seek nor was she granted an extension of time within which to file her notice of appeal.
3
Because the notice of appeal was untimely filed, this court is deprived of jurisdiction. Compliance with Rule 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. Peake v. First National Bank & Trust Co., 717 F.2d 1016 (6th Cir. 1983).
4
Accordingly, appellees' motion to dismiss is granted and it is ORDERED that this appeal be and hereby is dismissed. Rule 9(b)(1), Rules of the Sixth Circuit.
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ORICINAL 04/01/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA
PR 06-0544
FILED Case Number: PR 06-0544
MAR 3 1 2020
Bowen Greenwood
IN RE PETITION OF RICHARD J. GARLISH Clerk of Supreme Court
_State of Montana
FOR REINSTATEMENT TO ACTIVE STATUS ORDER
IN THE BAR OF MONTANA
Richard J. Garlish has petitioned this Court for reinstatement to active status in the
State Bar of Montana. Garlish was placed on inactive status on or about January 9, 2020,
for failing to comply with the Rules for Continuing Legal Education for the reporting year
ending March 31, 2019. Attached to the Petition is a letter from the State Bar stating that
Garlish has now completed all CLE requirements for that reporting year. The Petition
states that Garlish is not currently subject to disciplinary proceedings and has not
committed any acts or omissions sanctionable under the Rules of Professional Conduct
while on inactive status. Good cause appearing,
IT IS HEREBY ORDERED that the petition of Richard J. Garlish for reinstatement
to active status in the State Bar ofMontana is GRANTED. Upon payment ofany remaining
dues, fees, and the state license tax to the State Bar of Montana, Garlish shall be reinstated.
The Clerk is directed to provide copies of this order to the Petitioner and the State
Bar of Montana.
DATED this day of March,2020.
Chief Justice
2
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17-2449
Zubar v. Barr
BIA
A076 164 655/656/657/658
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 14th day of June, two thousand nineteen.
PRESENT:
JOSÉ A. CABRANES,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
OLGA ZUBAR, ALEKSANDR ZUBAR,
VLADIMIR ZUBAR, INNA ZUBAR,
Petitioners,
v. 17-2449
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Alexander J. Segal, The Law
Offices of Grinberg & Segal,
P.L.L.C., New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Anthony C.
Payne, Assistant Director; Yedidya
Cohen, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioners Olga Zubar, Aleksandr Zubar, Vladimir Zubar,1
and Inna Zubar, who are family members and natives and
citizens of Ukraine, seek review of a BIA decision denying
their motion to reopen. In re Olga Zubar, Aleksandr Zubar,
Vladimir Zubar, Inna Zubar, Nos. A 076 164 655/656/657/658
(B.I.A. July 13, 2017). We assume the parties’ familiarity
with the underlying facts and procedural history, to which we
refer only as needed to explain our decision to deny the
petition.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). When the BIA considers evidence of country
1 The Zubars’ counsel has informed the Court that Vladimir
Zubar died in April 2018. We therefore address the petition
only as to the remaining family members.
2
conditions in evaluating a motion to reopen, we review the
BIA’s factual findings under the substantial evidence
standard. Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
Cir. 2008).
An alien seeking to reopen may file one motion to reopen
and may do so no later than 90 days after issuance of the
final administrative decision. 8 U.S.C. § 1229a(c)(7)(A),
(C)(i); 8 C.F.R. § 1003.2(c)(2). These time and number
limitations do not apply, however, if the motion is filed to
permit application for asylum “based on changed country
conditions arising in the country of nationality or the
country to which removal has been ordered, if such evidence
is material and was not available and would not have been
discovered or presented at the previous proceedings.”
8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.2(c)(3)(ii). An alien who seeks reopening must also
establish prima facie eligibility for the relief sought.
Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005).
Although in its decision the BIA noted the applicable time
and number limitations, it recognized recent political
3
changes in the Crimean peninsula in Eastern Ukraine—where
Petitioners last resided before coming to the United States—
and denied reopening based on Petitioners’ failure to show
prima facie eligibility for asylum. Accordingly, we review
only that determination. See Lin Zhong v. U.S. Dep’t of
Justice, 480 F.3d 104, 117 (2d Cir. 2007) (“a denial of
immigration relief stands or falls on the reasons given by
the IJ or BIA” (internal quotation marks and alterations
omitted)).
