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OPINION No. 04-11-00053-CR Peter H. EGGERT, Appellant v. The STATE of Texas, Appellee From the County Court at Law No. 2, Bexar County, Texas Trial Court No. 918014 Honorable H. Paul Canales, Judge Presiding Opinion by: Sandee Bryan Marion, Justice Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice Delivered and Filed: November 7, 2012 AFFIRMED AS MODIFIED A jury found appellant, Peter H. Eggert, guilty of driving while intoxicated. The trial court sentenced appellant to community supervision. We affirm the judgment as modified. BACKGROUND Officer Patrick Navarijo stopped appellant for speeding at approximately 2:00 a.m. on March 5, 2005. Appellant pulled over to the side of the road in a timely manner. After stopping, appellant immediately got out of his vehicle and approached the officer’s patrol car. According 04-11-00053-CR to Officer Navarijo’s testimony, he found it unusual for a suspect to approach a patrol car and he also stated he believed appellant approached the patrol car in a very “agitated” fashion. Officer Navarijo testified he noticed appellant’s eyes were bloodshot, his face was a flushed red color, and he smelled of alcohol. Officer Navarijo testified that because of “[t]he odor of alcohol on his breath and his attitude,” he asked appellant if he had been drinking to which appellant replied, “no.” Shortly thereafter, appellant walked back to his car to get his insurance information. When appellant opened the door, Officer Navarijo testified that he noticed several empty bottles of what appeared to be alcohol in appellant’s vehicle. Officer Navarijo asked appellant to have a seat in his own vehicle and he then called for backup. Officer Navarijo testified he called for backup due to appellant’s attitude stating, “[h]e was argumentative, somewhat confrontational, had a lot of questions.” After the backup officer, Officer Knutson, arrived, Officer Navarijo returned to appellant’s vehicle. Officers Navarijo and Knutson both testified they noticed appellant was smoking a cigarette and that appellant’s tongue was green, which Officer Navarijo stated he believed was because of a mint or candy used to freshen his breath. Officer Navarijo wrote appellant a ticket for speeding and then asked him whether he wanted to complete any sobriety tests, which appellant refused. Officer Navarijo testified he asked appellant at least once more to complete sobriety tests and appellant continued to refuse. Officer Navarijo then placed appellant under arrest on suspicion of driving while intoxicated. At this point, appellant agreed to perform the sobriety tests, but Officer Navarijo told him it was too late. Officer Navarijo searched and inventoried appellant’s vehicle where he found approximately ten bottles of what appeared to be wine and beer. -2- 04-11-00053-CR The stop was recorded by video tape, complete with audio. During the stop, Officer Navarijo went back to his patrol vehicle to record his own statements about appellant’s condition and what he had observed. The tape also had audio of Officer Navarijo’s statements as he inventoried appellant’s car. At trial, the State introduced the video with audio and appellant objected, contending the narrative statements Officer Navarijo made in the tape were inadmissible hearsay. The trial court overruled his objection, admitting the entire video with audio. DID THE TRIAL COURT ERR? In his first issue, appellant asserts the trial court erred in admitting the audio portions of the tape that recorded Officer Navarijo’s statements about appellant’s condition and Officer Navarijo’s narrative about what he found in appellant’s vehicle because they were “spoken offense reports” that are inadmissible hearsay. The State concedes the first audio portion was improper, but contends the second audio portion was a properly admitted “present sense impression.” As a general rule, hearsay is inadmissible. See TEX. R. EVID. 801(d) (defining hearsay); 802 (hearsay rule). One exception to the general rule is for “present sense impressions,” defined as “statement[s] describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” TEX. R. EVID. 803(1). Present sense impressions are deemed more reliable and therefore admissible because they are “non- narrative, off-hand comments made without any thought of potential litigation by a neutral and detached observer without any motive to fabricate, falsify, or otherwise exaggerate his observations.” Fischer v. State, 252 S.W.3d 375, 383 (Tex. Crim. App. 2008). -3- 04-11-00053-CR The Fischer court explained how narrative, on-the-scene recordings of a police officer’s observations are not “present sense impressions:” [O]n-the-scene observations and narrations of a police officer conducting a roadside investigation into a suspected DWI offense are fraught with the thought of a future prosecution: the police officer is gathering evidence to use in deciding whether to arrest and charge someone with a crime. Calculation and criminal litigation shimmer in the air; the officer is gathering evidence, he is not making an off-hand, non-reflective observation about the world as it passes by. Id. at 384. In concluding the officer’s statements 1 were inadmissible, the Fischer court stated, “[a]n officer may testify in the courtroom as to what he saw, did, heard, smelled, and felt at the scene, but he cannot substitute or augment his in-court testimony with an out-of-court oral narrative. This calculated narrative in an adversarial setting was a ‘speaking offense report.’” Id. at 376. Here, the first narrative from Officer Navarijo was made while he was inside his patrol car waiting for backup and was as follows: This gentleman, he uh, his name is Peter Eggert, date of birth 06-29-45. He smells like alcohol. His eyes are bloodshot. His face is flushed. He was unaware of the speed limit out here, where it’s posted sixty. Uh, he’s already told me that he hasn’t had any alcohol to drink, but I smell the alcohol, and he furthermore does not want to do any sobriety tests. I’m gonna write him a ticket and wait for the other officer to arrive, and we’re gonna do . . . see if I can get him to do some sobriety tests, I’m gonna ask him for a third time. Mr. Eggert looks mighty nervous now that he’s smoking a cigarette. We believe this is precisely the type of narrative the Fischer court considered to be a “speaking offense report” that is not admissible as an exception to the hearsay rule. The recorded factual observations made by Officer Navarijo while investigating appellant were not 1 In Fischer, Trooper Martinez dictated comments into his microphone about the defendant during a stop for DWI. Trooper Martinez verbally noted that he had seen a wine opener in appellant’s truck, he had noticed there was a strong odor of alcohol on appellant’s breath, and also noted that appellant had glassy, bloodshot eyes and “slurred speech.” Fischer, 252 S.W.3d at 377. Also, Trooper Martinez went back to his patrol car multiple times to record his observations after administering sobriety tests on appellant. After one sobriety test he dictated into his microphone, “[s]ubject has equal pupil size, equal tracking, has a lack of smooth pursuit in both eyes, and has distinct nystagmus at maximum deviation in both eyes. Subject also has onset of nystagmus prior to forty-five degrees in both eyes.” Id. -4- 04-11-00053-CR the non-reflective observations of a neutral observer that the present sense impression exception is designed to allow. Instead, Officer Navarijo’s comments were more analogous to a police report in that they were “on-the-scene observations and narrations of a police officer conducting a roadside investigation” made with the thought of future prosecution in mind. See id. at 384. We therefore conclude and the State concedes, the trial court erred in overruling appellant’s objection to this audio portion of the video. The second audio portion appellant argues should been excluded was Officer Navarijo’s commentary as he searched and inventoried appellant’s vehicle. After placing appellant under arrest and putting him in the back seat of his patrol car, Officer Navarijo turned his personal microphone off. However, once he started the search he turned his personal microphone back on for the purpose of recording his statements while he searched appellant’s vehicle. Officer Navarijo dictated: I’m going to turn [the microphone] back on real quick. Here’s a uh white zinfandel bottle of wine, a bottle opener, a Paulaner premium beer, oh hold on, there’s one, two, three, let me go and put all the beers right here, there’s a bunch of them. He’s also got several pills here. I don’t know for what. So just to make sure there’s one, two, three, four, five, six, seven, eight, nine, ten, different bottles of alcohol, five of which are wine. I didn’t expect to find all this alcohol. The State argues that this second narrative qualifies as an admissible present sense impression because his statements occurred while the search was ongoing. The State argues that in this portion of the tape Officer Navarijo was simply “describing the events as they happened” and, therefore, his statements “[are] not the same type of reflective narration as described by Fischer.” We disagree. Officer Navarijo’s narrative during his investigation of appellant’s car was not the type of off-hand comment by a detached observer that the present sense impression rule is designed to allow. See id. at 383. The Fischer court explains that, “the adversarial nature of [an] on-the- -5- 04-11-00053-CR scene investigation of a potential crime is entirely at odds with the unreflective, instinctive comments of a ‘street-corner’ speaker who was not thinking about the legal consequences of his statements.” Id. at 385. These types of statements made during an investigation with the thought of future litigation are statements in a setting “that human experience and the law recognizes is brimming with the potential for exaggeration or misstatement.” Id. at 386. Regardless of whether the statements were made contemporaneously with what Officer Navarijo was observing, he was still conducting an investigation and making these statements for evidentiary use with an eye toward appellant’s future prosecution for DWI. See id. In fact, Officer Navarijo turned his personal microphone back on for the purpose of recording his narrative statements while he conducted the search. As Officer Navarijo pulled the bottles out of the vehicle, the comments he made about the type, brand, and number were comments made for the purpose of putting together evidence against appellant and, for that reason, were testimonial statements that cannot be considered the “non-narrative, off-hand comments” the present sense impression exception is designed to allow. See id. at 383. Therefore, we conclude the trial court erred in admitting this second portion of audio. HARM ANALYSIS The erroneous admission of hearsay is nonconstitutional error. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Nonconstitutional errors require reversal if they affect a defendant’s substantial rights. TEX. R. APP. P. 44.2(b). The erroneous admission of evidence does not affect substantial rights if, after examining the record as a whole, we have “fair assurance that the error did not influence the jury, or had but a slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). In considering the likelihood that the error adversely affected the jury’s verdict, appellate courts should consider everything in the record, including -6- 04-11-00053-CR the evidence admitted, the nature of the evidence supporting the verdict, the character of the alleged error, and how it might be considered with other evidence in the case. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). When the erroneous admission of evidence is cumulative of other properly admitted evidence proving the same fact, the erroneous admission is harmless. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (en banc); Matz v. State, 21 S.W.3d 911, 912 (Tex. App.—Fort Worth 2000, pet. ref’d) (“It is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence.”). Here, in addition to watching and hearing the tape, the jury also heard testimony from both Officer Navarijo and Officer Knutson. Officer Navarijo testified about appellant’s agitated attitude and appearance stating, “[h]is eyes were bloodshot. He smelled like alcohol. His face was a flushed red color.” Officer Navarijo said that he asked appellant to perform field sobriety tests at least twice. He also testified: “I want to say that one of the—one of the bottles I identified as a beer. I think it was called Paulaner. And there were about five bottles of beer total that were empty and five wine bottles that were empty.” Additionally, Officer Knutson testified about appellant’s appearance and his refusal to perform field sobriety tests. Further, even without the audio, the jury saw Officer Navarijo pulling numerous bottles from the vehicle. Upon review of the entire record, we determine the error was harmless because both officers testified at trial as to everything Officer Navarijo mentioned in the erroneously admitted portions of the audio tape. OPEN CONTAINER ENHANCEMENT During the punishment phase of trial, the State waived an open container enhancement. However, the judgment states appellant was found guilty of driving while intoxicated—open -7- 04-11-00053-CR container. In his second issue on appeal, appellant argues the trial court erred by including the open container enhancement in the judgment, and the State concedes the error. We agree the trial court erred. This court has the power to modify incorrect judgments. See TEX. R. APP. P. 43.2(b). Accordingly, we modify the written judgment to delete the open container enhancement and reflect that appellant is guilty of the offense of driving while intoxicated. CONCLUSION We conclude the trial court erred in admitting the audio portions of the video tape. However, we conclude the erroneously admitted evidence was cumulative of other evidence. Accordingly, we have fair assurance that the error did not influence the jury, or had but a slight effect and was therefore harmless error. As modified, we affirm the trial court’s judgment. Sandee Bryan Marion, Justice PUBLISH -8-	{ "pile_set_name": "FreeLaw" }
899 N.E.2d 506 (2008) Kenneth DAVIS, Charles Deaton, Fred Deaton, Robert Engle, Bob Ganz, Thomas Saathoff, as Special Administrator for Annette May, Larry Nolen, Arthur Phillips, Philip Richerson, Larry Winters, and Wendell Yeary, Plaintiffs-Appellees, v. AMERICAN OPTICAL CORPORATION, Defendant and Third-Party Plaintiff-Appellant, and Minnesota Mining And Manufacturing Company, Inc., n/k/a The 3M Company, Defendant and Third-Party Plaintiff-Appellee (The American Coal Company, a/k/a Arch of Illinois et al., Third-Party Defendants-Appellees). David Basham, Joseph Clark, Roy Gene Culpepper, Kenneth Davis, Charles Deaton, Fred Deaton, David Dudley, Robert Engle, Bob Ganz, Danny Gulley, Keith Hughes, Thomas Saathoff, as Special Administrator for Annette May, Barry McDyer, Larry Nolen, Kevin Peyton, Arthur Phillips, Marty Richardson, William Staley, Lyman Tanner, Lyndell Walker, Wendell Yeary, Plaintiffs-Appellees, v. American Optical Corporation, Defendant and Third-Party Plaintiff-Appellant, and Mine Safety Appliances Company, Defendant and Third-Party Plaintiff-Appellee (Amax Coal Company, f/k/a Cyprus Amax Coal Company et al., Third-Party Defendants-Appellees). Nos. 5-07-0385, 5-07-0386. 507 Appellate Court of Illinois, Fifth District. December 3, 2008. 508 Debra K. Zahalsky, Joseph R. Brown, Jr., Lucco, Brown, Threlkeld & Dawson, LLP, Edwardsville, IL, Attorneys for Appellant. John J. Kurowski, Candice C. Kusmer, Kurowski, Bailey & Shultz, LLC, Swansea, IL, for The 3M Company. K. Lindsay Rakers, Robert Rowland, Goldenberg, Heller, Antognoli & Rowland, P.C., Edwardsville, IL, for Kenneth Davis, Charles Deaton, Robert Engle, Bob Ganz, and Thomas Saathoff, as Special Administrator. William A. Schmitt, Dayna L. Johnson, Greensfelder, Hemker & Gale, P.C., Swansea, IL, for Arch of Illinois. W. Jeffrey Muskopf, Mark R. Feldhaus, Lashly & Baer, P.C., St. Louis, MO, for Mine Safety Appliances Co. Theodore F. Kommers, Gould & Ratner LLP, Chicago; Pamela Lacey, Attorney at Law, Benton, IL, for Freeman United Coal Mining Corp. Justice SPOMER delivered the opinion of the court: In this consolidated appeal, defendant American Optical Corp. (AOC) appeals the orders of the circuit court of Saline County that, inter alia, found the settlement agreements entered into between the plaintiffs in each case and defendants Minnesota Mining and Manufacturing 509 Company, Inc., now known as The 3M Company (3M), and Mine Safety Appliances Company (MSA), respectively, to be in good faith within the meaning of section 2(c) of the Joint Tortfeasor Contribution Act (the Act) (740 ILCS 100/2(c) (West 2006)) and that dismissed AOC's contribution claims against all the third-party defendants in each case. Because we conclude that the trial court's rulings were not an abuse of discretion, we affirm both orders. FACTS The facts necessary for our disposition of this appeal are uncontested. The complaints filed by the plaintiffs in each case claim that the masks and respirators manufactured and supplied by 3M, MSA, and AOC to various coal mine owners/operators for use by the plaintiffs were ineffective in preventing the plaintiffs from contracting coal workers' pneumoconiosis. There is similar litigation pending in other counties throughout southern Illinois involving the same defendants. 3M, AOC, and MSA filed third-party claims for contribution against the various mine owners/operators where the plaintiffs worked during their careers, alleging that the owners/operators did not provide an adequately safe work environment for the plaintiffs. Some third-party mine defendants held workers' compensation liens against some of the plaintiffs' claims for damages in Saline County and other counties, but with regard to other plaintiffs, they did not hold workers' compensation liens because they were not the last employer of those plaintiffs. See 820 ILCS 310/1(d), 5(b) (West 2006). Negotiations between the various parties commenced, and ultimately two settlement agreements were reached. In each case, the plaintiffs and 3M and MSA, respectively, filed motions requesting that the settlement agreements between them be found to be in good faith within the meaning of section 2(c) of the Act (740 ILCS 100/2(c) (West 2006)). As a part of the settlement agreement in each case, the plaintiffs and 3M and MSA, respectively, sought a dismissal with prejudice of all the claims against 3M and MSA, as well as the third-party claims that the nonsettling defendant, AOC, had filed against all the third-party defendant mine owners/operators. The settlement agreements also provided that 3M and MSA, respectively, retained their contribution claims against the third-party defendants. AOC filed an objection to the joint motions for a good-faith finding. On June 4, 2007, a hearing was held on the joint motions for a good-faith finding. At the hearing, counsel for AOC explained to the court that AOC objected to the proposed orders that had been submitted with the joint motions for a good-faith finding to the extent that the proposed orders would extinguish AOC's contribution claims against those third-party defendants that did not hold workers' compensation liens against the claims of various plaintiffs. AOC's objection, as stated to the circuit court, was that those third-party defendants that did not have workers' compensation liens to waive were paying no consideration for their release. In response, counsel for the plaintiffs explained that 3M and MSA were paying money to settle their own liability as well as the liability of the third-party defendants, thereby giving 3M and MSA the sole right to maintain a contribution claim against those third-party defendants. The plaintiffs' counsel tendered "Exhibit A" and "Exhibit B" to the circuit court during the hearing. These exhibits reflected the terms of the settlements between the plaintiffs and 3M and MSA, respectively. Counsel for the plaintiffs explained 510 that all the defendants, including AOC, had stipulated that the amount of each settlement was confidential. Counsel for AOC then stated to the court, "And, Judge, just so I'm clear, and I'm sure this is clear, we're not objecting to the settlements themselves or the amount, and we're not demanding that we know what the amount of those settlements are." Counsel for AOC then explained that AOC was objecting solely to the scope of the release, and AOC argued that its third-party claims against those third-party defendants that did not have workers' compensation liens to waive should not be extinguished "without any consideration from that third-party defendant." Importantly, exhibits A and B were not placed in the court file and are not a part of the record on appeal. In response to AOC's argument, the plaintiffs' counsel again stated that the settling defendants had agreed to pay an amount sufficient to cover the third-party defendants' share of the fault as well as their own. Counsel for the plaintiffs further explained: "[W]hat they're doing is in affect [sic] cutting out the non[ ]settling defendant and making themselves the exclusive holder of the third-party claims for contribution because they've bought out the liability of the [third-party defendants] as to everyone in the world but themselves. In affect [sic] their contribution action is looking to get back from the [third-party defendants] the money they overpaid me to cover the [third-party defendants'] liability." Counsel for AOC also stated to the circuit court: "[W]e haven't asked to look at any of these numbers. The Court may look at these numbers. But I guess the real problem is you determining[,][I]s this okay[?][I]s this in good faith for them to pay something they alledge [sic] to be more than their pro rata share to get rid of those third-party defendants[?]" Although 3M, MSA, and AOC all stipulated that the amount of each settlement would remain confidential and although the settlement agreements are not a part of the record on appeal, it is clear from the transcript of the hearing that the amounts paid by 3M and MSA were not apportioned in the settlement agreements to show the amount paid to settle the plaintiffs' direct claims against them and the amount paid to release the various third-party defendants. On June 15, 2007, the circuit court entered orders granting both joint motions for a good-faith finding. Both orders include a provision that dismisses with prejudice AOC's contribution claims against all the third-party defendants. Both orders also state that pursuant to Illinois Supreme Court Rule 304(a) (210 Ill.2d R. 304(a)), there is no just reason for delaying either enforcement or appeal. On July 12, 2007, AOC filed a timely notice of appeal. ANALYSIS "[W]hether a settlement satisfies the good-faith requirement as contemplated by the * * * Act is a matter left to the discretion of the trial court based upon the court's consideration of the totality of the circumstances." Johnson v. United Airlines, 203 Ill.2d 121, 135, 271 Ill.Dec. 258, 784 N.E.2d 812 (2003). "A good-faith determination is reviewed on appeal for an abuse of discretion." Johnson, 203 Ill.2d at 135, 271 Ill.Dec. 258, 784 N.E.2d 812. Although AOC characterizes the issue to be resolved by this court as whether the release of the non-lienholding third-party defendants in the settlement agreements between the plaintiffs and 3M and MSA, respectively, without consideration on the part of, or on behalf of, the non-lienholding 511 third-party defendants, is invalid, it is clear from the record that consideration was paid on behalf of these third-party defendants, even though the amounts were not apportioned in the settlement agreements. The transcript makes it clear that the plaintiffs, 3M, and MSA all represented that money was paid to the plaintiffs sufficient to settle the claims against them as well as the claims against the non-lienholding third-party defendants. Accordingly, before this court proceeds to review the circuit court's determination that the settlement agreements were reached in good faith, we must recharacterize the issues on appeal and determine whether a settling defendant can pay consideration for the release of other potential tortfeasors and, if so, whether the amounts paid must be apportioned in the settlement agreements. For the reasons explained below, we hold that a settling defendant can pay consideration for the release of other potential tortfeasors and that there is no requirement that the settlement amounts be apportioned. In order to address the issues before us, we turn to the terms of the Act. The Act creates a statutory right of contribution in actions "where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death" (740 ILCS 100/2(a) (West 2006)), to the extent that a tortfeasor pays more than his pro rata share of the common liability. 740 ILCS 100/2(b) (West 2006). The Act provides in section 2(c) as follows: "(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater." (Emphasis added.) 740 ILCS 100/2(c) (West 2006). Accordingly, the Act provides for the release of any tortfeasor under the terms of a good-faith settlement agreement. The Act also sets forth the rights of contribution for tortfeasors who have settled with a claimant. Pursuant to section 2(d) of the Act, "The tortfeasor who settles with a claimant pursuant to paragraph (c) is discharged from all liability for any contribution to any other tortfeasor." 740 ILCS 100/2(d) (West 2006). In addition, pursuant to section 2(e) of the Act, "A tortfeasor who settles with a claimant pursuant to paragraph (c) is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement." 740 ILCS 100/2(e) (West 2006). By implication, this section would allow a settling tortfeasor who pays more than his pro rata share in order to obtain the release of another tortfeasor to maintain his claim for contribution against that tortfeasor. In fact, a settling tortfeasor who pays more than his pro rata share in order to effectuate a settlement that releases another tortfeasor would be the only party who could proceed against the tortfeasor on whose behalf the settling tortfeasor paid. AOC has cited no authority that precludes a defendant from paying consideration for the release of other parties, and this court has found none. In fact, this court finds that to preclude a defendant from doing so would discourage settlements, which would run contrary to one of the major policies underlying the Act. See Johnson v. United Airlines, 203 Ill.2d 121, 133, 271 Ill.Dec. 258, 784 N.E.2d 812 (2003) 512 (holding that the two important public policy considerations underlying the Act are the encouragement of settlements and the equitable apportionment of damages among tortfeasors). In addition, such a rule would be contradictory to the language of the Act itself, which states that if the terms of the settlement so provide, a release of other tortfeasors may be effective and provides, by implication, that a settling tortfeasor who pays more than his pro rata share in order to procure the release of another tortfeasor is entitled to recover contribution from the tortfeasor whose liability is released by the settlement. 740 ILCS 100/2(c), (e) (West 2006). In addition, this court has interpreted section 2(d) of the Act and has found that nonsettling defendants are precluded from proceeding in contribution against all the defendants who are released by the terms of a good-faith settlement, regardless of whether they are parties to the settlement agreement. Brown v. Union Tank Car Co., 197 Ill.App.3d 357, 361, 143 Ill.Dec. 660, 554 N.E.2d 595 (1990). Accordingly, if the terms of the settlement, including the release of the non-lienholding third-party defendants, were entered into in good faith, the circuit court properly extinguished AOC's contribution claims against those third-party defendants. "The `good faith' of a settlement is the only limitation which the Act places on the right to settle[,] and it is the good-faith nature of a settlement that extinguishes the contribution liability of the settling tortfeasor." Johnson, 203 Ill.2d at 128, 271 Ill.Dec. 258, 784 N.E.2d 812. Although the record makes clear that the amounts paid by 3M and MSA were not apportioned in the settlement agreements to show the amount paid to settle the plaintiffs' direct claims against them and the amount paid to release the various third-party defendants, we find no requirement in the Act or any other authority that the amounts be so apportioned. As explained above, allowing a settling tortfeasor to pay more than his pro rata share in order to procure the release of another tortfeasor promotes one of the important public policies underlying the Actthe encouragement of settlements. In order to ensure that the settlement agreements promoted the other important public policy underlying the Act the equitable apportionment of damages among tortfeasors, the circuit court, under the standards enunciated in Johnson, was required to view the amounts of the settlements in relation to the probability of recovery, the defenses raised, and the potential legal liability of all the tortfeasors whose liability would be discharged by the settlements. 203 Ill.2d at 137, 271 Ill.Dec. 258, 784 N.E.2d 812. For each settlement, if the circuit court found, in light of these factors, that the amount paid was a reasonable amount to discharge the liability of all the tortfeasors to be released by the settlement, the good-faith requirement of the Act would be satisfied because AOC would receive a setoff in the amount of the settlements. See 740 ILCS 100/2(c) (West 2006). Although an apportionment in the settlement agreements to show the amounts 3M and MSA paid to settle the plaintiffs' direct claims against them and the amounts paid to release the various third-party defendants might have aided the circuit court in its analysis, there was nothing preventing the circuit court from conducting this analysis in the aggregate. Furthermore, although the Act does not define the term "good faith," the Illinois Supreme Court has held that when a court decides whether a settlement was negotiated in good faith, it must strike a balance between the two important public policy considerations underlying the Act-the encouragement of settlements and the *513 equitable apportionment of damages among tortfeasors. Johnson, 203 Ill.2d at 133, 271 Ill.Dec. 258, 784 N.E.2d 812. To that end, the settling parties carry the initial burden of making a preliminary showing of good faith. Johnson, 203 Ill.2d at 132, 271 Ill.Dec. 258, 784 N.E.2d 812. This burden is satisfied if the settling parties show the existence of a legally valid settlement agreement, including a showing that consideration was given and received and that the settlement is fair and reasonable in light of the aforementioned public policies. Johnson, 203 Ill.2d at 131-32, 271 Ill.Dec. 258, 784 N.E.2d 812. The burden then shifts to the nonsettling defendant to establish a lack of good faith by a preponderance of the evidence. Johnson, 203 Ill.2d at 133, 271 Ill.Dec. 258, 784 N.E.2d 812. As explained above, "[t]he amount of a settlement must be viewed in relation to the probability of recovery, the defenses raised, and the settling party's potential legal liability." Johnson, 203 Ill.2d at 137, 271 Ill.Dec. 258, 784 N.E.2d 812. In order to determine whether the circuit court abused its discretion in its determination of the foregoing, this court would have to review the amounts of the settlements. However, "Exhibit A" and "Exhibit B," which were tendered to the circuit court, are not a part of the record on appeal. AOC consented to the confidentiality of these settlements and did not require that they be placed in the court file, under seal or otherwise. "On review, the appellant has the burden of presenting the court with an adequate record regarding the claimed error [citation], and any doubts which may arise from the incompleteness of the record will be resolved against the appellant [citation]." Haudrich v. Howmedica, Inc., 169 Ill.2d 525, 546-47, 215 Ill.Dec. 108, 662 N.E.2d 1248 (1996). Accordingly, we must presume that the circuit court's determination on this issue was proper. CONCLUSION For the foregoing reasons, the orders of the circuit court that granted the joint motions for a good-faith finding filed by the plaintiffs and 3M and MSA, respectively, are affirmed. Affirmed. APPLETON and CHAPMAN, JJ., concur.	{ "pile_set_name": "FreeLaw" }
410 So.2d 180 (1982) Samuel HILLMAN, Appellant, v. STATE of Florida, Appellee. No. 81-361. District Court of Appeal of Florida, Second District. February 10, 1982. 181 Jerry Hill, Public Defender, Bartow, and Samuel Robert Mandelbaum and Marcia Zimmerman, Asst. Public Defenders, Tampa, for appellant. Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee. OTT, Judge. Appellant and a companion robbed a Tampa furrier at gun point, taking his wallet, pistol, and car. The companion was armed, but appellant was not. The car contained fishing gear owned by the furrier and his grandson, who were on their way to fish when the crime occurred. The robbers were charged with two counts of armed robbery, one involving the furrier's wallet, pistol, and car, and the other involving the grandson's fishing equipment. Found guilty as charged, appellant was given consecutive 30-year sentences, with minimum confinement of three years on each charge on the ground that he was armed at the time of the offense. § 775.087, Fla. Stat. (1979). Appellant first argues that because only one criminal episode occurred it was error for the lower court to sentence him for two robberies under Hearn v. State, 55 So.2d 559 (Fla. 1951). The Florida Supreme Court in Hearn held that, "where defendants took nine cows and two calves belonging to different owners, at same time, from same place and under circumstances with same intent, the offense was a single larceny and conviction for larceny of one cow, property of one of the owners, was a bar on ground of former jeopardy to prosecution for larceny of the remaining cattle." Hearn is easily distinguished because it applies only to the offense of larceny, which has been characterized as a crime against the public. Thus, when cattle rustlers made away with cattle belonging to different individuals, it was held to be only one offense. However, when the additional element of "force, violence, assault, or fear" is added to a larceny, the crime then becomes robbery, which is characterized as an offense against the individual. Thus two robberies of different people at the same time are two separate offenses calling for two judgments and two sentences. Harris v. State, 286 So.2d 32 (Fla.2d DCA 1973), and O'Neal v. State, 323 So.2d 685 (Fla.2d DCA 1975); contra Hill v. State, 293 So.2d 79 (Fla.3d DCA 1974). We reject the state's argument that the Hearn rule was nullified by the addition of subdivision (4) to section 775.021, Florida Statutes (1976).[1] By its own terms the amendment does not apply when the state charges that one criminal transaction or 182 episode constituted two violations of the same statute. The amendment was patently intended to permit, for example, conviction for both possessing and selling contraband when the evidence establishes that the accused sold and delivered drugs on a single occasion, or both possession and importation when he is apprehended as he takes delivery of a shipment of drugs from out of state. We therefore find no merit in appellant's first contention and affirm his conviction on the two separate charges. We find merit, however, in appellant's contention that he is not subject to minimum confinement under section 775.087. The "possession of a firearm" essential to applicability of that statute must be direct. Vicarious possession (such as by a cohort), while sufficient to sustain conviction for armed robbery, first degree murder, etc., is not sufficient "possession" to justify imposition of the minimum period of imprisonment under the statute. Earnest v. State, 351 So.2d 957 (Fla. 1977). We need not speculate whether the statutory predicate would have been established had appellant armed himself with the pistol stolen from the furrier, since the evidence here was that appellant merely passed the wallet and pistol to his confederate when those items were removed from the furrier's pockets. The judgments and 30-year sentences are AFFIRMED. We REMAND with directions to strike from the sentences the requirement for a mandatory minimum confinement of three years. The appellant need not be present for this purpose. BOARDMAN, Acting C.J., and GRIMES, J., concur. NOTES [1] Section 775.021(4), Florida Statutes (1976): Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.	{ "pile_set_name": "FreeLaw" }
[Cite as State v. Scott, 2017-Ohio-4100.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27299 : v. : Trial Court Case No. 2014-CR-1862 : DONALD F. SCOTT : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : : ........... OPINION Rendered on the 2nd day of June, 2017. ........... MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee JAY A. ADAMS, Atty. Reg. No. 0072135, 36 North Detroit Street, Suite 102, Xenia, Ohio 45385 Attorney for Defendant-Appellant ............. WELBAUM, J. -2- {¶ 1} This matter is before the court on the appeal of Defendant-Appellant, Donald F. Scott, from the trial court’s order revoking community control and sentencing Scott to three years in prison. In support of his appeal, Appellant contends that the trial court violated his right to due process by failing to make a written statement as to the evidence relied upon and the reasons for revoking community control. We conclude that the trial court’s oral statement of its reasons at the revocation hearing, Scott’s admission that he violated his community control sanctions, and the written transcription of the hearing satisfy due process. Accordingly, the judgment of the trial court will be affirmed. I. Facts and Course of Proceedings {¶ 2} On June 18, 2014, the Montgomery County Grand Jury indicted Scott on four counts of felonious assault with a deadly weapon, felonies in the second degree, in violation of R.C. 2903.11(A)(2). Dkt. 5. On September 2, 2014, Scott pled no contest to two counts of felonious assault with a deadly weapon and the State dismissed the remaining two counts. Dkt. 62. On November 18, 2014, the trial court found Scott guilty on both counts and sentenced him to community control sanctions for a period not to exceed five years. Dkt. 85. The termination entry stated that the trial court could impose prison terms of eight years for each count if Scott failed to comply with the terms of his community control or if he violated the law. {¶ 3} On December 2, 2015, a notice of community control revocation was filed against Scott, and on January 28, 2016, an amended notice of community control revocation was filed. Dkt. 89, 97. On February 11, 2016, the trial court continued Scott -3- on community control sanctions for up to five years subject to the previous sanctions. The trial court modified the sanctions by adding the following: (1) Scott must serve 90 days in the Montgomery County Jail; (2) Scott must appear for a status hearing on April 4, 2016, and (3) Scott must complete 140 hours of community service. Dkt. 102. {¶ 4} On July 14, 2016, another notice of community control revocation was filed against Scott. Dkt. 112. The notice alleged that Scott (1) violated Rule 1 of his community control sanctions when he was charged with possession of drug paraphernalia and driving under suspension in Miamisburg Municipal Court and with petty theft and falsification in Moraine Mayor’s Court; (2) violated Rule 5 of his community control by failing to report to the trial court for a status hearing; and (3) violated Special Sanctions 5 and 7 by failing to make child support payments and failing to verify the completion of community service. {¶ 5} On July 25, 2016, the trial court held a hearing for a first reading of Scott’s community control revocation. At that hearing, Scott acknowledged receipt of the notice of revocation, waived the probable cause hearing, waived the reading of the notice of revocation, and entered a general denial of the alleged violation. Transcript, p. 4. The trial court then set the matter for an evidentiary hearing for October 7, 2016. {¶ 6} On October 7, 2016, the trial court was informed that Scott would be admitting to certain violations of his community control sanctions. Id. at 8-9. At the hearing, Scott admitted to the violation of Rule 5 as set forth in the notice of revocation. Id. at 9-12. He admitted to not appearing before the trial court for his status hearing and not reporting to his probation officer. Scott also admitted to violating Rule 1, but stated that the notice of revocation was not completely accurate because he was not found guilty -4- of all of the charges in the notice. Id. Scott’s counsel discussed the rule violations and mitigating factors and Scott addressed the trial court about mitigating factors. Id. {¶ 7} After hearing from Scott and his counsel, the trial court stated, in part (id. at 13): It should be noted that the Court previously dealt with a revocation issue in this matter and I reinstated Mr. Scott to community control sanctions with what I will describe, I think fairly, as a stern warning. Mr. Scott was placed on no breaks status. I think that background speaks for itself. In this case, I revoke Mr. Scott’s community control sanctions on both counts and I impose a sentence of three years CRC on each count to run concurrently. {¶ 8} After the hearing, the trial court issued a Termination Entry. Dkt. 117. The trial court sentenced Scott to three years in prison on each of the two counts of felonious assault, to be served concurrently. Scott appeals from the trial court’s decision. II. The Trial Court Satisfied The Requirement That It Make A Written Statement As To The Evidence It Relied Upon And The Reasons For Revoking Community Control {¶ 9} Scott’s sole assignment of error states: THE TRIAL COURT ERRED IN VIOLATING THE RIGHTS OF APPELLANT TO DUE PROCESS AND IN THE IMPOSITION OF SENTENCE. {¶ 10} In State v. Cunningham, 2d Dist. Clark Nos. 2014-CA-99, 2014-CA-100, -5- 2015-Ohio-2554, ¶ 11, we noted that: A defendant is entitled to due process when his community control is revoked as the result of a violation of a condition imposed on that control. Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The due process rights which must be observed in a community control revocation hearing are: (1) written notice of the claimed violations of community control; (2) disclosure of evidence against him; (3) an opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses; (5) a neutral and detached hearing body; and (6) a written statement by the fact finder as to the evidence relied upon and the reasons for revoking community control. Gagnon at 786, quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); State v. Nallen, 2d Dist. Miami No. 2012 CA 24, 2013-Ohio-3284, ¶ 18. {¶ 11} Scott concedes that the first five requirements set forth in Gagnon were satisfied. But Scott contends that the trial court failed “to set forth a written statement by the fact finder as to the evidence relied on and the reasons for revoking probation.” Brief, p. 4. According to Scott, this failure denied him the procedural due process required by Gagnon. {¶ 12} In State v. Delaney, 11 Ohio St.3d 231, 465 N.E.2d 72 (1984), the Supreme Court of Ohio addressed Gagnon’s requirement that the factfinder provide a written statement as to the evidence relied on and the reasons for revoking probation or parole. The Court held (id. at 234-35): -6- No such written statement was provided in the instant case, but the trial court judge orally stated his findings and reasons for revoking appellant's probation. This statement was made on the record and directed to the appellant, who was present at the time. Although we do not condone the use of oral “explanations” in lieu of written statements detailing the basis for a trial court's determination in revocation proceedings, we find that, in this case, the trial court's statement sufficiently informed the appellant of the reasons for which his probation was being revoked, while also providing an adequate record for review on appeal. * * * We therefore do not find any deprivation of the appellant's right to due process in this case. See also State v. Hill, 2d Dist. Montgomery No. 7301, 1982 WL 3811, * 2 (Oct. 4, 1982) (holding that the written statement requirement is satisfied by advising “the probationer at the hearing itself, with particularity, of the evidence and the reasons for revocation, and ascertain[ing] that the announced revocation rationale is transcribed for the record.”) {¶ 13} Further, we have previously held that the Gagnon requirements were complied with when the trial court provided defendant with a written judgment entry and “because appellant entered an admission there was no evidence to include in the entry.” State v. Longworth, 2d Dist. Montgomery No. 24327, 2011-Ohio-4191, ¶ 25. Scott entered an admission of guilt at the hearing and the trial court explained on the record the basis for its ruling. The hearing was transcribed and the trial court subsequently entered a written judgment. Therefore, we conclude that the trial court satisfied Gagnon’s requirement of a written statement by the fact finder as to the evidence relied -7- upon and the reasons for revoking community control. Id.; Delaney at 234-235. Scott’s assignment of error is overruled. III. Conclusion {¶ 14} Scott’s sole assignment of error having been overruled, the judgment of the trial court is affirmed. ............. DONOVAN, J. and FROELICH, J., concur. Copies mailed to: Mathias H. Heck, Jr. Alice B. Peters Jay A. Adams Hon. Michael W. Krumholtz	{ "pile_set_name": "FreeLaw" }