At the threshold, movants seeking asylum must demonstrate
“a ‘realistic chance’ that [they] will be able to establish
eligibility.” Poradisova, 420 F.3d at 78. To establish
asylum eligibility based on a well-founded fear of
persecution, an applicant must show that he or she
subjectively fears persecution and that this fear is
objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d
169, 178 (2d Cir. 2004). An alien may make this showing
either by offering evidence that “he or she would be singled
out individually for persecution” or by “prov[ing] the
existence of a ‘pattern or practice in his or her country
4
. . . of persecution of a group of persons similarly situated
to the applicant.’” Kyaw Zwar Tun v. INS, 445 F.3d 554, 564
(2d Cir. 2006) (quoting 8 C.F.R. § 208.13(b)(2)(iii)).
Because the Zubars did not offer evidence that they “would be
singled out individually for persecution,” they were required
to establish a “pattern or practice” of persecution of ethnic
Ukrainians in their home country. See id.
The Zubars, ethnic Ukrainians with roots in Western
Ukraine, argue that they were not required to demonstrate a
pattern or practice of persecution of ethnic Ukrainians
across the country, but only in the Crimean peninsula in
Eastern Ukraine, the family’s last place of residence in the
country. Even if we accept this proposition, however, we
identify no error in the BIA’s determination that the Zubars
failed to carry their burden. Although the record contains
evidence of human rights abuses in the Crimean peninsula, the
Zubars presented little evidence that any danger that ethnic
Ukrainians may be facing in Crimea rises to the level of
persecution.
5
One record report by an international organization notes
in its discussion of disappearances occurring there that,
“[i]n Crimea, the targeted individuals primarily included
pro-Maidan activists, journalists and members of the Armed
Forces of Ukraine.” Certified Administrative Record (“CAR”)
at 282 (Human Rights Assessment Mission in Ukraine, Report by
the Organization for Security and Co-operation in Europe
(“OSCE Report”)). The Zubars point to the OSCE Report’s
statement that “[i]dentifying as Ukrainian and supporting
Ukrainian unity is allegedly perceived negatively by a
significant proportion of the population in Crimea.” Id. at
340. But, that some individuals who identify as Ukrainian
may be “perceived negatively” by many in Crimea does not
establish that ethnic Ukrainians are persecuted there. As
we have observed, “persecution is an extreme concept that
does not include every sort of treatment our society regards
as offensive.” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d
Cir. 2011) (internal quotation marks omitted). Nor does it
“encompass all treatment that our society regards as unfair,
unjust, or even unlawful or unconstitutional.” Id.
6
The OSCE Report also describes how individuals speaking
Ukrainian in public have been “harassed.” CAR at 340.
Similarly, harassment does not amount to persecution. See
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
Cir. 2006). Further, even if individuals in Crimea are
harassed for speaking Ukrainian, it appears from the record
that the Zubars are not similarly situated to these
individuals because Russian is their native language. In
addition, reports that ethnic Ukrainians have become
generally fearful since the Russian annexation, e.g., CAR at
408, 434, are also insufficient, either alone or considered
together with the descriptions discussed above, to make a
prima facie showing of a pattern or practice of harm rising
to the level of persecution. See In re A-M-, 23 I. & N. Dec.
737, 741 (BIA 2005) (describing a pattern or practice of
persecution as the “systemic or pervasive” persecution of a
group).
For these reasons, the BIA did not abuse its discretion
in concluding that the country conditions evidence adduced by
the Zubars does not establish that they have a “realistic
7
chance” of showing a pattern or practice amounting to
persecution of ethnic Ukrainians residing in Crimea.
Poradisova, 420 F.3d at 78; see In re A-M-, 23 I. & N. Dec.
at 741.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
8
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547 F.2d 1171
Meyersv.City of Chicago
No. 76-1763
United States Court of Appeals, Seventh Circuit
1/12/77
1
N.D.Ill.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
347 F.Supp. 855 (1972)
Port POWELL, Plaintiff,
v.
HELLENIC LINES, LTD., Defendant.
Civ. A. No. 70-2868.
United States District Court, E. D. Louisiana.
June 9, 1972.
*856 Clifton C. Carl, William S. Vincent, Jr., Garrett, Carl & Roussel, New Orleans, La., for plaintiff.
Christopher Tompkins, Bertrand M. Cass, Jr., Deutsch, Kerrigan & Stiles, New Orleans, La., for intervenors, Atlantic & Gulf Stevedores, Inc.
James H. Roussel, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for defendant.
CASSIBRY, District Judge:
Adjudication of the liability issues in this case was made at the close of trial on February 23, 1972. The only matter remaining for decision is quantum of damages.
Plaintiff Port Powell, while performing duties as a longshoreman employee of Atlantic & Gulf Stevedores, Inc., sustained injuries caused by the unseaworthiness of the vessel "Hellenic Hero", owned by defendant Hellenic Lines, Ltd. On January 15, 1970 the ship's rotted and deteriorated jackstaff, a pipe about seven feet long and two inches in diameter, fell to the Mississippi River wharf in New Orleans where plaintiff *857 was performing loading operations for the ship, striking the plaintiff on the left cheek area and seriously injuring him. I ruled at the trial therefore that he is entitled to recover from the defendant for damages caused by his injuries. Seas Shipping v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946).
Atlantic and Gulf Stevedores' claim in intervention against Hellenic Lines, Ltd., for compensation and medical expenses paid to, and on behalf of, plaintiff was granted. A counter-claim of defendant Hellenic Lines against intervenor Atlantic and Gulf Stevedores for indemnity based on the breach of the warranty of workmanlike service by failing to require the plaintiff to wear a hard hat was denied because it was shown by a preponderance of the evidence that the failure to wear a hard hat did not contribute to the injury in this case. On the contrary the evidence convinced me that a hard hat would have been no protection against the blow to the cheek area received by plaintiff. There was no basis for recovery on this counter-claim therefore under Ryan Stevedoring Co., Inc. v. Pan-Atlantic SS Corp., 349 U.S. 901, 75 S.Ct. 575, 99 L. Ed. 1239 (1955).
The dispute as to quantum exists mainly because certain of the symptoms continuing after plaintiffs' initial treatment, and which he contends prevent him from working, are subjective headaches and dizzinessand because the defendant contends that visual problems of the plaintiff were not caused by the accident.
The plaintiff was 54 years old at the time of the accident, and for the two years previous thereto he had earned wages averaging $8,364.00 per year. The blow that he received was severe enough to render him unconscious, cause a cerebral concussion, a fracture of the anterior wall of the left maxillary sinus a sinus bonein the left cheek through which the roots of teeth go, and the loosening of two teeth so that they had to be removed. There is evidence that the plaintiff remained unconscious until the ambulance arrived, a period estimated to be as long as 30 minutes.
The plaintiff was taken to the emergency room of Touro Infirmary in New Orleans and was first examined there by Dr. Samuel A. Romano, a general surgeon. The plaintiff was then conscious, but dazed, had an obvious head injury with a large hematoma involving the whole left cheek, had a neck sprain and some injury to the teeth, but this latter injury was considered less important than his other injuries for immediate treatment. Dr. Romano admitted the plaintiff to the hospital and called a neurosurgical expert, Dr. Richard W. Levy, to examine him. Dr. Levy found no scalp or skull injury and considered plaintiff's muscle reflexes and his mental status to be good except for amnesia which prevented him from recalling details of the accident. The plaintiff complained to him of pain over his entire body.
Powell remained in the hospital until February 1, and the complication of infection of the soft tissues in his cheek added to the pain from his injury on the left side of his face. Dr. Harry Zoller, an ear, nose and throat specialist, was called in consultation three days after the accident. He stabbed the soft mass, which he described as being the size of two large pecans, to drain the infection, an extremely painful procedure, according to him, and in his words "Powell almost hit the ceiling." During the remainder of his treatment at Touro he complained mostly of his painfully swollen face. He was treated with antibiotics, anti-inflammatory medicines and muscle relaxants.
On February 4, 1970 Powell's injury to his teeth was checked by the dentist Dr. Sidney S. Light. The area where the two left upper jaw teeth were loosened was so swollen and painful that the extractions could not be made that day. He gave Powell an antibiotic and a pain reliever. In spite of the medication the plaintiff had a recurrence of the mass swelling and intense pain on February 13 and he was hospitalized at *858 the Ear, Nose and Throat Hospital in New Orleans from February 13 through 19. This relapse caused a large swelling described as the size of an orange or grapefruit. He had a sinus infection which the injury had caused to flare up, and Dr. Zoller made a place for the sinus to drain by a simple surgical procedure performed at the Ear, Nose and Throat Hospital and continued the antibiotic treatment.