462 P.2d 1007 (1969) Jill Elaine PETERSEN, a minor, by Louise Petersen, as her next friend; Wayne A. Petersen and Louise Petersen v. CITY AND COUNTY OF HONOLULU, a municipal corporation. No. 4886. Supreme Court of Hawaii. December 30, 1969. As Amended January 7, 1970. Wilfred K. Iwai, Deputy Corp. Counsel, Honolulu (Paul Devens, Corp. Counsel, Honolulu, on the briefs), for appellant. Myer C. Symonds, Honolulu (Bouslog & Symonds, Honolulu, of counsel), for respondent. Before RICHARDSON, C.J., and MARMUMOTO, ABE, LEVINSON, and KOBAYASHI, JJ. 1008 RICHARDSON, Chief Justice. Plaintiff, a two-year-old child, by her parent Louise Petersen, as next friend, sued the City and County of Honolulu, alleging that as a proximate result of the City's negligence in maintaining, operating and controlling its facilities at Hanauma Bay Beach Park, plaintiff was burned by hot ashes adjacent to a barbecue pit. Louise Petersen and Wayne Petersen, the child's parents, joined as co-plaintiffs to recover medical expenses incurred as a result of the necessary treatment of the child's injuries. The City answered and counterclaimed against the parents for contribution pursuant to the Uniform Contribution Among Joint Tortfeasors Act as adopted in Hawaii, HRS §§ 663-11 to 663-17, alleging that the parents' negligence in supervision of their child was the sole or a contributing cause of the child's injuries. As a preliminary matter, we note that the Act provides for apportionment of the common liability of joint tortfeasors as among themselves, but it does not affect the joint and several liability of each defendant toward the plaintiff.[1] The court below struck the answer and dismissed the counterclaim, but granted leave to defendant to appeal that ruling to this Court, to determine whether the parents may be regarded as "joint tortfeasors" within the meaning of HRS § 663-11.[2] As we pointed out in Tamashiro v. Da Gama, 51 Haw. 74, 75, 450 P.2d 998 (1969), whether contribution may be had from a person depends upon whether the original plaintiff could have enforced liability against him, had he chosen to do so. The question thus becomes, can a minor child enforce liability against his parents in an action for negligence in Hawaii? This case is the converse of that presented in Tamashiro, supra, in which this Court held that a minor child may be joined as a joint tortfeasor in a suit brought against a third party by his parents. We limited our holding in Tamashiro to suits by parents against their children; but we see no reason to reach a different result where the child sues the parent. We therefore hold that the child can enforce liability against his parents, and that the counterclaim against the parents should have been allowed. In oral argument, counsel for appellees urged that our holding in Tamashiro was based upon the existence of insurance coverage in that case. While some emphasis was placed upon that circumstance, as a factor to be considered in the analysis of the policy issue involved family harmony we did not expressly base our holding in Tamashiro upon the existence of insurance; and in light of our analysis of the same policy issue in this case, we now hold that parent-child negligence suits will be allowed in Hawaii regardless of the presence or absence of insurance coverage. This holding is not, therefore, inconsistent with our holding in Tamashiro; it is, rather, the final step in the process that we started in that case, of deciding that the parent-child immunity doctrine, extant in 1009 some other jurisdictions, will not be adopted by this Court. We note at the outset that at common law there was no rule of immunity between parents and children for their torts; Dunlap v. Dunlap, 84 N.H. 352, 354, 150 A. 905, 906, 71 A.L.R. 1055 (1930), Prosser, Law of Torts 886 (3rd ed. 1964), and that suits involving their property rights have uniformly been allowed. Lamb v. Lamb, 146 N.Y. 317, 41 N.E. 26 (1895); King v. Sells, 193 Wash. 294, 75 P.2d 130 (1938); Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135 (1923); Signs v. Signs, 156 Ohio St. 566, 103 N.E.2d 743 (1952); Goller v. White, 20 Wis.2d 402, 410, 122 N.W.2d 193, 196 (1963). The immunity doctrine originated in the United States in the case of Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891). That case was based entirely upon the court's view of public policy. 68 Miss. at 703, 9 So. at 887. The court reasoned that suits between parents and their children would be disruptive of the harmony and tranquillity of the family relationship. We will not attempt an exhaustive review of that case and the ones following it, which are numerous. For a full and wellreasoned analysis of those authorities, see Dunlap v. Dunlap, supra, and Comment, Child v. Parent: Erosion of the Immunity Rule, 19 Hastings L.J. 201 (1967). It is sufficient here to note that the Hewlett line of authorities is based upon premises which we feel are too insubstantial to support denial of redress of wrongs where such redress existed at common law. We start from the proposition that, in general, minor children are entitled to the same redress for wrongs done them as are any other persons. Dunlap v. Dunlap, 84 N.H. 352, 354, 150 A. 905, 906 (1930); Wick v. Wick, 192 Wis. 260, 263-264, 212 N.W. 787, 788, 52 A.L.R. 1113 (1927) (dissent), Prosser, Law of Torts 885 (3rd ed. 1964). In order to justify prohibition of enforcement of this right, a very substantial showing must be made that such prohibition will help to achieve an important adverse policy. We feel that no such showing can be made here. As we noted in Tamashiro, 51 Haw. 74, 78, 450 P.2d 998, 1001 (1969), we think that when a wrong has been committed, the harm to the family relationship has already occurred; and to prohibit reparations can hardly aid in restoring harmony. That serious injustice can result from that prohibition is seen not only from cases that deny recovery for intentional and even malicious torts, as in Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891) (wrongful and malicious imprisonment in asylum), Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905) (rape of daughter), and McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903) (cruel and inhuman punishment), but also from the recent case of Barlow v. Iblings, Iowa, 156 N.W.2d 105 (1968). There, a six-year-old child who lost his hand in an electric meat cutter in the kitchen of his father's cafe, allegedly as a result of his father's negligence, was prohibited from suing his father because, the court said, to allow the suit would disrupt the harmony and tranquility of the family relationship. In our view, such results are unconscionable. Reversed and remanded for further proceedings consistent with this opinion. ABE, Justice (dissenting). It appears that the majority of the court has decided that because in Tamashiro v. Da Gama, 51 Haw. 74, 450 P.2d 998 (1969), we permitted a father to sue his unemancipated, minor son, here, a minor child should be permitted to sue his parents. I believe in Tamashiro we did not affirmatively decline to adopt the parent-child immunity doctrine, and at page 79, 450 P.2d at page 1002 we said: "The public policy rationale for the parent-child immunity is further weakened by the fact that at common law, suits were allowed between parent and child especially with respect to contract and property rights. Prosser, Law of Torts, 885 (3d ed. 1964). Some of these 1010 suits are deeply antagonistic. We doubt a tort action in which recovery from an insurer is highly probable, would more seriously jeopardize the family relationship or discipline. "We therefore hold that this jurisdiction will not adopt the doctrine which prohibits suits by parents against their children. This holding, we caution, is limited to this adversary relationship because other intrafamily adversary situations may involve problems or considerations different from the one at hand." The City cites Hebel v. Hebel, 435 P.2d 8 (Alaska 1967), where the court permitted a suit by a minor against her mother for personal injuries suffered as a result of the mother's negligent driving of an automobile and asks this court to follow it as authority to allow this suit against the parents. It is to be noted that the Alaska court at page 15 said: "At this time we believe it unnecessary to attempt to define precisely what scope should be given to the doctrine of parental immunity. Rather, we limit our decision to the factual situation before us, and hold that the unemancipated minor has a right of action against her mother for personal injuries allegedly sustained as a result of the parent's negligent driving. * * * * * "We are of the further view that although the existence of liability insurance does not create liability its presence is of considerable significance here. To persist in adherence to family-harmony and parental-discipline-and-control arguments when there is automobile liability insurance involved is in our view unrealistic. If there is insurance there is small possibility that parental discipline will be undermined, or that the peace of the family will be shattered by allowance of the action." In the other cases[1] cited by the City, where an unemancipated, minor child was allowed to sue his parents, insurance policies were involved so that the real parties in interest, parties responsible for the damages, were insurance companies. It should be pointed out in Tamashiro, we were very careful to hold that the rule of the case was not intended to apply to all cases involving "intrafamily adversary relationship" because, I believe, we recognized that public policy rationale of intrafamily immunity has a role in our society and jurisdiction. Even in this era of technical and scientific achievement, I do not believe that we humans have become so impersonal that we may be considered mechanical or automated beings. In my opinion, even today, a human being is a creature of emotions. By this, I mean that one's life is greatly influenced by one's emotion; more than it should, probably, but that is the facts of life. A human being is neither a robot nor an electronic computer he is a living organism composed of flesh and blood whose behavior is greatly influenced by emotion. In my opinion as long as warm blood runs in our veins, one's behavior cannot be controlled at all times by reason or logic, and emotional stress will have a great influence on one's conduct. Thus, to permit a minor to sue her parents in this action, I believe, would unnecessarily tax the emotions of the parties and may bring about intrafamily discord and jeopardize parent-child relationship and therefore the doctrine of intrafamily immunity should be invoked here. I believe that this court appreciates the fact that an insurance company is the real party defendant in many cases, though a suit is brought against an insured named as defendant because judgment against him is satisfied by an insurance company. Also, I believe, that this court realizes, that though the mention of insurance in the 1011 presence of jurors may be regarded as sufficient ground for a mistrial, the majority, if not all, of the jurors is cognizant of insurance coverage in cases being tried by them. In my opinion, this court should legally give recognition to this factual situation and permit insurance companies to be named as actual parties because they are the real parties in interest. H.R.C.P. Rule 17(a). If this practice is permitted, this court would not be faced with the problems posed by this action and it will help to simplify the issue of "intrafamily adversary relationship." Also, it may avoid the issue whether an attorney representing an insured, but retained by an insurance company, may not be violating § 35 of the Canons of Professional Ethics. I would affirm. NOTES [1] The Commissioner's Note to Sec. 2(4) of the Uniform Act (HRS § 663-12) states: * * [the section] would permit apportionment of pro rata shares of liability of the joint tortfeasors as among themselves. It would not affect their joint and several liability toward the injured person. * * * The draftsmen of the Act feel that there is a very strong case to be made for apportioning the common liability as among the tortfeasors when the evidence clearly indicates that one or more of the tortfeasors was much more at fault than one or more of the others. At the same time they wish to point out that each tortfeasor is still completely and fully liable toward the injured person. Uniform Contribution Among Joint Tortfeasors Act, 9 U.L.A. 233, 236. See also Tino v. Stout, 49 N.J. 289, 298, 229 A.2d 793, 798 (1967). [2] HRS § 663-11 states: For the purpose of this part the term "joint tortfeasors" means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them. [1] Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966); Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 174 N.E.2d 718 (1961); Dennis v. Walker, 284 F. Supp. 413 (U.S.D.C., D.C. 1968).	{ "pile_set_name": "FreeLaw" }
862 F.Supp. 889 (1994) BRITISH AIRWAYS, PLC, Plaintiff, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant. No. CV-92-4640. United States District Court, E.D. New York. September 14, 1994. 890 Stephen J. Fearon, Condon & Forsyth, New York City, for plaintiff. Kathleen M. Collins, The Port Authority of New York and New Jersey, New York City, for defendant. MEMORANDUM AND ORDER GLASSER, District Judge. This is a motion by defendant The Port Authority of New York and New Jersey (the "Port Authority") to disqualify the attorney of record for plaintiff British Airways, PLC ("British Airways"), pursuant to Federal Rule of Civil Procedure 7(b)(1). For the 891 following reasons defendant's motion should be granted. FACTS A. The Present Action This is an action by British Airways to recover damages to one of its aircraft, allegedly due to the negligence of the Port Authority, an entity responsible for the care and maintenance of taxiways at John F. Kennedy International Airport ("JFK") in New York City. The complaint alleges that on or about 9:00 p.m. on March 1, 1992, the engine of a British Airways' aircraft was damaged because the defendant allegedly "negligently, carelessly, and/or recklessly failed to maintain" a certain taxiway at JFK. Complaint, ¶ 26. The complaint sets forth two causes of action and seeks four million dollars in damages. Affidavit of Keith E. Harris, April 27, 1994 ("Harris Aff'd"), Ex. A. Plaintiff British Airways is represented in this action by the firm of Condon & Forsyth which filed a notice of claim on its behalf on or about May 6, 1992. Affidavit of Stephen J. Fearon, June 10, 1994 ("Fearon Aff'd), ¶ 15, Ex. E. The complaint was filed on or about September 30, 1992. The Port Authority, which is representing itself via its own in-house counsel, answered the complaint on or about December 4, 1992, and asserted two affirmative defenses, two counterclaims and seeks approximately $22,000 from plaintiff in damages allegedly caused by plaintiff's breach of certain agreements between British Airways and the Port Authority. Harris Aff'd, Ex. B. On or about March 11, 1994, the Port Authority served a third-party complaint against third-party defendant The United States of America by and through the Department of Transportation and the Federal Aviation Administration (the "United States"). Harris Aff'd, Ex. D. In short, the Port Authority alleges that any damage to the British Airways' aircraft on March 1, 1992, which was not caused by plaintiff's own culpable conduct, was due to the negligence of the third-party defendant due to its allegedly negligent performance in operating the Air Traffic Control Tower. Third-Party Complaint, ¶ 13. The United States answered the third-party complaint on or about May 11, 1994.[1] Discovery in this action has included the following: two sets of interrogatories and requests for the production of documents have been served on the Port Authority by British Airways; The Port Authority has served two sets of interrogatories and requests for the production of documents on British Airways; the Port Authority has noticed fourteen depositions; the discovery requests have been responded to; to date, four employees of British Airways have been deposed; and British Airways produced an Incident Report and Extended Delay Worksheet regarding the March 1, 1992 incident. Condon & Forsyth has been preparing for the case via investigations and has made at least one trip to the United Kingdom and both parties have appeared at status conferences before Magistrate Judge John L. Caden. See Fearon Aff'd, ¶¶ 15-51. B. Condon & Forsyth's Concurrent Representation of the Port Authority The firm of Condon & Forsyth also represents the Port Authority in a number of personal injury actions, all of which are ongoing. Condon & Forsyth represents the Port Authority in these actions because of certain lease agreements airlines such as British Airways have with the Port Authority by which the airlines agree to represent and indemnify the Port Authority "when a person is injured at JFK in an area within the airline's respective leaseholds." Fearon Aff'd, ¶ 3.[2] Port Authority reports that, at present, the firm of Condon & Forsyth represents the Port Authority as outside counsel on at least eight personal injury cases involving JFK. 892 Affidavit of Peter M. Doran, April 27, 1994 ("Doran Aff'd"), ¶¶ 4-5. For its part, Condon & Forsyth reports that since 1991 alone, Condon & Forsyth has represented both British Airways and the Port Authority in six actions pursuant to the lease/indemnification agreement between British Airways and the Port Authority. Fearon Aff'd, ¶ 12.[3] It is undisputed that, pursuant to the lease agreement, the Port Authority is not billed for the firm's services. While British Airways contends that the Port Authority is not responsible for the satisfaction of any judgment or settlement which may be entered in these actions, the Port Authority states that "there are situations where the Port Authority may be held directly liable," Def.'s Reply Mem. at 4, if, for example, it is discovered that the accident did not occur in an area leased to the airline. British Airways also contends that the Port Authority does not "direct" these litigations and that the firm maintains no private communications with the Port Authority in these personal injury actions. See Fearon Aff'd, ¶¶ 4-7. It is also undisputed, however, that the Port Authority retains the right to review papers to be filed on its behalf by Condon & Forsyth. See, e.g., Doran Aff'd, Ex. 2 (letter of March 16, 1994, from Stephen J. Fearon of Condon & Forsyth to the Port Authority requesting comments on papers to be submitted in support of defendants' motion for summary judgment in Cohen v. The Port Authority, et al., No. 92 Civ. 2684 (CSH)). See also Fearon Aff'd, Ex. D (December 4, 1992 facsimile from Condon & Forsyth to the Port Authority attaching a draft answer for its review in Meyers v. The Port Authority, et al.). * * * * * At the end of 1993, the Port Authority "discovered" that Condon & Forsyth was representing the Port Authority in these personal injury actions, Harris Aff'd, ¶ 10, and sent the firm a letter on December 30, 1993, informing the firm of the conflict and stating that "the General Counsel for the Port Authority is not in a position to waive such conflicts and will not do so." Harris Aff'd, Ex. F. There is no written response in the record from Condon & Forsyth to this letter. Three months later, on March 28, 1994, at a conference before Magistrate Judge Caden, the court instructed the Port Authority to make a motion to disqualify Condon & Forsyth within thirty days. This motion followed. The Port Authority contends that because Condon & Forsyth is presently representing the Port Authority in other on-going actions, a "per se" rule of disqualification should be applied in this action since, as a general rule, the courts disfavor lawyers suing their own clients without the client's consent. British Airways, however, essentially makes three arguments in opposition to the motion: (1) because Condon & Forsyth only represents the Port Authority in the personal injury actions pursuant to the lease/indemnification agreement discussed above, the Port Authority is a vicarious, or attenuated client, and hence a less stringent "substantial relationship" test should be applied and, because there is no connection between the personal injury actions and the property damage action before the court, disqualification would be inappropriate; (2) even if the "per se" rule is adopted, British Airways has met its "heavy burden" of establishing that the trial of this action would not be tainted if Condon & Forsyth remained as its counsel, thus obviating the need for disqualification; and (3) even if it is improper for Condon & Forsyth to sue its own client in an ongoing unrelated action without the client's consent, the Port Authority has waived any conflict and has impliedly consented to British Airway's choice of counsel due to its silence regarding any alleged conflict prior to its December 30, 1993 letter, and this motion. DISCUSSION I. The "Per Se" Rule of Disqualification Any discussion of the potential disqualification of counsel in a civil action in this circuit must begin with Cinema 5, Ltd. v. 893 Cinerama, Inc., 528 F.2d 1384 (2d Cir.1976). In Cinema 5, two actions were proceeding simultaneously against Cinerama, Inc. ("Cinerama"), a distributor of motion pictures and the operator of several large theater chains. In one action, Cinerama was the defendant in a federal antitrust suit in Buffalo and was represented by the Buffalo firm of Jaeckle, Fleischmann and Mangel. In the second action, brought in federal court in New York City, the plaintiff alleged that Cinerama was part of a conspiracy to acquire control of the plaintiff corporation through stock acquisitions, with the intention of creating a monopoly and restraining competition in New York City's motion picture theater market. In the New York action, the plaintiff was represented by the New York firm of Webster, Sheffield, Fleischmann, Hitchcook and Brookfield. An attorney, Manly Fleischmann, was a partner in both firms and divided his time between New York City and Buffalo. The district court in the New York action disqualified the plaintiff's counsel and the plaintiff appealed; the Second Circuit affirmed. The Second Circuit rejected the plaintiff's argument that the district court should have used the "substantial relationship" test by which a court looks to see if there is a substantial relationship between the two actions in order to determine if disqualification is appropriate. "The `substantial relationship' test is indeed the one that we have customarily applied in determining whether a lawyer may accept employment against a former client." Id. at 1386 (emphasis added). As in the case before this court, however, the Second Circuit noted that the situation involved an existing client, not a past client, and hence the "substantial relationship" test was not appropriate: "The propriety of this conduct [one firm in which an attorney is a partner is suing an actively represented client of another firm in which the same attorney is a partner] must be measured not so much against the similarities in litigation, as against the duty of undivided loyalty which an attorney owes to each of his clients." Id. Using the ethical yardstick of "undivided loyalty," the court held that Ethical Considerations 5-1 and 5-14 of the American Bar Association's Code of Professional Responsibility required that the plaintiff's attorney must be disqualified.[4] The court wrote: Under the Code, the lawyer who would sue his own client, asserting in justification the lack of "substantial relationship" between the litigation and the work he has undertaken to perform for that client, is leaning on a slender reed indeed. Putting it as mildly as we can, we think it would be questionable conduct for an attorney to participate in any lawsuit against his own client without the knowledge and consent of all concerned. Id. (emphasis added). In rejecting the use of the "substantial relationship" test, the court held that "[w]here the relationship is a continuing one, adverse representation is prima facie improper ... and the attorney must be prepared to show [absent consent], at the very least, that there will be no actual or apparent conflict in loyalties or diminution in the vigor of his representation." Id. at 1387 (emphasis in original) (citation omitted). Although the court noted that "[w]hether such adverse representation, without more, requires disqualification in every case, is a matter we need not now decide," id., it held that plaintiff's counsel had failed to meet the burden noted above and hence the disqualification order was affirmed. Based on the analysis and holding of Cinema 5, courts in this circuit apply the "per se" or "prima facie" rule to disqualification motions when the attorney whose disqualification is sought is actively suing his client in other related, or non-related actions. See, e.g., Guthrie Aircraft, Inc. v. Genesee County, 597 F.Supp. 1097, 1098 (W.D.N.Y.1984) (where plaintiff's counsel in federal antitrust 894 action also represents defendant in state tort action, plaintiff's attorney is disqualified because "[t]his sort of adverse representation of a current client has been held to be prima facie improper by the United States Court of Appeals for the Second Circuit.") (citing Cinema 5). See also Chemical Bank v. Affiliated FM Ins. Co., No. 87 Civ. 0150, 1994 WL 141951 at 10 (S.D.N.Y. April 20, 1994) (explaining that the "per se" rule pertains to situations involving the continuous, simultaneous representation of "traditional" clients); Hartford Acc. and Indem. Co. v. RJR Nabisco, Inc., 721 F.Supp. 534, 538 (S.D.N.Y.1989) ("If a firm represents a client in the traditional sense, and if that relationship is a continuing one, then a strict rule governs that firm's ability to represent another client in a suit against the original client."); Funds of Funds, Ltd. v. Arthur Andersen & Co., 435 F.Supp. 84, 95 (S.D.N.Y.1977) (because defendant was an existing client of plaintiff's attorney at the time of the investigation and filing of the instant complaint when the conflict of interest arose, the court "finds that [the defendant] should be considered an existing client for purposes of this motion and that the standard by which to evaluate [plaintiff's attorney's] conduct is that set forth in Cinema 5."), aff'd in part rev'd in part on other grounds, 567 F.2d 225 (2d Cir.1977). In this action, Condon & Forsyth represents both the plaintiff in this federal property damage action and the defendant in a number of state personal injury actions. Therefore, if this court determines that the Port Authority is a client of Condon & Forsyth's in the "traditional" sense, the per se or prima facie rule applies and Condon & Forsyth will bear a heavy burden of establishing that "there will be no actual or apparent conflict in loyalties or diminution in the vigor of [its] representation." Cinema 5, 528 F.2d at 1387 (emphasis in original). II. The Non-Traditional or Vicarious Client In Glueck v. Jonathan Logan, Inc., 653 F.2d 746 (2d Cir.1981), the Second Circuit had before it a case in which the plaintiff sued his former employer for breach of an employment contract. The defendant corporation had a division which was a member of a 100 member not-for-profit incorporated trade association. The plaintiff's attorney was also the attorney for the association and as such he was responsible for assisting the association in negotiating multi-employer collective bargaining agreements on behalf of its members. In affirming the district court's order of disqualification, the court wrote that, We share Judge Conner's view that the issue is not whether Phillips Nizer's relationship to [the defendant] is in all respects that of attorney and client, but whether there exist sufficient aspects of an attorney-client relationship "for purposes of triggering inquiry into the potential conflict involved in Phillips Nizer's role as plaintiff's counsel in this action." Id. at 748-49 (footnote omitted). The district court had used the strict standard of the per se or prima facie rule of disqualification found in Cinema 5. The Court of Appeals, however, reached the same result using a different analysis: We do not believe the strict standards of Cinema 5 are inevitably invoked whenever a law firm brings suit against a member of an association that the firm represents.... That burden is properly imposed when a lawyer undertakes to represent two adverse parties, both of which are his clients in the traditional sense. But when an adverse party is only a vicarious client by virtue of membership in an association, the risks against which Canon 5 guards will not inevitably arise. Id. at 749 (emphasis in original).[5] The court held that the "substantial relationship" test should be used, in determining when Canon 5 should be applied to suits brought by an association's law firm against an association member. Disqualification will ordinarily be required whenever the subject matter of a suit is sufficiently related to the scope of the matters 895 on which a firm represents an association as to create a realistic risk either that the plaintiff will not be represented with vigor or that unfair advantage will be taken of the defendant. Id. at 749-50. Applying these criteria, the court held that because of the similarity between representing the association in negotiating collective bargaining agreements and representing a plaintiff suing a member of that association for a breach of an employment contract, there was a risk that (i) the issue of whether there was cause to terminate may arise in the collective bargaining discussions; and (ii) in preparing for the collective bargaining discussions, plaintiff's attorney might have learned of the defendant corporation's past practices bearing on the subject of the plaintiff's termination. Because of these risks there was a substantial relationship between the two matters (the collective bargaining representation and the termination suit), and "[b]ecause of that relationship, the strict standards of Cinema 5 apply, and we agree with Judge Conner that appellant has not sustained the heavy burden of demonstrating that, under those standards, disqualification can be avoided." Id. at 750 (footnote omitted). Based on the analysis and holding of Glueck, courts in this circuit will apply the "substantial relationship" test, and will shun the per se or prima facie standard, when the client seeking disqualification is only a "vicarious" client. As just noted, the Court of Appeals in Glueck determined that the relationship between a division of a member of an association and the association's attorney is a vicarious, attenuated or non-traditional attorney/client relationship. In Chemical Bank v. Affiliated FM Ins. Co., No. 87 Civ. 0150, 1994 WL 141951 (S.D.N.Y. April 20, 1994), upon which British Airways places great reliance, the court reached a similar decision. In Chemical Bank, the firm of Podvey, Sachs, Meanor, Catenacci, Hildner & Cocoziello ("Podvey Sachs") represented both the defendant in the action (nine related lawsuits to obtain payment of claims pursuant to certain insurance policies), and a group of "corporate holders" who had entered into participation agreements with the Mutual Benefit Life Insurance Company ("MBL") and who were involved in a "rehabilitation" proceeding against MBL. The plaintiff in the action before the court (Chemical Bank) was one such corporate holder and it therefore sought disqualification of Podvey Sachs. Conceding that there were differences between the trade association in Glueck and the corporate holders group of which Chemical Bank was a member, the court in Chemical Bank nevertheless applied the less-stringent "substantial relationship" test because "there are also significant differences between Podvey Sachs' representation of [the corporate holders group] and the `traditional' attorney-client relationship to which the per se test applies." Id. at 18. The court noted that Podvey Sachs did not bill Chemical Bank directly; none of the court papers filed in the rehabilitation matter against MBL identified Chemical Bank or the other individual holders; the rehabilitation action was directed for the most part by a steering committee of which Chemical Bank was not a member; the private communications between Podvey Sachs and Chemical Bank were limited in number; and the bulk of the firm's contact with the plaintiff was ministerial in nature. Id. III. Application To This Motion In this action, British Airways contends that, for a variety of reasons, this court should conclude that the relationship between Condon & Forsyth and the Port Authority is, as in Chemical Bank and Glueck, an attenuated, vicarious, or "non-traditional" attorney-client relationship. That contention is not persuasive. The major difference between the situations in those actions and the situation before the court is this: In Chemical Bank and Glueck the party seeking disqualification was a member of an association of corporations, and the attorney whose disqualification was sought was the attorney for that association. By contrast, the Port Authority is not a member of an association for which Condon & Forsyth is the attorney, but rather is the direct client of the firm. Therefore, the risks against which Canon 5 guards (failure to exercise independent professional judgment on behalf of a client) are present 896 here where there is no intermediary between the attorney and the client. These risks do not arise in situations found in Chemical Bank and Glueck, where the adverse party is only a vicarious client by virtue of membership in an association and there is an intermediary between the client and the attorney. Glueck, 653 F.2d at 749. The circumstances presented in United States v. Nabisco, Inc., 117 F.R.D. 40 (E.D.N.Y.1987), are more akin to this case. In Nabisco, a law firm represented Sag Harbor Industries, Inc., one of two defendants in an action brought by the Environmental Protection Agency pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980. The other defendant, Nabisco, Inc. ("Nabisco") had merged with Standard Brands Incorporated ("Standard Brands") which had also been represented by Sag Harbor's counsel in five unrelated breach of contract actions. The court held that the relationship between the law firm and Nabisco was neither attenuated nor vicarious because, as in this case, "there is no intermediary entity juxtaposed between Nabisco and [the firm]." Id. at 45. The court rejected the analogy to the association in Glueck because in Glueck the corporate defendant had no relationship to the law firm independent of its division's membership in the association. In Nabisco, on the other hand, there was a direct relationship between the attorney whose disqualification was sought and the party seeking the disqualification. The same is true in this action: It is uncontroverted, for example, that Condon & Forsyth sends draft submissions to the Port Authority for its approval prior to filing them with the court. Regardless of how Condon & Forsyth came to represent the Port Authority, there is a direct relationship between the two entities. Although it may be true that the interests of the airlines and the Port Authority in these personal injury actions will often be the same,[6] it is still the case that the Port Authority retains the right to veto or alter any documents submitted on its behalf and, therefore, as in Nabisco, there is a direct relationship between the two and hence obedience to the more deferential "substantial relationship" test would be error. The court in Nabisco also distinguished the situation from that found in Glueck because in the unrelated breach of contract action in which the firm represented Nabisco's predecessor, Standard Brands, the firm only represented the interests of its successor Nabisco, "whereas the law firm in the Glueck case was charged with the representation of each of the 100 corporate members that comprised the ranks of the association." Id. at 46. In this case, in the unrelated personal injury actions, Condon & Forsyth represents the interests of the Port Authority and the airline it does not represent hundreds of other entities who comprise the ranks of an association. Furthermore, as the court in Nabisco noted, "the apparent conflict is not abrogated by the dissimilarities between the subject matter of the instant action and the [breach of contract] case." Id. (citing Cinema 5, 528 F.2d at 1386). Similarly, the dissimilarities between the state personal injury actions and the federal property damage cause of action in this case do not abrogate the conflict of interests inherent in a lawyer suing his or her own client. The court is cognizant of the fact that certain of the factors outlined in Chemical Bank where disqualification was found unnecessary are also true in the relationship between the Port Authority and Condon & Forsyth, such as the fact that the firm does not bill the party seeking disqualification directly. However, it is also the case that, unlike the situation in Chemical Bank, the papers filed by Condon & Forsyth in the unrelated personal injury actions do identify the co-defendant the Port Authority as its client, and it is also not an entirely accurate characterization to say that the Port Authority only deals with the firm on "ministerial matters," Fearon Aff'd, ¶ 8, when it is asked to review and approve papers submitted on its behalf. Furthermore, the factors outlined by the court in Chemical Bank were noted in the context of a situation which bore a similarity to that in Glueck; i.e., the firm whose 897 disqualification was sought represented an association or group of corporations of which the plaintiff was a member. As noted above, that is not the situation before this court. Finally, if there was any doubt as to the relationship between the Port Authority and Condon & Forsyth based on the parties' submissions, those doubts were put to rest at oral argument. During oral argument, Condon & Forsyth conceded that nothing in the lease/indemnification agreement obligates the Port Authority to accept the firm as its counsel in the personal injury actions. The Port Authority is therefore free to refuse representation by Condon & Forsyth and is also free to instruct Condon & Forsyth as to which affirmative defenses should or should not be asserted in the personal injury actions. These facts convincingly establish that the Port Authority is a traditional, non-vicarious client of Condon & Forsyth. In sum, I believe that it is of no legal significance that Condon & Forsyth was retained pursuant to a lease/indemnification agreement with the airlines and that, as a general matter, the airlines are the primary or lead clients in the unrelated personal injury actions. The Port Authority is the firm's client in these actions and as such it is as deserving of the "undivided loyalty" due it pursuant to the Code of Professional Responsibility as are the airlines. The firm represents both the airlines and the Port Authority directly and therefore both parties are traditional, non-vicarious, non-attenuated and direct clients. A. Application of the Per Se Standard Having determined that the per se or prima facie standard is applicable due to the fact that Condon & Forsyth is suing a current "traditional" client, it bears the burden of demonstrating that "there will be no actual or apparent conflict in loyalties or diminution in the vigor of [its] representation." Cinema 5, 528 F.2d at 1387 (emphasis in original). The nonmoving party in Cinema 5 failed to carry that burden. However, simultaneous adverse representation does not require disqualification in every case. See, e.g., Board of Ed. of City of New York City v. Nyquist, 590 F.2d 1241 (2d Cir.1979) (general counsel for union need not be disqualified even though he represents a group of male union members in litigation against a group of female union members). Although the court in Nyquist did not discuss the application of the "per se" test, it noted the following factors in finding disqualification inappropriate: (i) there was no claim that the attorney felt any loyalty to the female union members which would undermine his representation of the male union members; (ii) there was no evidence that his representation of the male members was anything less than vigorous; and (iii) there was no claim that the males gained an unfair advantage through access to privileged information concerning the female members. Id. at 1247. Rejecting the notion that an attorney can be disqualified merely on the "appearance of impropriety,"[7] the court determined that because there was no possibility of tainting the trial due to the attorney's position as lawyer for the union, disqualification was not appropriate. Id.[8] In support of its contention that it has met its burden in this case, British Airways argues that, as in Nyquist, there is no possibility that it has gained any confidential information from the Port Authority in the course of its representation of that entity in the unrelated personal injury actions which it could use against the Port Authority in this action. In this regard it relies on those cases where the courts refuse to disqualify the attorney of a former client if there is no indication that the attorney gained confidential information from that former client which can now be used against him in a substantially similar cause of action. E.g., Allegaert v. 898 Perot, 565 F.2d 246, 250 (2d Cir.1977) ("an attorney may be disqualified pursuant to Canon 4 if he has accepted employment adverse to the interests of a former client on a matter substantially related to the prior litigation.").[9] These cases are inapposite because, as British Airways concedes, the Port Authority is not a former client of Condon & Forsyth. However, British Airways also asserts that pursuant to the lease/indemnification agreement between it and the Port Authority, Condon & Forsyth has represented both parties in a number of personal injury actions, and hence any documents or confidential information given by the Port Authority to Condon & Forsyth must have been given with the understanding that it would be seen by British Airways and its counsel; namely, Condon & Forsyth. British Airways therefore contends that since any and all information transferred to Condon & Forsyth was done with the understanding that it would be shared with British Airways, there is no possibility that Condon & Forsyth is in possession of information which the firm can use against it in this property damage action. That assertion is similarly not persuasive. In his affidavit, Peter Doran, Law Intern responsible for communicating with defendant's many outside counsel, states that in his capacity as Law Intern he act[s] as the liaison between the Port Authority and its outside counsel and provide[s] these outside law firms with certified copies of Port Authority contracts, leases and other pertinent Port Authority documents and information, including confidential and privileged Port Authority documents. Doran Aff'd, ¶ 2 (emphasis added). See also Def.'s Reply Mem. at 6 ("Further, as a matter of routine, the Port Authority provides both confidential and sensitive documents to Condon & Forsyth."). These confidential and sensitive documents include claim reports, contracts, leases, and maintenance records. Affidavit of James M. Begley, July 15, 1994 ("Begley Aff'd"), ¶ 14. See also Affidavit of Patrick Englese, Supervising Claims Representative for the Port Authority, July 15, 1994 ("Englese Aff'd"), ¶¶ 3, 7 (a "Confidential Report" regarding an accident is prepared and given to outside counsel representing the Port Authority). The Port Authority also supplies Condon & Forsyth with the names of potential witnesses. Begley Aff'd, ¶ 16. The Port Authority, however, does not explain in its papers what information contained in these reports could be used to its disadvantage by British Airway in this federal property damage action. However, because we must analyze this motion pursuant to the more stringent "per se" test, the burden is not on the Port Authority to demonstrate that no confidential communications were delivered to Condon & Forsyth which may now be used against the Port Authority; rather, the burden is on British Airways to demonstrate that there will be no taint at trial and that there is no "apparent conflict in loyalties or diminution in the vigor of [its] representation." Cinema 5, 528 F.2d at 1387 (emphasis in original). Furthermore, during oral argument, the Port Authority brought to the court's attention the fact that Condon & Forsyth has prepared and deposed Port Authority witnesses, such as maintenance personnel, in the personal injury actions and that these same persons may be deposed in this action as well. Information culled during the preparation of such witnesses could put British Airways at an unfair advantage provide an advantage to British Airways because this action also involves the extent to which the Port Authority properly maintained its property. Therefore, based on the information given to Condon & Forsyth Doran Aff'd, ¶ 2, Begley Aff'd, ¶¶ 14, 16, the Englese Aff'd, and the preparation of witnesses there may very well have been information delivered to Condon & Forsyth in the context of its joint defense of British Airways and the Port Authority in the personal injury actions, and its defense of the Port Authority in the other personal injury actions, which could now be used to the Port Authority's disadvantage in this case. The possibility of an unfair advantage for British Airways, and 899 the obvious "apparent" conflict in loyalties (Condon & Forsyth is, after all, suing a current client), compel the conclusion that British Airways has not met its burden under the "per se" test articulated in Cinema 5.[10] Furthermore, had the Port Authority known that British Airways may one day commence an action for property damage due to alleged negligence on one of the taxiways, it may have been more circumspect in the documents and information delivered to that corporation through its common counsel, Condon & Forsyth. In sum, although Condon & Forsyth represents the Port Authority in a series of unrelated personal injury actions, and although it came to represent the client through a lease agreement with a third party, the Port Authority is still the client of Condon & Forsyth and, as such, it is owed the undivided loyalty of Condon & Forsyth. Because the act of suing one's client is a dramatic form of disloyalty, disqualification is appropriate. See Nabisco, 117 F.R.D. at 46-47: Nabisco's entitlement to the undivided loyalty of [its attorney] has been abrogated. Since conflict is endemic to this situation, not even [the attorney's] good faith belief that it can adequately represent both of its clients is sufficient to overcome the apparent conflict that arises when a law firm finds itself with its feet in opposing camps. As is often the case with disqualification motions, there has been no showing of any intentional wrongdoing or venality on the part of [the attorney]. The court's decision i[n] this case is premised upon its belief that preservation of the undivided loyalty which an attorney owes his client is of paramount importance. So too in this case: the Port Authority's entitlement to Condon & Forsyth's undivided loyalty has been, perhaps innocently, abrogated, but because the undivided loyalty owed to a client is of paramount importance, disqualification is appropriate. Indeed, at least one court has interpreted Rule 1.7 of the American Bar Association Model Rules of Professional Conduct,[11] as providing for disqualification when an attorney sues his or her current client on a totally unrelated matter regardless of the fact that the attorney whose disqualification is sought did not obtain any information from the client which could put him or her at a disadvantage in the current litigation. Manoir-Electroalloys Corp. v. Amalloy Corp., 711 F.Supp. 188, 195 (D.N.J.1989) (where attorney represents third-party defendant in preparing wills and giving tax advice, attorney is disqualified from suing that party for conspiracy to commit fraud in connection with the sale of a foundry; "[b]ecause the interest sought to be protected by Model Rule 1.7 is one of loyalty, a per se rule of disqualification should be applied when that rule is breached."). See also International Business Machines Corp. v. Levin, 579 F.2d 271, 280 (3d Cir.1978) (where attorney represents both the plaintiff in antitrust action and the defendant in unrelated labor matters, disqualification is appropriate because, in part, "[w]e think ... that it is likely that some `adverse effect' on an attorney's exercise of his independent judgment on behalf of a client may result from the attorney's adversary posture toward that client in another legal matter.") (citing Cinema 5). 900 This conclusion is buttressed by the fact that there is, at the very least, the potential that the Port Authority could be at a disadvantage due to the information given to Condon & Forsyth in connection with the personal injury actions. Finally, even if the court had any doubts as to the appropriateness of disqualification, all such doubts must be resolved in favor of disqualification. Cheng v. GAF Corp., 631 F.2d 1052, 1059 (2d Cir.1980), vacated on other grounds and remanded, 450 U.S. 903, 101 S.Ct. 1338, 67 L.Ed.2d 327 (1981). IV. Waiver, Implied Consent and Laches As noted above, British Airways argues in the alternative that disqualification is inappropriate in this case because even if there is an impermissible conflict of interest in a lawyer suing his own client on an unrelated matter without his consent this court should conclude from the Port Authority's two year silence on the issue that the Port Authority either impliedly consented to British Airway's choice of counsel or waived its right to object due to the common law doctrine of laches. A. Waiver and Implied Consent As the Third Circuit made clear in Levin, supra, the Code of Professional Responsibility places the burden on the client's attorney to fully inform and obtain from the client his or her consent before beginning or continuing with a cause of action against that client. In Levin, the plaintiff asserted, as in this case, that disclosure and consent were not necessary because the defendant had constructive knowledge of the pertinent facts and knew that the plaintiff's attorneys had worked for the defendant in certain matters. The court responded: This assertion is without merit. Clause (C) of DR 5-105 specifically imposes upon an attorney the burden of affirmatively providing disclosure and obtaining consent. Clearly, full and effective disclosure of all the relevant facts must be made and brought home to the prospective client. The facts required to be disclosed are peculiarly within the knowledge of the attorney bearing the burden of making the disclosure. To accept [the attorney's] position would be to engraft an unwarranted exception on the requirement of DR 5-105 that disclosure must be sufficient to enable the prospective client himself to make an informed decision as to whether in the circumstances counsel will be retained. Levin, 579 F.2d at 282 (footnote omitted). See also Amalloy Corp., 711 F.Supp. at 195 (court rejects argument that party seeking disqualification "may be presumed to have been on notice as to the concurrent representation and, therefore, obligated to come forward if an objection existed" even though moving party had informed the attorney whose disqualification was sought that he had a relationship with it). In this case, Condon & Forsyth did not meet its burden of providing the Port Authority with the full disclosure mandated by the Code of Professional Responsibility. Indeed, there was no attempt at disclosure and consent in this case.[12] In Rossworm v. Pittsburgh Corning Corp., 468 F.Supp. 168 (N.D.N.Y.1979), relied upon by British Airways, the court determined that the moving party had given its implied consent to the continued representation by the attorney whose disqualification was sought, but there, unlike here, the nonmoving party wrote to the moving party and notified him that the attorney whose disqualification was sought had become a partner in the plaintiff lawyer's firm. Id. at 175. In other cases cited by British Airways for the proposition that the Port Authority has given its implied consent to Condon & Forsyth's representation of British Airways, the moving party received information necessary for it to make an informed decision. See, e.g., Trust Corp. of Montana v. Piper Aircraft Corp., 701 F.2d 85 (9th Cir.1983) (disqualification motion denied where moving party had learned from the attorney whose disqualification was sought of possible conflict two years and six months prior to filing 901 disqualification motion). In other cases, the actions of the moving party clearly established waiver and implied consent. See, e.g., Central Milk Producers Co-op v. Sentry Food Stores, Inc., 573 F.2d 988 (8th Cir.1978) (court finds that moving party waived its right to bring disqualification motion when it had previously endorsed the nonmoving party's arrangement for screening matters from two former government attorneys who had worked on matters involving the moving party). Neither of these situations is present here: Condon & Forsyth did not inform the Port Authority of the potential conflict and the Port Authority affirmatively informed the firm that it would not consent to the firm's continued representation of British Airways. And in still other cases relied upon by British Airways, the moving party waited until the eve of trial and could not adequately explain why it had waited so long in bringing its motion, e.g., Redd v. Shell Oil Co., 518 F.2d 311, 315 (10th Cir.1975), and hence the court concluded that the moving party was engaging in impermissible trial tactics. Where there is inordinate and inadequately explained delay, a finding of a waiver or implied consent may be appropriate. Lewis v. Unigard Mut. Ins. Co., 83 A.D.2d 919, 919, 442 N.Y.S.2d 522, 523 (1st Dep't 1981) (where party seeking disqualification had knowledge of conflict for six years and waited two years after filing of complaint to bring disqualification motion, motion is denied because of the "inordinate and inadequately explained delay"); Young v. Oak Crest Park, Inc., 75 A.D.2d 956, 428 N.Y.S.2d 69 (3d Dep't 1980) (four year delay between filing action and seeking disqualification, without any explanation for delay, requires that disqualification motion be denied). In this case, however, the Port Authority has not waited until the eve of trial and it explains that the delay in discovering the conflict and in moving forward with its position is due, in part, to the World Trade Center bombing which occurred on February 26, 1993. Begley Aff'd, ¶ 26. A finding of waiver or implied consent, in this case, would therefore be inappropriate. B. Laches As the court in Baird v. Hilton Hotel Corp., 771 F.Supp. 24 (E.D.N.Y.1991) noted, "[i]n this circuit, laches is generally not a defense to a motion to disqualify." Id. at 28. In Baird, the party seeking disqualification became aware of the conflict in November of 1989 and did not bring an order to show cause seeking disqualification of plaintiff's counsel until the eve of trial, thirteen months later. The court rejected the plaintiff's defense of laches: "In this case, the public interest in avoiding the appearance of impropriety in such situations ... is sufficient to preclude the application of laches to bar defendants' motion." Id. (citations omitted). The court also noted that the application of the laches doctrine might be appropriate in an extraordinary case where it is clear that the disqualification was inspired by dilatory tactics. Id. (citing United States v. Newman, 534 F.Supp. 1113, 1127 (S.D.N.Y.1982), aff'd, 722 F.2d 729 (2d Cir.), cert. denied, 464 U.S. 863, 104 S.Ct. 193, 78 L.Ed.2d 170 (1983)). Applying these principles to this action, British Airways has failed to demonstrate that the Port Authority's motion is nothing more than a dilatory tactic on its part. As noted above, the motion does not come on the eve of trial, the moving party's delay was caused, in part, by the World Trade Center bombing, and although some discovery has been completed, it is not so far along that British Airways would be unfairly prejudiced if it had to obtain new counsel. Finally, as the Second Circuit stated in Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 574 (2d Cir.1973), "the Court's duty and power to regulate the conduct of attorneys practicing before it, in accordance with the Canons, cannot be defeated by the laches of a private party or complainant." In Emle, the court rejected the nonmoving party's defense of laches even though the moving party had learned of the conflict three years before bringing its motion to disqualify. The court stated that a three-year delay is not "extraordinary." Id. In this case, the Port Authority's delay was only two years. CONCLUSION For the foregoing reasons, defendant's motion to disqualify the firm of Condon & Forsyth 902 from representing plaintiff in this action is granted. SO ORDERED. NOTES [1] The United States informed the court orally that it is taking no position on defendant's motion to disqualify plaintiff's attorney and hence has not submitted any papers in connection with this motion. [2] These lease/indemnification agreements were not made part of the record. [3] Condon & Forsyth also states that because of its long-standing representation of British Airways, and because of the lease/indemnification agreement between British Airways and the Port Authority, it has represented both parties in numerous actions throughout the years. Fearon Aff'd, ¶ 11. [4] Ethical Consideration 5-1 provides that "[t]he professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties." Ethical Consideration 5-14 provides that "[m]aintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client." [5] Canon 5 provides that "[a] lawyer should exercise independent professional judgment on behalf of a client." [6] Although, as pointed out above, these interests will diverge if it is discovered that the personal injury plaintiff was not injured on property leased by the airlines. [7] Canon 9 provides that "[a] lawyer should avoid even the appearance of professional impropriety." [8] The court in Chemical Bank also held that even if it had used the per se test, it would have reached the same conclusion because, in the court's opinion, the firm's "wholly innocuous and short-lived representation of Chemical's interest in the [rehabilitation] proceedings does not require disqualification...." Chemical Bank, 1994 WL 141951 at *19. In contrast, it cannot be said that Condon & Forsyth's representation of the Port Authority in the unrelated state personal injury actions is "wholly innocuous and short-lived." [9] Canon 4 provides that "[a] lawyer should preserve the confidences and secrets of a client." [10] British Airways also relies on Aerojet Properties, Inc. v. State of New York, 138 A.D.2d 39, 530 N.Y.S.2d 624 (3d Dep't 1988), for the proposition that, in this case, it has met its burden under the "per se" test. The case is distinguishable. In Aerojet the attorney whose disqualification was sought represented a claimant in the Court of Claims and, at the same time, represented the State of New York in a personal injury action. Applying the "per se" or "prima facie" test from Cinema 5, the court declined to disqualify the attorney because, in part, "there is absolutely no substantive nexus between the two lawsuits[,] [n]or is there any real potential for the disclosure of confidential information, notwithstanding [the State's] involvement in each lawsuit." Id. at 41, 530 N.Y.S.2d at 625. As noted above, there is a potential for the disclosure of confidential information in this action. See Doran Aff'd, ¶ 2. [11] This rule provides that, "[a] lawyer shall not represent a client if the representation of that client will be directly adverse to another client; unless (1) the lawyer reasonably believes the representation will not adversely affect the relationship with another client; and (2) each client consents after consultation." The Second Circuit looks to both the American Bar Association Code of Professional Responsibility and its Model Rules of Professional Conduct in evaluating the ethical obligations of attorneys in this circuit. See Pierce v. F.R. Tripler & Co., 955 F.2d 820, 828 (2d Cir.1992). [12] At oral argument, counsel from Condon & Forsyth explained that, based on the fact that the issue of a conflict had never been raised previously, it "never occurred to [him]" to raise the issue with the Port Authority.	{ "pile_set_name": "FreeLaw" }
DLD-080 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 11-4023 ___________ CARLOS ALAMO, Appellant v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA; DONNA ZICKEFOOSE ____________________________________ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 1-11-cv-01103) District Judge: Honorable Jerome B. Simandle ____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 December 30, 2011 Before: AMBRO, JORDAN and VANASKIE, Circuit Judges (Opinion filed: January 4, 2012) _________________ OPINION _________________ PER CURIAM In May of 2006, federal inmate Carlos Alamo filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Alamo claimed to have been improperly refused sentence credit and incorrectly denied a nunc pro tunc designation by the Bureau of Prisons (BOP) in relation to overlapping state and federal convictions. See Petition, D.N.J. Civ. No. 1:06-cv-02555 ECF No. 1. The District Court denied the petition, holding 1) that the BOP “properly refused under [18 U.S.C.] § 3585 to credit Petitioner with time during which Petitioner was in the primary custody of state authorities,” and 2) that the BOP did not abuse its discretion in rejecting Alamo’s request for nunc pro tunc designation. Alamo v. Samuel, No. 06-2555, 2007 U.S. Dist. LEXIS 27563, at 6, 11–12 (D.N.J. Apr. 12, 2007). Alamo did not appeal this outcome. On November 18, 2010, Alamo filed a document styled as a 28 U.S.C. § 2255 motion in the United States District Court for the Southern District of New York.1 The motion was converted by the New York Court into a § 2241 petition, and was transferred to the District of New Jersey. In this new filing, Alamo again assailed the sentence-credit and nunc pro tunc decisions, asserting that the BOP “failed to give credence to the state court’s directive and intent that [his] State sentence(s)” should have been concurrent to his federal sentence. He explicitly attacked the reasoning of one Fernando Messer, the Regional Inmate Systems Administrator who had denied the nunc pro tunc request in 2005. Much of the language in the new petition mirrored language in the 2006 petition. In another thorough opinion, the District Court denied relief. It summarized its earlier dispositions of Alamo’s filings, which had included (in addition to the habeas 1 This was the District Court that imposed his original federal criminal sentence. See Judgment, United States v. Alamo, S.D.N.Y. Crim. No. 1:99-cr-00478, ECF No. 84 (order entered Nov. 15, 2000). 2 petition discussed above) a mandamus petition and a motion for reconsideration, concluding: “As the claims and arguments addressed by Alamo in this action are substantially identical to the claims presented in [the] earlier petition . . . this Court will . . . deny this petition on the same grounds” relied upon previously. Alamo v. Holder, No. 11-1103, 2011 U.S. Dist. LEXIS 101991, at 9–10 (D.N.J. Sept. 9, 2011). This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291. In reviewing the denial of a 28 U.S.C. § 2241 petition, we “exercise plenary review over the District Court’s legal conclusions and apply a clearly erroneous standard to its findings of fact.” See O’Donald v. Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005) (per curiam). We may affirm on any basis finding support in the record. See Tunnell v. Wiley, 514 F.2d 971, 975 n.4 (3d Cir. 1975). As 28 U.S.C. § 2244(a) makes clear, “[n]o circuit or district judge shall be required to entertain an application for a writ of habeas corpus . . . if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus.” We have held that § 2244(a) applies to § 2241 petitions. Queen v. Miner, 530 F.3d 253, 255 (3d Cir. 2008) (per curiam). Alamo’s 2006 petition, which was denied on the merits, raised the precise claims he now makes anew. The District Court was therefore not required to consider this petition. See Chambers v. United States, 106 F.3d 472, 475 (2d Cir. 1997); see also Simon v. United States, 359 F.3d 139, 143 n.7 (2d Cir. 2004). 3 Even if the District Court were required to engage in a full review of this new petition, Alamo has failed to show that the Court erred in its disposition. The records of this case and its 2006 predecessor, of which we take judicial notice, see United States ex rel. Geisler v. Walters, 510 F.2d 887, 890 n.4 (3d Cir. 1975), reveal neither statutory error nor abuse of discretion by the BOP, which in turn suggests a lack of error on the part of the District Court.2 As this appeal presents no substantial question, we will summarily affirm the District Court’s judgment. Murray v. Bledsoe, 650 F.3d 246, 248 (3d Cir. 2011) (per curiam); see also 3d Cir. L.A.R. 27.4; I.O.P. 10.6. 2 In particular, it appears that the BOP properly weighed the requisite nunc pro tunc factors of 18 U.S.C. § 3621(b). See Barden v. Keohane, 921 F.2d 476, 483 (3d Cir. 1990). Moreover, the BOP did not err in calculating the commencement of sentence or sentence credits pursuant to 18 U.S.C. § 3585, given the presumption of consecutive terms of imprisonment contained in 18 U.S.C. § 3584(a). 4	{ "pile_set_name": "FreeLaw" }
435 F.Supp.2d 827 (2006) Brenda MOTE, Plaintiff, v. AETNA LIFE INSURANCE COMPANY, et al., Defendants. No. 05 C 6212. United States District Court, N.D. Illinois, Eastern Division. June 26, 2006. 828 Mark D. Debofsky, Daley, Debofsky & Bryant, Chicago, IL, for Plaintiff. Elizabeth A. McDuffle, Philip Stephens Holloway, Gonzalez, Saggio & Harlan, L.L.P., Chicago, IL, for Defendants. MEMORANDUM OPINION AND ORDER SHADUR, Senior District Judge. By way of their response to the ERISA-based claim of Brenda Mote ("Mote") for long term disability benefits, brought against Aetna Life Insurance Company ("Aetna") and Arthur Andersen LLP Group Long Term Insurance Plan ("Plan"), defendants filed not only an Answer and Affirmative, Defenses but also a Counterclaim brought by Aetna as the Plan fiduciary. After Mote then filed a motion to dismiss that Counterclaim, defendants sought and were granted leave to file Aetna's First Amended Counterclaim ("FACc"), with the motion to dismiss being allowed to stand as to the FACc.[1] Here is how FACc ¶ 1 describes the Aetna claims for what it characterizes as "equitable relief to enforce the terms of the Plan": Specifically, Aetna seeks, pursuant to 29 U.S.C. § 1132(a)(3) a constructive trust on funds in Plaintiffs possession that are the result of an overpayment of long-term disability benefits by Aetna. Alternatively, Aetna seeks reimbursement of the funds that are an overpayment of long-term disability benefits wrongfully retained by Plaintiff. During the course of briefing on Mote's motion, the Supreme Court came down with a unanimous opinion in Sereboff v. Mid Atl. Med. Servs., Inc., ___ U.S. ___, 126 S.Ct. 1869, 164 L.Ed.2d 612 (2006), which defendants claim supports the viability of the FACc, while Mote argues otherwise. This memorandum opinion and order resolves the parties' dispute. Sereboff confirms that Job's description of the ways of the Lord ("The Lord gave, and the Lord hath taken away"[2]) is equally applicable to the Supreme Court. Sereboff, id. at 1874 (quoting in part from Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 213, 122 S.Ct. 708, 829 151 L.Ed.2d 635 (2002)) initially confirmed that an effort "to impose a constructive trust or equitable lien on `particular funds or property in the defendant's possession' " is required in order for a breach-of-contract damages claim to be treated as restitutionary relief available to an employee benefit fund fiduciary under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3). But having done so, Sereboff, 126 S.Ct. at 1875-76 then went on to reject any need for tracing such "particular funds or property" in any situation where a claimed equitable lien "by agreement" is involved. That, say defendants, confirms the viability of Aetna's FACc because the Plan at issue in this case expressly specifies that Aetna may recover any overpayment of long term disability benefits from Mote. Mote responds that Sereboff does not help defendants because what Aetna thus seeks to recover are the proceeds of Social Security benefits and, as such, are shielded from such recovery by 42 U.S.C. § 407(A)("Section 407(a)")(emphasis added): The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law. It is noteworthy that the underscored second branch of Section 407(a), the portion dealing with actions that do not target the future payment of Social Security benefits, speaks of "moneys paid" as well as "moneys payable" a clear reference to Social Security benefits already paid to the Social Security beneficiary. Not surprisingly, then, the caselaw dealing with that provision consistently treats, for example, an unsegregated bank account as "consist[ing] of Social Security benefits" (see. e.g., Dionne v. Bouley, 757 F.2d 1344, 1346 (1st Cir.1985)). That usage echoes another unanimous opinion by the Supreme Court, Philpott v. Essex County Welfare Bd., 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973), which applied the identical provision of Section 407 to reject an effort by the State of New Jersey to enforce a reimbursement agreement by reaching the bank account of the recipient of Social Security benefits. Here is the relevant language from the brief (less than five pages) and straightforward opinion in Philpott, id. at 415-16, 93 S.Ct. 590: On its face, the Social Security Act in § 407 bars the State of New Jersey from reaching the federal disability payments paid to Wilkes. The language is all-inclusive: "[N]one of the moneys paid or payable . . . under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process. . . ." The moneys paid as retroactive benefits were "moneys paid . . . under this subchapter"; and the suit brought was an attempt to subject the money to "levy, attachment . . . or other legal process." * * * The protection afforded by § 407 is to "moneys paid" and we think the analogy to veterans' benefits exemptions which we reviewed in Porter v. Aetna Casualty and Surety Co., 370 U.S. 159, 82 S.Ct. 1231, 8 L.Ed.2d 407, is relevant here. We held in that case that veterans' benefits deposited in a savings and loan association on behalf of a veteran retained the "quality of moneys" and had not become a permanent investment. Id., at 161-162, 82 S.Ct. 1231. It is true that Philpott led to a prompt legislative change (42 U.S.C. § 1383(g)) that authorized such recapture when it is 830 sought by States or their political subdivisions. But that change by Congress really reconfirms that the unmodified language of Section 407(a) as it was construed in Philpott continues to apply to private parties such as defendants. Mote's able counsel has mustered a host of cases that uniformly provide immunity to Social Security beneficiaries against efforts such as that undertaken by defendants here. Most recent among those cases is Ross v. Pa. Mfrs. Ass'n Ins. Co., No. Civ. A. 1:05-0561, 2006 WL 1390446 (S.D.W.Va. May 22, 2006), which first rejected most of an individual plaintiffs challenge to the insurer's counterclaim on the authority of Sereboff (id. at 7) but then went on at 2006 WL 1390446, *8 to dismiss that counterclaim as expressly prohibited by Section 407(a). Defendants' brief footnote response regarding Section 407(a) at their Supp. Mem. 4 n. 4 is ironic (presumably unintentionally so) in that regard. In the text of defendants' submission they argue correctly that Sereboff eliminates the need for tracing, so that any funds in Mote's hands are treated as subject to an equitable lien. But as to Section 407(a)'s treatment of any funds in Mote's hands as being attributable to their Social Security source, also without any need for segregation or earmarking (and hence also without any tracing requirement), Aetna's footnote poses this nonsequitur: Plaintiff also argues that Defendants seek an equitable lien on Plaintiffs Social Security Disability funds and that such liens are improper under 42 U.S.C. § 407. However, 42 U.S.C. § 407 has no application to this case because Defendants do not seek an equitable lien on Plaintiff's Social Security Disability funds. That's obviously just not so instead the funds on which defendants seek to impose an equitable lien are exactly the same funds that the law labels and treats as Social Security funds that are taken out of reach by Section 407(a). In sum, then, Mote's motion to dismiss the FACc must be and is granted. Although this Court grants leave to defendants to file the Second Amended Counterclaim because it has solely sought to add Fed.R.Civ.P. 13(a) and 29 U.S.C. § 1367(a) as jurisdictional sources, that new pleading carries forward the same fatal flaw as the FACc, and it too is dismissed. NOTES [1] Defendants have now sought to tender a Second Amended Counterclaim. Because that proposed pleading does not alter the claimed substantive predicate for relief set out in the FACc, this opinion applies with equal force to the new proposal. [2] Job 1:21.	{ "pile_set_name": "FreeLaw" }
Filed 12/17/14 County of Santa Cruz v. Kaylor CA6 NOT TO BE PUBLISHED IN 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 SIXTH APPELLATE DISTRICT COUNTY OF SANTA CRUZ, H040243 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. CV168369) v. ROY KAYLOR, Defendant and Appellant. Following trial, appellant Roy Kaylor’s property was declared a public nuisance and the trial court appointed a receiver to bring the property into compliance with the Santa Cruz County Code (County Code). Appellant contends that the trial court abused its discretion when it ordered him to remove his personal possessions from the property. We affirm the order. I. Statement of the Case Appellant owns approximately 150 acres near Big Basin State Park in Boulder Creek, California. In November 2006, the County of Santa Cruz (County) issued to him a notice of violation, which cited the following violations of the County Code: (1) section 13.10.140, subdivision (a) [noncompliance with zoning regulations]; (2) section 13.10.275, subdivision (g) [violations of allowed uses in a timber harvest zone district]; (3) section 13.10.279, subdivision (a) [continuance of a code violation]; (4) section 13.10.556 [illegal outdoor storage of personal property and materials]; and (5) section 13.10.683 [parking and use of travel trailers and recreational vehicles without permits]. Appellant failed to bring his property into compliance with the County Code. In August 2010, the County filed a complaint for abatement of a nuisance, injunctive relief, civil penalties, attorney’s fees, and costs. The following month, appellant filed an amended answer in which he denied the allegations and asserted that he had already hauled 72 pickup truck loads of trash to the local dump and evicted or removed approximately 250 people, mostly methamphetamine addicts, from the property over a 26-year period. In November 2010, appellant filed a demand for a jury trial. The following month, the County moved to strike the demand. In March 2011, appellant was now represented by counsel, James Ritchey, and requested court mediation. The trial court set the case for court mediation and granted the County’s motion to strike the demand for a jury trial. On May 24, 2011, the County filed the declaration of Kevin Fitzpatrick, a senior code compliance officer for the County. Two days earlier, Fitzpatrick had compiled an inventory of items on appellant’s property. The inventory included: 88 vehicles, approximately 40 tires, miscellaneous auto parts, assorted junk and trash, storage containers, junk piles, a water tank, toilets, surfboards, batteries, refrigerators, and a catamaran. After the case was successfully mediated, the trial court directed the County to prepare the order. However, the parties were unable to agree on the written terms. On July 29, 2011, Ritchey substituted out of the case and appellant represented himself. On August 30, 2011, appellant requested the appointment of a public defender. The trial court denied the request. The matter was set for a court trial on November 10, 2011. 2 On the day set for trial, appellant sought to disqualify Judge Timothy Volkmann pursuant to Code of Civil Procedure section 170.1. On January 25, 2012, the motion was denied by an out-of-county judge. On February 29, 2012, the case came before Judge Volkmann. Appellant, who was now represented by Karla Gottschalk, successfully moved to disqualify Judge Volkmann pursuant to Code of Civil Procedure section 170.6. The case was set for trial on April 10, 2012. On March 14, 2012, the County filed a motion for appointment of a receiver in the event that it prevailed at trial. The County attached a supporting declaration by Athena Kaylor Honore, appellant’s daughter. According to Honore, she had been involved in attempts to clean up the property since September 2010 and agreed that it should be returned to its pristine state. Honore had contacted the television show “Hoarders,” which provided a crew of eight to 10 people to remove cars and junk over a weekend. However, the percentage of items removed was small due to heavy rains. Honore was willing to accept the nomination of receiver. Appellant opposed the motion for the appointment of a receiver. Trial was held on April 10, 2012. The County presented evidence, among other things, of the most recent inventory on April 4, 2012, which identified approximately 83 vehicles, miscellaneous machinery, junk, debris, garbage, and other personal property on the site. Following trial, the court found in favor of the County. On April 27, 2012, the trial court appointed Honore as the receiver. Three days later, the judgment was filed. The trial court declared the property a public nuisance and imposed an injunction. The trial court ordered that the property be brought into compliance with the County Code by April 30, 2013. It also awarded code enforcement costs, attorney’s fees, and costs to the County. The trial court suspended the imposition of $12,500 in civil penalties, but reserved jurisdiction to lift the suspension if appellant violated the injunction or interfered with the trial court’s order to bring the property into 3 compliance with the County Code. The trial court retained jurisdiction to enforce the terms of the judgment and to oversee compliance, and continued the matter to September 7, 2012, for case management. On September 7, 2012, Honore informed the court that she had been prevented from making significant progress on the property and requested additional time to bring the property into compliance with the County Code. She also requested the appointment of a successor receiver. Gottschalk indicated her intent to be relieved as counsel. The matter was continued to September 21, 2012, for consideration of the appointment of a successor receiver. After the parties submitted nominations, the trial court appointed the County’s nominee, John Richardson. He subsequently declined the appointment due to a conflict of interest. The parties submitted additional nominees. Meanwhile, appellant was now represented by Andrew Pierce. Appellant proposed that if a receiver was appointed, he or she be required to contract with Shandra Brown to continue her work in removing items and vehicles from the property. On December 6, 2012, the trial court issued an order relieving Honore of her duties as receiver and appointing appellant’s nominee, William Rahal, as receiver. The order charged Rahal “with the abatement of a public nuisance on the subject property . . . and with bringing [it] into compliance with the County Code.” As suggested by the parties, the trial court set a benchmark of February 1, 2013, for cleanup of the portion of the property, which was known as the Teddy Roosevelt area or “Area One.” Rahal was also directed, as a matter of first choice, to contract with Brown to continue the work she was performing to remove vehicles and other items from the property. On February 8, 2013, the County reported that Area One had not been completely cleaned up. The trial court ordered that the remaining cleanup of Area One be completed by March 1, 2013. As of March 12, 2013, Area One had been “adequately cleaned up with the exception of a trailer, an axle and three garbage/buckets of trash . . . .” 4 On March 15, 2013, the trial court ordered “Area Two” to be cleaned up within six months, as requested by appellant. The matter was set for a further case management conference on September 13, 2013. In mid-August, staff inspected the property and reported that Area Two was 65 to 75 percent cleaned up. The cleanup of Area Two was not completed by September 13, 2013. The trial court ordered that the cleanup of Area Two be completed by September 27, 2013. The trial court also ordered appellant to remove all of the items that he wished to retain by September 27, 2013, and authorized the County to finish the cleanup of Area Two, if necessary. On September 26, 3013, appellant filed a status management conference statement, which stated in part: “[T]he Court indicated that [appellant] should remove everything he needed to keep within two weeks. As we expected, that has not proved feasible. [Appellant] has, or will have by the time of the hearing, transferred the items he is interested in keeping into three mobile storage units that were already on the property, and two bus[es]. All this material can now be removed and its visual impact has been minimized as much as is possible. What [appellant] has not been able to do is to find a permanent home for the storage units or the vehicles, and he will also need to perform repairs on one of the bus[es] to get it mobile. After discussions, he does not believe the Receiver objects to the temporary presence of the storage units or the bus[es], or that they will interfere with his activities.” Appellant also claimed that a “handful” of vehicles were moved from Areas One and Two to “Area Three” “to allow a more organized sale of the most valuable properties, and not as part of some shell game.” On September 27, 2013, the trial court held a case management conference hearing. The County objected to appellant’s request that he be allowed to store items in buses and shipping containers. The County argued that Rahal should be exclusively in charge of the cleanup since Rahal was under the impression that he was required to use Brown’s services. The County also pointed out that Rahal had indicated that the cleanup 5 could be completed by mid-December. The trial court was informed that the cleanup of Area Two had not been completed, because there were still vehicles, trash, and scrap. Rahal stated that he had not been to the property in the previous two weeks, because his understanding was that appellant was going to remove his personal items during that period. The trial court indicated that its intention was to turn the cleanup over to Rahal and give appellant seven days to remove anything he wanted off the property. Appellant’s counsel stated that the items that appellant wanted to keep had been consolidated in the storage containers and buses. Appellant’s counsel pointed out, however, that “[t]he only difficulty has been; A, getting the money to get them off the property, and B, having a place to put them.” Rahal disputed that only vehicles had been moved to Area Three. He claimed that “boxes of things,” shelving, and a large amount of debris had been moved to Area Three. Rahal also clarified for the trial court that the shipping containers and buses were not “mobile.” He pointed out that the removal of the storage containers required heavy equipment and the buses needed repairs. Rahal stated that appellant’s counsel had asked him whether the containers would interfere with the cleanup and he had replied that it was possible and asked for a list of the items that appellant was interested in keeping. Rahal never received the list. The trial court ordered appellant to provide a list of items to Rahal that he wanted to retain by noon on September 30, 2013, to place the items in the two buses and three shipping containers, and remove them by 5:00 p.m. on October 4, 2013. The trial court also ordered that Rahal would then have exclusive authority to dispose of any remaining items by mid-December 2013. Appellant claimed that the order would result in “hundreds of thousands of dollars of things [being] lost in [the] process . . . .” After appellant’s counsel questioned the feasibility of the order, the trial court stated: “I’ve given a year to get this property cleaned up. Two weeks ago, I said we’re going to have a particular portion cleaned up by today, and people ignore me. So this is what happens 6 when you ignore the judge. I don’t like it, but it is what it is. People won’t cooperate so we’re going to do this in a more Draconian way.” Appellant filed a timely notice of appeal. II. Discussion Appellant contends that “for the Court to punish him by potentially taking all his property away on short notice because the Receiver and others were not able to clean up Area Two, while giving the Referee three months to clean up Area Three was an abuse of discretion.” Court rulings on receivership matters are reviewed for abuse of discretion. (See, e.g., City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 931 [authorization for receiver to contract for demolition] (Gonzalez); Lesser & Son v. Seymour (1950) 35 Cal.2d 494, 503 [confirmation of receiver’s sale of partnership assets and real property]; Golden State Glass Corp. v. Superior Court of Los Angeles County (1939) 13 Cal.2d 384, 393 [appointing or refusing to appoint a receiver].) “ ‘The proper exercise of discretion requires the court to consider all material facts and evidence and to apply legal principles essential to an informed, intelligent, and just decision. [Citation.] Our view of the facts must be in the light most favorable to the order and we must refrain from exercising our judgment retrospectively.’ [Citations.] Where there is no evidence of fraud, unfairness, or oppression, the court has wide discretion in approving the receiver’s proposed actions. [Citations.]” (Gonzalez, at p. 931.) Here, appellant was notified of the numerous code violations six years prior to trial. His efforts to clean up his property were inadequate. After the trial in April 2012, the court ordered that the property be brought into compliance with the County Code by April 2013 and appointed a receiver. During that year, appellant had the opportunity to remove whatever items he wished to retain. On March 15, 2013, the trial court ordered Area Two to be cleaned up within six months, as requested by appellant. Appellant could 7 have removed his personal items during that period. However, he did not do so by September 13, 2013. At that time, the trial court extended the period for the cleanup of Area Two and for the removal of appellant’s personal items to September 27, 2013. However, on that date, the trial court was informed that there was still trash, vehicles, and scrap in Area Two, “boxes of things,” shelving, and a large amount of debris had been moved to Area Three, and the items that appellant wanted to keep had not been removed but had instead been placed into storage containers and buses. Rahal had also requested a list of items that appellant was interested in keeping, but none was provided. Under these circumstances, the trial court did not abuse its discretion when it ordered appellant to remove his personal possessions from the property by October 3, 2013. Appellant argues that neither the County nor the receiver requested that the court order him to remove his personal possessions on such short notice. Regardless of whether the County or the receiver had requested the specific date of compliance, appellant had more than adequate notice. He had been on notice for almost seven years that his use of his property violated numerous sections of the County Code. On September 13, 2013, the trial court specifically ordered him to remove all items he wanted to keep by September 27, 2013. He did not comply with the court order. There is no merit to this argument. Appellant next contends that he was not responsible for the progress of the cleanup. Appellant, however, was responsible for removing his personal possessions, which he did not do. Appellant also argues that the trial “court, concerned about issues with Area Two ordered [him], without warning, to dispose of all of his remaining personal property.” He claims that his personal possessions “could easily have been stored in the remaining storage units and vehicles until the December deadline rather than being summarily trashed.” As previously stated, appellant had sufficient notice. Though there may have 8 been other options for the trial court, it did not abuse its discretion in ordering appellant to remove his personal possessions. III. Disposition The order is affirmed. 9 _______________________________ Mihara, J. WE CONCUR: ______________________________ Bamattre-Manoukian, Acting P. J. ______________________________ Grover, J. 10	{ "pile_set_name": "FreeLaw" }
356 Mass. 85 (1969) 248 N.E.2d 279 COMMONWEALTH vs. OSMUND E. BOONE. Supreme Judicial Court of Massachusetts, Norfolk. May 5, 1969. May 30, 1969. Present: WILKINS, C.J., WHITTEMORE, CUTTER, SPIEGEL, & REARDON, JJ. Ronald J. Chisholm (Gerard F. Schaefer with him) for the defendant. Richard W. Barry, Assistant District Attorney, for the Commonwealth. WILKINS, C.J. These are indictments charging the defendants James H. Moore and Boone with violation of (No. 40,430) G.L.c. 269, § 10, for carrying under "his" control in a motor vehicle an automatic pistol without authority; and of (No. 40,431) G.L.c. 90, § 24 (2) (a), for using a motor vehicle upon a certain way without the authority of the owner. Only the defendant Boone was tried, and he was found guilty on both indictments by a judge sitting without jury in a trial subject to G.L.c. 278, §§ 33A-33G. Case No. 40,431 was placed on file. On indictment No. 40,430 he was sentenced to a term of imprisonment. He appealed and argues that the denial of his requests for rulings that he be found not guilty was error. Counsel stipulated that the owner of the motor vehicle, if present, would testify that he did not authorize either defendant to use it. The owner's name was not given, and he was not otherwise described. The only witness was a corporal in the State police. On August 18, 1965, pursuant to a call, he went to a certain intersection in Wellesley about 3:50 P.M. He observed a Wellesley police cruiser stopped beside a certain car in which the defendants were seated, Moore inferentially in the driver's seat and Boone in the front passenger's seat. The defendants were taken to the police station, where they were placed under arrest. The car was towed to a gasoline station, where it was searched about 4:30 P.M., and an automatic 87 weapon and a fully loaded clip were found under the driver's seat. We are of opinion that both requests should have been granted. The evidence is extremely sketchy. Nothing is shown about the owner of the motor vehicle except the absence of authority to operate. The presence of the motor vehicle at the place where apparently it was stopped by the Wellesley police is unexplained. Other circumstances are unknown. 1. The indictment under G.L.c. 90, § 24 (2) (a), is based on the provision, "whoever uses a motor vehicle without authority knowing that such use is unauthorized." The testimony of the owner that he had not authorized either defendant to use the motor vehicle is not enough, without more, to convict the defendant passenger of knowledge that its use was unauthorized. The quotation in the Commonwealth's brief from Commonwealth v. Coleman, 252 Mass. 241, 243, is not in point, as G.L.c. 90, § 24, has since been amended to include the words, "knowing that such use is unauthorized." St. 1926, c. 253. 2. The pertinent provision of G.L.c. 269, § 10 (as amended through St. 1957, c. 688, § 23), punishes "[w]hoever ... carries ... under his control in a vehicle, a firearm ... loaded or unloaded, without permission...." There is no express requirement of knowledge, but it would not be a reasonable interpretation that a weapon is within the control of someone who does not know that he has it. Indeed, the Commonwealth, while contending that knowledge is not an essential element of unlawful carrying, concedes that knowledge is necessary to prove control. It is not enough to place the defendant and the weapon in the same car. See Commonwealth v. Clarke, 350 Mass. 721, 722. We would not feel justified in ruling that knowledge is not necessary where the penalty is so severe. We do not agree that there was evidence from which knowledge could be inferred. Cases such as Commonwealth v. Moscatiello, 257 Mass. 260, where the defendant was owner and operator, and Commonwealth v. Miller, 297 Mass. 285, where the defendant was an 88 owner and at least a passenger, if not the driver, are not authorities against the defendant Boone. See Commonwealth v. Fancy, 349 Mass. 196, 204. Ordinarily we would not consider the appeals in a case which was placed on file. Commonwealth v. Locke, 338 Mass. 682, 684. Commonwealth v. Subilosky, 352 Mass. 153, 165. In the cases at bar, however, it is apparent that both should be brought to a final termination now. Accordingly, in case No. 40,430 the judgment is reversed, and the finding is set aside. In case No. 40,431, the finding is set aside. In each case judgment is to be entered for the defendant Boone. So ordered.	{ "pile_set_name": "FreeLaw" }