By February 17 the swelling and pain had subsided sufficiently for Dr. Light to extract the two loose teeth. These teeth have the longest roots in the mouth and it requires a severe blow to loosen them according to Dr. Light. An antibiotic was prescribed after the extractions and Powell had residual post-operative pain in the soft tissues that took six weeks to heal. Dr. Light provided Powell with a removeable partial bridge on April 2 that required no adjacent grinding.
Dr. Romano continued to see Powell after he left Touro and in the period from February 4 to May 12 he saw him approximately 36 times. The plaintiff complained of headaches and loss of the sense of smell. Doctors Levy and Zoller tested him and confirmed that he had lost his sense of smell. Dr. Levy testified that a head injury can cause this loss, and that the blow received by Powell in this case was severe enough to tear the nerves of smell from the bone just above the nose. Once the sense of smell is lost, it cannot be regained and its loss affects and diminishes the sense of taste also.
The plaintiff complained of headaches and dizziness throughout the time that Dr. Romano treated him. According to the doctor's testimony, his impression from the plaintiff's complaints was that the headaches were not constant, but were brought on by exertion over a long period.
Powell was referred by Dr. Romano to Dr. Moss L. Antony, an ophthalmologist, for eye evaluation. Dr. Antony saw him twice in June 1970. Powell was complaining that his eyes would not permit him to read for any length of time and that he was unable to see after bending. Dr. Antony's only treatment of Powell was to give him bifocal correction. His examination of the plaintiff revealed no injury to the eyes or to the visual system. He found no turning in or out of the eyes and his tests detected no double vision. He regarded Powell's lenses as normal for a person his age and no cataracts were evident.
In September and October Dr. Romano discussed returning to work with the plaintiff several times and recommended that he try it. The facial swelling had subsided and Dr. Romano thought that he had improved. In November when Powell attempted to resume his job as a "hook-up" man, however, he had to stop working after an hour. He was unable to stoop over and hook up loadsbending over, looking up and holding his head back made him dizzy.
Dr. Robert Azar, an ophthalmologist whose practice included much work relating to eye trauma, examined the plaintiff in January 1971 for his eye complaints of blurring and double vision, tearing and sensitivity to light. He found a small opacity in the lense of the left eye suggesting early formative stage of a cataract. The plaintiff also had muscular imbalance of the eyes, or drift out, which he explained as the eyes drifting away from each other. According to Dr. Azar this handicaps the plaintiff in seeing anything within two or three feet, affects his close seeing in other words, and would have an adverse effect on his ability to work. He explained that this drifting out can cause dizziness because it interferes with the integration of the images seen simultaneously by each eye and the patient then sees double which is a common cause of dizziness. Muscular imbalance can be corrected by surgery and he testified that he probably recommended surgery to the plaintiff, but could not recall that advice definitely.
In June 1971 Dr. Romano released the plaintiff and told him to go back to work. *859 His impression was that plaintiff's condition was better than when he had made the previous attempt to workhis headaches were not constant and the dizzy spells occurred only occasionally. Toward the end of Dr. Romano's treatment medication was given mostly for headaches mild sedative compounds. All the doctors (apparently he, Zoller, Levy and Antony) agreed that Powell did not need more treatment and nothing would be gained by it. They were of the opinion that he should try to work although he continued to have headaches and some dizziness.
Powell made no effort to return to work, but in the latter part of July he was seen by a neurologist, Dr. Max Johnson, and in August he was seen by Dr. Joseph E. Schenthal who specializes in internal medicine, by Dr. Monte G. Holland, Chairman of the Department of Ophthalmology at Tulane University, and again by Dr. Azar.
Dr. Johnson's testing confirmed that that plaintiff had lost his sense of smell. The neurological examination was normal except for the function of the olfactory nerve, and gross eye and ear examination showed no eye or ear disorders. The tests he conducted ruled out any reason for the subjective complaints of headaches and dizziness except that they were post-concussion residual. He accepted these continuing complaints as possible with the type of injury plaintiff had sustained. Dr. Johnson saw Powell again in December and in January 1972 and his tests indicated no neurological changes.
Dr. Schenthal's testing also revealed the loss of the sense of smell and ruled out causes for headaches and dizziness except post-concussion residual, and he considered his complaints to be consistent with his injury. He did not check the plaintiff for drifting eye. He saw the plaintiff several more times before trial and his complaints were consistent and the same. The plaintiff was aging rapidly in his opinion.