Case: 18-20071 Document: 00515014826 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. 18-20071 FILED Summary Calendar June 28, 2019 Lyle W. Cayce Clerk SANDRA G. HALE, Plaintiff - Appellant v. UNITED STATES OF AMERICA; MICHAEL DEBAKEY MEDICAL CENTER (VA HOSPITAL); CHRISTOPHER R. SANDLES; ROBERT MCDONALD; PAUL WENZSLAWSH, PA; DOCTOR JOHN MA, M.D., Defendants - Appellees Appeals from the United States District Court for the Southern District of Texas USDC No. 4:17-CV-226 Before JOLLY, COSTA, and HO, Circuit Judges. PER CURIAM:* Sandra Hale—a disabled veteran—sued Dr. John Ma, a doctor at DeBakey VA Medical Center, and Paul Wenzlawsh, a physician assistant there, for misdiagnosing and mistreating her shoulder injury. Because they are federal employees and she brought a tort claim, she could not sue them individually, but she could sue the federal government under the Federal Tort * 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: 18-20071 Document: 00515014826 Page: 2 Date Filed: 06/28/2019 No. 18-20071 Claims Act. 28 U.S.C. § 2679(b)(1). The district court later granted summary judgment to the government and we review that decision de novo. Coleman v. United States, 912 F.3d 824, 828 (5th Cir. 2019). The FTCA allows private citizens to sue the federal government when federal employees commit torts for which a private person would be liable under state law. Hannah v. United States, 523 F.3d 597, 601 (5th Cir. 2008). Though Hale strains against this in her briefs, her complaint alleges a health care liability claim. When someone claims they are harmed by a medical professional whose care falls below the accepted standards of medical care, that claim is for health care liability. TEX. CIV. PRAC. & REM. § 74.001(a)(13); see also Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012) (describing the expansive application of Texas’s Medical Liability Act). In Texas, expert testimony is generally required to establish the standard of care, to determine whether the medical professional breached it, and to determine whether that breach caused the alleged injuries. Ellis v. United States, 673 F.3d 367, 373 (5th Cir. 2012) (quoting Jelinek v. Casas, 328 S.W.3d 526, 538 (Tex. 2010)). Of course, not every case requires it: if a surgeon operates on the wrong knee or leaves a sponge inside, no expert testimony is required. Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex. 1990). But Hale does not present such an obvious case; she needed an expert. The only one she tried to provide is herself. According to her designation, Hale served as a nurse for over 35 years. But the expert must be a doctor. TEX. CIV. PRAC. & REM. CODE §§ 74.401(a), 74.403(a). Texas law does not consider a nurse sufficiently qualified to establish causation in a medical negligence case. Id. at § 74.403(a). Hale thus could not serve as her own expert and, failing to produce another, summary judgment was appropriate. Hale also argues that the government was dilatory in filing its answer to her amended complaint, requiring a default judgment. The district court was 2 Case: 18-20071 Document: 00515014826 Page: 3 Date Filed: 06/28/2019 No. 18-20071 well within its discretion in accepting the answer. See FED. R. CIV. P. 15(a)(3) (establishing 14-day response period to amended pleadings “unless the court orders otherwise”) AFFIRMED. 3	{ "pile_set_name": "FreeLaw" }
Filed 10/11/13 Araujo v. County of Los Angeles CA2/8 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 EIGHT ESPERANZA ARAUJO, B236138 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. TC023419) v. COUNTY OF LOS ANGELES et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County. Raul A. Sahagun, Judge. Reversed with directions. Law Offices of John R. Blanchard and John R. Blanchard, for Plaintiff and Appellant. John F. Krattli, County Counsel, Roger H. Granbo, Assistant County Counsel, and Jonathan McCaverty, Deputy County Counsel, for Defendants and Respondents. __________________________ Appellant Esperanza Araujo appeals from summary judgment entered for respondents Los Angeles County and Los Angeles County deputy sheriffs Chad Magdalik and Brian Anderson. Because the court‟s entry of summary judgment ignored a triable issue of fact involving the amount of force the deputies used against appellant, we reverse. FACTS AND PROCEEDINGS Los Angeles County deputy sheriffs Chad Magdalik and Brian Anderson were on routine patrol at 6:40 a.m. on May 18, 2008, when they received a radio call to check on a woman at the corner of 83rd Street and Alameda. When the deputies arrived at the intersection, they saw appellant Esperanza Araujo yelling and screaming at workers at a nearby business. The deputies got out of their car and approached appellant. As the deputies neared appellant, they saw signs she was intoxicated and decided to investigate her for possible public intoxication. (Pen. Code, § 647, subd. (f).) Based on their observations, they arrested appellant. After her arrest, appellant was taken to the hospital where laboratory test results confirmed the presence of alcohol and marijuana in her system. Appellant thereafter pleaded no contest to violation of Penal Code section 647, subdivision (f) for public intoxication, and was sentenced to time served and 12 months‟ probation. In August 2009, appellant filed a complaint against Los Angeles County and the deputies, claiming the deputies had used excessive force when they arrested her. She alleged causes of action for violation of her civil rights under color of law (42 U.S.C. § 1983), civil battery, false arrest and imprisonment, and negligence. According to the deputies, when they first approached appellant in response to the radio call, she had blood on her face from fresh abrasions on her chin and both lips. But in her complaint, appellant asserted that the deputies hit her face against the inside of their patrol car when they pushed her face first into the car as they took her into custody. Appellant further testified at deposition that she had no injuries to her face before her encounter with the deputies, but they beat her into unconsciousness. Under questioning by respondents‟ 2 counsel, she testified: “Q. What happened [the morning you were arrested]? A. I was at a house that they opened real early in the morning where they sell alcohol. Leaving from that place is where I suffered the accident with the officer with the last name of Magdalik. Q. That‟s [sic] what happened? A. He‟s the one that hit me. Q. Okay. What else? A. I lost consciousness due to the hits. He didn‟t write anyplace on the report that he had hit me and that he sent me to the hospital.” Respondents moved for summary judgment or adjudication. In support of their motion, the deputies claimed that the only force they used against appellant were two three-second blasts of pepper spray to her face when, first, she disobeyed their orders to stop spitting blood and mucus at them from the back seat of their patrol car and, second, when she tried to bite deputy Magdalik in the forearm as he tried to unbuckle her seat belt to prevent her from choking herself with the belt. The court granted summary judgment. We reverse. DISCUSSION The trial court found respondents were entitled to summary judgment because the deputies enjoyed qualified immunity and immunity under Government Code section 820.2 for their administration of pepper spray.1 (Venegas v. County of Los Angeles (2007) 153 Cal.App.4th 1230, 1241-1242; Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, 342; Gov. Code, § 820.2 [public employee immune from liability for discretionary acts].) Under those doctrines, no liability exists if an objectively reasonable officer could have believed, even if mistakenly, that his actions were lawful under the circumstances. The court‟s minute order granting summary judgment stated: “[D]efendants submitted evidence that plaintiff was „yelling obscenities,‟ and that she „spit blood and mucus several times‟ and she refused commands to stop. . . . They 1 The trial court also dismissed appellant‟s claim of a Monell violation (Monell v. Department of Social Services of the City of New York (1978) 436 U.S. 658) and prayer for punitive damages, but appellant does not address these claims on appeal and thus we address them no further. 3 contend that plaintiff‟s face was bleeding when they initially approached her. It appears from that testimony that their use of pepper spray was objectively reasonable.” The minute order dismissed, seemingly out of hand, appellant‟s testimony that the deputies inflicted her injuries by pushing her face first into their patrol car and hitting her. Attaching little, if any, weight to appellant‟s deposition testimony, the court‟s minute order stated: “The only evidence submitted by plaintiff is her deposition testimony. She denied having any injury prior to the subject event. . . . She alleges that she fell „face first‟ when defendant Magdalik pushed her and that she was „unable to breathe,‟ and that she was thereafter pepper-sprayed. . . . [¶] She alleges that he „hit [her] on the area of the car‟ and she split her lip, after which she „spewed at him.‟ ” During the hearing on the motion for summary judgment, appellant‟s counsel argued that the gist of appellant‟s excessive force claim was whether the deputies caused appellant‟s facial injuries. Counsel said: “Your honor, I think this really comes down to who‟s telling the truth about the injuries. The deputies claim they saw injuries when they arrived on the scene. [Appellant] claims she didn‟t have injuries until she was contacted by the police. Somebody‟s lying. [¶] The problem with the court‟s analysis of the use of force is that it buys hook, line and sinker the deputies‟ claim they only used pepper spray.” In response to counsel, the court asked for evidence that the deputies used more force than pepper spray. Counsel directed the court to appellant‟s deposition testimony cited in her opposition to respondents‟ separate statement of facts. The court recited part of that testimony as follows: “Q. And then what happened to you? A. Took me to the back, handcuffed me, opened the door, and pushes me. Q. What else? A. I fell head first, face first, by the way he had pushed me. He hit me in this area here. I was unable to breath.” (Bold added.) The court then asked counsel, “So apart from this pepper spray, that‟s the only conduct that I see that she described that deputy did, put her in the back seat. [Counsel] And hit her. [Court] Where‟s that? [Counsel] If the court re-reads what you just read into the record.” (Bold added.) Despite counsel reiterating for the court appellant‟s deposition testimony that the deputies injured appellant either by pushing her face first into the car and/or hitting her, the court repeated its conclusion that 4 the deputies‟ use of force was limited to pepper spray. The court said, “So I was trying to determine whether your theory was that excessive force was the pepper spray or something else, and all I came up with was this quote in your deposition that he put her in the back seat. [Counsel] [H]e put her in the back seat face first and hit her. [Court] When you gather he hit her, though, I don‟t see any evidence of that. I don‟t see her saying he hit me. [Counsel] He did. She does.” (Bold added.)2 To be entitled to summary judgment, respondents must show that appellant was as a matter of law entitled to no relief either because she had no admissible evidence to support an essential element of her claim, or undisputed evidence established a complete defense for respondents. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Because the trial court misapprehended appellant‟s evidence by not interpreting it in the light most favorable to her as the party opposing summary judgment, the court did not hold respondents to their assigned task. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) It is all well and good to say that the deputies had discretion to use reasonable force to effect appellant‟s arrest or overcome her resistance, but in ruling on a motion for summary judgment those legal principles must be joined to appellant‟s factual allegations for which she has offered admissible evidence. (See e.g. Pen. Code, § 835a [officer “may use reasonable force to effect the arrest, to prevent escape or to overcome resistance”].) In their motion for summary judgment, the deputies denied using any force other than pepper spray, a denial they repeat on appeal in their brief in which they write “Other than routine handcuffing and being pepper sprayed once by each Deputy, no other force was used on [appellant] at anytime.” For their qualified immunity and Government 2 Appellant‟s opposition to respondents‟ motion for summary judgment attached as exhibits additional pages from her deposition in which appellant expanded on her testimony that the deputies hit her, but her opposition to respondents‟ separate statement of facts did not refer by page-and-line-number to that additional testimony, and therefore we disregard that testimony here. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 [“golden rule” of summary judgment requires facts to be in separate statement].) Be that as it may, the deposition testimony to which appellant‟s opposition did include page-and-line references, and which the court reviewed during the hearing, was enough to create a triable issue. 5 Code section 820.2 argument to carry the day, the deputies must establish that a reasonable deputy could believe that, as alleged by appellant, pushing a handcuffed suspect face first into a patrol car and/or hitting the suspect to the point of unconsciousness is lawful. Because respondents do not confront appellant‟s evidence of claimed excessive force, their legal arguments miss the mark. (See Felix v. McCarthy (9th Cir. 1991) 939 F.2d 699, 701 [prison guards not entitled to qualified immunity for unprovoked physical attack of prisoner, which included throwing prisoner against a wall, because attack was clearly unlawful even though attack resulted in minor injuries].) Accordingly, respondents‟ motion did not entitle them to summary judgment, and the court erred in granting it. DISPOSITION The judgment is reversed and the court is directed to enter a new order denying respondents‟ motion as to appellant‟s causes of action alleging excessive force. Appellant to recover her costs on appeal. RUBIN, J. WE CONCUR: BIGELOW, P. J. FLIER, J. 6	{ "pile_set_name": "FreeLaw" }
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014). STATE OF MINNESOTA IN COURT OF APPEALS A14-1625 State of Minnesota, Respondent, vs. Ronald Clark, Jr., Appellant. Filed December 21, 2015 Affirmed Chutich, Judge Hennepin County District Court File No. 27-CR-13-28418 Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, Minnesota (for respondent) Renée J. Bergeron, Special Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Ross, Presiding Judge; Halbrooks, Judge; and Chutich, Judge. UNPUBLISHED OPINION CHUTICH, Judge Appellant Ronald Clark Jr. appeals his convictions for first-degree sale and second-degree possession of a controlled substance, arguing that he established the entrapment defense by a fair preponderance of the evidence and that the state failed to prove beyond a reasonable doubt that he was predisposed to commit the charged offenses. Because we conclude that the state’s evidence was sufficient to establish Clark’s predisposition to commit the offenses, we affirm his convictions. FACTS This case arises from a controlled-substance buy-bust1 transaction when appellant, Ronald Clark, Jr., sold two ounces of methamphetamine to a confidential informant, M.P. Viewing the evidence in the light most favorable to the guilty verdict, as we must, we assume the jury believed the following account of the events and disbelieved any contrary evidence. See State v. Chambers, 589 N.W.2d 466, 477 (Minn. 1999). At the time of the buy-bust transaction, informant M.P. faced criminal charges for first-degree possession of a controlled substance, third-degree possession of a controlled substance, and possession of a pistol or assault weapon related to a March 2011 arrest. Upon advice from his attorney, M.P. agreed to work with police as a confidential informant to secure the arrest and conviction of other controlled-substance offenders. M.P. knew Clark through a mutual cousin and from previous drug deals. In August 2013, M.P. contacted Clark seeking to buy cocaine. M.P. testified that Clark responded that he did not have any cocaine, but that he had “that stuff that white 1 “Buy bust” is a law enforcement term referring to transactions in which police intend to arrest an offender immediately after he or she completes an arranged controlled- substance sale to a police informant. 2 people like,” which M.P. understood as either methamphetamine or “plant food.”2 They called and texted back and forth three or four times. Clark testified that he told M.P. that he no longer sold drugs, he had a job, and he was currently at work. Clark stated that M.P referred to him as “Cuz” while attempting to persuade him to sell. Clark ultimately acquiesced to M.P.’s request, he testified, because he considered M.P. family. Clark agreed to sell M.P. two ounces of methamphetamine for $3,000, and they arranged to meet in a Bloomington hotel parking lot. Before completing the deal, Clark texted M.P. a picture of the intended product. M.P. then told police that he knew someone by the name of “Dawg,” from whom he could buy methamphetamine that same day. After ensuring that M.P. had no contraband or cash in his possession, the officers supplied him with $3,000 in marked bills, accompanied him to the sale, and conducted surveillance from a short distance away. Once the sale was complete, the officers immediately arrested Clark and searched him and his car. They confirmed that Clark had the $3,000 in marked bills from executing the sale. They also recovered an additional ounce of methamphetamine from a purse in Clark’s car, which Clark claimed was his. Clark admitted to selling and possessing methamphetamine in a recorded interview on the scene. 2 “Plant food” is an illegal synthetic cathinone used as an alternative to illicit stimulants like MDMA, LSD, cocaine, and methamphetamine. Drug Enforcement Agency, Department of Justice, Notice of Intent: Temporary Placement of Three Synthetic Cathinones Into Schedule I (Sept. 8, 2011), http://www.deadiversion.usdoj.gov/fed_regs/rules/2011/fr0908.htm. 3 Based on the sale and the results of the search of Clark’s car, the state charged Clark with first-degree sale of a controlled substance and second-degree possession of a controlled substance. See Minn. Stat. §§ 152.021, subd. 1(1), .022, subd. 2(a)(1) (2014). Before trial, Clark filed a notice of intent to assert the affirmative defense of entrapment. At trial in May 2014, M.P., four police officers, a forensic scientist, and Clark testified. Following their testimony, the district court found that Clark had established that he was induced to commit the offense by a fair preponderance of the evidence. To meet its burden of proving that Clark was predisposed to commit the offense, the state then introduced testimony establishing Clark’s two prior controlled-substance convictions: an October 2004 conviction for first-degree possession of cocaine and an August 2006 conviction for third-degree sale of marijuana. The district court instructed the jury on entrapment along with the charged offenses. The jury convicted Clark of both counts, and the district court sentenced Clark to 104 months. Clark appeals. DECISION To raise the entrapment defense, a criminal defendant must first show by a preponderance of the evidence “that the government induced the commission of the crime.” State v. Vaughn, 361 N.W.2d 54, 57 (Minn. 1985). Inducement requires a showing that “the state did something more than merely solicit the commission of a crime.” State v. Olkon, 299 N.W.2d 89, 107 (Minn. 1980). Rather, the state must have persuaded, badgered, or pressured the defendant to commit a crime. Id. Here, the 4 district court found that Clark had established inducement by a fair preponderance of the evidence. Once a defendant shows inducement, the state must then prove beyond a reasonable doubt that the defendant was predisposed to commit the crime charged. State v. Grilli, 304 Minn. 80, 96, 230 N.W.2d 445, 456 (1975). Specifically, the state must prove that the defendant was predisposed to commit the crime before being approached by government agents. State v. Johnson, 511 N.W.2d 753, 755 (Minn. App. 1994), review denied (Minn. Apr. 19, 1994). Predisposition may be shown by evidence of (1) the defendant’s “active solicitation to commit the crime,” (2) “prior criminal convictions,” (3) “prior criminal activity not resulting in conviction,” (4) the “defendant’s criminal reputation,” or (5) “by any other adequate means.” Grilli, 304 Minn. at 89, 230 N.W.2d at 452. A defendant’s ready response to the government’s solicitation of the crime satisfies the “other adequate means” basis for predisposition. Olkon, 299 N.W.2d at 108. When the state’s evidence establishes a defendant’s predisposition, “the challenged conduct of the state's officers is mitigated or excused, and the defense of entrapment is not proved.” Id. (quotation omitted). On a claim of insufficient evidence, this court examines the evidence in the light most favorable to the conviction to determine if it would permit a jury to reasonably conclude that the defendant was guilty of the offense. State v. Nelson, 812 N.W.2d 184, 187 (Minn. App. 2012). “[I]t is the province of the jury to determine the credibility and weight to be given to the testimony of any individual witness.” State v. Engholm, 290 5 N.W.2d 780, 784 (Minn. 1980). This court assumes “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Clark argues that the evidence was insufficient to sustain his convictions. He contends that the State failed to prove beyond a reasonable doubt that he was predisposed to commit a controlled-substance crime because it produced no evidence that he was otherwise involved in drug activity in 2013 and it relied on his six- and nine-year-old prior convictions.3 We disagree. First, the state properly introduced Clark’s two prior convictions for similar drug- related activity. See Grilli, 304 Minn. at 89, 230 N.W.2d at 452. The district court ruled Clark’s convictions admissible in a pre-trial hearing in which it heard meaningful arguments from both parties. Clark does not contest their admissibility. Next, M.P.’s testimony, which we assume the jury believed, established Clark’s ready response to the government’s solicitation. See Olkon, 299 N.W.2d at 108. M.P. testified that when he initially contacted Clark to purchase cocaine, Clark responded that, although he could not get cocaine, he could get a different drug. Clark and M.P. readily 3 Clark frames the issue as one of first impression: whether evidence of past convictions, absent other evidence of ready willingness to commit the crime, is sufficient to establish a defendant’s predisposition. He correctly asserts that this court has held that a finding of predisposition cannot rely on a twenty-year-old conviction alone. Johnson, 511 N.W.2d at 755 (“Otherwise, anyone ever involved with drugs would—for entrapment purposes— be forever ‘predisposed’ to sell drugs.”) Though Minnesota precedent does not address the sufficiency question that Clark raises, we need not reach it given the remaining evidence that establishes Clark’s predisposition. 6 exchanged calls and text messages; it was not a one-sided conversation. Clark texted M.P. a picture of the methamphetamine before completing the sale, showing that he had ready access to large quantities of methamphetamine. And Clark produced the methamphetamine shortly after M.P. requested it. Finally, despite Clark’s testimony that he had been sober since 2007, and no longer dealt cocaine, he retained an entire ounce of methamphetamine from the sale, which the police found in a purse in his car after his arrest. This additional ounce of methamphetamine resulted in the second-degree possession charge. This evidence, considered in its entirety, is sufficient to establish that Clark was predisposed to commit the offense before being solicited to sell drugs. Accordingly, Clark did not prove the defense of entrapment, and the jury properly convicted him of both charges. Affirmed. 7	{ "pile_set_name": "FreeLaw" }
7 So.3d 1288 (2009) STATE of Louisiana, Plaintiff-Applicant, v. Cornelius Dangelo SIMS, Defendant-Respondent. No. 44,123-KW. Court of Appeal of Louisiana, Second Circuit. April 15, 2009. 1289 Peter R. Flowers, Shreveport, for Defendant-Respondent. Paul J. Carmouche, District Attorney, John F. McWilliams, Jr., Jason T. Brown, Assistant District Attorneys, for Plaintiff-Applicant. Before GASKINS, DREW and LOLLEY, JJ. LOLLEY, J. This writ application arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. Cornelius Dangelo Sims was charged by bill of information with possession of marijuana, second offense, in violation of La. R.S. 40:966(E), and illegal carrying of weapons while in possession of a controlled dangerous substance, a violation of La. R.S. 14:95(E). He entered a guilty plea to the marijuana possession charge and was sentenced to serve 18 months at hard labor. Subsequently, the state attempted to prosecute Sims on the pending weapon charge; however, the trial court prohibited it from instituting the prosecution, holding that such a prosecution on the weapons charge would violate Sims' right against double jeopardy. The state then filed the instant supervisory writ. After obtaining the record from the trial court, we placed the matter on the appellate docket for argument and decision. For the following reasons we determine that the writ should be denied, and we affirm the trial court's ruling. FACTS In March 2007, Sims was stopped in his vehicle by police officers. The officers executed a search of his vehicle and discovered 15 grams of marijuana hidden in the center console of the vehicle, several weapons, and a large quantity of cash. As a result, Sims was charged with one count of 1290 possession of marijuana, second offense, and one count of illegal carrying of weapons while in possession of a controlled dangerous substance, violations of La. R.S. 40:966(E) and La. R.S. 14:95(E), respectively. The state entered into an agreement with Sims' trial counsel whereby he would enter a guilty plea to the marijuana possession charge and the illegal carrying of weapon charge would be subject to a jury trial. As per the agreement, Sims pled guilty to the marijuana possession, second offense charge and was sentenced to serve 18 months at hard labor. Later, Sims filed a motion to quash the illegal weapons possession charge on the grounds of double jeopardy, arguing that his possession of marijuana, second offense conviction and sentence was an underlying offense of the illegal weapons possession charge; therefore, double jeopardy precluded the state from prosecuting him on the weapons charge. The trial court ultimately granted relief in favor of Sims, and the state objected to the ruling, filing the instant writ application. DISCUSSION In the instant case, Sims was charged with two crimes: possession of marijuana, second offense, to which he pled guilty (La. R.S. 40:966(E)); and, illegal carrying of a weapon while in possession of a controlled dangerous substance (La. R.S. 14:95(E)). Specifically, the state argues that the weapon charge is not double jeopardy, because the possession of marijuana, second offense adds an additional element-the requirement of a predicate conviction. Double jeopardy provisions protect an accused not only from a second prosecution for the same offense, but also multiple punishments for the same criminal act. U.S. Const. amend. V; La. Const. art. 1, § 15; La. C. Cr. P. art. 591; State v. Knowles, 392 So.2d 651 (La.1980); State v. Blackson, 38,044 (La.App.2d Cir.01/28/04), 865 So.2d 272. The two tests used by Louisiana courts when examining double jeopardy violations are the "distinct fact" or the Blockburger[1] test and the "same evidence test."[2] The Blockburger test determines whether each crime requires proof of an additional fact which the other does not. State v. Blackson, supra. If multiple charges are double jeopardy under Blockburger, then the inquiry need go no further, since the constitutional prohibition against double jeopardy will have been abridged. However, if there is not a finding of double jeopardy under the Blockburger test, then we must look to Louisiana's "same evidence" test to see if the state's greater protection is implicated. The Louisiana definition of double jeopardy test is contained in La. C. Cr. P. art. 596, which states: Double jeopardy exists in a second trial only when the charge in that trial is: (1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or (2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial. (Emphasis added). The "same evidence" test is articulated as this query: if all the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a 1291 defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial. State v. Steele, supra. The "same evidence" test is broader in concept than Blockburger, the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct. State v. Steele, supra. As noted by the Louisiana Supreme Court, "the Double Jeopardy Clause, under both the [Blockburger test] and the `same evidence' test, prevents an offender from being convicted of both a felony murder and the underlying felony. The rationale which supports that rule is the same as that which prevents on offender from being convicted of both the underlying offense for a 14:95(E) violation and the 14:95(E) violation itself." State v. Sandifer, 1995-2226 (La.09/05/96), 679 So.2d 1324, 1329. The state argues that the instant case is distinguished by the fact that the underlying offense was possession of marijuana, second offense, which obviously includes the additional element of the predicate offense. We agree that under the Blockburger test, the firearm charge is not double jeopardy. In fact, Sims concedes that the instant charges would not violate double jeopardy under the Blockburger test because each offense requires an element of proof that the other offense does not, i.e., the existence of a weapon in the case of the illegal weapon charge and a prior drug conviction in the marijuana possession, second offense charge. However, our inquiry does not stop there, for we must consider the "same evidence" test. Notably, the question of whether a subsequent charge is double jeopardy is a difficult one to answer; thus we found it helpful to consider some opinions from the line of opinions that have discussed Louisiana's "same evidence" test for double jeopardy. Our courts have long used the "same evidence" test in contemplating the issue of double jeopardy. Although not referring to the test by name, the Louisiana Supreme Court considered the application early in State v. Augustine, 29 La. Ann. 119 (1877), when the court determined that the defendant could not be tried separately for the theft of a horse after he had already been indicted, tried, convicted and sentenced for the larceny of the wagon which was hitched to the horse. The court would not permit an unlimited number of indictments to be predicated upon an action hinging from a single fact-in Augustine, the theft. Implicit in that holding is that evidence of the theft, the thing taken (the horse and wagon), was required for both crimes. In State v. Bonfanti, 262 La. 153, 262 So.2d 504 (La.1972), the court sustained the defendant's claim of double jeopardy regarding a subsequent charge of indecent behavior with a juvenile stemming from the same conduct for which he had been convicted of simple battery on the same juvenile. In Bonfanti, the court noted that the two charges arose from one occurrence. The evidence used to support the defendant's previous conviction of simple battery was his use of intentional force on the juvenile by putting his hands up her dress. There was no additional evidence to support the subsequent charge for indecent behavior, thus each offense required the same evidence and subsequent prosecution of the second charge was barred as double jeopardy. As noted in State v. Didier, 262 La. 364, 263 So.2d 322, 328 (La.1972), Louisiana's "same evidence" test is based upon whether the actual evidence introduced at the second trial would have supported conviction in the first. There, it was determined that the defendant's subsequent 1292 prosecution for robbery-theft was barred by his earlier malfeasance prosecution and conviction. Interestingly, the Didier court posed the question, "Had the defendant been acquitted in the malfeasance prosecution [the first charge], he was necessarily innocent of the robbery-theft participation [the second charge]." Id. at 327. The court looked to Bonfanti when it considered the case State v. Steele, supra. In Steele, the defendant had originally been charged with reckless driving, D.W.I., and negligent injuring. He pled guilty to D.W.I. and the charge of reckless driving was dismissed. The state then proceeded to prosecute Steele for negligent injuring. When applying the "same evidence" test to the crimes of D.W.I. and negligent injuring, the Supreme Court looked at the definitions of the two crimes, determined that the same evidence would not be required to convict Steele on both charges, and concluded that there was no double jeopardy as to the these two charges. However, when the Steele court applied the "same evidence" test to the charges of reckless driving and negligent injuring it concluded that the evidence to prove the second charge (i.e., negligent injuring), would have been sufficient to convict the defendant of the first charge (i.e., reckless driving). Id. at 1178. Thus, under the "same evidence" test a prosecution of the negligent injuring charge would be a violation against double jeopardy. Further, we note State v. Sandifer, supra. In that case the defendant was charged with possession of marijuana and cocaine and possession of a weapon while in possession of controlled dangerous substance. The defendant pled guilty to possession of marijuana, and subsequently filed a motion to quash the weapon charge. Ultimately, the Louisiana Supreme Court determined that the evidence of the defendant's alleged possession of cocaine, for which he had not been convicted, provided a proper basis to support his prosecution under the weapon charge. Id. at 1330. The evidence of the defendant's possession of marijuana was not required in order to convict him of the weapon offense, because other evidence existed sufficient to support the charge. Additionally, we note that La. C. Cr. P. art. 596 states that double jeopardy exists when the charges is "identical with or a different grade." (Emphasis added). Possession of marijuana, second offense, is a different grade of possession of marijuana, making La.C.Cr. P. art. 596 applicable to this offense. The possession of marijuana, second offense, stands in the same place as the possession of marijuana, and the defendant would be placed twice in jeopardy of the same offense. Notably, we are mindful that this opinion overrules this court's prior opinion in State v. Shrader, 38,327 (La.App. 2nd Cir.09/24/04), 881 So.2d 147. Here, in order to convict Sims of the weapon charge, the state must prove possession of a controlled substance. There was no other substance in this case-only the marijuana for which he pleaded guilty in the possession of marijuana, second offense. Had some other evidence existed in order to support the weapon offense, for example, simultaneous possession of some other controlled substance, there would be no violation against double jeopardy. See State v. Sandifer, supra. Notably, an accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the prohibition against double jeopardy. State v. Nichols, 337 So.2d 1074 (La.1976); State v. Blackson, supra. However, "no person should be punished more than once for the same offense, and that no one should be harassed *1293 by successive prosecutions for a single wrongful act or activity." La. C. Cr. P. art. 596, official revision comment (a) (1966); see also State v. Steele, supra. Here, the one, distinct act the defendant committed, the possession of marijuana, was the determinative factor in a successful prosecution of either offense. Because both offenses against Sims arise from the same course of conduct, prosecution of both would be double jeopardy. Importantly, in this particular case, without the possession of marijuana, either charge would have failed. So considering, we deny the state's writ application and affirm the trial court's ruling in favor of Cornelius Dangelo Sims. AFFIRMED. DREW, J., concurs with written reasons. DREW, J., concurring. Mr. Sims was charged with possession of marijuana, second offense, and illegal carrying of weapons while in possession of the same marijuana. I acknowledge that possession of marijuana, second offense, is a different grade of the crime of possession of marijuana. Consequently, double jeopardy applies under the more extensive analysis currently mandated in Louisiana. The majority and I disagree, however, in its overruling of State v. Shrader, 38,327 (La.App.2d Cir.9/24/04), 881 So.2d 147. In that case, the two crimes were possession with intent to distribute diazepam and illegal carrying of firearms while in possession of the same diazepam. While possession of the drug was a common factor required to prove both charges, neither of the crimes can be considered as merely a different grade of the crime of possession of diazepam. Accordingly, the two crimes faced by Mr. Shrader did not trigger a violation of the Fifth Amendment's protection against double jeopardy. Bottom line: Shrader is distinguishable, and should not be overruled. The application in Louisiana of the straightforward test enunciated by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), would result in more consistent resolution of these double jeopardy claims. NOTES [1] Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). [2] State v. Steele, 387 So.2d 1175 (La.1980).	{ "pile_set_name": "FreeLaw" }
128 Cal.App.3d 981 (1982) 180 Cal. Rptr. 734 THE PEOPLE, Plaintiff and Respondent, v. JOHNNY RAY WILLIAMS et al., Defendants and Appellants. Docket No. 22299. Court of Appeals of California, First District, Division Three. February 22, 1982. 984 COUNSEL Ernest Krause, under appointment by the Court of Appeal, for Defendants and Appellants. George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, William D. Stein, Assistant Attorney General, Herbert F. Wilkinson and Ronald E. Niver, Deputy Attorneys General, for Plaintiff and Respondent. OPINION SCOTT, J. Johnny Ray Williams and David Stone appeal from judgments entered after a jury convicted them of burglary (Pen. Code, § 459). Appellants contend that the court erred when it (1) admitted into evidence a conversation recorded while they sat, under arrest, in a police car; (2) ruled that appellant Williams' robbery prior was admissible for impeachment purposes; and (3) granted the prosecutor's midtrial motion to amend the information. Appellants also contend the prosecutor committed misconduct and their trial counsels were incompetent. We affirm the judgments. The Facts Shortly after midnight, Linda Heath was in the upstairs bedroom of her townhouse. She heard something rustling in her backyard, and a metallic scratching at her living room window. Believing someone was trying to break in, she called police. At the police dispatcher's request, she remained on the line until he told her that police had arrived, and instructed her to let them in. As she went downstairs, she could still hear the metallic scratching. When she opened the door, she saw no one. She quietly closed it, and went back upstairs. The dispatcher then assured her the police had now arrived, and again told her to open the door. As she passed the lighted living room, she saw someone's leg and foot coming through the window. She quickly opened and slammed the door, and ran back upstairs. At about that time, police officers arrived. As they approached the apartment, they saw the door open and slam shut. Because they believed 985 that the person inside was the intruder who would attempt to flee, they took positions in the yard. One officer jumped on top of a fence to gain access to the backyard. He saw appellants crawl out the window. He yelled, "Halt," but they fled across the yard. Within minutes, two deputies found appellant Stone crouched in some nearby bushes; another officer found appellant Williams hiding in a neighbor's yard. The two were placed in the back seat of a patrol car, where their conversation was recorded with a tape recorder which one deputy had left on the front seat. When asked why he left the tape recorder on, the deputy replied, "... to strengthen the case we had." Appellants discussed their efforts to hide, their capture, the effect of the incident on their probation, the possible penalties each faced, and what they would say to police. The tape was played for the jury. Appellant Williams did not testify. Appellant Stone testified that although the two men were together that night, he alone tried to burglarize Heath's home. He tried to force open the window in order to steal money, jewelry, or stereo equipment; he denied that he actually entered the apartment. Admissibility of the Taped Conversation (1a) Appellants attack the admissibility into evidence of their recorded conversation on numerous grounds. First, they contend the trial court should have granted their motion to suppress the tapes in its entirety, because it violated their right to privacy as guaranteed by article I, section 1 of the California Constitution.[1] Appellants contend that the state was required to show a compelling interest in order to justify any infringement of their privacy rights, and that the gathering of evidence is not such a compelling interest. Appellants acknowledge People v. Newton (1974) 42 Cal. App.3d 292 [116 Cal. Rptr. 690], cert. den., 420 U.S. 937 [43 L.Ed.2d 414, 95 S.Ct. 1147] and People v. Todd (1972) 26 Cal. App.3d 15 [102 Cal. Rptr. 539], which held that individuals who had been arrested and placed in the rear of a patrol car had no reasonable expectation of privacy while so confined, and that the recording of their conversations while in the car did not violate their constitutional rights to privacy. (Newton, supra, 41 Cal. App.3d at p. 296; Todd, supra, 986 26 Cal. App.3d at p. 17.)[2] Appellants characterize Newton and Todd as Fourth Amendment cases, however, and contend that a different result is required by California's privacy amendment. (2) The California Supreme Court has consistently declared that in determining whether an illegal search has occurred under article I, section 13 of our Constitution, the appropriate test is whether a person has exhibited a reasonable expectation of privacy, and if so, whether that expectation has been violated by unreasonable governmental intrusion. (People v. Blair (1979) 25 Cal.3d 640, 646, 651-652 [159 Cal. Rptr. 818, 602 P.2d 738]; Burrows v. Superior Court (1974) 13 Cal.3d 238, 243 [118 Cal. Rptr. 166, 529 P.2d 590]; People v. Hill (1974) 12 Cal.3d 731, 764 [117 Cal. Rptr. 393, 528 P.2d 1], overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5 [135 Cal. Rptr. 786, 558 P.2d 872]; People v. Triggs (1973) 8 Cal.3d 884, 891 [106 Cal. Rptr. 408, 506 P.2d 232], disapproved on other grounds in People v. Lilienthal (1978) 22 Cal.3d 891, 896, fn. 4 [150 Cal. Rptr. 910, 587 P.2d 706]; North v. Superior Court (1972) 8 Cal.3d 301, 308 [104 Cal. Rptr. 833, 502 P.2d 1305]; see also In re Deborah C. (1981) 30 Cal.3d 125, 136 [177 Cal. Rptr. 852, 635 P.2d 446].) In contrast, when generally discussing the right of privacy declared in article I, section 1, the court has also said that intrusion into that right must be justified by a "compelling interest." (Loder v. Municipal Court (1976) 17 Cal.3d 859, 864 [132 Cal. Rptr. 464, 553 P.2d 624], cert. den., 429 U.S. 1109 [51 L.Ed.2d 562, 97 S.Ct. 1143]; White v. Davis, supra, 13 Cal.3d at p. 775.) The interface between these two analytical frameworks has yet to be definitively explained by the Supreme Court.[3] (See Kornhauser, Privacy: The New Constitutional Language and the Old Right (1976) 64 Cal.L.Rev. 347.) In that regard, in the context of a conversation between two arrestees recorded in a police station interview room, this court has concluded that the distinction between what is "reasonable" under the Fourth Amendment and what is "compelling" under article I, section 1, is nonexistent. (People v. Owens (1980) 112 Cal. App.3d 441, 448 [169 Cal. Rptr. 359]; but see conc. opn. by White, P.J., at p. 450.) 987 However, we need not explore that distinction in this case, because we believe that the constitutional amendment did not alter the fundamental rule that an individual's expectation of privacy must be objectively reasonable before he can complain of any intrusion. (People v. Dominguez (1981) 121 Cal. App.3d 481, 505 [175 Cal. Rptr. 445]; People v. Estrada (1979) 93 Cal. App.3d 76, 98 [155 Cal. Rptr. 731]; see Armenta v. Superior Court (1976) 61 Cal. App.3d 584, 588 [132 Cal. Rptr. 586]; see also In re Deborah C., supra, 30 Cal.3d at p. 135.) (1b) Accordingly, we conclude that appellants had no objectively reasonable expectation of privacy when they conversed in the back seat of the patrol car after being taken into custody.[4] (People v. Jardine, supra, 116 Cal. App.3d 907; People v. Newton, supra, 42 Cal. App.3d 292, and People v. Todd, supra, 26 Cal. App.3d 15.) The motion to suppress was properly denied. (3) Appellants then contend that the admission of the tape violated the rule stated in People v. Aranda (1965) 63 Cal.2d 518 [47 Cal. Rptr. 353, 407 P.2d 265], because in it, each made statements incriminating the other. Appellants' reliance on Aranda is misplaced. That case involves the admissibility of an extrajudicial statement of one defendant made to a third party and implicating a codefendant. The extrajudicial statement here is a conversation between the two codefendants, and was admissible against each under the adoptive admission exception to the hearsay rule. (Evid. Code, § 1221; People v. Preston (1973) 9 Cal.3d 308, 313-314 [107 Cal. Rptr. 300, 508 P.2d 300]; People v. Osuna (1969) 70 Cal.2d 759, 765 [76 Cal. Rptr. 462, 452 P.2d 678].) Appellants also contend that the taped statement was admitted in violation of their Miranda rights, a contention utterly without merit. The procedural safeguards set forth in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974] come into play only where custodial interrogation is involved. Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody. Absent evidence of complicity on the part of law enforcement officers, the admissions or statements of a defendant to a private citizen infringe no constitutional guarantees. (In re Eric J. (1979) 25 Cal.3d 522, 527 [159 Cal. Rptr. 317, 601 P.2d 549].) 988 (4a) Finally, appellants contend that the court abused its discretion when it refused to excise those portions of the taped conversation in which they expressed concern about possible probation revocations. Appellants contend that this evidence was of limited probative value, and was unduly prejudicial, particularly because the jury was thereby permitted to speculate about the nature of their prior offenses. (5) Evidence of crimes other than those for which a defendant is being tried is admissible if relevant to prove a material fact, such as identity. (Evid. Code, § 1101, subd. (b).) However, because such evidence is prejudicial, its admissibility must be scrutinized carefully. (People v. Thompson (1980) 27 Cal.3d 303, 314 [165 Cal. Rptr. 289, 611 P.2d 883].) Even if relevant, if evidence of other crimes is merely cumulative with respect to other evidence which the People may use to prove the same issue, it is excluded under a rule of necessity. (Id., at p. 318.) (4b) Here the court stated that appellants' references to their status as probationers tended to establish their consciousness of guilt, from which their identity as the burglars could be inferred. However, the evidence about how appellants attempted to flee and appellants' own remarks about what story they should give to police also tended to establish consciousness of guilt. Accordingly, their remarks alluding to their prior offenses were cumulative and should have been excluded. Nevertheless, in light of the overwhelming evidence against appellants, there is no reasonable probability that the jury would have reached a different result if the error in admitting this evidence had not occurred. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Admissibility of the Prior Conviction for Impeachment (6) Appellant Williams contends the trial court erred when it ruled that if he testified, he could be impeached with his 1976 robbery conviction.[5] While Evidence Code section 788 authorizes the use of a prior felony conviction to impeach, such evidence must be excluded if its probative value is outweighed by the risk of undue prejudice. (People v. Beagle (1972) 6 Cal.3d 441, 453 [99 Cal. Rptr. 313, 492 P.2d 1].) In deciding whether to admit a prior, the trial court must first determine 989 its probative value by assessing both the relevance of the prior to honesty and veracity, and its remoteness. When weighing these factors against the possible prejudice, the court must consider the similarity of the offense to the crime charged, and the adverse effect on the administration of justice should the defendant elect not to testify for fear of impeachment. (People v. Fries (1979) 24 Cal.3d 222, 226-228 [155 Cal. Rptr. 194, 594 P.2d 19].) Appellant's four-year-old robbery prior was recent enough to be probative (see People v. McFarland (1980) 108 Cal. App.3d 211, 215-216 [166 Cal. Rptr. 429]), and a robbery prior has some relevance to credibility. (Fries, supra, 24 Cal.3d at p. 229.) The crime was not identical to that charged. (Cf. id., at pp. 230-231.) While appellant did not testify, the jury was not deprived of hearing his defense, as appellant Stone testified that he alone committed the burglary, and that appellant Williams did not participate. We find no abuse of discretion. Amendment of the Information Appellants were initially charged with burglary, in that they entered Heath's dwelling with the intent to commit theft. Among their recorded remarks was the phrase, "[unintelligible] an' we gonna get money or get crack." During the prosecution's case, a sheriff's deputy testified that "get crack" could have referred to sexual intercourse. At the conclusion of the People's case, the prosecutor moved to amend the information to add, "with intent to commit theft or other felony," on the ground that the implication of the remark was that appellants may have intended to commit some kind of sexual assault. The trial court permitted the amendment, after concluding that appellants would not be prejudiced thereby. Appellants now contend that the trial court erred, but fail to establish that permitting the amendment impaired their ability to defend against the charges. Penal Code section 1009 authorized the court to allow such an amendment, and no abuse of the court's discretion has been established. Prosecutor's Misconduct (7) Appellants contend the prosecutor committed misconduct during argument by (1) stating that appellants had "terrified" Linda Heath, 990 thereby arousing the passion and prejudice of the jury; (2) mentioned appellant Williams' decision not to testify; and (3) referred to the penalty which appellants might receive. Appellants did not object at trial to the first two comments. Assuming only for the sake of argument that these comments amounted to misconduct, any adverse impact could have been cured by a timely objection and admonition. Accordingly, appellants' failure to object is deemed a waiver of their right to challenge these comments on appeal. (People v. Green (1980) 27 Cal.3d 1, 34 [164 Cal. Rptr. 1, 609 P.2d 468].) Furthermore, the first comment was clearly not misconduct. As to the second comment, the district attorney told the jury not to speculate as to why Williams did not testify. The comment was a proper recourse to defense counsel's discussion of why Williams failed to testify.[6] The prosecutor's reference to penalty was improper. However, the court admonished the jury to disregard that remark, and we presume the jury heeded that instruction. (See People v. Romo (1975) 14 Cal.3d 189, 195 [121 Cal. Rptr. 111, 534 P.2d 1015]; People v. Hernandez (1970) 11 Cal. App.3d 481, 491 [89 Cal. Rptr. 766].) Ineffectiveness of Counsel Appellants both contend that they were denied effective assistance of counsel. We disagree. Appellant Stone contends his counsel failed to discuss the case with him prior to trial. However, appellant omits significant facts. He raised this allegation below and requested another attorney; the court questioned trial counsel, who denied the allegation, and appellant eventually withdrew his request. Appellant Williams complains that his lawyer conceded in closing argument that another burglar may have been in Heath's apartment with Stone. However, appellant takes that comment out of context. Counsel acknowledged the testimony that two men climbed out the window, but then argued that Williams was misidentified as one of the two. Appellants have failed to establish that any acts or omissions of counsel deprived them of any potentially meritorious defense. (People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal. Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) 991 Judgments are affirmed. White, P.J., and Barry-Deal, J., concurred. NOTES [1] In 1972, California voters amended article I, section 1 to include among the various "inalienable" rights the right of privacy. The amendment was reworded in November 1974. (White v. Davis (1975) 13 Cal.3d 757, 773, fn. 9 [120 Cal. Rptr. 94, 533 P.2d 222].) [2] Relying on Newton, the court in People v. Jardine (1981) 116 Cal. App.3d 907 [172 Cal. Rptr. 408] recently reached the same conclusion. (Id., at p. 914.) It is unclear, however, whether the court considered the question raised by appellants here. [3] We note that the Supreme Court is presently considering cases involving the privacy rights of jail inmates. (People v. Maxie (Crim. 21556, hg. granted July 16, 1980); Robinson v. Superior Court (S.F. 24185, hg. granted June 25, 1980); De Lancie v. Superior Court (1982) 31 Cal.3d 865 [83 Cal. Rptr. 866, 647 P.2d 142].) We anticipate that the court's decisions in these cases will clarify the relationship between the two tests. [4] We note that a related, though not identical, question is now before the Supreme Court in People v. Crowson (1983) 33 Cal.3d 623 [190 Cal. Rptr. 165, 660 P.2d. 389]. [5] The court also ruled that appellant's 1976 and 1978 burglary priors were inadmissible. [6] We note that the trial court did instruct the jury that it could not speculate as to why appellant did not testify.	{ "pile_set_name": "FreeLaw" }
20 Mass. App. Ct. 726 (1985) 482 N.E.2d 859 EDWARD W. PEAK & another[1] vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY. Appeals Court of Massachusetts, Suffolk. May 13, 1985. September 10, 1985. Present: DREBEN, KAPLAN, & SMITH, JJ. Karen M. Thursby for the plaintiffs. Paul J. Dolan for the defendant. DREBEN, J. The questions before us are: (1) When does postjudgment interest begin to run when a judgment is affirmed on appeal? (2) What is the proper rate of such interest prior to the 1983 amendment of G.L.c. 235, § 8?[2] A judge of the 727 Superior Court, by allowing the defendant's motion to correct the certificate of judgment, ruled that the rate of six percent applied from the original date of entry of judgment in the trial court. We affirm. After the jury returned verdicts for the plaintiffs on November 4, 1982, in an action for personal injury and consequential damages, judgments were entered on November 5, 1982, "with interest thereon" from the date of the commencement of the action, that is, August 4, 1977. The defendant appealed, and interest was not computed until the termination of its unsuccessful appeal. On January 3, 1984, "judgment[s] for plaintiffs after rescript" were entered. In computing interest, the clerk of court used the rate of twelve percent for the period from the commencement of the action to January 3, 1984. While the defendant agreed that twelve percent was the proper rate prior to the verdicts, see G.L.c. 231, § 6B, note 5, infra, it claimed that G.L.c. 235, § 8 (and an interest rate of six percent), rather than the twelve percent rate of c. 231, § 6B, applied thereafter.[3] The defendant filed a motion to correct the certificate of judgment to conform with its contention.[4] The motion was allowed, and this appeal by the plaintiffs ensued. 728 1. Rate of interest. Prior to 1974, neither G.L.c. 231, § 6B, the statute providing for prejudgment interest, see note 5, infra, nor G.L.c. 235, § 8, providing for postjudgment interest, see note 2, supra, specified the governing rate of interest. As a result, the interest in each statute was determined by G.L.c. 107, § 3, which established a rate of six percent "[i]f there is no agreement or provision of law for a different rate." Although G.L.c. 231, § 6B, was amended in 1974 to provide a higher rate of interest,[5] G.L.c. 235, § 8, was left unchanged, and, hence, the rate of interest remained at six percent until the 1983 amendment (see note 2, supra). The plaintiffs claim that Perkins School for the Blind v. Rate Setting Commn., 383 Mass. 825, 835-836 (1981), supports the use of a twelve percent rate for postjudgment interest. That case is, however, inapposite, as it concerned only prejudgment interest. The court here held that, since G.L.c. 231, § 6C, specified a rate of interest, G.L.c. 107, § 3, was inapplicable. Our conclusion that a six percent rate is applicable is in accord with the interpretation given G.L.c. 231, § 6B, and c. 235, § 8, by the First Circuit. In Elias v. Ford Motor Co., 729 734 F.2d. 463, 467 (1st Cir.1984), the court held that G.L.c. 231, § 6B, applies only to prejudgment interest and that G.L. 235, § 8, governs postjudgment interest. We hold, as did that court at 468, that "[a]bsent any explicit statutory provision setting the rate of interest for the post-judgment period, the [Superior Court judge] properly applied the legal rate of interest ... fixed at 6% by [G.L.c.] 107, § 3." 2. Commencement of postjudgment interest. Under the Massachusetts Rules of Civil Procedure, see Mass.R.Civ.P. 54(a), 365 Mass. 820 (1974), the term "postjudgment" means after the entry of judgment in the trial court and not, as urged by the plaintiffs, the judgment after rescript. Unlike the practice under prior law, judgment is the "final adjudicating act of the trial court" (emphasis supplied). Stokosa v. Waltuch, 378 Mass. 617, 619-620 (1979). See, as to practice under prior law, R.H. White Realty Co. v. Boston Redevelopment Authy., 371 Mass. 452, 455 (1976). Thus, where a judgment is affirmed on appeal, the date of judgment is the date judgment originally entered in the trial court. See Stokosa, supra at 619-620. See also Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 273 (1985) (where a judgment was affirmed, "[t]he appellate process did not alter the judgment ..."). The rescript of this court upholding the judgment of the Superior Court carried with it an allowance of postjudgment interest under G.L.c. 235, § 8, from the date of entry of judgment in the Superior Court. See J.J. Struzziery Co. v. A.V. Taurasi Co., 342 Mass. 113, 114-115 (1961). We recognize that in Frank D. Wayne Assocs. v. Lussier, 394 Mass. 619, 620-623 (1985), a computation of interest was made at the rate provided by G.L.c. 231, § 6C, rather than the postjudgment rate provided by c. 235, § 8, for the period between the date judgment originally entered in the trial court and the date judgment entered after affirmance and rescript. In that case, however, it does not appear that any claim was made that postjudgment interest should be computed from the 730 date of entry of judgment in the trial court rather than from the date of judgment after rescript.[6] Judgments affirmed. NOTES [1] William Peak, a minor. The action was brought on his behalf by his father, Edward W. Peak. [2] Prior to its 1983 amendment, G.L.c. 235, § 8 (as appearing in St. 1973, c. 1114, § 219), as here relevant read: "When judgment is rendered upon an award of county commissioners, a committee or referees, or upon the report of an auditor or master, or upon the verdict of a jury or the finding of a justice, interest shall be computed upon the amount of the award, report, verdict or finding, from the time when made to the time the judgment is entered. Every judgment for the payment of money shall bear interest from the day of its entry." As amended by St. 1983, c. 652, § 2, the second sentence of G.L.c. 235, § 8, now reads: "Every judgment for the payment of money shall bear interest from the day of its entry at the same rate per annum as provided for prejudgment interest in such award, report, verdict or finding." This amendment did not become effective until after the entry of the judgment after rescript in this case. [3] The original judgments were entered in the trial court one day after the jury verdicts were returned. No question has been raised as to: (1) the rate of interest applicable for that day, see first sentence of G.L.c. 235, § 8, note 2, supra; or (2) when interest begins to run on the sum of the verdict plus interest thereon. See R.H. White Realty Co. v. Boston Redevelopment Authy., 371 Mass. 452, 455-456 (1976). [4] On January 6, 1984, five days prior to the filing of the defendant's motion, the parties stipulated that payments would be made in the amounts which were undisputed and that the parties would submit to the court the question whether any additional sums were due. The calculations are not explained, but the figures suggest that the undisputed sums represent in each case: (a) the amount awarded by the jury; (b) interest on that amount from August 4, 1977, to November 5, 1982, at the rate of twelve percent; and (c) interest at six percent on the sum of (a) plus (b) from November 5, 1982, to the date of payment in January, 1984. See Boston Edison Co. v. Tritsch, 370 Mass. 260, 263 (1976). [5] General Laws c. 231, § 6B, was amended in 1974 to provide for an eight percent rate and, thereafter, was amended to provide other increases in the rate. As amended by St. 1982, c. 183, § 2, G.L.c. 231, § 6B, provides in relevant part: "In any action in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal injuries to the plaintiff or for consequential damages ... there shall be added by the clerk of the court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action...." [6] Lussier, supra at 622, held that any error as to interest which could have been but was not raised on appeal may not be corrected by the trial court after the affirmance of the judgment by an appellate court. This is so because the affirmance encompassed any award of prejudgment interest. A claim as to the rate of interest for a period after the original judgment (postjudgment interest), however, arises after the appellate process is completed, and, hence, would not be barred under the Lussier holding. Since the court in Lussier, at 622, pointed out that the errors claimed on appeal "are not in any way distinct from any errors that the parties could have raised in the initial appeal," we can infer that no claim as to postjudgment interest was made. An examination of the record on appeal and the briefs confirms this conclusion.	{ "pile_set_name": "FreeLaw" }
13 Cal.App.3d 70 (1970) 91 Cal. Rptr. 446 C.R.W., a Minor, etc., Plaintiff and Appellant, v. VERNE ORR, as Director, etc., Defendant and Appellant. Docket No. 12212. Court of Appeals of California, Third District. November 24, 1970. 71 COUNSEL Warmke & Konig and Richard W. Konig for Plaintiff and Appellant. Thomas C. Lynch, Attorney General, and G.A. Strader, Deputy Attorney General, for Defendant and Appellant. OPINION PIERCE, P.J. Respondent Director of the Department of Motor Vehicles ("Department"), appeals from a judgment entered July 3, 1968, granting 72 a peremptory writ of mandate in a proceeding which challenged the validity of the Department's revocation of C.R.W.'s driver's license pursuant to Vehicle Code section 13355[1] and from the writ itself.[2] C.R.W. is a minor. Through his guardian ad litem he appeals from a portion of the writ. The writ commanded the Department to revoke an order of revocation of C.R.W.'s driver's license and to reinstate the license; also to strike from its files any reference to his alleged violation of Vehicle Code sections 23101 or 23102. The minor's appeal seeks to have us declare section 13355 unconstitutional as applied to minors in that it is unconstitutional under the Fourteenth Amendment of the United States Constitution. We will reverse the judgment for reasons stated below. On or about July 9, 1967, C.R.W. was involved in a motor vehicle accident. The charge, violation of Vehicle Code section 23101 (felony drunk driving), was certified to the Juvenile Court of Sacramento County. There, after trial in which he was represented by counsel, it was found that he had violated Vehicle Code section 23102 (misdemeanor drunk driving), and he was placed on probation for a period of six months. The juvenile court, under Vehicle Code sections 1816 and 13355, forwarded an abstract of judgment to the Department. It showed that C.R.W. had been found to have committed the offense of misdemeanor drunk driving as stated. On the reverse side of the form there was a notation, apparently written by the clerk of the juvenile court, to the effect that the juvenile court judge recommended to the Department that the minor's driving privilege and license not be revoked or suspended. (The juvenile court judge had directed that recommendation.) No appeal was taken from that order. On October 17, 1967, the Department issued its order of revocation of the minor's license. No hearing was afforded. (1) This mandamus proceeding was commenced on April 26, 1968, and a hearing was had with the result recited above. In argument, an attempt is made to challenge the proceedings in the Sacramento County Juvenile Court. 73 This is neither an appeal from, nor a petition for, a writ affecting those proceedings. We must assume that the juvenile court found under sufficient evidence that the minor had violated Vehicle Code section 23102 and that it had jurisdiction over the minor. It is not argued that the Department did not have before it an abstract sufficient in form. We hold that the Department is neither obligated nor authorized to review the factual and procedural background of abstracts filed with it as this one was filed. Vehicle Code section 13355 vests no discretion in the Department. Revocation is made mandatory upon receipt of a report from a juvenile court that the minor has committed one of the offenses enumerated therein. "Operating a vehicle while ... under the influence of intoxicating liquor" is one of such offenses. (See fn. 1.) The operative words of the condition precedent to the order of revocation under section 13355 are "who has been found by a judge of the juvenile court to have committed...." It was neither alleged nor shown nor is it here contended that that condition was not satisfied. The uncontradicted facts are to the contrary. No exercise of discretion was involved and no hearing was provided. A method of review for the purposes of testing the validity of the Department's act was available. Mandamus would have been available for the purpose of showing that the Department did not have before it that which the law prescribes as the only condition to the action it took. But that was the limit of its right. The minor was not entitled to an administrative hearing. (See Thomas v. Department of Motor Vehicles (1970) 3 Cal.3d 335 [90 Cal. Rptr. 586, 475 P.2d 858]; Hough v. McCarthy (1960) 54 Cal.2d 273, 285-287 [5 Cal. Rptr. 668, 353 P.2d 276]; People v. O'Rourke (1932) 124 Cal. App. 752, 757-759 [13 P.2d 989], hg. den.; Cook v. Bright (1962) 208 Cal. App.2d 98, 101-103 [25 Cal. Rptr. 116]; Houlihan v. Department of Motor Vehicles (1970) 3 Cal. App.3d 915, 918-919 [83 Cal. Rptr. 885].) The minor had had a right to appeal to this court from the juvenile court's order. (Welf. & Inst. Code, § 800.) Upon a sufficient showing he could have sought an extraordinary writ directed to the juvenile court. He did not elect either of these courses. From the foregoing it follows that the San Joaquin County Superior Court's judgment ordering a writ of mandamus to issue against the Department was without jurisdiction. For the same reason the "recommendation" of the Sacramento County Superior Court set forth on the back of the abstract was a nullity and properly treated as such by the Department. (2) No one doubts, as the minor contends, that juveniles have constitutional 74 rights and are entitled to due process. (Kent v. United States (1966) 383 U.S. 541 [16 L.Ed.2d 84, 86 S.Ct. 1045]; Re Gault (1967) 387 U.S. 1 [18 L.Ed.2d 527, 87 S.Ct. 1428].) But in the appeal before this court the minor does not point out and we do not perceive any aspect in which the provisions of Vehicle Code section 13355 are, as to minors, violative of due process. The proceedings before the juvenile court are not before us. The appeal from the writ is dismissed (see fn. 2). The judgment appealed from is reversed with directions to the trial court to deny the petition, vacate the writ issued and dismiss the proceedings. Defendant is to recover costs. Friedman, J., and Janes, J., concurred. NOTES [1] Section 13355 provides in relevant part: "The department shall revoke the privilege of any person to operate a motor vehicle who has been found by a judge of the juvenile court to have committed any of the following offenses: ".... .... .... .... . "(b) Operating a vehicle while a habitual user of narcotic drugs or while under the influence of intoxicating liquor or narcotic drugs. ".... .... .... .... . "Each judge of a juvenile court shall immediately report such findings to the department." [2] No appeal lies from a peremptory writ of mandate issued pursuant to a judgment. (Code Civ. Proc., § 904.1; DeMartini v. Department of Alcoholic Beverage Control (1963) 215 Cal. App.2d 787, 794 [30 Cal. Rptr. 668], hg. den.) Accordingly, the attempted appeal therefrom must be dismissed.	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Maxine Adams and Cecil Adams v. Rebecca Ross Appellate case number: 01-11-00552-CV Trial court case number: 1012207 Trial court: 269th District Court of Harris County On June 30, 2014, Appellee, Rebecca Ross, filed her Emergency Motion for Judgment on Distribution of Funds in the Court Registry. The motion is DENIED. Our plenary power has expired. “Generally, after the term in which we render a judgment expires, we lack plenary power to correct or alter that judgment, except for ministerial acts consistent with the judgment.” Whitmire v. Greenridge Place Apts., 333 S.W.3d 255, 260 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d) (citing Mapco, Inc. v. Forrest, 795 S.W.2d 700, 702 (Tex. 1990) (orig. proceeding)); see also TEX. R. APP. P. 19.3 (“After its plenary power expires, the court cannot vacate or modify its judgment.”). “Even after our plenary power expires, however, we retain the ability to correct clerical errors in our judgments and opinions, issue and recall our mandates, and enforce or suspend enforcement of our judgments.” Id. at 260–61. TEX. R. APP. P. 19.3(a)–(c). We decline to recall our mandate. On May 20, 2014, the Honorable Dan Hinde issued an order in the trial court denying several motions: 1. Rebecca Ross’s Motion to Release Deposit and Release Judgment, 2. Harris County District Clerk’s Motion to Release Funds and Motion for Instruction, 3. Cecil Adam’s Request to Release Funds, and 4. Court Reporter Kathleen Keese’s oral request for funds. In his order, Judge Hinde indicated the proper avenue for the parties to address the distribution of funds from the court’s registry was to either file their motions with this Court, or to file common law actions. Judge Hinde cites to two cases in his order, Muniz v. Vasquez, 797 S.W.2d 147, 150-151 (Tex. App.—Houston [14th Dist.] 1990, no writ) and Whitmire, 333 S.W. at 261. The case before us, however, is distinguishable in that the Adamses were the prevailing party in the trial court, yet nevertheless decided to appeal, and it was the appellee, Ross, who deposited funds with the trial court clerk in lieu of filing a surety bond. In our judgment, costs were taxed against Maxine Adams, not Ross. It would not, therefore, be logical to tax costs against the funds on deposit with the trial court clerk because Ross, the depositor of the funds, has no responsibility to pay the costs. Accordingly, there is no error in our judgment, and we decline to recall our mandate. Ross has further asked both the trial court, and now this Court, to issue an order distributing a portion of the funds in the registry to enforce a judgment she won against the Adamses in a wholly separate cause of action. Ross has cited to no authority showing either the trial court or this Court have jurisdiction to do this. Under Texas Rules of Appellate Procedure 4.1(c)(3), (d); 43.2; and 43.4, we have authority to tax costs and to render judgment against parties, sureties, and the court registry. Ross has cited to no authority, however, indicating we have authority to direct how funds released from the court registry are to be divided. The disputes among the parties to this appeal (the Adamses and Ross) and the claimants (the courts and court reporter), may be resolved through common law actions if the parties are not able to agree to a distribution of the money in accordance with TEX. R. APP. P. 24.1(c)(3). It is so ORDERED. Judge’s signature: /s/ Harvey Brown X Acting individually  Acting for the Court Date: July 31, 2014	{ "pile_set_name": "FreeLaw" }
723 N.W.2d 865 (2006) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andrew Scott TACKEBURY, Defendant-Appellant. Docket No. 132147. COA No. 270858. Supreme Court of Michigan. November 29, 2006. On order of the Court, the application for leave to appeal the August 4, 2006 order of the Court of Appeals is considered, and it is DENIED, because the defendant's motion for relief from judgment is prohibited by MCR 6.502(G).	{ "pile_set_name": "FreeLaw" }
242 B.R. 5 (1999) In re Michael V. DOWNEY and Barbara E. Downey, Debtors. Louis W. Palmer and Marilyn J. Palmer Plaintiffs, v. Michael V. Downey and Barbara E. Downey, Defendants. Bankruptcy No. 98-20075. Adversary No. 98-6128. United States Bankruptcy Court, D. Idaho. October 28, 1999. 6 7 8 Bruce A. Anderson, Elsaesser Jarzabek Anderson & Marks, Sandpoint, Idaho, for Plaintiffs. Daniel P. O'Rourke, Southwell & O'Rourke, Spokane, Washington, for Defendants. MEMORANDUM OF DECISION, FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND ORDER TERRY L. MYERS, Bankruptcy Judge. Plaintiffs Louis and Marilyn Palmer ("Palmers") seek to deny the discharge of debtors Michael and Barbara Downey ("Downeys" or "Debtors") pursuant to § 727(a)(4) of the Code. Trial having been held, and the Court having evaluated the evidence submitted at trial and the arguments of the parties, this decision constitutes the Court's findings of fact and conclusions of law. Fed.R.Bankr.Proc. 7052. BACKGROUND The Palmers timely filed a complaint objecting to entry of discharge. The sole cause of action asserted is under § 727(a)(4)(A), which provides: (A) The court shall grant the debtor a discharge, unless . . . (4) the debtor knowingly and fraudulently, in or in connection with the case (A) made a false oath or account [.] The Palmers allege that the Downeys' schedules and statements filed with the Court were materially, knowingly and fraudulently false in seven separate regards. The Palmers allege the Downeys: (1) failed to disclose their interest in "Downey LLC;" (2) failed to disclose their interest in or ownership of "Downey Transportation Services;" (3) failed to disclose as an asset a $40,000 retirement account; (4) failed to disclose property received from B & M Trucking, Inc.; (5) failed to disclose the true value of the stock of "Loftin Agencies;" (6) failed to disclose an interest in a $10,000 bond, including an allegedly refundable premium paid for that bond; and 9 (7) failed to disclose a debt to Herbert Loftin of $ 6,000. Two related issues were tried. These were not issues identified in the pleadings, but the Court concludes that they relate sufficiently to the issues of nondisclosure pleaded that the Debtors' objection to considering them in this litigation shall be denied. They were that the Downeys failed to disclose transfers, in the period shortly preceding filing, of assets to "Denominator Enterprises, Inc." (an entity composed of Mrs. Downey's brothers), and that the Downeys failed to accurately disclose their income and expenses on schedules I and J. FINDINGS OF FACT A. The Palmers' claims The Palmers owned and ran a trucking operation, B & M Trucking, Inc., dba Kootenai Valley Trucking ("B & M") in northern Idaho. Michael Downey worked for the Palmers for about one and one-half years when, in May 1997, the Downeys entered into an agreement to buy out the Palmers. The Downeys' obligations of $235,000 for the business assets of B & M, acquired by way of buying the stock of that entity, and $150,000 for the acquisition of the business' real estate were secured by the stock and real estate, respectively. The Downeys were also obligated to pay the Palmers $100,000 for a non-competition covenant; this debt was unsecured. Collectively, payment amounted to $3,900 per month. The Palmers' secured claims were contractually subordinated to the Downeys' SBA-guaranteed debt to Mountain West Bank.[1] The transaction closed in June 1997 but, by October of that year, the Downeys had ceased making payments to the Palmers on all but one note, and soon ceased paying it as well. The bulk of the assets of B & M were surrendered to lenders (other than the Palmers) in early 1998, and have been liquidated. The Palmers were substantial creditors of the Downeys when the chapter 7 petition was filed on February 4, 1998. The Palmers' claim was large enough, and the impact on them from the Downeys' defaults significant enough, that they had reason to review the bankruptcy filing with care. In doing so, they discovered what they believed to be numerous errors and omissions. B. Herbert Loftin Herbert Loftin owned and operated as a sole proprietorship Loftin Agencies, a freight brokerage business, for many years until September 1993 when he sold it to the Downeys. The purchase price was $80,000 of which $40,000 was allocated to the customer list and good will, $10,000 to hard assets, and $30,000 to Loftin's covenant not to compete. Loftin, in this transaction, transferred his ICC operating authority to Downey. No specific portion of the purchase price was allocated to the authority. The Downeys, in August, 1995, incorporated Loftin Agencies, Inc. The authority was not transferred to the corporation, and was at all material times held by Michael Downey personally. The authority was disclosed on schedule B, and given a value of $300, and it was also claimed by the Downeys on their schedule C as exempt. Loftin's debt was serviced through an escrow account. The Downeys remained current (for the most part) on this debt. They did not list the obligation to Herbert Loftin in the bankruptcy, though they did list a number of other Loftin Agencies-related debt. C. Loftin Agencies, Inc. The Downeys disclosed their 100% ownership of Loftin Agencies, Inc. in their 10 schedule B. They asserted this stock, and thus the corporation, had no value. The book and tax values of the corporation as of December 31, 1997, as established by the Downeys' accountant, Michael Bibin, reflect an equity value of approximately $41,000. While these equity figures exclude accounts receivable and accounts payable (because the books were kept, and taxes paid, on a cash rather than accrual basis), the net effect of inclusion of receivables and payables, according to the evidence, would still yield a positive equity value. Tom Richardson, a CPA hired by the Palmers, evaluated the financial records of Loftin Agencies. His testimony, and those records, support the conclusion that there was a value to the ownership of this corporation. He calculated $55,000.00 of equity existed in this corporation as of the date of the bankruptcy filing. This is consistent with tax and book values as of year-end 1997. There was no proof that events occurring in the 35 days following the year-end rendered the corporation worthless. The Downeys however allege that a "zero" value was reasonable based on their "balance sheet approach" to the corporation which, they assert, takes into consideration a guaranty by Loftin Agencies, Inc. of B & M debt. Though a Loftin Agencies' guaranty of B & M debt to Mountain West Bank existed, the alleged impact of this contingent liability, i.e., that it eliminated any net equity value in Loftin Agencies, was not proven. Loftin Agencies also had value in its customer lists. The value of that asset, over time, may have varied from the amount ascribed to it in the 1993 purchase agreement. But customer lists, along with an ICC authority and a phone, form the basis of a brokerage business. There is substantial similarity in the customer lists used pre-bankruptcy by Loftin Agencies and immediately post-bankruptcy by the Downeys. On January 21, 1998, the Downeys leased the Loftin-related but personally held ICC authority needed for operating a brokerage. The lease was to Denominator Enterprises, Inc., a business operated by the Zarownys (Mrs. Downey's brothers). The lease was for $595, and was open-ended, without stated term. There was no reasoned basis for the amount charged for the lease. Nor was there an explanation why the value of the authority, at the time of filing, was one-half of this lease amount. At approximately the same time as the transfer to Denominator of the ICC authority, the Downeys caused Loftin Agencies to sell its accounts receivable at 50% of face value to Denominator. Downey testified, in support of the bona fides of this sale to Denominator, that he contacted two other potential buyers for the accounts (though he couldn't remember who they were), but found the terms they offered unacceptable because of anticipated delay in receiving payment from these buyers. He thus elected to sell to Denominator. He did not testify as to how quickly the Zarownys paid, or the use the Downeys or Loftin Agencies made of the cash received. There also was no evidence as to the aging of the receivables or the propriety of this discount, or otherwise supporting the adequacy of consideration received. Mr. Downey testified that Loftin Agencies was "shut down" on or about January 15, 1998, because the business just couldn't make it. The conclusion that the business could no longer profitably operate was not adequately explained. It is contradicted by evidence that the business generated income in 1997, including Mr. Richardson's analysis of the operations from the financial records, and Mr. Bibin's year-end statements. Downey Transportation Services was also able to generate sizeable revenues in the months immediately following filing. Financial statements provided by the Downeys to First Security Bank and Mountain West Bank less than a year earlier showed both income from, and value to, this business. 11 From and after the receivable purchase and the lease of authority, the Zarownys conducted their Denominator business out of the Downeys' basement.[2] According to the Downeys, the Zarownys were also paying the Downeys' living expenses in January, 1998, since the Downeys "had no income." In fact, they assert that the Zarownys lent them $5,000.[3] The Zarownys threw in the towel on approximately February 3, three weeks after their purchase of the accounts receivable and two weeks after their lease of the ICC authority.[4] The Downeys' bankruptcy was filed on February 4. Mr. Downey recommenced the brokerage business the morning of February 5. D. B & M Trucking The trucking business, B & M, was run separately from Loftin Agencies, though there were apparently inter-corporate transfers. Loftin Agencies brokered loads for B & M, but also for other carriers. In January 1998, the Downeys shut down B & M, and surrendered its collateralized assets to lenders, primarily Mountain West Bank. Some of the recovery of collateral by the bank occurred after the bankruptcy filing, and the Downeys had possession of some B & M assets, such as office equipment, computers and desks when they filed their petition for relief. The value of this property appears to be less than $1,000. The Downeys' possession of these assets was not disclosed in the schedules or in response to question no. 14 on the statement of affairs. E. "Downey LLC" The entity described as "Downey LLC" was never formed. Michael Downey testified, in regard to Downey LLC, that this entity was intended to hold, and service, the Debtors' real estate interests. Several "rent" checks were received in late 1997, and one in January 1998, made payable to Downey LLC. They were deposited to a Downey LLC checking account. But except for the checking account, there was no formation of or business by this LLC. The Downeys did not disclose the LLC. Nor did they disclose the checking account, though they knew at the time of the filing of the bankruptcy that the LLC hadn't been formed, and thus had to know the funds in the account were not those of another, non-debtor entity. F. "Downey Transportation Services" The Downeys filed their petition for relief on February 4, 1998. On February 5, Downey commenced business as Michael Downey Enterprises and/or Downey Transportation Services.[5] Phone records indicate that calls were placed by Mr. Downey to broker loads commencing at approximately 8:00 a.m. on February 5. Mr. Downey testified that Downey Transportation Services was formed the day after the bankruptcy filing based on (1) an epiphany of sorts he had while returning from his lawyer's office on February 4 after signing the bankruptcy papers, to the effect that he had to make a living in some fashion post-bankruptcy, and (2) the coincidental timing of the Zarownys' discovery that the Denominator business wasn't "working out" and the Zarownys' agreement on February 3 to return to the Downeys the leased ICC authority.[6] 12 On February 5, Downey contacted the ICC about changing the authority from "Michael V. Downey, dba Loftin Agencies" to "Michael V. Downey, dba Downey Transportation Services". He further represented in this communication to the ICC, "I am a sole proprietorship and there is no change in the ownership, management, or control of the business." The bankruptcy schedules filed on February 4 showed both Michael and Barbara Downey as unemployed, with neither having any income whatsoever. There was no amendment made to disclose the recommencement of their brokerage business the morning after filing. G. Other disclosure issues It is uncontested that the schedules and statements filed on February 4 also did not reflect: (a) any retirement accounts; (b) any Loftin-related bond; or (c) funds held in bank accounts other than $5.00 in an unidentified account as shown on schedule B(2). The Downeys admit that they held an interest in $47,500 in retirement funds as of filing. They also had a surety bond in place as of filing. In addition to the one open (but unidentified) bank account alluded to on schedule B(2), and one closed account referred to in response to question no. 11 on the statement of affairs, there were several other accounts in the name of the Downeys or Downey LLC. CONCLUSIONS OF LAW The Downeys knowingly and fraudulently made false oaths and accounts in the schedules and statement of affairs by their failure to fully and accurately disclose: (A) their interest in funds held under the name "Downey LLC;" (B) their existing and ongoing interests in their brokerage business, originally operated under the name of Loftin Agencies and later under the name Downey Transportation Services, including their income derived therefrom, their interest in the bond, and the value of the ICC authority used therein; (C) their retirement accounts; (D) their possession of the B & M assets; (E) the value of Loftin Agencies, Inc. and their interests therein; and (F) their debt to Herbert Loftin.[7] Discharge shall therefore be denied under § 727(a)(4)(A). APPLICABLE LAW a. In general Objections to discharge are liberally construed in favor of debtors, and strictly against the objectors. In re Bernard, 96 F.3d 1279, 1281 (9th Cir.1996); In re Devers, 759 F.2d 751, 754 (9th Cir.1985); Weiner v. Perry, Settles & Lawson, Inc. (In re Weiner), 208 B.R. 69, 71-72 (9th Cir. BAP 1997), rev'd on other grounds, 161 F.3d 1216 (9th Cir.1998)[8]; McVay & Corrigan v. Barnetche, 98.2 I.B.C.R. 37 (Bankr.D.Idaho 1998). This is in keeping with the purpose of providing debtors with a "fresh start," and recognizes that denial of discharge is one of the harshest remedies under the bankruptcy laws. Weiner, 13 161 F.3d at 1218; Bernard, 96 F.3d at 1281; Devers, 759 F.2d at 754. However, despite this favorable construction, bankruptcy discharge is equitable in nature, and is intended only for honest debtors. Bernard, 96 F.3d at 1283. And while this favorable construction attends, the objector must only prove the elements of the cause of action by a preponderance of the evidence; no heightened evidentiary burden is imposed. Grogan v. Garner, 498 U.S. 279, 284, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). See also, Fed. R.Bankr.Proc. 4005; In re Lawler, 141 B.R. 425, 429 (9th Cir. BAP 1992).[9] b. Denial of discharge under § 727(a)(4)(A) Denial of a debtor's discharge under § 727(a)(4)(A) requires proof that the debtor knowingly and fraudulently made a false oath or account. In re Aubrey, 111 B.R. 268, 274 (9th Cir. BAP 1990). The false oath need not be through live testimony. False statements on a debtor's schedules and statement of affairs, which are signed under penalty of perjury, will suffice. In re Chalik, 748 F.2d 616, 618 (11th Cir.1984); In re Stanke, 234 B.R. 449, 458 (Bankr.W.D.Mo. 1999); In re Grondin, 232 B.R. 274, 276 (1st Cir. BAP 1999). There also need not be any "pattern" of falsehoods in order to sustain an action under this section; a single false oath will suffice. Grondin, 232 B.R. at 277. 1. "Knowingly" and "fraudulently" A statement is made with knowledge if it is known to the debtor to be false, or made without a belief in its truth, or made with a reckless disregard of its truth. In re Sears, 225 B.R. 270, 274 (Bankr.D.R.I.1998). Proof that the statement was fraudulently made requires actual subjective intent, not objective or constructive intent. In re Adeeb, 787 F.2d 1339, 1343 (9th Cir.1986); In re Mereshian, 200 B.R. 342, 345 (9th Cir. BAP 1986); East Idaho Federal Credit Union v. Thomason, 225 B.R. 751, 98.3 I.B.C.R. 77 (Bankr.D.Idaho 1998). Because it is rare that a debtor admits such intent, making it provable through direct evidence, intent may be established through circumstantial evidence, including inferences from the debtor's conduct, all surrounding circumstances, and the apparent course of conduct. Devers, 759 F.2d at 754; Thomason, 225 B.R. at 751, 98.3 I.B.C.R. at 77. See also, Matter of Yonikus, 974 F.2d 901, 905 (7th Cir.1992) (citing Devers); Sears, 225 B.R. at 274. 2. Omitted assets and false statements in schedules The function of the requirement of full and complete disclosure, enforced inter alia by way of § 727(a)(4), is to ensure accurate and dependable information is provided to the Court, trustee, and creditors upon which they can rely without the need for additional inquiry. Aubrey, 111 B.R. at 274; Weiner, 208 B.R. at 71-72; Barnetche, 98.3 I.B.C.R. at 38; In re King 82 I.B.C.R. 171, 172 (Bankr.D.Idaho 1982). It is not for the debtors to elect what to disclose; all property and interests in property must be disclosed. In re Tripp, 224 B.R. 95, 98 (Bankr. 14 N.D.Iowa 1998); In re Guajardo, 215 B.R. 739, 742 (Bankr.W.D.Ark.1997); In re Craig, 195 B.R. 443 (Bankr.D.N.D.1996). See also, Yonikus, 974 F.2d at 904 (debtors have an absolute duty to report whatever interests they hold in property even if they believe assets are worthless or unavailable to the estate.)[10] 3. Materiality The Panel in Weiner states: In determining whether the false statement is material, the court looks to whether the statement bears a relationship to the debtor's estate, and concerns the discovery of assets, or the existence and disposition of his property. See Chalik v. Moorefield (In re Chalik), 748 F.2d 616, 618 (11th Cir.1984). "The recalcitrant debtor may not escape a section 727(a)(4)(A) denial of discharge by asserting that the admittedly omitted or falsely stated information concerned a worthless relationship or holding; such a defense is specious." Id. at 618. 