Dr. Holland saw the plaintiff on August 26 on Dr. Schenthal's referral. He found a cataract forming in the left eye, but the lense of the right eye was within normal limits. He found no muscle imbalance. An examination four months later showed no progression of the cataract.
Dr. Azar found in August that the cataract forming in the left eye had increased in density in the six months since his first examination and that new cataracts were forming. His tests indicated an 8.5 percent loss of the visual efficiency in that eye. The lense of the right eye remained normal, but the muscle imbalance was still present.
In January 1972 Dr. Antony again examined plaintiff's eyes and found cataracts forming in both of them which diminished plaintiff's visual acuity. Dr. Levy reexamined him in January also and could find no neurological basis for his continuing headaches and dizziness.
A psychologist, Dr. Irving A. Fosberg, administered psychological tests to the plaintiff in December 1971. From the results of verbal and performance intelligence tests and a dexterity test, Dr. Fosberg concluded that the plaintiff has limited job opportunity, can only do manual labor and, if he is physically unable to do that, he is seriously disadvantaged in the labor market. He also evaluated the plaintiff as having an insufficient personality, poor judgment, and little or no emotional or physical stamina.
At the trial Powell testified that he cannot smell at all and that his food has no flavor. The headaches come and go, but he has them every day and they are worse at night. He cannot sleep without medication and at the time of trial he was taking medication prescribed by Dr. Johnson. He gets dizzy even when he attempts to help with the housework and he is convinced that he cannot work.
All counsel have stipulated that medical expenses incurred by Port Powell on account of his injuries total $3938.17, of which $3434.17 has been paid by intervenor, Atlantic & Gulf Stevedores, Inc.
*860 The plaintiff contends that he is entitled to additional damages as follows:
Pain and suffering from the facial injury,
including fracture of the sinus
bone _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ $12,500.00
Loss of two teeth and pain and suffering
during healing _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 3,500.00
Loss of sense of smell _ _ _ _ _ _ _ _ _ _ _ 25,000.00
Effects on taste _ _ _ _ _ _ _ _ _ _ _ _ _ _ 20,000.00
Post concussion syndrome _ _ _ _ _ _ _ _ _ _ 40,000.00
Injury to eye _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 25,000.00
Total loss of wages for remainder of
worklife _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 66,728.00
___________
$192,728.00
The defendant contends that, because of the conflict in the medical evidence, Powell has not proved that he is disabled at this time, nor has he proved that his eye difficulties are caused by the trauma resulting from the accident. Except for the subjective complaints of headache and dizziness, the plaintiff has been recovered since November 1970, according to the defendant, and the damages awarded should not exceed $12,000.00. In the alternative, if the court finds that Powell is presently disabled from returning to work as a longshoreman, defendant contends that damages should be limited to $35,000.00 in view of the conflict in the medical evidence as to the cause and extent of Powell's problems.
PAIN AND SUFFERING IN INITIAL TREATMENT
There is no dispute that the plaintiff suffered a severe and painful injury and that the pain from the hematoma and the fractured facial bone was aggravated by the complication of infection and by the extraction of the two teeth. The swelling apparently did not completely subside for several months. The plaintiff suggests that the pain and suffering from the injury to the teeth be separated from the pain and suffering from the other effects of the injury. This does not appear to be warranted in this case. The plaintiff had an extended period of pain in the left jaw area, including pain in the convalescent period following extraction of the teeth, but the evidence does not reveal that the pain from that period can be separated from the pain experienced generally from the injury. The loosening of the teeth and their extraction did cause favoring of the left side of the mouth in eating that was a part of the inconvenience and suffering during this initial period. I am of the opinion that $10,000.00 will adequately compensate plaintiff for the pain and suffering during the initial treatment period following the injury.
LOSS OF TWO TEETH
The requested amount of $1,000.00 for the loss of the two teeth is reasonable and that amount will be allowed.
LOSS OF SENSE OF SMELL
The evidence that plaintiff has lost his sense of smell is not disputed. The plaintiff asks that the loss of this sense be separated from the effect it had on his sense of taste. Since these matters are so interrelated, I will consider them as one item.