208 B.R. at 72. See also, In re Coombs, 193 B.R. 557, 565 (Bankr.S.D.Cal.1996); Stanke, 234 B.R. at 460. It is not the asset's value that must be "material," it is that the false statement must relate materially to the debtor's financial affairs or the bankruptcy process. Aubrey, 111 B.R. at 274. "Furthermore, a debtor need not succeed in harming creditors to warrant denial of discharge because `lack of injury to creditors is irrelevant for purposes of denying a discharge in bankruptcy.'" Bernard, 96 F.3d at 1281-82 (quoting Adeeb, 787 F.2d at 1343.) c. The need for credible explanation Aubrey, in addressing a § 727(a)(4)(A) action, stated: In a case under §§ 727(a)(3) and (5), the 7th Circuit defined the debtor's burden of production as follows: The speculation of the bankruptcy judge or the creditors as to what may actually have been occurring is not an adequate substitute for a believable explanation by the debtor. The evidence in this case which could satisfactorily explain the events in question is far more likely to lie in the hands of a debtor than of the creditor. . . . To the extent that the debtor can explain these events he has an obligation to come forward and do so he cannot abuse the bankruptcy process by obfuscating the true nature of his affairs and then refusing to provide a credible explanation. [First Federated Life Insurance Co. v.] Martin, 698 F.2d [883] at 888 (7th Cir. 1983). Like the creditor in Martin, Thomas can not be expected to prove the negative, i.e., the nonexistence of Aubrey's alleged debt to Noble. Any evidence substantiating Aubrey's alleged debt to Noble is far more likely to lie in Aubrey's hands than Thomas's, and to the extent Aubrey can provide such evidence, he has an obligation to do so or provide a credible explanation for his failure to do so. 111 B.R. at 274. Similarly, Devers holds: While the burden of persuasion rests at all times on the creditor objecting to discharge, it is axiomatic that the debtor cannot prevail if he fails to offer credible evidence after the creditor makes a prima 15 facie case. In re Reed, 700 F.2d 986, 992-93 (5th Cir.1983). A debtor's failure to offer a satisfactory explanation when called on by the court is sufficient ground for denial of discharge under section 727(a)(5). 759 F.2d at 755. The same principle has been applied in other § 727(a)(4)(A) cases. See, Sears, 225 B.R. at 274 (citing cases). d. Reliance on counsel Finally, the defense of a debtor's reliance on advice of counsel may excuse or explain acts which otherwise bear indicia of fraud, assuming that all relevant information is in fact provided the attorney. In re McLaren, 236 B.R. 882, 897 (Bankr.D.N.D.1999). However, attorney error does not absolve a debtor, who signs the petition and schedules under penalty of perjury, from the duty to ensure the information is accurate and complete to the best of his knowledge. 236 B.R. at 898. DISCUSSION The Downeys have raised several defenses to the allegations of the complaint, and the Court has considered them carefully. But the same are ultimately unpersuasive, and the Court concludes the Palmers have carried their burden of proof. A. Downey LLC Whether "Downey LLC" was formed or not has natural and unavoidable consequences. Either there was an interest in the LLC which had to be disclosed, or the funds, accounts, deposits, and transactions "of" the LLC were personal and had to be disclosed. The evidence establishes that this LLC had not been formed, and the Court thus agrees with the Downeys there was no need to disclose its existence or to schedule their ownership interests in it. But by knowing that there was no "Downey LLC," the Downeys necessarily were aware that any assets "held" in the name of Downey LLC were actually personal assets. There was here no disclosure of the LLC bank account or funds therein, which could be nothing other than the funds of the Downeys.[11] The transactions and assets of "Downey LLC" were disclosable transactions and assets of the Downeys. B. The brokerage business The argument is made that the Downeys' new business, characterized as "Downey Transportation Services," arose solely after bankruptcy. This contention must be viewed in context with all other disclosures and non-disclosures, and the Debtors' conduct. On the evening of the date of filing, the Downeys knew that they had and were going to use the ICC authority, returned by the Zarownys a day or two before, and continue in the brokerage business. They knew as of that date that they were not "unemployed" and, within hours of filing, that Schedules I and J were materially false. They utilized the ICC authority in conjunction with their experience, and their knowledge of Loftin Agencies' customers, in order to generate income.[12] The Trustee and creditors were led to believe that the Debtors were unemployed and had no income. They were also led to believe that there was no value to the brokerage business. These are all material and significant matters. The Court is asked to accept the assertions made in the schedules and statement of affairs as accurate (or, if inaccurate, as made in good faith) because it was only on the way home from their lawyer's office that the Debtors awoke to the need to 16 generate some sort of income; that they just happened to benefit from the timing of the Zarownys' discovery that they no longer wanted to stay in the business; and that the authority was returned and could again be used. Thus, they allege, at the break of day on February 5 the day after filing bankruptcy a new business legitimately arose, and Mr. Downey commenced contacting customers (which to a significant, but allegedly only coincidental, degree are the same as Loftin Agencies' customers.) And because this arose in the hours immediately following the filing, the Debtors argue that they had no duty of disclosure. The position taken is simply is not credible. The problems with this defense go beyond simply a lack of disclosure of an interest in "Downey Transportation Services." For example, the lease of the ICC authority to Denominator is problematic. Not only was there a transfer to family members in a marginally documented transaction, the basis for valuing the lease of the authority for an indefinite term at $595 is unexplained. Less than a month later, the Downeys state in their schedule that the authority itself is worth only $300, an amount half what the Zarownys paid to lease it. The Downeys also failed to disclose their interest in a $10,000 surety bond.[13] The Court concludes that the Palmers' contention that this bond could be redeemed or, at the least, had a refundable premium, was not proven. But the surety bond did have an inherent value to the Downeys, as it was necessary for operation of the pre-bankruptcy brokerage business.[14] The disclosure of this asset would be material to an understanding of the Debtors' financial circumstances and business operations, even in the absence of a premium refund or other liquidation value. The Downeys also argue that the undisclosed bond would be discovered upon reasonable inquiry by the trustee or creditors. This confuses the likelihood of discovery with the Debtors' duty to disclose. The former is not the relevant test. C. The retirement accounts The Downeys admittedly failed to disclose $47,500 in retirement account holdings with Northwest Mutual Life. This was an omission quickly spotted by, among others, their former accountant. The Downeys claim that the omission was unintentional and their attorney claims it was his secretary's error in transcribing the Debtors' worksheet on which the interest was disclosed. When specifically questioned at the § 341 meeting about the omission, the Debtors admitted their interest in the retirement accounts, and soon after that meeting amended their schedules. However, given the state of the Debtors' financial affairs, the existence of over $40,000 in assets is no small thing. Schedule B (11) by its terms requires disclosure of all interests in retirement accounts, IRS's, pensions and 401(k) accounts. The Downeys signed schedules clearly stating, in that regard, that they had no such assets. Reliance on counsel cannot overcome a patent and obvious non-disclosure. The Debtors further argue that since the retirement assets are fully exempt under Idaho Code § 11-604A, to the extent they are property of the estate at all in light of Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992), the omission couldn't be "material" since the value could not be accessed by 17 creditors. But materiality does not depend solely on the value of the undisclosed asset or whether that value is reachable by creditors. Materiality instead goes to the impact of disclosure on the full and candid explanation of the Debtors' financial situation, not whether a net value will be distributed to creditors. Accepting the argument the Debtors advance would write schedule B(11) out of existence. Debtors would never have to disclose their retirement assets because if they were property of the estate, they would be exempt. But trustees and creditors are entitled to know what these assets are, if for no other reason than to be able to test the assertion that they are properly held and qualified, and indeed fall within Patterson or the state exemption statutes. Finally, it must be observed that this is not a case where the sole issue is the nondisclosure of retirement accounts. This is but one omission among many, all of which collectively paint an inaccurate picture of the Debtors' finances and conduct. The Debtors' treatment of their retirement accounts does not occur in a vacuum. D. The B & M assets There was no disclosure on the statement of affairs, in response to question no. 14, of any property in the Debtors' possession at bankruptcy which belonged to third parties (i.e., assets of B & M Trucking, Inc. or Loftin Agencies, Inc.) which were in the Downeys' possession. Even if de minimis in value and/or held only a short time, the Downeys were obligated to disclose their possession of the assets of their closely held corporations. This is true even if Mountain West Bank could or would soon foreclose on them. Existence and possession of these assets would be material to a complete understanding of the Debtors' finances and several business interests. And, of course, even if the Downeys believed that creditors, such as Mountain State Bank, or transferees, such as Denominator, had par-amount claim, the Trustee would be entitled to all relevant information in order to test that belief. E. The value of Loftin Agencies Loftin Agencies was active as of December 31, 1997. On that date, there was value to that corporation, on both a book and tax basis. Mr. Richardson's analysis was competent, and the Downeys' attempted impeachment of his methodology and conclusions was unpersuasive. The Debtors would have the Court believe Loftin Agencies was valueless by the end of 1997, shut down within three weeks, and that their ownership of its stock was a worthless asset as of filing. No reasonable and ultimately credible explanation for this conclusion was supplied. The assertion that Loftin Agencies was valueless is not only impeached by the testimony of the two accountants and by the corporate books and records, it is further belied by the sale of the accounts, the continued servicing of the undisclosed Herbert Loftin debt, the use of Loftin funds to pay personal taxes, the Downeys' immediate post-petition continuation of the brokerage business as a means of making a living, their use of the ICC authority, the conversion of the authority from "dba Loftin Agencies" to "dba Downey Transportation Services", and the similarity of the customer lists used by Loftin Agencies and by the Downeys commencing February 5. The Downeys argue, in part, that they truly (even if erroneously) thought Loftin Agencies had no value. This "good faith" belief, they contend, is sufficient to overcome the inference of fraudulent intent. But here the weight of objective facts shows that Loftin Agencies had value as of the date of the bankruptcy. The Downeys' conduct manifests a belief in that value. The Court finds that the Downeys couldn't have reasonably believed the corporation was valueless. *18 F. Debt to Herbert Loftin The Debtors did not disclose their obligation to Herbert Loftin, the individual who sold the authority and brokerage business to them in the first place. Nor did they disclose that the debt continued to be serviced. The Downeys claim this was due to their counsel's advice that, because they were going to keep paying this debt, it need not be listed. If this advice was given, it was incorrect as a matter of law. Additionally, the Debtors' schedule D listed other secured debts (on their residence and certain vehicles) which the Debtors also intended to pay according to schedule J and their § 521 statement of intent. Thus their alleged reasoning for omitting Herbert Loftin was not consistently applied.[15] CONCLUSION The Debtors signed their statements and schedules under penalty of perjury. They are required to know what is in those documents, and they verify the accuracy of the same. The entire bankruptcy process is keyed by that initial disclosure. It must be full, complete, candid and truthful. The disclosures and statements in this case were not. These omissions and errors were, at the very least, recklessly made as to their truth, and in knowing or reckless disregard of the Debtors' obligation of full and accurate disclosure. Transfer of assets, including the sale of the accounts and the lease of the ICC authority for a period of 3 weeks, both to family members, both in undocumented or inadequately documented transfers, for consideration not proven to be adequate, and the re-transfer back on the eve of filing so as to allow continued business by the Debtors the next morning, together with the pattern of nondisclosure or incomplete disclosure in the bankruptcy, provide support for a finding that the omissions were intentionally, knowingly and fraudulently made. Under the totality of the circumstances, the Court finds sufficient evidence of knowledge and fraudulent intent. The Court further concludes that, particularly when viewed under the totality of circumstances, the nondisclosures were material. While there is here no single undisclosed asset with a substantial, immediately realizable value for creditors, there need not be one in order to find that the duties of complete and honest disclosure imposed on the Debtors by the Code have been violated. Debtors cannot conceal their true financial affairs, and dare their creditors or their trustee to ferret out the truth. ORDER The Court finds that the Plaintiffs have, by a preponderance of the evidence, established the fact of the Debtors' false oath and account in their schedules and statements, that the same were knowing and fraudulent, and that discharge of Michael and Barbara Downey should be denied pursuant to § 727(a)(4)(A). Counsel for the Plaintiffs shall prepare a judgment accordingly for review and entry by the Court. NOTES [1] Whether subordinated in whole or in part, or subordinated at the inception of the Downeys' SBA-guaranteed loan or only at the time Mountain West Bank sought to recover on the loan, is of no consequence to this decision. [2] This is based solely on Mr. Downeys' testimony. There was no corroborative evidence of the Zarownys' conduct of business, or even that it was under the name of Denominator rather than Loftin Agencies. [3] This debt is not scheduled by Debtors in the bankruptcy. [4] The contention is that they just couldn't make a go of the business. How this squares with the $5,000 loan and the payment of the Debtors' expenses was not explained. [5] Ultimately, it was known as Downey Transportation Services. This proprietorship was incorporated in January, 1999. [6] This coincidental timing is also the alleged reason for non-disclosure of the lease of the ICC authority, i.e., the lease was terminated and the authority again an asset of the Debtors. They listed the same on schedules B and C though at a value one-half of the amount charged for its lease. [7] The Court also concludes that the Downeys' response to question no. 17(d) of the statement of affairs was false, as the evidence reflects two financial statements issued within the year prior to filing of the petition. This however was not one of the grounds alleged by the Palmers. [8] The Court of Appeals reversed Weiner on an abuse of discretion issue, when the trial court did not reconsider its earlier ruling upon post-trial information that the asset was not undervalued after all. But the Bankruptcy Appellate Panel's discussion of the standards applicable to discharge litigation was not impacted. [9] The Bankruptcy Appellate Panel recently stated: While "Section 727 `is the heart of the fresh start provisions of the bankruptcy law[,]'" Lawson v. Hughes (In re Lawson), 193 B.R. 520, 523 (9th Cir. BAP 1996), aff'd, 122 F.3d 1237 (9th Cir.1997) (citations omitted), and must be construed liberally in favor of the debtor and strictly against the objector, First Beverly Bank v. Adeeb (In re Adeeb), 787 F.2d 1339, 1342 (9th Cir.1986), and while bankruptcy courts are reluctant to deny a discharge absent a persuasive showing, still, the burden of proof is a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 284, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). In re Beauchamp, 236 B.R. 727, 730 (9th Cir. BAP 1999). [10] Certain of the assets allegedly not disclosed here were allegedly transferred by the Downeys prebankruptcy. An analysis of a debtors' "intent to hinder, delay or defraud" through transfer under § 727(a)(2) may be probative of the "knowing and fraudulent" false oath under § 727(a)(4)(A). See, 6 Collier on Bankruptcy, ¶ 727.04[1][a], at 727-39 (15th ed rev.1999). Several factors may be relevant to the question of intent to defraud through transfer, such as: lack or inadequacy of consideration; the familial or other close relationship between transferor and transferee; retention of use, benefit or possession; financial condition of transferor; secrecy of conveyance; or the pattern, series or course of transactions. Stanke, 234 B.R. at 457; In re Kaiser, 722 F.2d 1574, 1582 (2nd Cir.1983). See also, In re Acequia, 34 F.3d 800, 806 (9th Cir.1994). [11] The Downeys also argue that the money in some or all of the undisclosed accounts was believed "seized" by creditors, and/or that the amounts were de minimis. Neither is an excuse for non-disclosure. [12] They did not, however, "use" the bond. Mr. Downey's testimony was to the effect that the new business "ran bare," i.e., without bond, until a new Downey Transportation Services' bond was obtained in the spring of 1998. [13] There was no evidence that the bond was issued or held in other than personal name. [14] The Downeys argue in briefing that the bond had no value because it was "non-transferable" and "non-assignable." Yet the Downeys "let" the Zarownys use this bond in conjunction with the "lease" of the authority. [15] The ongoing payment of Mr. Loftin relates as well to the Debtors' problematic valuation of the corporation. Servicing the debt is inconsistent with the contention that the business was shut down and closed, as well as with the assertion that it was valueless.	{ "pile_set_name": "FreeLaw" }
133 N.W.2d 571 (1965) 178 Neb. 335 Bernard J. GUYNAN, Appellant, v. Lewis OLSON, Appellee. No. 35818. Supreme Court of Nebraska. February 26, 1965. 572 McGinley, Lane, Mueller & Shanahan, Ogallala, for appellant. Maupin, Dent, Kay & Satterfield, Clinton J. Gatz, Don E. Girard, Rady A. Johnson, North Platte, for appellee. Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ. WHITE, Chief Justice. Defendant driver ran into plaintiff, who was on horseback, and his herd of cattle, on a bridge spanning the South Platte River near Paxton, Nebraska, at about 6:50 a. m., mountain standard time, December 29, 1961. Plaintiff was thrown from his horse and sued for personal injuries and for property damage to the horse and the cattle that were struck. Defendant cross-petitioned for damage to his automobile. 573 The court entered a judgment against both parties pursuant to special findings of the jury that the plaintiff was guilty of slight negligence and the defendant guilty of ordinary negligence. The plaintiff appeals. The plaintiff's first contention is that the defendant was guilty of negligence as a matter of law, and that on his motion, the jury should have been so instructed and the cross-petition dismissed. In determining this question, conflicts and inferences from the evidence must be resolved in favor of the defendant. Plaintiff, with his son and several neighbors as drovers to assist him, was moving a herd of about 300 head of cattle to winter pasture. Plaintiff, who was on horseback, was riding about 2 or 3 feet ahead of the herd. The other drovers were behind and at the side. At about 6:50 a. m., they reached the bridge. The bridge was 500 feet long, its deck was 18 feet wide, and it had railings 35 inches high. It had a plank deck, a worn-oiled surface, and at the time of the accident had a heavy accumulation of frost on it. Plaintiff was on the right side of the road, was 2 or 3 feet from the west bridge railing, and was 2 or 3 feet ahead of the cattle. When he reached a point about 200 feet south on the bridge, the collision occurred. Defendant was driving north toward the bridge and was due at work in Paxton at 7 a. m. He drove to work every morning, knew the road, and the evidence shows that he had knowledge that the bridge would have frost on it. It was a cold morning, and he had cleared frost from his windshield before starting. The conditions as to visibility are in dispute. The patrolman said that it was just at dawn. The headlights of the defendant's car were on, and on trial he testified that he could see objects at a distance of 300 to 400 feet. He testified that at this time of the day, when the light was changing, it was more difficult to see objects than normally. He testified that he was traveling 45 to 50 miles per hour when he entered on the bridge. The defendant saw the plaintiff and his horse just as he drove onto the south end of the bridge. This was a distance of 315 feet from where the defendant's car same to rest after the accident. His brakes were in good condition, and he applied them hard. He started skidding about 56 feet later and skidded 259 feet to the place where his car stopped after impact. He entered the bridge straddling the centerline with about half of his car on the wrong side of the road. The left skid mark at point of impact with the plaintiff's horse was 5 feet, 8 inches from the west bridge rail. The defendant tried to turn his automobile aside while skidding the 259 feet, but he could not. Defendant's testimony is that the plaintiff, who was on horseback, was 2 or 3 feet east from the west rail of the bridge. Defendant's automobile struck plaintiff's horse, which weighed more than 1,000 pounds, threw it over the bridge railing which was 35 inches high, and hurled it a total distance of about 60 feet north and west into the river. The horse was killed. The plaintiff was thrown in the air and landed about 8 feet behind where the defendant's automobile came to rest. The defendant's automobile, after impact with the plaintiff's horse, careened on, killing one cow and breaking the legs of several steers. The automobile came to rest against the dead cow, with its front over on the west side of the road. The evidence shows that there was extensive damage to the defendant's automobile, and the defendant testified that it was a total loss. Defendant had the bridge in view for about a mile from the south and the evidence as to the contour of the road shows that at no time did his line of sight drop beneath the floor of the bridge. The evidence shows that the railings of the bridge, 35 inches above the deck, must have been visible to the defendant at all times. We believe applicable here is the general rule that it is negligence as a matter of law for a motorist to drive an automobile on a highway in such a manner that 574 he cannot stop in time to avoid a collision with an object within the range of his vision. Roth v. Blomquist, 117 Neb. 444, 220 N.W. 572, 58 A.L.R. 1473; Murray v. Pearson Appliance Store, 155 Neb. 860, 54 N.W.2d 250; Buresh v. George, 149 Neb. 340, 31 N.W.2d 106; Greyhound Corp. v. Lyman-Richey Sand & Gravel Corp., 161 Neb. 152, 72 N.W.2d 669; Guerin v. Forburger, 161 Neb. 824, 74 N.W.2d 870; Dryer v. Malm, 163 Neb. 72, 77 N.W.2d 804. We have generalized the exceptions by stating that they embrace all those situations where reasonable minds might differ as to whether the operator was exercising due care under the particular circumstances. Fulcher v. Ike, 142 Neb. 418, 6 N.W.2d 610; Miers v. McMaken, 147 Neb. 133, 22 N.W.2d 422; Robins v. Sandoz, 175 Neb. 5, 120 N.W.2d 360. In the application of this rule, we have applied the exceptions to the situations where the object, obstruction, or depression is of the same color as the roadway, and for that reason, or for other sufficient reasons, cannot be observed by the exercise of ordinary care in time to avoid a collision. Guerin v. Forburger, supra; Miers v. McMaken, supra; Adamek v. Tilford, 125 Neb. 139, 249 N.W. 300; Haight v. Nelson, 157 Neb. 341, 59 N.W.2d 576, 42 A.L.R.2d. 1. We do not believe this case comes within the exceptions. They generally embrace factual situations involving various factors which might reasonably be considered to relieve a driver of the duty to see the object or vehicle in time to avoid it. They deal with situations in which the driver did not see the object ahead of him until a very short distance before he was upon it. The question is then presented as to whether a driver in order to escape the rule was excused from not seeing the vehicle or object in the road ahead of him sooner. We feel that if the rule applies at all, at a minimum it must be applicable to the situation present in this case. The defendant, by his own admission, saw the plaintiff and his horse at the entrance to the bridge 315 feet away. This was a greater distance than an ordinary city block. His speed was such, that on applying his brakes, he could not control his vehicle, could not turn it aside, or do anything to keep it from skidding helplessly into the plaintiff and his cattle. He was on the wrong side of the road and on a frosty and slick roadway known to him to be such, and was still traveling with sufficient speed and force at the end of his skidding to throw a 1,000 pound horse over a bridge railing, kill a cow, and break the legs of several other animals. It is argued with much force that considering the testimony of the defendant himself and the conditions of visibility he should have seen the plaintiff and his cattle much sooner than he did. We point out that no matter what the conditions of visibility were, the defendant did discover the plaintiff and his cattle over a city block away. He was unable to avoid them and he struck them on the west and wrong side of the road. Nor does frost, ice, snow, mist, or fog excuse such action. These are conditions and not intervening causes and require drivers to exercise a degree of care commensurate with the circumstances. Guerin v. Forburger, supra; Bramhall v. Adcock, 162 Neb. 198, 75 N.W.2d 696; Murray v. Pearson Appliance Store, supra; Anderson v. Byrd, 133 Neb. 483, 275 N.W. 825; Fischer v. Megan, 138 Neb. 420, 293 N.W. 287. In Dryer v. Malm, supra, plaintiff coming over the crest of a hill, saw sheep blockading a highway 400 feet away. In Hilferty v. Mickels, 171 Neb. 246, 106 N.W.2d 40, the distance between the automobiles was 200 feet when the necessity for stopping was known to the driver. In both cases the driver was held guilty of negligence as a matter of law. The application of these cases to the present one is selfevident. Although it is true that the jury, by special finding, found the defendant guilty of ordinary negligence, the failure 575 of the court to instruct that the defendant was guilty of negligence as a matter of law and to dismiss the cross-petition was prejudicial error. Cappel v. Riener, 167 Neb. 375, 93 N.W.2d 36; Stocker v. Roach, 140 Neb. 561, 300 N.W. 627; Bezdek v. Patrick, 170 Neb. 522, 103 N.W.2d 318. We turn now to the question of contributory negligence. Plaintiff asserts it was prejudicial error to submit this issue to the jury. He entered and was on the bridge at all times about 2 or 3 feet ahead of his cattle. There is evidence that he saw the defendant's automobile approaching about a mile away just as he was entering the bridge. He continued on with the cattle packed solid between the rails of the bridge. It was dawn, and the jury could have found that visibility conditions were poor. One of the plaintiff's drovers had a jeep. Plaintiff sent no herdsman or driver ahead to warn of the cattle crossing. The cattle would be on the bridge for 500 feet plus the length of the herd. The defendant raised the issue of improper warning in his pleadings. There is no statute prohibiting or regulating plaintiff's right to move his cattle on a public road. They were under control and not running at large. As a general rule, a person in charge of animals has a right to lead or drive them along the highway, and is not negligent per se from so doing, but in doing so, he must exercise reasonable care to avoid injury from motor vehicles using the highway. Sertic v. McCullough, 155 Or. 216, 63 P.2d 884; Tabaka v. Gerard, 12 N.J.Misc. 110, 169 A. 722; Lawson v. Fordyce, 237 Iowa 28, 21 N.W.2d 69; 61 C.J.S. Motor Vehicles § 467, p. 26. Nor does the act of leading animals bring the person conducting them within the rules of the road applicable to motor vehicles. Such person is bound to use reasonable care but is not bound to have or keep the animals on the right half of the highway. 3 Blashfield, Cyclopedia of Automobile Law and Practice (Perm.Ed.), s. 1622, p. 11, 1964 Cumulative Pocket Part; Sertic v. McCullough, supra. A person leading animals is entitled to assume that approaching motorists will use due care and obey the rules of the road. Lawson v. Fordyce, supra; 61 C.J.S. Motor Vehicles § 467, p. 26. Whether this issue should have been submitted presents an extremely close question. Our research reveals no case in which the issue of contributory negligence has not been submitted to the jury in cases involving collision with cattle being driven or herded on a highway. The available authority seems to support the conclusion that in the situation such as we have in this case, the issue of contributory negligence should be submitted to the jury. In Anderson v. Dail, 229 Mo.App. 272, 77 S.W.2d 169; 224 Mo.App. 403, 21 S.W.2d 496, it was held that there was no duty on the part of a person driving cattle to maintain an advance guard to herald the approach of cattle, but in this case, occurring at night, the court held that the question of the plaintiff's contributory negligence in driving the cattle without an advance guard was a question for the jury. A recent Washington case, Green v. Biles-Coleman Lumber Co., 58 Wash.2d 307, 362 P.2d 593, came to the same conclusion in a five to four decision. This case is remarkably similar to the present case. The plaintiff was driving a herd of 59 cattle on an 18-foot highway around a curve. The defendant, coming down a grade in a logging truck at an excessive rate of speed, saw the plaintiff and the herd of cattle at least 200 feet away, lost control of his truck when the brakes were applied, the truck jackknifed, and the collision occurred. The road was slick as here, and it appears that the accident happened in the daytime. Said the court: "The question here is whether we can say, as a matter of law, that the plaintiff used reasonable care to protect his cattle from injury, while exercising his right to drive them on the highways, and hence, was not contributorily negligent. * * * The 576 defendants, a logging-truck driver and his employer, were concededly negligent because the driver was hurtling his thrityton juggernaut at a speed of thirty-five miles an hour down a grade on a road that was slushy and slippery, knowing that cattle might be on the road. * * We must, however, agree that the trial court was entitled to conclude that for the plaintiff to attempt to move fifty-nine head of cattle for a `mile and a half or three quarters' along a curving highway, which he knew was frequently used by logging trucks, without any assistance (when another man was available to help him), constituted contributory negligence. * * * The trial court also concluded that a warning should have been given to approaching motorists. It is conceded that the plaintiff was not legally obligated to give advance warning of the herd's approach; the question is: Would a reasonable man under the circumstances, have sent his employee (who was driving a truck) up the road a quarter or half a mile ahead of the herd to give approaching motorists, coming down the grade, warning that the cattle were on the highway?" The pertinency of the above authorities is apparent. We point out that it was necessary to block this bridge for a period of time in which the jury could have found that the plaintiff should have reasonably known that automobile traffic would approach and attempt to cross. The jury could have found that the visibility of the roadway was affected under the conditions present, and that he could reasonably know that the blocking of the bridge should require him, in the exercise of reasonable care, to station a herdsman or take other proper means to herald the presence and approach of the cattle and advise travelers of the blocked condition of the bridge. Considering the further circumstances of the slick condition of the bridge, which was 18 feet wide, that it would be difficult to turn aside or control a car on, we cannot say as a matter of law that the jury could not determine that the plaintiff was guilty of some negligence and that it was a contributing proximate cause of the accident. Plaintiff argues that the presence of the cattle could not have been the proximate cause of the accident and that the sole proximate cause of the accident was defendant's negligence as a matter of law. It is true that the defendant testified that he saw the plaintiff on his horse first, and then the cattle, but he saw both in a split second period of time. They were altogether, almost as a unit, and a jury could infer that the whole blocked highway confronted the defendant at one time and motivated the action that he took under the circumstances. We cannot say as a matter of law that there was a sufficient intervening gap of time that would require us to hold that the presence of the cattle was merely a subsequent independent condition that could not have been a proximate cause of the accident. But, even if that were so, the jury could have found, under the above authorities covering the question of contributory negligence, that the plaintiff should have warned of the trapped condition on the 500 foot bridge at a point beyond where approaching drivers ordinarily would be required to observe conditions ahead of them on the road. Considering all of the circumstances, we conclude that the question of contributory negligence was properly submitted to the jury. Defendant contends that the plaintiff should have filed a motion for judgment notwithstanding the verdict, under section 25-1315.02, R.R.S.1943, prior to the filing of his motion for a new trial and that on appeal he cannot now review the court's ruling on the plaintiff's motion for a directed verdict. He says that a motion for new trial alone is insufficient. We have examined this contention and it is without merit. When a motion for a directed verdict is overruled at the close of the evidence and a judgment is entered on a jury verdict, the appealing party has alternative remedies. He may, as here, *577 file a motion for a new trial which by the terms of the statute, asks that the judgment or verdict previously entered be set aside. For the reasons given, the judgment is reversed and the cause remanded for a new trial. Reversed and remanded.	{ "pile_set_name": "FreeLaw" }
698 F.Supp. 1504 (1988) MUCKLESHOOT INDIAN TRIBE and Suquamish Indian Tribe, Plaintiffs, v. Colonel Philip L. HALL, District Engineer for the Seattle District of the United States Army Corps of Engineers; John O. Marsh, Secretary of the Army; United States Department of the Army, Corps of Engineers; City of Seattle, a municipality of the State of Washington; Elliott Bay Marina Group, a partnership; and David M. Abercrombie, Defendants. No. C88-384Z. United States District Court, W.D. Washington, at Seattle. July 5, 1988. On Determination of Bond and For Temporary Restraining Order July 11, 1988. On Motion for Reconsideration September 6, 1988. Robert L. Otsea, Jr., Laura Ann Lavi, Office of the Tribal Atty., Muckleshoot Indian Tribe, Auburn, Wash., Phillip E. Katzen, Alexandra Harmon, Evergreen Legal Services, Native American Project, Seattle, Wash., for plaintiffs. Susan Barnes, Asst. U.S. Atty., Seattle, Wash., for Colonel Philip L. Hall, John O. Marsh, U.S. Dept. of the Army Corps of Engineers. G. Richard Hill, John McCullough, Foster, Pepper & Shefelman, Seattle, Wash., for Elliott Bay Marina Group. Judith B. Barbour, Seattle City Atty., Seattle, Wash., for City of Seattle. Mair, Abercrombie, Camiel & Rummonds, Seattle, Wash., for David M. Abercrombie. Mason D. Morisset, Terence L. Thatcher, Pirtle, Morisset, Schlosser & Ayer, Seattle, Wash., for Tulalip Tribes of Washington, amicus curiae. Richard S. White, Helsell Fetterman Martin Todd, Seattle, Wash., for Homeowners, intervenors. ORDER GRANTING PRELIMINARY INJUNCTION ZILLY, District Judge. THIS MATTER comes before the Court on the motion of plaintiffs Muckleshoot Indian Tribe and Suquamish Indian Tribe ("the Tribes") for a preliminary injunction enjoining the construction of a 1200-slip marina, the Elliott Bay Small Craft Harbor (the "Marina"), pending trial of the merits in this case. The Tribes contend that a preliminary injunction is necessary because construction of the Marina would eliminate a portion of one of their usual and accustomed fishing areas in Elliott Bay and thus 1505 would interfere with their treaty right to fish at the Marina site. The Tribes seek an order specifically (1) restraining the defendant partnership Elliott Bay Marina Group ("Marina Group") from building the Marina and from dredging any material or placing any material into Elliott Bay; and (2) requiring defendants the United States Department of the Army Corps of Engineers, Col. Philip L. Hall (District Engineer for the Seattle District of the United States Army Corps of Engineers), John O. Marsh (Secretary of the Army) (collectively referred to herein as "the Corps" or "the federal defendants"), and the City of Seattle ("the City") to suspend any permit or other permission that would allow the Marina Group to proceed with construction or operation of the Marina, and enjoining these defendants from taking any action to permit or allow any further construction.[1] Having reviewed the motion, together with all documents and materials filed in support and in opposition, having heard oral argument and being fully advised, the Court has concluded that a preliminary injunction should issue. The Court entered an order granting a preliminary injunction on June 30, 1988. This order provides the parties with the reasons for the Court's decision. See Fed.R.Civ.P. 65(d). I. FACTS A. The Marina Project and the Claimed Impact of the Loss to the Tribes' Usual and Accustomed Fishing Area The defendant Marina Group proposes to construct a 1200-slip boat moorage basin at the base of Magnolia Bluff in Seattle, occupying approximately 78 acres on the north side of Elliott Bay in Puget Sound. Final Environmental Impact Statement ("EIS"), at 28. The project site is about 1000 feet west of the existing Pier 91 and fronts about 2800 feet of shoreline. Final EIS, at iii; Record of Decision ("ROD"), at 3. Elliott Bay is located within two harvest management catch reporting areas designated by the Washington State Department of Fisheries Areas 10 (Outer Elliott Bay) and 10A (Inner Elliott Bay). ROD, at 43; Final EIS, at 140; Technical Appendix O, at 0-4. The present boundary between the two areas is a straight line from Pier 91 to Duwamish Head. The proposed Marina site is next to the eastern boundary of Area 10 (Outer Elliott Bay), between Four Mile Rock and Pier 91. ROD, at 38; Final EIS, at 212. The Muckleshoot and Suquamish Tribes identify the area between Four Mile Rock and Pier 91 as a prime chinook fishing area. The Tribes indicate that they fish for chinook in the kelp beds, as close to the shoreline as possible. Final EIS, at 212. The Tribes also identify the area from West Point to Pier 91 as a productive fishing site. Final EIS, at 212. The Tribes claim that Area 10 is a usual and accustomed fishing place, reserved for their access and use under the Treaty of Point Elliott, 12 Stat. 927 (1855), and that construction of the Marina, by occupying a portion of Area 10 and eliminating a part of their usual and accustomed fishing places, would irrevocably deny them their federally-protected right of access to this area. The Muckleshoot Tribe indicates that it first notified the developer of its opposition to the Marina in 1983. Administrative Record, at E-371. The Corps, in its Record of Decision ("ROD"), states that the Marina would eliminate about 130 acres of the area between West Point and Pier 91, about 70 acres of which the Tribes presently use for net retrieval of fish. Final EIS, at 212. According to the Corps, the area to be eliminated represents about 6% of the chinook fishing area from West Point to Pier 91, and about 27% of the prime chinook fishing area between Four Mile Rock and Pier 91. ROD, at 38; Final EIS, at 212, Figure 35. In contrast, the Tribes estimate 1506 a loss of over 40% of the fishing area between Four Mile Rock and Pier 91. ROD, Appendix A (Comments on the Final EIS and the District Engineer's Responses), at 10-13; Hatch Declaration, para. 36; see also Technical Appendix O, at 0-22 to 0-30. The Final EIS states that the Tribes' salmon fishing is limited to a few areas within the combined usual and accustomed fishing places, for numerous reasons, including fishing conditions and interference from traffic in Puget Sound. Final EIS, at 136. The Corps identifies seven major areas of concentrated commercial fishing activity by the Tribes in central Puget Sound, including the area from West Point to Pier 91. Final EIS, at 136; see also Amended Record of Decision ("AROD"), at 50-51. Three of these Puget Sound fishing areas are in Elliott Bay: the area offshore Magnolia Bluff between Pier 91 and Four Mile Rock, where the Marina is to be built; the mouth of the Duwamish; and the area between Duwamish Head and Alki Point. However, the Tribes contend that difficulties with the latter two areas make the first area more important to their fishing. See AROD, at 27; Hatch Declaration, paras. 32-33. The Tribes contend that the area between Pier 91 and Four Mile Rock is "by far the most productive" of the three areas, that fishing in this area is important to their livelihood, subsistence, and culture, and that there are few places other than Elliott Bay where they can now fish for chinook salmon because of conservation and allocation concerns. Hatch Declaration, para. 25. The Corps recognizes that "available fishing places have shrunk through development of Seattle's shoreline. Due to this, the Four Mile Rock to Pier 91 area may well have importance now that it did not have at treaty times." AROD, at 49. The Corps estimates that the proposed development will cause the Tribes financial loss in the amount of $9,335 in lost annual harvest and a $3,745 minimum average annual increase in gear loss (as a result of increased boat traffic). Final EIS, at 214-16. Another estimate by the Corps provides a range of loss from $25,000 to $40,000. Administrative Record, at H-110. The Tribes calculate the possible loss to Indian fishers as a result of the development to be over $255,000 annually (based on a partial accounting of impacts). Meyer Declaration, para. 4. B. History of the Permit Process The Marina Group began applying for permits from the City of Seattle and the United States Army Corps of Engineers[2] in 1983. The entire process has been extensive in time and in efforts to involve all interested parties. See, e.g., Final EIS, at 269; Appendix Q, Public and Agency Review. On May 19, 1983, the Marina Group applied to the Corps for a permit under Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, and Section 404 of the Clean Water Act of 1977, 33 U.S.C. § 1344, to develop a small craft harbor and marina for approximately 1200 boats. ROD, at 3. The primary purpose and benefit of the Marina would be to meet a documented need for moorage space in King County, a need which is expected to increase during the next decade. Final EIS, at 6, 23 et seq. On June 6, 1983, the Seattle District of the Army Corps of Engineers issued an initial Public Notice of Application for Permit. Final EIS, at 269; ROD, at 3-4.[3] 1507 After holding meetings and receiving public and agency comments, on June 1, 1984, the Corps issued a revised public notice reflecting a modified proposal. The Draft Environmental Impact Statement ("EIS") under the National Environmental Policy Act ("NEPA") was published in October 1984. In light of comments received on the revised proposal from the concerned public, the Tribes, and environmental reviewing agencies, the project was again modified and a new public notice issued on August 15, 1986. ROD, at 4. The NEPA Final EIS was published in January 1987. On July 24, 1987, the Corps issued the Record of Decision and permit for the proposed Marina. By this time, the Corps had held additional meetings and discussions and reviewed a substantial amount of documentation and comments. The ROD explains the District Engineer's reasoning, summarizes public comment and his responses, and sets forth his conclusions. The permit included special permit conditions ("SPCs") to mitigate some impacts of the Marina on the Tribes' treaty fishing rights. ROD, at 38-40; AROD, at 1-4 (text of SPCs). Some of the conditions allowed the Tribes to fish under specific circumstances within the Marina. For example, SPC "a" required the Marina Group to provide at least two set net locations within the Marina for the Tribes and SPC "d" allowed the Tribes to attach nets to the outside of the breakwater. ROD, at 38-39. The District Engineer determined that the positive aspects of the project far out-weighed the negative aspects and that, considering the mitigation measures in the ROD, there would be no abrogation of Indian treaty fishing rights. ROD, at 50. On July 28, 1987, the Muckleshoot Tribe filed a lawsuit, Muckleshoot v. Hall, No. C87-1013C, concerning issuance of the permit, and on August 20, 1987, the Tribe filed a motion for preliminary injunction. The Suquamish Tribe intervened in that lawsuit. On August 31, 1987, the federal defendants suspended the Marina permit to allow further public comment on the mitigation measures required by the SPCs that were not previously available for public comment, and for discussion concerning the "related controversy" and lawsuit. AROD, at 1. On September 4, 1987 the Corps issued a public notice to allow comment on the permit conditions. AROD, at 1. The Tribes and the Department of the Interior objected to the special conditions for specific reasons well documented in the record. The Department of the Interior, Fish and Wildlife Service, stated, "meaningful mitigation to offset the significant loss of usual and accustomed fishing area can not be achieved." AROD, at 7; see also AROD, at 7-10, 16, 18. After careful consideration and discussion of the material before the Corps, the District Engineer concluded: the area to be occupied by the marina is only a fraction of a percentage of the Tribes' adjudicated usual and accustomed fishing places. Also, my determination is that the proposed marina will not substantially impair the Tribes' right of access; nor will it impair the Tribes' ability to meet their moderate living needs. AROD, at 51. On March 16, 1988, the Corps reinstated the permit, deleting several of the special conditions and modifying others. See AROD, at 36 (explaining Corps' reasons for changes and deletions). On March 25, 1988, the Muckleshoot and Suquamish Tribes filed this lawsuit. The Tribes then brought this motion for preliminary injunction. C. Opposition of Federal Agencies In addition to the Tribes' objection, the ROD and AROD reflect serious opposition by the United States Department of the Interior (the Bureau of Indian Affairs and the Fish and Wildlife Service) and the United States Department of Commerce (the National Marine Fisheries Service). 