The plaintiff appropriately points out that the loss of the sense of smell makes him vulnerable to dangers which he would normally be alerted to by this sense. In one instance since the accident the plaintiff was unable to detect a gas leak in his home. Loss of this sense also deprives him of the pleasure of pleasant odors, such as food cooking and the fragrance of flowers, and it reduces his enjoyment of food because the taste of food is conveyed largely through the sense of smell. The plaintiff will be awarded $30,000.00 for this loss.
POST-CONCUSSION SYNDROME
The basis for plaintiff's continuing complaints of headaches and dizziness could not be found in the neurological testing performed by Drs. Levy, Johnson and Schenthal. Dr. Azar found driftout *861 of the eyes which could, in his opinion, produce dizziness.
Dr. Levy considered that the headaches and dizziness induced by the injury should have subsided four months after the accident. Dr. Johnson's experience was that, in case of injury as severe as plaintiff had suffered, the time of recovery from post-concussion residual symptoms such as headaches and dizziness is uncertain. In some individuals the headaches last only a short time, in others they may extend over a period of yearswith some even having complaints after five years. He accepted plaintiff's subjective complaints as post residual effect of the injury, but he did expect the plaintiff to improve, although he could not say definitely when he would improve.
Dr. Schenthal testified that there is no medical way to determine exactly what causes plaintiff to continue to have headaches and dizziness, but he considered the complaints were consistent with the concussion he had suffered. The severe blow plaintiff received could sufficiently move the very soft tissue by which the brain is attached, he explained, to lift part of the brain enough to cause these continuing symptoms. Although the plaintiff did not impress him as being in any acute distress, he was of the opinion that the symptoms could be permanent.
Dr. Levy's opinion that plaintiff's symptoms should have ceased was based on his impression that the plaintiff had been rendered unconscious from the blow for a matter of only a few minutes. He testified that the longer a person who suffers a concussion is unconscious, the more severe and long lasting will the symptoms be. The evidence shows that the plaintiff could have been unconscious for as long as thirty minutes. Dr. Levy's opinion that the injury could not be the cause for the continuing symptoms is therefore weakened.
Considering that the headaches are intermittent and are relieved by mild sedatives, that the dizziness is not constant, that the duration of these symptoms cannot be fixed with any degree of certainty and that the plaintiff is expected to improve in time, I am of the opinion that $15,000.00 is adequate compensation for the post-concussion syndrome of the plaintiff.
THE EYE PROBLEMS
This item of damage presents a serious conflict in the evidence. Dr. Azar impressed me as having the most expertise of the ophthalmologists in the area of trauma induced eye injury. His testing of the plaintiff was more refined and detailed also than that of Dr. Antony and Dr. Holland. His reasons for finding that the cataract formations in the left eye were trauma induced rather than senile appeared to be more reasonable than the reasons of the other two doctors for concluding that they were senile cataract formations.
Dr. Azar found a "water cleft"a droplet of water in the lensein the left eye indicating cataract formation when he first examined plaintiff in January 1971. A blow to the head from a pipe as large as the one that hit plaintiff in this case could be expected to produce cataracts, according to Dr. Azar; the time of formation was consistent to its being induced by trauma, and senile cataracts ordinarily commence in people 10 years older than Powell. The progression of the cataract formation in six months convinced Dr. Azar that the injury had caused it. The right eye remained normal in all his examinations. This further corroborated trauma inducement to him because senile cataracts usually manifest themselves in both eyes.
In August 1971 Dr. Holland found a cataract forming in the left eye only, and there was no progression four months later. His principal reason for finding that the cataract formation was not caused by the injury was that a thick layer of cortex appears behind the lense *862 if it is trauma induced, and he found the cortex to be clear. But he did admit that this one could have been caused by the injury, that it had characteristics consistent with both traumatic and senile cataracts, and that Dr. Azar, because of the time of his examinations, is in a better position to evaluate its progression.
Dr. Antony did not consider that the cataract formation was caused by the injury because he found no evidence of it when he first examined plaintiff in June 1970, and when he detected it in January 1972, he considered that both eyes were affected indicating senile cataract.
I accept the opinion of Dr. Azar that the cataract was caused by the injury.
All eye doctors agreed that his visual acuity will deteriorate with the progression of the cataracts. If surgical removal becomes necessary his work efficiency will be affected.
Dr. Azar was the only ophthalmologist to find muscle imbalance, or drift out, of the eyes. He testified that this is seldom found except as a result of trauma and his tests suggested that the plaintiff's muscle imbalance had come on during his adult life. Nothing in plaintiff's history indicated that this was caused by anything other than trauma, and he considered it was caused by the injury. I accept Dr. Azar's finding and opinion on muscle imbalance.
Inasmuch as the progression of the cataracts cannot be precisely forecast and the muscle imbalance is correctible by surgery, $10,000.00 will be awarded for this damage.
LOSS OF WAGES
The evidence convinces me that the plaintiff cannot now do longshoreman's work because of the dizziness. Plaintiff's foreman Murphy Bowman testified as to the inability of anyone affected by dizziness to work in his gang. Such a person would be a danger to himself and to his fellow workers, and Bowman would not select such a person to work under him. Furthermore, plaintiff's psychological makeup, together with the severity of the injury he received, make it most unlikely that he will ever again be able to do the hard manual labor of a longshoreman.
Dr. Johnson was of this opinion. He pointed out also that head injury reduces stamina and flexibility in any person. In his words head injuries "take something out of a person", and this is more serious if the injury occurs to an older person and to a person with a low I.Q. who adjusts after injury with difficulty. He expected the plaintiff to improve, but he could set no time for the improvement. Dr. Schenthal also considered that plaintiff's injury had disabled him from doing the work of a longshoreman. I find therefore that the plaintiff will be disabled from returning to longshoreman's work during the remainder of his worklife.
There is a duty on the part of the plaintiff, however, to minimize his damages by doing work that he can perform. He has not tried to do other work than longshoreman's since the accident, and his complaints to all the doctors who saw him close to the time of the trial and his testimony at the trial show that he considers himself too disabled from the dizziness to do work of any character, even assisting with household chores.
Under these circumstances plaintiff will be given full wages for three years from the injury, and thereafter they will be reduced by the minimum wage of $1.60 per hour, which amounts to approximately $3200 per year.
The defendant argues that the net wages, after income tax deduction, *863 should be regarded as the wage loss, citing Dennis v. Central Gulf S.S. Corp., 323 F.Supp. 943 (E.D.La.1971), aff'd 453 F.2d 137 (5th Cir., 1972). In that case the wage earner was deceased and the court was considering the loss of support suffered by the wage earner's dependent daughter. It was therefore appropriate under those circumstances to consider the net income rather than the gross income in determining how much the wage earner contributed to his daughter's support. Recovery for loss of wages for the wage earner himself, however, contemplates gross earnings. United States of America v. Bonner, 339 F.Supp. 640 (E.D.La., 1972).
The plaintiff shall therefore be awarded the following for loss of wages:
Past (2 yrs. full wages) _ _ _ _ _ _ _ _ $16,728.00
Future
1-year full wages _ _ _ _ _ _ _ _ $ 8,364.00
8 years
(less min. wage) _ _ _ _ _ _ _ _ _ 41,312.00
___________
$49,676.00
Less 1/3 reduction (Discount,
inflation, pay raises, less
working as aging progresses) _ _ _ $16,555.00 33,121.00
__________ __________
$49,849.00
RECAPITULATION:
Medical _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ $ 3,938.17
Initial pain and suffering _ _ _ _ _ _ _ 10,000.00
Loss of teeth _ _ _ _ _ _ _ _ _ _ _ _ _ _ 1,000.00
Loss of sense of smell _ _ _ _ _ _ _ _ _ 30,000.00
Post-concussion syndrome _ _ _ _ _ _ _ _ 15,000.00
Eye damage _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 10,000.00
Loss of wages _ _ _ _ _ _ _ _ _ _ _ _ _ 49,849.00
__________
$119,787.17
In addition to the stipulation of medical expenses paid by Atlantic & Gulf Stevedores in the amount of $3434.17, it was also stipulated that Atlantic & Gulf had paid to the plaintiff the amount of $3530.00 in compensation.
It is therefore ordered that judgment be rendered in favor of plaintiff Port Powell and against defendant Hellenic Lines, Ltd., in the amount of $112,823.00; in favor of intervenor Atlantic & Gulf Stevedores, Inc., and against defendant Hellenic Lines, Ltd., in the amount of $6964.17; and in favor of intervenor Atlantic & Gulf Stevedores, Inc., and against defendant Hellenic Lines, Ltd., dismissing the counter-claim of Hellenic Lines, Ltd.
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