1508 Following the publication of the Final EIS, on January 23, 1987, the Bureau of Indian Affairs noted its "substantial concerns about the treatment of Indian treaty fishing rights in the FEIS" and stated: "By authorizing a loss of a portion of a usual and accustomed fishing area, the Corps would be destroying treaty fishing rights at that particular portion of the fishing area." Hickey Declaration, Ex. 15. The Department of the Interior, Office of Environmental Project Review, in forwarding this letter to the District Engineer, pointed out "the serious jurisdictional issue of treaty fishing rights, which are protected by this Department for the Tribes." Hickey Declaration, Ex. 15. The Department of the Interior, Fish and Wildlife Service, submitted objections on September 15, 1986, and recommended that the permit be withheld: DOI has the opinion that the Tribes would essentially be denied access to one of their usual and accustomed fishing places.... In their opinion, the Corps has no congressional authority to diminish this treaty right ... DOI stated that no amount of mitigation or compensation would be satisfactory to the Tribes for lost fishing opportunities. ROD, at 8; see also Hickey Declaration, Ex. 14 (Department of Interior letter of April 8, 1987, emphasizing that "[t]he recognition and protection of Indian Treaty Rights is the vested responsibility of the Federal Government"); Hickey Declaration, Ex. 11 (Department of Interior letter of July 20, 1987); AROD, at 6-7. The National Marine Fisheries Service has responsibilities pertaining to the protection of marine, estuarine, and anadromous commercial and recreational living resources and the habitat sustaining these resources. Declaration of Hickey, Ex. 10 (letter of National Marine Fisheries Service). In a letter to the District Engineer dated July 22, 1987, this agency stated: The Corps conclusion that there will be no loss of tribal fishing treaty rights resulting from marina construction and operation (page 50) is unfounded. The DROD concedes that the Muckleshoot and Suquamish tribes fish in the vicinity of the proposed marina facility ... Furthermore, the 404(b)(1) evaluation completed by the Corps ... states that the proposed marina would reduce one of two identified "prime" tribal fishing areas between Fourmile Rock and Pier 91 by approximately 27 percent. Hickey Declaration, Ex. 10, at 2. In a letter dated October 5, 1987, the National Marine Fisheries Service repeated its objection to the "elimination" of the tribal fishing area and recommended denial of the permit. The National Marine Fisheries Service, Fish and Wildlife Service, and Bureau of Indian Affairs, due to their significant expertise in their respective fields of Indian affairs, fish or marine resources, are well able to evaluate the potential loss to the Tribes. The Court finds the views of these federal agencies persuasive. D. Interest of Homeowners Also interested in the development of the Marina are homeowners whose property is on or near the edge of Magnolia Bluff. The area has had numerous major landslides that have left several homes at the crest of the bluff at risk and have repeatedly caused breaks in a trunk sewer line located at the base of the bluff. Final EIS, at 44. The Marina construction includes the placement of 500,000 cubic yards of fill at the toe of the bluff, which would stabilize the area. The homeowners filed a motion to intervene in the present lawsuit, emphasizing the urgency of their claims. After the hearing on this motion for a preliminary injunction, and after considering all materials submitted in favor of and in opposition to the motion to intervene, the Court granted the homeowners' motion to intervene. The Court has considered the homeowners' memorandum opposing the preliminary injunction. II. STANDARD FOR PRELIMINARY INJUNCTION The basic function of a preliminary injunction is to preserve the status quo pending a determination of the action on the 1509 merits. Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980). To obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips in its favor. These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. United States v. Odessa Union Warehouse Co-op., 833 F.2d 172, 174 (9th Cir. 1987) (citations omitted). The decision to grant or deny a preliminary injunction lies within the discretion of the trial court, and its order will be reversed only if the court relied on an erroneous legal premise or otherwise abused its discretion. Chalk v. United States Dist. Court, 840 F.2d 701, 704 (9th Cir.1988); Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 936 (9th Cir.1987). In certain cases, the moving party must show that the public interest will be advanced by the preliminary injunction. Odessa Union, 833 F.2d at 174; see Chalk, 840 F.2d at 711. The Tribes claim that they will be successful at trial on two theories: (1) construction of the Marina will deny the Tribes their treaty right of access to a usual and accustomed fishing area; and (2) the EIS prepared by the federal defendants is inadequate because it fails to discuss, analyze and evaluate (a) mitigation measures and (b) the cumulative impacts of the Marina proposal. III. TREATY FISHING RIGHTS A. Probable Success on the Merits 1. The Marina Site is Within The Tribes' Usual and Accustomed Fishing Grounds. The treaty fishing right of the plaintiff Tribes is established in article V of the Treaty of Point Elliott, 12 Stat. 927 (1855), which provides: "The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory...." Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 661-62, 674 & n. 21, 99 S.Ct. 3055, 3062-63, 3068 & n. 21, 61 L.Ed.2d 823, 830, 838-39 & n. 21, modified on other grounds, 444 U.S. 816, 100 S.Ct. 34, 62 L.Ed.2d 24 (1979) [hereinafter Fishing Vessel].[4] The defendants contend that the Tribes have not shown they have a treaty right to take fish from the Marina site. However, throughout the administrative record, the Corps refers to the Marina site as a tribal usual and accustomed fishing ground or area. The Final EIS concludes: The proposed Elliott Bay Marina would eliminate a portion of one of the two identified Indian commercial fishing areas within Area 10 and within the Muckleshoot and Suquamish Tribes' usual and accustomed fishing area. Final EIS, at 212.[5] The District Engineer acknowledges that 1510 the general area of Puget Sound (of which Elliott Bay is a part) has been determined to be a usual and accustomed fishing place of the Muckleshoot and Suquamish Tribes, United States v. Washington, 384 F.Supp. 312, 367 (DC WA 1974); ... United States v. Washington, 459 F.Supp. 1020, 1049 (DC WA 1978). ROD, at 48; see also ROD, at 38, 40, 41, Appendix A, at 7; AROD, at 43-44; Final EIS, Figures 24 and 25 ("Adjudicated Usual and Accustomed Fishing Places" of Tribes), at 137-38, 211.[6] In the AROD, the District Engineer concludes: "My determination is that the area to be occupied by the marina is part of a usual and accustomed `ground'." AROD, at 49. The National Marine Fisheries Service and the Department of the Interior agree that the Marina construction will cause the loss of part of the Tribes' usual and accustomed fishing places, and the National Marine Fisheries Service specifically calls the area to be eliminated "usual and accustomed fishing grounds". Administrative Record, at D-481 (letter of June 9, 1987). The issue presented in this case is whether the defendants can eliminate a part of the Tribes' usual and accustomed fishing ground (and their right of access to that ground) under the Treaty of Point Elliott and cases construing that right, without an act of Congress. In considering this issue, the Court has reviewed materials submitted outside the administrative record, in addition to the record. See No Oilport! v. Carter, 520 F.Supp. 334, 346 (W.D.Wash. 1981). 2. The Treaty Provides the Tribes a Right of Taking Fish. The cases discussed by the parties emphasize a broad protection for treaty fishing rights. See, e.g. Fishing Vessel, 443 U.S. at 679, 99 S.Ct. at 3071, 61 L.Ed.2d at 841-42. The following principles in these cases directly govern the Court's decision here. By treaty, the Tribes granted rights to the citizens of the United States and reserved rights to themselves, including the right to take fish from their off-reservation usual and accustomed fishing places in common with other citizens. United States v. Winans, 198 U.S. 371, 381-82, 25 S.Ct. 662, 664-65, 49 L.Ed. 1089, 1092 (1905). The Tribes' right to take fish is a property right, protected under the fifth amendment. See, e.g., Menominee Tribe of Indians v. United States, 391 U.S. 404, 411 n. 12, 412, 88 S.Ct. 1705, 1710 n. 12, 1711, 20 L.Ed.2d 697, 702 n. 12, 703 (1968) [hereinafter Menominee Tribe]. The treaty must be interpreted in the sense in which its words would have been understood by the Indians. Fishing Vessel, 443 U.S. at 676, 99 S.Ct. at 3069, 61 L.Ed.2d at 839. The United States has a fiduciary duty and "moral obligations of the highest responsibility and trust" to protect the Indians' 1511 treaty rights. Seminole Nation v. United States, 316 U.S. 286, 297, 62 S.Ct. 1049, 1054, 86 L.Ed. 1480, 1490 (1942). The right to take fish at all usual and accustomed fishing places may not be abrogated without specific and express Congressional authority. Although the State may not qualify the right, it has authority under its police power to regulate the manner of fishing, the size of the take, the restriction of commercial fishing, and the like, in the interest of conservation. Puyallup Tribe v. Washington Game Dept., 391 U.S. 392, 398, 88 S.Ct. 1725, 1728, 20 L.Ed.2d 689, 693-94 (1968) [hereinafter Puyallup I]. The right to take fish at all usual and accustomed fishing places has a "geographic" aspect and a "fair share" aspect. The Tribes' right to take a fair share of fish in common with other citizens does not displace their right of access to fishing places. United States v. Oregon, 718 F.2d 299, 304 & n. 6 (9th Cir.1983) (citing Puyallup I, 391 U.S. at 398, 88 S.Ct. at 1728, 20 L.Ed.2d at 693-94, and Fishing Vessel, 443 U.S. at 667, 99 S.Ct. at 3065, 61 L.Ed.2d at 834). 3. The Treaty Fishing Right Is A Property Right Which May Not be Taken Without an Act of Congress. Article VI, cl. 2 of the United States Constitution provides that all treaties made under the authority of the United States "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby...." United States v. Washington, 384 F.Supp. 312, 330 (W.D. Wash.1974) [hereinafter Boldt I], aff'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), substantially aff'd sub nom. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). The treaty secures a "right of taking fish." Fishing Vessel, 443 U.S. at 674, 99 S.Ct. at 3068, 61 L.Ed.2d at 838. Further, this right of taking fish is reserved at all usual and accustomed grounds. Fishing Vessel, 443 U.S. at 674, 99 S.Ct. at 3068, 61 L.Ed.2d at 838; Boldt I, 384 F.Supp. at 332. For purposes of this case, the Tribes have established from the evidence and the defendants concede that the proposed Marina will occupy the Tribes' usual and accustomed fishing grounds. The Tribes contend that the defendants' taking their fishing ground in these circumstances is impermissible without an act of Congress. In footnote 22 of their memorandum, they state: The tribes do not claim the right to prevent construction of all developments located within the boundaries of their adjudicated usual and accustomed fishing grounds and stations. The actual locations where productive fisheries take place are relatively limited compared to the large areas of water which are within each tribe's adjudicated usual and accustomed areas. It is only where a development would actually interfere with fishing that the tribes believe their treaty rights prevent construction. See also Administrative Record, at G-308 et seq. In Fishing Vessel, 443 U.S. at 676, 99 S.Ct. at 3069, 61 L.Ed.2d at 839, the Court recognized that the treaty should not be construed by the technical meaning of its words, but in the sense in which the words would naturally be understood by the Indians. See also Boldt I, 384 F.Supp. at 334. The treaty is essentially a contract between two sovereign nations, the Indians and the United States, and the intention of the parties governs its interpretation. Fishing Vessel, 443 U.S. at 675, 99 S.Ct. at 3069, 61 L.Ed.2d at 839. The Court in Fishing Vessel recognized that access to the Indians' ancient fishing grounds is protected by the treaty. The Court said: ... and it is accordingly inconceivable that either party deliberately agreed to authorize future settlers to crowd the Indians out of any meaningful use of their accustomed places to fish. Fishing Vessel, 443 U.S. at 676, 99 S.Ct. at 3070, 61 L.Ed.2d at 840. As a result of substantial litigation concerning the nature and extent of these treaty rights, e.g., Puyallup I, 391 U.S. 392, 88 1512 S.Ct. 1725, 20 L.Ed.2d 689 (1968); Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254 (1973); Puyallup Tribe v. Washington Game Dept., 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed. 2d 667 (1977); Fishing Vessel, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979); Boldt I, 384 F.Supp. 312 (W.D.Wash.1974), the courts have approved the States' power to regulate off-reservation fishing activities of treaty tribe members "only to the extent necessary to protect the fishery resource." Boldt I, 384 F.Supp. at 401. Regulation of the time and manner of fishing, the size of the take, and the restriction of commercial fishing are all appropriate if necessary for conservation of the fish. Puyallup I, 391 U.S. at 398, 402 n. 14, 88 S.Ct. at 1728, 1730 n. 14, 20 L.Ed.2d at 693-94, 696 n. 14. Indeed, various tribes have voluntarily accepted restrictions on fishing rights. United States v. Oregon, 718 F.2d 299, 304 (9th Cir.1983). Apart from allowing States to limit fishing rights for purposes of conservation, however, no court has permitted the actual taking of access or taking of fishing grounds without an act of Congress. In United States v. Winans, 198 U.S. 371, 381-82, 25 S.Ct. 662, 664-65, 49 L.Ed. 1089, 1092 (1905), the respondent had acquired title to property on the Columbia River and proposed using a "fish wheel" a device which would catch salmon by the ton and destroy the Indians' right to fish from one of their "usual and accustomed" places. The Winans Court upheld the Indians' right of access to respondent's private property and remanded the case for the lower court to devise relief that would protect the Indians from total exclusion from the fishery. Winans, 198 U.S. at 384, 25 S.Ct. at 665, 49 L.Ed. at 1089. The Court held: The right to resort to the fishing places in controversy was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed. New conditions came into existence, to which those rights had to be accommodated. Only a limitation of them, however, was necessary and intended, not a taking away. In other words, the treaty was not a grant of rights to the Indians, but a grant of rights from them, a reservation of those not granted.... Reservations were not of particular parcels of land.... The reservations were in large areas of territory, and the negotiations were with the tribe. They reserved rights, however, to every individual Indian, as though named therein. They imposed a servitude upon every piece of land as though described therein. There was an exclusive right of fishing reserved within certain boundaries. There was a right outside of those boundaries reserved "in common with citizens of the territory." ... And the right was intended to be continuing against the United States and its grantees as well as against the state and its grantees. Winans, 198 U.S. at 381-82, 25 S.Ct. at 664, 49 L.Ed. at 1092-93. In Menominee Tribe, 391 U.S. at 411 n. 12, 412, 88 S.Ct. at 1710 n. 12, 1711, 20 L.Ed.2d at 702 n. 12, 703 (1968) (citing Lone Wolf v. Hitchcock, 187 U.S. 553, 564-67, 23 S.Ct. 216, 220-22, 47 L.Ed. 299, 305-07 (1903)), the Court confirmed that the treaty right is a property right which may not be abrogated without specific and express Congressional authority. See also Confederated Tribes of Umatilla Indian Reservation v. Alexander, 440 F.Supp. 553, 555 (D.Or.1977) [hereinafter Umatilla]; Boldt I, 384 F.Supp. at 337-38 (stating that the treaty fishing right "may be limited or modified in any particular or to any extent by or with authority of Congress", and noting that Congress had never, as of that time, "exercised its prerogative to either limit or abolish Indian treaty right fishing"). Absent explicit statutory language, the United States Supreme Court has been "extremely reluctant to find congressional abrogation of treaty rights...." Fishing Vessel, 443 U.S. at 690, 99 S.Ct. at 3076, 61 L.Ed.2d at 849. If Congress does authorize taking the tribes' treaty rights, that loss must be compensated under the fifth amendment. Menominee Tribe, 391 1513 U.S. at 407, 413, 88 S.Ct. at 1708, 1711, 20 L.Ed.2d at 700 & n. 4, 703; Whitefoot v. United States, 293 F.2d 658, 659 & n. 1, 155 Ct.Cl. 127 (1961), cert. denied, 369 U.S. 818, 82 S.Ct. 829, 7 L.Ed.2d 784 (1962). In Umatilla, 440 F.Supp. at 553, cited by the Fish and Wildlife Service, ROD, at 8, and the Bureau of Indian Affairs, ROD, at 11, the Army Corps of Engineers planned to dam Catherine Creek for flood control, irrigation and recreation purposes. The Umatilla Tribes sought to enjoin the project, claiming that it would infringe on their fishing rights.[7] The evidence showed that the Indians ranged along Catherine Creek and fished in holes that were likely to harbor fish, and that the size, shape and location of those holes altered as the bed of the creek was changed by natural erosion and rockfall. However, [t]he passage of time and the changed conditions affecting the water courses and the fishery resources in the case area have not eroded and cannot erode the right secured by the treaties.... Umatilla, 440 F.Supp. at 555 (quoting Boldt I, 384 F.Supp. at 401). Some of these fishing stations on the creek would have been inundated by the reservoir once the dam was created. The Umatilla court found that the flooding would deprive the Indians of their right to occupy the fishing stations and their right of access to the stations. The government had proposed a mitigation program to trap and haul chinook above the dam, but the Umatilla court rejected it: "Whatever the merits of the government's mitigation program, the treaty right to fish at all usual and accustomed stations will be destroyed as to those stations within the reservoir." Umatilla, 440 F.Supp. at 555. The court granted the tribes relief in the form of a declaratory judgment requiring specific Congressional authority before the dam could be built. In United States v. Oregon, 718 F.2d 299 (9th Cir.1983), the States of Oregon and Washington appealed a preliminary injunction preventing them from restricting treaty fishing in the upper two (out of three) pools of a 130-mile zone of the Columbia River. The proposed restriction would have allowed the Indians to fish in the bottom 21.6 miles of the zone and in one hatchery. Oregon, 718 F.2d at 301-02. The court recognized that the treaty fishing right has two discrete aspects the geographical aspect (citing Puyallup I, 391 U.S. at 398, 88 S.Ct. at 1728, 20 L.Ed.2d at 693-94), and the guarantee of a proper quota of fish (citing Fishing Vessel, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823). Oregon, 718 F.2d at 304 & n. 6. Discussing the Supreme Court's recognition of these two aspects in Fishing Vessel, the Ninth Circuit stated: [t]he tribes' right to some share of fish did not displace their right of access to fishing places. The Court's reasoning undermines any argument that the States need only supply the tribes a proper portion of the fish. Oregon, 718 F.2d at 304 n. 6. Although the Oregon court acknowledged that it could foresee instances in which limitations on the tribes' right of geographical access would be proper for conservation purposes without violating the treaty, in the circumstances of that case, the conservation purposes offered by the States did not justify the severe erosion of the tribes' treaty fishing right. The Ninth Circuit stated that in determining what limits, if any, might be placed on the geographical treaty fishing right to preserve the resource, the court must accord primacy to the geographical aspect of the treaty rights and invoke only such limits as required by the "comfortable margin" that sound conservation practices dictate. Oregon, 718 F.2d at 305. The source of the rule that fishing rights may be so limited is Puyallup I, where the Supreme Court stated: 1514 The right to fish "at all usual and accustomed" places may, of course, not be qualified by the State, even though all Indians born in the United States are now citizens of the United States. But the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians. Puyallup I, 391 U.S. at 398, 88 S.Ct. at 1728, 20 L.Ed.2d at 693-94 (citation omitted); see Fishing Vessel, 443 U.S. at 682, 99 S.Ct. at 3072, 61 L.Ed.2d at 843;[8]Boldt I, 384 F.Supp. at 333, 337. The court in Boldt I further stated that the State's power to regulate for conservation purposes "does not include the power to determine for the Indian tribes what is the wisest and best use of their share of the common resource." Boldt I, 384 F.Supp. at 402; see also United States v. Washington, 626 F.Supp. 1405, 1438 (W.D.Wash.1985). In the present case, none of the defendants contend that the construction of the Marina and the consequent elimination of a portion of the Tribes' usual and accustomed fishing grounds are reasonable and necessary measures for conservation of the fishery, although the project includes mitigation and habitat enhancement measures. No authority has been cited to this Court suggesting that the defendants in this case have rights or powers that exempt them from the above principles. The federal, City and private defendants here do not have the ability to qualify or limit the Tribes' geographical treaty fishing right (or to allow this to occur through permits) by eliminating a portion of an Indian fishing ground for a purpose other than conservation. Relying on Fishing Vessel, the Marina Group and federal defendants contend that construction of the Marina will not impair the Indians' treaty rights because they can still attain a "moderate living" by collecting their share of fish elsewhere. Fishing Vessel holds that the treaty right to take fish secures no more than is necessary to provide the Indians with a moderate living. Fishing Vessel, 443 U.S. at 686, 99 S.Ct. at 3074, 61 L.Ed.2d at 846. However, as the federal defendants recognize, the Supreme Court, in making this statement, clearly was addressing the "fair share" aspect of the treaty fishing right. The Tribes' fishing grounds in Elliott Bay are protected under the treaty right of access to those grounds (the "geographical aspect"), which is not displaced by the right to some share of fish and is not met by supplying the Tribes with a proper portion of fish. Oregon, 718 F.2d at 304 n. 6. The District Engineer's determination that construction of the Marina will not impair the Tribes' ability to meet their moderate living needs, AROD, at 50-51, even if accurate, does not circumvent the requirement of congressional authorization for such a taking, nor does it compensate for the conceded loss of the Tribes' usual and accustomed fishing grounds. Similarly, the existence of other areas in Elliott Bay where the Tribes may fish, the productive value of which is disputed, does not compensate for taking or permitting the taking of the fishing area within the Marina site. The Marina Group further argues that the Tribes have "meaningful use" of their usual and accustomed fishing areas when they still have the ability to harvest fish from other parts of their usual and accustomed fishing places, to the extent necessary to attain a moderate living. See Fishing Vessel, 443 U.S. at 676, 99 S.Ct. at 3069, 61 L.Ed.2d at 840. The Marina Group's reliance on the phrase "meaningful use" to support the actual loss of part of a usual and accustomed fishing ground collapses the right of access into the right to a fair share of fish, which this Court may not do. See Oregon, 718 F.2d at 304; Fishing 1515 Vessel, 443 U.S. at 667, 675, 99 S.Ct. at 3065, 3069, 61 L.Ed.2d at 834, 839. Moreover, the District Engineer admits hardship to the Tribes in that, even if measures are taken to permit them to catch the same number of fish in remaining areas (for example, extending the fishing season), "there would be an increase in the amount to [sic] time required to catch the same number of fish and resultant increased costs." AROD, at 28; see also Final EIS, at 214, 268. The Oregon case and the Supreme Court cases cited therein prohibit such an attempt to compensate for loss of access by supplying more fish. The Marina Group and the federal defendants contend that the Marina will not preclude the Tribes' meaningful use of the fishing area because the project will occupy one-eighth of one square mile of Puget Sound, or a fraction of one percent of the Tribes' usual and accustomed Puget Sound fishing areas. See AROD, at 51. In support of this argument, the Group cites evidence that the fishing in the area off the Duwamish Head accounts for 80% of the Muckleshoot Tribe's total catch, Final EIS, at 79, and that this Tribe's most successful fishing location is outside of Elliott Bay. Abercrombie Affidavit, at para. 18. The Tribes dispute the defendants' assessment of the impact as minimal. Moreover, during the permit proceedings, the National Marine Fisheries Service, the Bureau of Indian Affairs, and the Fish and Wildlife Service notified the Corps that they concluded the loss to the Tribes was serious and, as the latter two agencies stated, not authorized by Congress. Even the Corps agrees that fishing is limited to a few areas in Puget Sound, Final EIS, at 136, and that the impact of the proposed elimination will be "substantial." Administrative Record, at H-111 (evaluation dated October 28, 1987). No case has been presented to this Court holding that it is permissible to take a small portion of a tribal usual and accustomed fishing ground, as opposed to a large portion, without an act of Congress, or to permit limitation of access to a tribal fishing place for a purpose other than conservation. In Umatilla, the court refused to permit an unauthorized taking of some, not all, of the fishing stations which would be flooded by the proposed dam's two and one-half mile reservoir on Catherine Creek. 440 F.Supp. at 555. In Oregon, the States' proposed restriction of treaty fishing would have eliminated two pools in the upper half of the Columbia River zone at issue, and left the tribes access to a 21.6-mile pool and one hatchery. 718 F.2d at 301-02. In Winans, one fishing station on the Columbia River was at issue. 198 U.S. at 371, 25 S.Ct. at 662. In each of these cases, the court did not allow the tribes' right of access to their usual and accustomed fishing places to be impaired, limited or eliminated and did not indicate that the extent or amount of damage to the property right was a factor to weigh in reaching its decision. In circumstances similar to those presented here, the Supreme Court of British Columbia, Canada, recently held that the construction of a proposed marina in a bay on the east coast of the Saanich Peninsula on Vancouver Island "would diminish in extent the fishery (i.e. the fishing ground) contractually reserved" to predecessors of the plaintiff Indian band. Saanichton Marina Ltd. v. Claxton, No. 85/2872, slip op. at 2, 11 (S.Ct. B.C. Oct. 8, 1987) (Administrative Record, at H-124, H-133). The Canadian court found that the treaty between the Indians and the Hudson Bay Company, acting on behalf of the Crown, slip op. at 12 (H-123), reserved to the Indians "the right to carry on fisheries as formerly.... I think the words must mean that the Indians will have resort to traditional fishing grounds." Saanichton Marina, slip op. at 8 (H-127). The court concluded that the treaty (the "Deed") protected the Indians' right to the whole fishery, not just some part. Saanichton Marina, slip op. at 11, 14 (H-121, H-124). The Court finds that in the circumstances presented in this case, the proposed elimination of a portion of the usual and accustomed fishing ground where the Marina is to be built will deny the Tribes access to their usual and accustomed fishing ground, 1516 and the loss to the Tribes will be substantial. In the area between Four Mile Rock and Pier 91, where the Marina is to be constructed, the range of harm is estimated to be from 27% to over 40%. The Court concludes that the Tribes have demonstrated a strong probability of success on the merits of their treaty right claim. B. Irreparable Injury Based on the above, and considering the strength of the Tribes' showing of success on the merits of their treaty right claim, the Court concludes that the Tribes have also satisfied their burden of showing a possibility of irreparable injury to their treaty fishing right. The treaty is "the supreme Law of the Land; and the Judges in every State shall be bound thereby ..." U.S. Const. art. VI, cl. 2. The treaty clearly secures to the Tribes the right of access and the right to fish in the area now proposed to be eliminated by the construction of the Marina. The treaty fishing right cannot be impaired or limited without an act of Congress. Yet if construction of the Marina proceeds, the right in this case will be lost. The Court finds the defendants' suggestion that either the Marina could later be removed or the Tribes could be compensated in money to be without merit. The treaty fishing right is a property right protected under the fifth amendment, and the harm to this right cannot be measured solely in terms of the amount of lost income the Tribes might suffer. Boldt I, 384 F.Supp. at 404 ("the treaty rights that are asserted are unique and the damages which have been or will be sustained are not susceptible of definite monetary determination"). If the Tribes are to be compensated for a taking of their fishing ground, Congress must first authorize the taking. Although the Tribes have no adequate remedy for the threatened injury to their treaty rights, the defendants have the remedy of seeking Congressional authorization for their proposed actions. C. Balance of Hardships Having demonstrated a strong probability of success on the merits and the possibility of irreparable injury, the Tribes have shown all that is necessary for a preliminary injunction to issue. Nevertheless, the Court has considered and balanced the hardships in this case. See Chalk, 840 F.2d at 710; Los Angeles Memorial Coliseum, 634 F.2d at 1203-04. The Court recognizes the substantial desire of the citizens to build a Marina in Puget Sound, the lengthy process that has already occurred to evaluate the impact on the environment and the significant harm that may occur to nearby Magnolia residents if the Marina is not constructed. The Court also recognizes the tension between the claimed damages and benefits which will result from the construction or enjoining the construction of the Marina. The Court acknowledges that the Marina Group will suffer significant financial harm if a preliminary injunction is entered at this time. This is highly regrettable, but unlike the loss of rights guaranteed by treaty and protected under the Constitution, financial harm is not usually considered irreparable in the equitable sense. See Los Angeles Memorial Coliseum, 634 F.2d at 1202. D. Public Interest Significant numbers of individuals are interested in the development of the Marina. However, the enforcement of rights that are reserved by treaty to the Tribes is an important public interest, and it is vital that the courts honor those rights. The Court has determined that the public interest will be served in this instance by granting the preliminary injunction. IV. NEPA VIOLATIONS The Tribes contend that the Corps failed to discuss, analyze and evaluate measures to mitigate the adverse impacts of the Marina project on their treaty fishing right. They further claim the Corps failed to discuss, analyze and evaluate the cumulative impacts of the proposed Marina on their fishing activities and on the continuing loss of intertidal habitat. The Tribes contend that these alleged flaws in the EIS render it inadequate under NEPA. 1517 Because the Court has determined that a preliminary injunction should issue on the Tribes' treaty right claim, it is not necessary to address the allegations of NEPA violations at this time. The remaining claims will be resolved when this action is determined on the merits. V. CONCLUSION Under the Treaty of Point Elliott, the Tribes are entitled to a preliminary injunction to secure to them, pending a final determination of this litigation, their right of taking fish at their usual and accustomed fishing ground in the area where the Marina is to be built. The Court concludes that the Tribes have demonstrated a strong likelihood of success on the merits of their claim of a treaty right violation and a substantial possibility of irreparable injury, justifying a preliminary injunction to preserve the status quo. Now, Therefore, IT IS ORDERED as follows: 1. Plaintiffs have met the applicable legal standard for obtaining a preliminary injunction; therefore, the Court GRANTS the motion for a preliminary injunction. 2. This preliminary injunction is binding on the parties to the action, their officers, agents, servants, employees, and attorneys, and on those persons in active concert or participation with them who receive actual notice of this order. Fed.R.Civ.P. 65(d). 3. Defendants Elliott Bay Marina Group and David M. Abercrombie are directed to cease all activities relating to the construction of the Marina. 4. Defendants the City of Seattle, the United States Department of the Army Corps of Engineers, Col. Philip L. Hall (District Engineer for the Seattle District of the United States Army Corps of Engineers), and John O. Marsh (Secretary of the Army) are each enjoined from taking any action to permit or allow any activities related to furthering the construction of the Marina. 5. The preliminary injunction shall remain in effect until a decision on the merits of plaintiffs' complaint has been reached. The Court will set an early trial date to resolve these issues. 6. The Tribes are required to post a bond. Fed.R.Civ.P. 65(c); Squaxin Island Tribe v. Washington, 781 F.2d 715, 723-24 (9th Cir.1986). A hearing on the amount of the bond is set for Friday, July 8, 1988, at 2:00 p.m. 7. The Marina Group has begun dredging and filling, and sediment may have recently been discharged into Elliott Bay. Plaintiffs, in their motion for a temporary restraining order, filed on June 30, 1988, ask that the Court order the Marina Group and David M. Abercrombie to halt dredging and filling and to prevent further sedimentation by stabilizing the fill placed so far. Plaintiffs have given written notice of their motion for a temporary restraining order to the parties. The Court DENIES plaintiffs' motion for a temporary restraining order requiring the defendants to cease any dredging or filling unrelated to the Marina or otherwise to stabilize the fill, and sets a hearing for the defendants to respond to this additional relief requested, on Friday, July 8, 1988, at 2:00 p.m. All briefs and affidavits relating to this issue should be filed by Thursday, July 7, 1988. IT IS SO ORDERED. ON DETERMINATION OF BOND AND FOR TEMPORARY RESTRAINING ORDER THIS MATTER comes before the Court on two issues: (1) determination of an appropriate bond to be posted by plaintiffs Muckleshoot Indian Tribe and Suquamish Indian Tribe ("the Tribes") as a result of the Court's preliminary injunction previously entered in this case and (2) resolution of questions raised by the Tribes' motion for a temporary restraining order to prevent the defendants from carrying out any activities furthering construction of the proposed Marina and, in addition, to order defendants Elliott Bay Marina Group and David Abercrombie (collectively referred to herein as "the Marina Group") to take affirmative action to prevent further sedimentation by stabilizing the fill previously placed in the vicinity of the proposed Marina. The parties 1518 have submitted additional pleadings responsive to these issues. Having reviewed all documents and materials relating to the above questions, the Court has concluded that the Tribes must post a bond and that the Court should not require the defendants to perform any additional acts in the area of the proposed Marina site. A. Bond The Court has the discretion to impose a nominal bond or no bond in the circumstances presented. See, e.g., People of California ex rel. Van de Camp v. Tahoe Regional Planning Agency, 766 F.2d 1319, 1325, amended on other grounds, 775 F.2d 998 (9th Cir.1985); Walker v. Pierce, 665 F.Supp. 831, 843-44 (N.D.Cal.1987). The Court finds that the Tribes do not have the financial ability or resources to post a substantial bond and that requiring one would effectively deny them access to judicial review. The Court has previously concluded that the Tribes have a strong likelihood of success on the merits of their treaty right claim. This factor supports the decision to require a nominal bond or no bond. People ex rel. Van de Camp, 766 F.2d at 1326. Further, the Court has found that the Tribes' rights under their treaty are important substantive rights which the Court must protect pending the final outcome of this litigation. Accordingly, the Court orders the Tribes to post a bond in the amount of $5,000. The bond shall be filed by Tribes on or before July 15, 1988 or the Court's preliminary injunction will be vacated. B. Clarification of Homeowners' Position Under the preliminary injunction now in effect, intervenors Baggott, Troberman, Stulgis, Anderson, LaFollette and Stern ("homeowners") are not enjoined from taking any action which they deem necessary to protect their property. In the Court's view, the homeowners' position is no different now than it was prior to the entry of the preliminary injunction. C. Denial of Additional Relief Requested in Motion for TRO Prior to the Court's issuance of a preliminary injunction, certain construction activity had commenced in the vicinity of the proposed Marina site relating to the replacement of a Metro sewer line and the placing of fill in the general area of the sewer line. However, further work is necessary to stabilize the fill, to construct a containment diking system to keep the fill in place, to stabilize Magnolia bluff, and to protect the sewer line. The City of Seattle now asks this Court to order the Marina Group to stabilize the sewer line and the fill currently in place, as outlined in the Declaration of Matthew M. Lampe filed on behalf of the City. The City asks that the cost of this stabilization be included in the amount of the injunction bond. The Tribes also request that the Court issue a temporary restraining order requiring the Marina Group to prevent further sedimentation now occurring due to wave action on the fill that has been recently placed. The Marina Group objects to being ordered to take such affirmative action, stating that it is unreasonable and inequitable to require the Group to conduct additional work at the project site when the Marina development has been enjoined and additional financing for the project has thereby been precluded. The Marina Group, through its managing partner David Abercrombie, has stated in open court that it would complete the siltation slope to stabilize the fill that has been recently placed in the area as shown in the exhibit titled "Present Status", attached to the Declaration of Mr. Lampe. The Court finds that it is not appropriate to order the Marina Group or the other defendants to take any further action in the area of the proposed Marina. The intent of the preliminary injunction is to restrain the defendants from constructing the proposed Marina, and this was the subject matter of the Tribes' original motion for a preliminary injunction. The Court did not intend by its preliminary injunction to restrain the defendants from taking any action which is appropriate or necessary to protect the fill already placed, to finish stabilizing the fill with a siltation curtain, 1519 to cover or otherwise stabilize the new Metro sewer line, to stabilize Magnolia Bluff or to accomplish in some other manner the work generally outlined in any of the alternatives described in the Lampe Declaration. The Court notes that erosion, siltation and sedimentation in the area have been ongoing problems for a substantial period of time and are unrelated in any way to the Tribes' present action or to the issuance of a preliminary injunction to halt construction of the Marina. NOW, THEREFORE, IT IS ORDERED as follows: 1. The Tribes are ordered to post a bond in the amount of $5,000 on or before July 15, 1988, or the preliminary injunction presently in effect will be vacated; 2. The Tribes' motion for a temporary restraining order and the City's request that this Court require the defendants to perform additional acts in the area of the proposed Marina site are DENIED. 3. The Court's preliminary injunction previously granted in this case is clarified to state that nothing stated therein shall prohibit any of the parties from taking any action other than the construction of the proposed Marina. Any activity relating to stabilizing the siltation slope facing, stabilizing or covering the Metro sewer line or otherwise taking any action described in the alternatives set forth in the Lampe Declaration is permitted. IT IS SO ORDERED. ON MOTION FOR RECONSIDERATION THIS MATTER comes before the Court on the motion of defendants the City of Seattle, Elliott Bay Marina Group ("Marina Group"), and Intervenors-Homeowners (collectively referred to as the "Seattle defendants") for reconsideration of the Court's Order Granting Preliminary Injunction ("Order"), entered on July 5, 1988. Defendant David M. Abercrombie, managing partner of the Marina Group, filed a responsive memorandum in support of the motion. Defendants the United States Department of the Army Corps of Engineers, Col. Philip L. Hall, and John O. Marsh (collectively referred to as the "federal defendants" or the "Corps") also filed a memorandum in support of the motion. Having considered the motion, together with the memoranda and exhibits submitted by counsel, the Court DENIES the motion to reconsider and declines to vacate the preliminary injunction. DISCUSSION A. Purpose of the Preliminary Injunction The Court granted a preliminary injunction in this case in order to preserve the status quo because the Court found that the Tribes had shown a combination of probable success on the merits and the possibility of irreparable injury if the injunction was not granted. The Court further found that the Tribes' treaty rights claim raised serious questions and the balance of hardships tipped in their favor. Order, at 30-32; see, e.g., Chalk v. United States Dist. Court, 840 F.2d 701, 704 (9th Cir.1987). The defendants seem to treat the Order as a final resolution of the evidence in the record, which it is not. A party is not required to prove his case in full at a preliminary injunction hearing. At this stage, it is generally inappropriate for the court to give a final judgment on the merits. Rather, "[t]he purpose of a preliminary injunction is to preserve the relative positions of the parties until a trial on the merits can be held." University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175, 180 (1981); see also Fed.R.Civ.P. 65(b) ("any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial" and may be considered by the factfinder then). A party is not entitled to reconsideration based on "new facts" or theories which were clearly available to that party at the time of the earlier ruling. Fay Corp. v. BAT Holdings I, Inc., 651 F.Supp. 307, 308 (W.D.Wash.1987). Nor are "after thoughts" appropriate bases for reconsideration. Fay Corp., 651 F.Supp. at 309. The 1520 facts and theories raised by defendants were clearly available to them at the time of the hearing and are not grounds for reconsideration. Notwithstanding the finding that the defendants have not met the standard for reconsideration, the Court has considered the issues raised by the defendants because of the importance of the claims to all parties to this litigation. In summary, the record demonstrates significant disagreement over the extent of damage to the Tribes' treaty fishing rights as a result of the construction of the Marina; however, there is substantial evidence that some loss of an adjudicated fishing ground and damage to the Tribes' right of access to fish there will probably occur if the Marina is built. Applying the standard for granting a preliminary injunction to the record presented by all parties, the Court granted preliminary relief to preserve the status quo pending trial on the merits of this case. B. Defendants' Contentions 1. The defendants do not concede that the Marina will have a substantial effect on fishing rights. The Seattle defendants contend that the statements in the Environmental Impact Statement ("EIS"), which the Order cited and relied on, were made "assuming very conservative projections" for the purpose of environmental review and should be distinguished from the Corps' findings in its permit decision. First, this argument implies, and Mr. Abercrombie explicitly argues in his own memorandum, that the Court should defer to the Corps' decision, as reflected in its issuance of the permit, to allow the Marina to be built, despite the statements in the EIS regarding the adverse or irreversible impact on the Tribes' fishing grounds. See Final EIS, at 263, 268. Second, the argument suggests that specific statements in the EIS are less authoritative than the Corps' resolution of the material and its ultimate decision to issue the permit. a. Deference to the Corps. In the Order, the Court did not reach the Tribes' NEPA challenges, but addressed only the treaty rights claims. Thus, the deferential standard of review for NEPA challenges was not the appropriate approach and the Court did not apply that standard. As counsel for the federal defendants stated at the hearing on the motion for preliminary injunction, the treaty rights question is a legal issue which the court decides de novo. Transcript of Hearing, at 36-37; see, e.g., United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905) (treaty right claims against private party); United States v. Washington, 384 F.Supp. 312, 328 (W.D.Wash.1974) [hereinafter Boldt I], aff'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), substantially aff'd sub nom. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979) (treaty right claims against state government). The Court considered the Corps' decision to issue the permit, together with the facts evaluated in the administrative record, including the EIS. The Court concluded that, as a matter of law under the authorities establishing and construing treaty fishing rights, the loss of a portion of the fishing grounds, see Final EIS, at 268, could not be permitted by the Corps or the City or accomplished by the Marina Group without an act of Congress. The evidence presented by all parties showed an actual impact of the Marina on the fishing grounds, but a dispute over the extent of the impact the injury to the Tribes' right of access to the grounds as well as the financial injury (which alone would not be irreparable harm). See Order, at 4-6. b. Credibility of statements in EIS. The Court finds no distinction in the federal statutes and regulations between findings made for the purpose of environmental review and for issuing permits. The requirement that all federal agencies prepare an environmental impact statement is set forth in the National Environmental Policy Act, 42 U.S.C. § 4332(2); 40 C.F.R. § 1500 et seq. The statute requires: a detailed statement by the responsible official on 1521 (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, ... and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 42 U.S.C. § 4332(2)(C).[1] The EIS and the administrative record analyze a substantial amount of information concerning the amount of fishing at the Marina site. See, e.g., ROD, at 38; Amendment to Record of Decision ("AROD"), at 49; Technical Appendix O, at 0-23-30; Final EIS, at 136, 212-14. The conclusions in the EIS are "[b]ased on the information provided by the permit applicants, the Indian Tribes, and WDF ...." Final EIS, at 212. The Court drew its own legal conclusions based on the record, as it is entitled and bound to do, for the purpose of determining whether a preliminary injunction should issue. The Court concluded that the alleged loss and injury to treaty fishing rights reach the level of probability and significance that at this time the defendants cannot lawfully proceed with the proposed elimination of this portion of a fishing ground. c. Misplaced reliance on parts of the administrative record. The federal defendants point to specific references in the Order and contend that the Court's reliance is misplaced because those references are assumptions or opinions only, or are qualified or contradicted by other evidence in the record. As these defendants recognize and as the Order reflects, the evidence is conflicting. Order, at 3-12. It is not the Court's function to determine the final outcome of this evidence at this point, but rather to evaluate the probability of success on the merits, the possibility of irreparable harm, the seriousness of the questions, and the balance of hardships. 2. The Order makes no distinction between grounds and stations and does not require the Tribes to prove that fishing was conducted at the Marina site at and before treaty times. The Seattle defendants contend that the Court's decision collapses Judge Boldt's distinction between grounds and stations. Boldt I defined the Muckleshoot Tribe's usual and accustomed fishing places to include "secondarily ... the saltwater of Puget Sound." 384 F.Supp. at 367. A later Boldt decision defines the usual and accustomed fishing places of the Suquamish Tribe to include "the marine areas of northern Puget Sound from the northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits, the streams draining into the western side of this portion of Puget Sound and also Hood Canal." United States v. Washington, 459 F.Supp. 1020, 1049 (W.D.Wash.1978). The statement in Boldt I cited by the Seattle defendants that "occasional and incidental trolling was not considered to make the marine waters traveled thereon the usual and accustomed fishing grounds of the transiting Indians", 384 F.Supp. at 353, does not contradict the Boldt I court's findings including Elliott Bay within the usual and accustomed fishing places of the Tribes. 384 F.Supp. at 367; 459 F.Supp. at 1049.[2] Once the area has been defined as within the usual and accustomed fishing 1522 places, the cases do not require the Tribes to prove that they fished there at and before treaty times; that has been "adjudicated," as the record shows here. The treaty secures a "right of taking fish, at all usual and accustomed grounds and stations...." Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 673, 99 S.Ct. 3055, 3068, 61 L.Ed.2d 823, 838 [hereinafter Fishing Vessel], modified on other grounds, 444 U.S. 816, 100 S.Ct. 34, 62 L.Ed.2d 24 (1979). The authorities do not support affording less protection to a fishing area because it is a ground rather than a station. 3. The Order ignores substantial evidence in the record that the Tribes do not fish at the Marina site. The Boldt decisions' definition of Elliott Bay as within the Tribes' usual and accustomed fishing places framed the issue for the Court as stated in the Order. Order, at 16. On a record reflecting variations in the assessed impact of the Marina on the amount of fishing possible and the range of harm to the Tribes' right of access, the Court found that the standards for issuing a preliminary injunction were satisfied. The Seattle defendants now in effect urge the Court to disagree with statements and conclusions of the preparers of the EIS, as well as evidence presented by the Tribes, and instead accept certain references on which these defendants rely to show there is no fishing in the vicinity of the Marina. The Seattle defendants state, for example, that the Tribes' estimate of the catch of fish that will be lost is an inflated figure, 85% of which represents coho salmon catch. Because fishing for coho takes place in waters deeper than the Marina will extend, the Seattle defendants contend that an impact on coho fishing area is not possible and that the only actual impact will be a minor effect on chinook fishing. Regarding coho fishing, evidence presented by the Tribes indicates that the area around the proposed Marina is a "prime coho fishing area", that the Tribes fish for coho directly in front of where the Marina would be and that the breakwater and the increased boat traffic would probably interfere with fishing for this type. Declaration of Clifford Keeline, at para. 5; Declaration of James Barr, at para. 5; Declaration of Merle A. Hayes, at para. 11. The Tribes' expert, Philip A. Meyer, and the Corps differ in their estimates of the increase in boat traffic. Declaration of Philip A. Meyer, at paras. 6-7; AROD, at 28, 34. Regarding the impact on chinook fishing, the Tribes presented substantial evidence that fishing in the area has been curtailed in recent years but that when the area is open, it is considered to be the prime chinook fishing area in outer Elliott Bay for Green-Duwamish chinook and one of the most highly valued productive sites for chinook fishing in Elliott Bay. E.g., Declaration of Randy Hatch, at paras. 27-28, 34-35; Technical Appendix O & Appendix III, Correspondence. The District Engineer based his determination that the impact of the marina on the Tribes' right of access would be "minimal" on his comparison of the area to be eliminated to the whole of the Tribes' usual and accustomed fishing places "or at the very most within Elliott Bay." AROD, at 49-50. This comparison does not provide an accurate evaluation of the impact, in light of the fact that the Tribes do not fish in every part of their usual and accustomed fishing areas and few fishing areas remain available. EIS, at 136; see also Final EIS, at 212; Order, at 28-29. The Court did not hold that even if there are no fish in the area of the proposed Marina, the Tribes have an unqualified right of access to fish there. At this preliminary stage, the Court found credible and substantial the evidence that there could be a significant loss of the right to take fish from the area, which is impermissible without an act of Congress. See Fishing Vessel, 443 U.S. at 673, 99 S.Ct. at 3068, 61 L.Ed.2d at 838; United States v. Oregon, 718 F.2d 299, 304 & n. 6 (9th Cir.1983) (right of access is separate from the right to harvest a share of fish). The final determination of the nature and extent *1523 of the loss of fishing rights and whether this loss will ultimately preclude the development of the Marina must await the trial on the merits and the findings of the trier of fact on these issues. See University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175, 180 (1981). 4. Scope of Order. The federal defendants are concerned that the Order is not limited to usual and accustomed grounds and stations where the Tribes actually fish, but could encompass all development within Puget Sound. The Court's decision is limited to the facts presented. Order, at 30. The Court noted that the Tribes do not claim the right to prevent construction of all developments within their adjudicated usual and accustomed fishing grounds and stations, but only where a development would actually interfere with fishing. Order, at 19. The Order thus holds only that the Tribes have met the showing necessary for preliminary relief halting construction of the Marina at the proposed site. The defendants' objection to this decision because of possible implications for other future developments in unspecified locations is without merit. CONCLUSION For the reasons stated above, the defendants' motion to reconsider and to vacate the preliminary injunction is DENIED. The preliminary injunction shall remain in effect pending trial on the merits. IT IS SO ORDERED. NOTES [1] On April 27, 1988, the Court granted leave to Tulalip Tribes to appear as amicus curiae. Tulalip Tribes filed a memorandum in support of the motion for preliminary injunction and appeared at oral argument. [2] The United States Army Corps of Engineers has regulatory authority over all construction activities in navigable waters of the United States. Final Environmental Impact Statement, at iii. [3] The permit process before the City paralleled the Corps proceedings and its history is summarized here. On November 23, 1983, the Marina Group applied to the City for a Shoreline Substantial Development Permit and Variance, required by the Seattle Shoreline Master Program under the Shoreline Management Act of 1971, RCW 90.58. Technical Appendix P. In September 1985, following preparation of a draft EIS under the Washington State Environmental Policy Act ("SEPA") and public review and comment, the City published its SEPA Final EIS. The City issued its Analysis and Decision granting approval of the marina project on certain conditions on March 26, 1986. The decision was appealed to the State Shoreline Hearings Board. After the permit was revised, on November 14, 1986, the City issued a Shoreline Substantial Development Permit and Variance, over the Tribes' objection. [4] The Muckleshoot Tribe is the successor to tribes or bands which were parties to the Treaty of Point Elliott and the Treaty of Medicine Creek. United States v. Washington, 384 F.Supp. 312, 365 (W.D.Wash.1974) [hereinafter Boldt I], aff'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), substantially aff'd sub nom. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). The provision regarding fishing rights is the same in both treaties. Boldt I, 384 F.Supp. at 331. The Suquamish Indian Tribe was a party to the Treaty of Point Elliott. United States v. Washington, 459 F.Supp. 1020, 1040 (W.D.Wash.1978), appeal dismissed, 573 F.2d 1117 (9th Cir.1978). Amicus Tulalip Tribes is a political successor in interest to tribes, bands or groups of Indians which were parties to the Treaty of Point Elliott. United States v. Washington, 459 F.Supp. 1020, 1039 (W.D.Wash.1978). [5] The Final EIS states that, if the Marina is constructed as proposed, one probable adverse effect which could not be avoided would be a reduction in area of a portion of one of the fishing areas within the Muckleshoot and Suquamish Tribes' usual and accustomed fishing areas as defined in United States v. Washington 384 F.Supp. 312 (DCWA 1974). This reduction would increase somewhat the effort necessary to harvest that portion of the fisheries resource allotted to the tribes. As a result of increased recreational boat traffic generated by the marina, there could be increased conflict between recreational boats and Indian fishing activities, which could result in increased net damage. Final EIS, at 268. [6] The Tribes' usual and accustomed fishing places are defined in Boldt I, 384 F.Supp. at 367 (Muckleshoot Tribe); 459 F.Supp. at 1049 (Suquamish Tribe). These definitions include Puget Sound as a usual and accustomed fishing place for both Tribes. Boldt I defines the terms "grounds," "stations," and "usual and accustomed": "Stations" indicates fixed locations such as the site of a fish wier or a fishing platform or some other narrowly limited area; "grounds" indicates larger areas which may contain numerous stations and other unspecified locations which in the urgency of treaty negotiations could not then have been determined with specific precision and cannot now be so determined. "Usual and accustomed," being closely synonymous words, indicate the exclusion of unfamiliar locations and those used infrequently or at long intervals and extraordinary occasions. Therefore, the court finds and holds that every fishing location where members of a tribe customarily fished from time to time at and before treaty times, however distant from the then usual habitat of the tribe, and whether or not other tribes then also fished in the same waters, is a usual and accustomed ground or station at which the treaty tribe reserved, and its members presently have, the right to take fish. 384 F.Supp. at 353. [7] The treaty at issue gave the tribes fishing rights only in stations, not grounds; however, the court found that the term "stations" in that treaty was intended to designate the same kinds of fishing locations as the phrase "grounds and stations" in the other Northwest Indian treaties. Umatilla, 440 F.Supp. at 555. [8] In Fishing Vessel, the Court reaffirmed that the treaty guarantees Indians more than simply the "equal opportunity" to catch fish along with all other citizens and that treaty fishermen, unlike nontreaty fishermen, are "immune from all regulation save that required for conservation." Fishing Vessel, 443 U.S. at 682, 99 S.Ct. at 3072, 61 L.Ed.2d at 843 (citing Puyallup I, 391 U.S. at 398, 88 S.Ct. at 1728, 20 L.Ed.2d at 693-94). [1] The EIS was prepared by a "project team ... in the role of independent third party contractors, with the guidance and participation of the Corps of Engineers" and input from the Marina Group. The document contains a certification by the individual signing "that neither I nor other members of the project team have any financial or other interest in the outcome of this project." Final EIS, at vi. This certification complies with 40 C.F.R. § 1506.5(c) and ensures the impartiality of the statements in the EIS. [2] The record contains numerous references to the Marina site as a usual and accustomed fishing area or ground, based on the specific determinations in the Boldt decisions. See, e.g., AROD, at 49; Final EIS, Figures 24 and 25. Counsel for the federal defendants stated at oral argument that these defendants do not dispute "that Area 10 and Elliott Bay are usual and accustomed fishing areas of the ... plaintiffs." Transcript of Hearing, at 37.	{ "pile_set_name": "FreeLaw" }
810 F.2d 194 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Haywood CANNON, Plaintiff-Appellant,v.J. Patrick EXUM, Tillie Parsons Beaman, Executrix of theEstate of John William Beaman, Dallas Clark, Jr.,Jeffrey Lee Miller, Rachael BeamanMiller, Defendants-Appellees.NATASHA No. 86-2153. United States Court of Appeals, Fourth Circuit. Submitted Nov. 28, 1986.Decided Jan. 16, 1987. Before RUSSELL, PHILLIPS and ERVIN, Circuit Judges. Haywood Cannon, appellant pro se. Reginald Leander Watkins, Office of the Attorney General of North Carolina, Jeffrey Lee Miller, Dallas Clark, Jr., for appellees. PER CURIAM: 1 Appellant Haywood Cannon filed suit in state court seeking damages for wrongs allegedly committed by the defendants during state court proceedings involving the custody of Cannon's child. Shortly after filing suit, Cannon removed it to federal court, asserting that removal was proper because the action was one that could have been filed in federal court and the state courts would not enforce or protect his federal rights. Cannon cited as authority for the removal sections 1441(a), (b) and (c) and 1443(1) and (2) of Title 28, United States Code. The defendants promptly objected to the removal and moved to have the action remanded to state court. By order entered July 21, 1986, the district court remanded the action to state court. 2 On August 20, 1986, Cannon moved for reconsideration of the remand order, and on August 25, he noted an appeal from the remand order. The district court denied Cannon's motion for reconsideration on September 16, 1986, and Cannon filed a notice of appeal from that order on October 1, 1986. Appellees have moved to dismiss the appeal as frivolous. 3 Initially we note the limitation on review of remand orders established by 28 U.S.C. § 1447(d): 4 An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise. 5 Cannon referenced both 28 U.S.C. § 1441 and 28 U.S.C. § 1443 as authority for removal of this action. To the extent the removal was based on § 1441, the remand would not be reviewable either by appeal from the remand order or by appeal from the denial of the motion for reconsideration. To the extent the removal was based on § 1443, we note that the appeal from the remand order is untimely under Fed.R.App.P. (4)(a)(1). 6 Cannon filed his first notice of appeal on August 25, more than 30 days after entry of the July 21 remand order.1 As Cannon has failed to move in the district court for an extension of the appeal period based upon excusable neglect, we are without jurisdiction over his appeal from the July 21 remand order. Shah v. Hutto, 722 F.2d 1167 (4th Cir.1983) (en banc), cert. denied, 466 U.S. 975 (1984). 7 Cannon's motion for reconsideration of the remand order, served more than ten days after entry of the order, did not toll the running of the appeal period under Fed.R.App.P. 4(a)(4). Assuming that the district court considered the motion as a motion to vacate under Fed.R.Civ.P. 60(b), the denial of that motion could, however, be appealed in its own right. 8 The district court's denial of the motion for reconsideration was clearly proper. Section 1443 permits removal of certain types of action by a defendant. Cannon is the plaintiff, not the defendant, in this litigation. 9 In sum, we find that we are, for the most part, without jurisdiction to entertain this appeal. To the extent we may review, upon appeal from the denial of Cannon's motion for reconsideration, the district court's finding that removal was improper under 28 U.S.C. § 1443, the appeal is "absolutely and irretrievably without a semblance of merit." Windsor v. Pan American Airways, 744 F.2d 1187, 1188 (5th Cir.1984). See also Merit Insurance Co. v. Leatherby Insurance Co., 737 F.2d 580, 581 (7th Cir.), cert. denied, --- U.S. ----, 53 U.S.L.W. 3289 (Oct. 15, 1984). Dismissal of the appeal as frivolous and for lack of jurisdiction is therefore appropriate. We accordingly grant appellees' motion to dismiss. Cannon's motion for recusal is denied. We dispense with oral argument because the dispositive issues recently have been decided authoritatively. 10 DISMISSED.	{ "pile_set_name": "FreeLaw" }
919 F.2d 742 U.S.v.Wetzel (Gary) NO. 89-6082 United States Court of Appeals,Eleventh Circuit. NOV 02, 1990 S.D.Fla., 915 F.2d 696 1 DENIALS OF REHEARING EN BANC.	{ "pile_set_name": "FreeLaw" }
496 F.Supp. 1332 (1980) ALBERTA GAS CHEMICALS, INC., Plaintiff, v. UNITED STATES, Defendant. Court No. 79-8-01295. United States Customs Court. September 22, 1980. Freeman, Meade, Wasserman & Schneider, New York City (Bernard J. Babb, Washington, D. C., of counsel), for plaintiff. Alice Daniel, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, John J. Mahon and Glenn E. Harris, Washington, D. C., trial attys., for defendant. Memorandum Opinion and Order on Plaintiff's Motion Brought on by an Order to Show Cause Why Sale of General Order Merchandise Should Not Be Enjoined NEWMAN, Judge: We are faced again with the oft-litigated question of the Customs Court's equitable powers. In that connection, see my recent memorandum and orders in Industrial Fasteners Group, American Importers Association v. United States, et al., 85 Cust.Ct. ___, C.R.D. 80-8, 495 F.Supp. 911 (1980), wherein this Court for the first time issued a temporary restraining order and preliminary injunction in a matter of novel impression under section 516A(c)(2) of the Tariff Act of 1930, as added by the Trade Agreements 1333 Act of 1979 (Pub.L. 96-39, 93 Stat. 144, enacted July 26, 1979).[1] The issue now presented by plaintiff's motion, brought on by an order to show cause, is whether the Customs Court is empowered to grant injunctive relief pursuant to 28 U.S.C. § 1651(a), commonly known as the "All Writs Act". That Act provides: (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. I have concluded that the foregoing statute is applicable to the Customs Court and that injunctive relief may be granted under the facts and circumstances of this case. Pursuant to plaintiff's motion, and after a conference attended by counsel for the parties, this Court on August 13, 1980 issued an order to show cause returnable on August 20, 1980 "why an order should not be entered directing the Regional Commissioner at the Port of New York and all other officials and agents of the United States to maintain one shipment, consisting of 25 × 55 gallon drums of methyl alcohol imported by the plaintiff from Canada on August 14, 1979 and now being stored in the Mercantile Warehouse in Newark, New Jersey under General Order No. 110-79, in its present status and unsold until 30 days after the decision of this Court on the merits has become final". The order to show cause further provides: "pending the hearing and determination of this motion and the entry of an order thereon, that all proceedings by the defendant, and any of its officers and agents in connection with the sale or other disposal of the merchandise or its removal from its present location, be, and is, hereby stayed by this Court". The above order to show cause, which was issued on the eve of the expiration of the one year general order period, was signed in the context of the following undisputed factual background. On March 23, 1979 the Treasury Department ("Treasury") determined that methyl alcohol from Canada is being, or is likely to be, sold at less than fair value ("LTFV") within the meaning of section 201(a) of the Antidumping Act of 1921, as amended (19 U.S.C. § 160(a)). That determination was published in the Federal Register on March 30, 1979 (44 FR 19090). On June 29, 1979 the United States International Trade Commission determined, in Investigation No. AA1921-202, that an industry in the United States is likely to be injured by reason of the importation of methyl alcohol from Canada which Treasury had determined is being, or is likely to be, sold at LTFV. The Commission's determination was published on July 12, 1979 (44 FR 40734). On July 23, 1979 Treasury issued a Finding of Dumping respecting methyl alcohol from Canada (T.D. 79-210), which Finding was published in the Federal Register on July 27, 1979 (44 FR 44154). The subject merchandise was exported from Canada on August 13, 1979. Entry documents (Customs Form 7501)[2] and a check for estimated duties were presented by plaintiff to the appropriate customs officer at the port of New York on August 15, 1979. However, the entry was rejected by Customs for the reason that the importer refused to proffer an antidumping bond (Customs Form 7591) in accordance with 19 U.S.C. § 167 and 19 C.F.R. § 153.50. Further, on August 15, 1979, upon exclusion of the merchandise from entry, the merchandise was assigned General Order No. 110-79 and was placed in the Mercantile Warehouse, 1300 Newark Turnpike, Newark, New Jersey. The Court has been advised by counsel that the merchandise presently remains stored in that warehouse. 1334 On August 20, 1979, following the denial of its administrative protest, plaintiff commenced the present action contesting the Regional Commissioner's decision to exclude the merchandise from entry and his refusal to deliver the subject merchandise without the filing of an antidumping bond. The gravamen of plaintiff's action is that the Secretary's Finding of Dumping is illegal, null, and void; and that therefore the Regional Commissioner erred in demanding the posting of an antidumping bond, and in excluding the merchandise from entry and delivery to plaintiff in the absence of such bond. Plaintiff seeks an order directing the Regional Commissioner to accept plaintiff's entry and deliver the merchandise to plaintiff without filing an antidumping bond. Defendant's motion to dismiss the action or alternatively for summary judgment was denied by this Court on January 17, 1980. Alberta Gas Chemicals, Inc. v. United States, 84 Cust.Ct. ___, C.R.D. 80-1, 483 F.Supp. 303 (1980). There, it was determined that pursuant to 28 U.S.C. § 1582(a)(4) this Court has jurisdiction to determine the legality of the exclusion of plaintiff's merchandise from entry for refusal to file an antidumping bond, and of the Secretary's underlying finding of dumping. Defendant's alternative motion for summary judgment was held to be premature under Rule 8.2(a) inasmuch as defendant had not then filed an answer. Defendant has since filed its answer to the complaint, and the action is presently pending before the Court on cross-motions for summary judgment. It appears from plaintiff's moving affidavit and attached documents that the merchandise has now been in a General Order status for more than a year, and therefore is subject to sale at public auction as unclaimed and abandoned merchandise pursuant to 19 U.S.C. § 1491 as amended;[3] that plaintiff has no intention of abandoning the subject merchandise, but rather is asserting a claim for its entry and delivery in the present action; and that plaintiff's efforts to obtain an informal agreement by Customs to continue holding the merchandise in a General Order status until a decision in this litigation becomes final were not successful.[4] On the return date of the order to show cause (August 20, 1980) oral argument was heard by the Court. Defendant did not oppose plaintiff's motion, conceding arguendo that if the court has subject matter jurisdiction (which defendant does not concede), the Customs Court has the power to grant the equitable relief sought by plaintiff under the All Writs Act (T. Oral Arg. 5). Thus, there is no dispute between the parties that the All Writs Act is applicable to the Customs Court under the circumstances of this case. The Customs Court was established by an act of Congress on May 28, 1926, superseding the "Board of General Appraisers".[5] 19 1335 U.S.C. § 405a. Moreover, in 1956, the Customs Court was declared to be a court established under Article III of the Constitution of the United States. 28 U.S.C. § 251. Consequently, I have no doubt that Congress intended that the All Writs statute, 28 U.S.C. § 1651(a), could be applied by this Court in appropriate circumstances. Although 28 U.S.C. § 1651(a) refers to "all writs necessary or appropriate in aid of their respective jurisdictions", courts have interpreted the statute as authorizing injunctions to protect and effectuate their judgments. See Baker v. Gotz, 415 F.Supp. 1243, 1247 (D.Del.1976), aff'd, 546 F.2d 415 (3d Cir. 1976). Generally, the object of a preliminary injunction is to preserve the status quo until a full and final hearing on the merits. Cywan v. Blair, 16 F.2d 279 (N.D.Ill.1926). The Customs Court is a court of limited jurisdiction. Its authority to grant injunctive relief under 28 U.S.C. § 1651(a) is strictly auxiliary in aid of its jurisdiction. Moreover, "[e]quity power can apply only to matters within a court's jurisdiction and cannot be exercised in disregard of the mandatory requirements of the jurisdictional statute". United States v. Boe, 64 CCPA 11, 18 (n.9), C.A.D. 1177, 543 F.2d 151 (1976). As aptly observed by Judge Watson in Russell Stanfield Dexter v. United States, 78 Cust.Ct. 179, 180, C.R.D. 77-1, 424 F.Supp. 1069 (1977): The All Writs Act does not give this court jurisdiction to require anyone to satisfy the pre-conditions of jurisdiction. It only gives the court instruments with which to effectuate existing jurisdiction. [Emphasis added.] And in Alberta Gas Chemicals, Inc. v. W. Michael Blumenthal, Secretary of the Treasury, et al., 82 Cust.Ct. 77, 88-89, C.D. 4792, 467 F.Supp. 1245 (1979), this Court stated: Similarly, the All Writs Act, 28 U.S.C. 1651, also relied upon by plaintiff, does not give this court jurisdiction to grant plaintiff the requested relief, but may only be utilized in aid of existing jurisdiction, that is to say, where the jurisdictional prerequisites of 28 U.S.C. 1582 are present. [Emphasis added.] See also: Matsushita Electric Industrial Company, Ltd., et al. v. The United States Treasury Department et al., 67 Cust.Ct. 328, C.D. 4292 (1971), aff'd, 60 CCPA 85, C.A.D. 1086, 485 F.2d 1402 (1973), cert. denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973); Flintkote Company, Glens Falls Division v. United States (Independent Cement Co., Party in Interest), 82 Cust.Ct. 305, C.R.D. 79-5, 467 F.Supp. 626 (1979); and J. C. Penney Company, Inc. v. United States Treasury Department et al., 439 F.2d 63, 68 (2d Cir. 1971), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971). Unlike the circumstances in the above-cited authorities wherein the Courts declined to grant equitable relief pursuant to the All Writs Act, plaintiff here has not sought to use that Act as a vehicle by which the Court should exercise jurisdiction. Rather, plaintiff urged and this Court heretofore decided in C.R.D. 80-1, that the present case has been properly brought to contest the denial of a protest against an administrative decision cognizable under 19 U.S.C. § 1514(a)(4) and 28 U.S.C. § 1582(a)(4); and that the Court has jurisdiction to decide the issues pertinent to that administrative decision. The All Writs Act gives this Court the power to grant the requested relief only in aid of, and in this situation, in preservation of its jurisdiction. The significance of this application of the All Writs Act lies in the obvious fact that the imported merchandise is the res of the action. Its sale at public auction by the Customs Service would make the merchandise unavailable for entry by, and delivery to plaintiff, in the event of a final decision on the merits favorable to plaintiff. Plainly, under such circumstances the fruits of litigation would be lost by a sale at public auction at this time, plaintiff would suffer irreparable harm, and such sale would render the issue before the Court moot. 1336 In sum, it is clear from the circumstances presented here, that the granting of the relief sought by plaintiff would maintain the advisable status quo, and is in aid of the Court's jurisdiction. Such relief is admittedly within the power of the Court to grant, pursuant to the All Writs Act. Lastly, the granting of injunctive relief pendente lite does not infringe upon 19 U.S.C. § 1451, as any sale of the merchandise is merely suspended or deferred until after final determination of the merits of this litigation. It may be, as suggested by counsel for defendant, that during the period of restraint the subject merchandise may decline in value. A claim that injurious consequences will result to the Government if the General Order merchandise is not promptly sold may not, of course, be disregarded by the Court; nevertheless, it presents a question addressed not to the power of the Court, but to its discretion or the propriety of the exercise of its power. Here, defendant's fear of a loss of value of the subject merchandise has been completely obviated by including in the proposed order-following this Court's suggestion-a provision for security in an amount that has been mutually agreed upon by the parties. For the reasons set forth herein, this Court has entered the attached order (which has been jointly proposed by the parties), and this memorandum shall be deemed to be incorporated into and to supplement that order. NOTES [1] This provision empowers the Customs Court to enjoin the liquidation of entries in the case of a determination described in paragraph (2) of subsection (a). [2] Consumption entry No. 79-638078-8. [3] This statutory provision, so far as pertinent, reads: Any entered or unentered merchandise (except merchandise entered under section 557 of this Act [19 USCS § 1557], but including merchandise entered for transportation in bond or for exportation) which shall remain in customs custody for one year from the date of importation thereof, without all estimated duties and storage or other charges thereon having been paid, shall be considered unclaimed and abandoned to the Government and shall be appraised and sold by the appropriate customs officer at public auction under such regulations as the Secretary of the Treasury shall prescribe. * * * [Emphasis added.] See also 19 C.F.R., Part 127. [4] A letter dated August 11, 1980 from the Regional Commissioner of Customs at the Port of New York to plaintiff's counsel informed plaintiff that under the law (19 U.S.C. § 1491) and regulations, the Commissioner had no administrative discretion to extend the one year General Order period, and hence the merchandise would be scheduled for sale at the next regular sale occurring after August 14, 1980. [5] Significantly, Congress has before it historic legislation (S.1654-entitled the "Customs Courts Act of 1979", and H.R. 7540-entitled the "Customs Courts Act of 1980"), providing inter alia for greatly expanding the jurisdiction of the Customs Court, changing the Court's name to "United States Court of International Trade", and granting to that Court all of the powers in law and equity of, or as conferred by statute upon, a district court of the United States. These companion bills, respectively, were passed unanimously: S.1654 on December 18, 1979, and H.R. 7540 on this very day. The Senate and House versions are awaiting final Congressional resolution before transmittal of the legislation to the President.	{ "pile_set_name": "FreeLaw" }
i i i i i i OPINION No. 04-10-00007-CR Ruben MORENO, Appellant v. The STATE of Texas, Appellee From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 01-0697-CR Honorable Dwight E. Peschel, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Marialyn Barnard, Justice Delivered and Filed: July 21, 2010 STATE’S MOTION TO DISMISS GRANTED AND APPEAL DISMISSED In 2002, appellant Ruben Moreno pleaded nolo contendere to the offense of delivery of marijuana pursuant to a plea bargain agreement. Pursuant to the plea agreement, the trial court sentenced him to ten years confinement, but in lieu of confinement, placed appellant on community supervision for a term of ten years. In 2009, the State filed its third motion to revoke appellant’s community supervision. The State ultimately alleged appellant violated seven conditions of 04-10-00007-CR probation. In response, appellant signed a “Stipulation and Judicial Confession” in which he pled true to violating six of the seven conditions asserted in the State’s motion to revoke. In addition to pleading true to numerous probation violations, appellant also waived numerous rights, including his right to appeal. The trial court revoked appellant’s probation, and sentenced him to ten years confinement in the Texas Department of Criminal Justice-Institutional Division. The trial court completed a certification of the defendant’s right to appeal pursuant to rule 25.2(d). See TEX . R. APP . P. 25.2(d). In that certification, the trial court stated appellant had waived his right to appeal. It appeared the waiver was invalid because according to the record before this court, it was not made pursuant to an agreement on sentencing, or made post-sentencing.1 Compare Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000) with Ex parte Thomas, 545 S.W.2d 469, 470 (Tex. Crim. App. 1977). Accordingly, we ordered the trial court to amend its certification. See TEX . R. APP. P. 25.2(f). When the trial court filed its amended certification, the trial court also included a statement that appellant orally waived his right to appeal “at the conclusion of the revocation hearing and sentencing.” According to the trial court, the waiver was made in open court, under oath, and with counsel present. Subsequently, the State filed a motion asking this court to (1) reconsider our order requiring the trial court to amend the certification, and (2) strike the amended certification. The State also filed a motion to dismiss the appeal based on appellant’s waiver. Given the information provided this court in the trial court’s amended certification regarding appellant’s oral waiver, we granted the State’s motion to reconsider and motion to strike and ordered our February 10, 2010 1 … No reporter’s record has been filed in this case. Thus, when we ordered the trial court to amend its certification, we where unaware of any oral waiver of the right to appeal. -2- 04-10-00007-CR order withdrawn and the trial court’s amended certification stricken. We further ordered appellant to show cause why this appeal should not be dismissed based on the waiver of appeal. We stated that if appellant did not show cause why this appeal should not be dismissed, we would dismiss the appeal. Appellant did not file a response to our show cause order. In Monreal v. State, the court of criminal appeals held that “[a] valid waiver of appeal, whether negotiated or non-negotiated, will prevent a defendant from appealing without the consent of the trial court.” 99 S.W.3d 615, 622 (Tex. Crim. App. 2003). However, the court of criminal appeals has also held that pre-sentencing waivers of the right to appeal are not “valid” because they cannot, as a matter of law, be made knowingly, voluntarily, and intelligently. Thomas, 545 S.W.2d at 470. In Blanco, the court distinguished Thomas. Blanco, 18 S.W.3d at 220. In Blanco, after a jury convicted the defendant but before sentencing, the defendant and the State entered into an agreement by which the State promised to recommend a sixteen-year sentence. Id. In exchange, the defendant promised not to appeal his conviction. Id. The court of criminal appeals held the defendant in Blanco waived his right to appeal despite the fact it was made pre-sentencing because unlike the defendant in Thomas, the defendant in Blanco bargained for a sentencing recommendation in exchange for his waiver of the right to appeal, which was honored by the trial court. Id. Thus, pursuant to the court’s holdings in Monreal, Thomas, and Blanco, a waiver of the right to appeal is valid, i.e., knowingly, voluntarily, and intelligently made, when the waiver is made subject to a bargained for sentencing recommendation, which is subsequently followed by the trial court, or when the waiver is made post-sentencing. A waiver is valid under those circumstances because in both instances the defendant, at the time of the waiver, knows the likely consequences of the waiver. See Tufele v. State, 130 S.W.3d 267, 270 (Tex. App.—Houston [14th Dist.] 2004, no pet.). In this -3- 04-10-00007-CR case, as noted above, the trial court has advised this court in writing that appellant made an oral waiver of his right to appeal after the trial court imposed a ten year sentence. Because the waiver was made after sentencing, appellant, like the defendant in Monreal, knew the consequences of the waiver. This rendered his waiver valid, i.e., it was knowingly, voluntarily, and intelligently made. The fact that the waiver was oral rather than written is of no consequence. See Delatorre v. State, 957 S.W.2d 145, 149 (Tex. App.—Austin 1997, pet. ref’d) (holding written or oral waiver prevents defendant from appealing as long as waiver was made knowingly, intelligently, and with certainty as to what punishment would be assessed). Based on the foregoing, we hold appellant has waived his right to appeal. Accordingly, we grant the State’s motion to dismiss the appeal and the appeal is dismissed. Marialyn Barnard, Justice Publish -4-	{ "pile_set_name": "FreeLaw" }
U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM 39039 ________________________ UNITED STATES Appellee v. Todd J. FERRANDO Master Sergeant (E-7), U.S. Air Force, Appellant ________________________ Appeal from the United States Air Force Trial Judiciary Decided 16 October 2017 ________________________ Military Judge: Joseph S. Imburgia. Approved sentence: Dishonorable discharge, confinement for 90 days, and reduction to E-1. Sentence adjudged 13 January 2016 by GCM convened at Hill Air Force Base, Utah. For Appellant: Major Allen S. Abrams, USAF. For Appellee: Major Mary Ellen Payne, USAF; Major Meredith L. Steer, USAF; Gerald R. Bruce, Esquire. Before HARDING, SPERANZA, and HUYGEN, Appellate Military Judges. Judge SPERANZA delivered the opinion of the court, in which Senior Judge HARDING and Judge HUYGEN joined. ________________________ PUBLISHED OPINION OF THE COURT ________________________ SPERANZA, Judge: A military judge sitting as a general court-martial found Appellant guilty, consistent with his pleas pursuant to a pretrial agreement, of possessing child pornography in violation of Article 134, Uniform Code of Military Jus- tice (UCMJ), 10 U.S.C. § 934. The military judge sentenced Appellant to a United States v. Ferrando, No. ACM 39039 dishonorable discharge, confinement for 13 months, and reduction to E-1. Consistent with the terms of the pretrial agreement, the convening authority approved only 90 days of confinement but approved the remainder of the ad- judged sentence. On appeal, Appellant raises the following errors: (1) his court-martial lacked personal jurisdiction; (2) the military judge determined his sentence based on the incorrect maximum punishment; (3) he was denied effective as- sistance of counsel by one of his detailed military defense counsel; (4) his pro- tection against double jeopardy was violated; (5) pre-preferral delay denied him a speedy trial and due process; and (6) the conditions of his post-trial confinement warrant sentence relief. 1 We disagree with Appellant’s asser- tions, find no prejudicial error, and affirm. We address Appellant’s claims re- lated to jurisdiction, the maximum authorized punishment, the effectiveness of his senior defense counsel, and his post-trial confinement conditions. We have considered and reject Appellant’s remaining claims, which neither re- quire additional analysis nor warrant relief. See United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987). I. BACKGROUND Appellant, a reservist, downloaded and viewed child pornography from 2006 until his proclivity for child pornography was discovered by law en- forcement in November 2011. Appellant subsequently admitted to possessing digital images and videos of child pornography and estimated the youngest child depicted in his files to be approximately 5 years old. In July 2013, Appellant was charged in Utah state court with 20 counts of sexual exploitation for child pornography files he possessed between May 2011 and January 2012. In May 2014, Appellant pleaded guilty to four of these charges 2 and was sentenced to a suspended prison sentence, a fine, three years’ probation, 250 days in jail (77 days of time served), therapy, and sex offender registration. The charge and specification in this case alleged Appellant possessed eight specific digital depictions of child pornography while on active duty in July 2010. The charge and its specification were preferred and received by 1 Issues (3)–(6) were raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 2 The remaining charges were dismissed. 2 United States v. Ferrando, No. ACM 39039 the summary court-martial convening authority in July 2015, just short of five years after the charged misconduct. II. DISCUSSION A. Personal Jurisdiction Appellant is a member of the Air Force Reserve. In 2012, Appellant ex- tended his enlistment in the reserves for an additional four years. Appellant was on active duty when he committed the charged offense and stipulated to this fact. On 23 April 2015, the general court-martial convening authority (GCM- CA) requested the Secretary of the Air Force (SECAF) approve, pursuant to Article 2(d)(5), UCMJ, 10 U.S.C. § 802(d)(5) (2012), Appellant’s recall to ac- tive duty, as needed. In a 28 June 2015 memorandum to Appellant’s squadron commander with the subject “Recall of [Appellant] for Trial by Court-Martial,” the GCMCA is- sued the following order: “Pursuant to [Air Force Instruction (AFI)] 51-201, paragraph 2.9, 3 I direct that [Appellant] be involuntarily ordered on to active duty for preferral of charges, a pre-trial hearing, and trial by court-martial.” Accordingly, Appellant received one-day active duty orders for preferral of charges on 11 July 2015. The orders’ remarks section cited 10 U.S.C. § 12301(d) 4 as the orders’ authority and stated, inter alia, “Member is involun- tarily ordered to active duty for referral of charges, pre-trail [sic] hearing and trial by court-martial pursuant to AFI 51-201 para 2.9 in liew [sic] of sched- uled [inactive duty training].” As ordered, Appellant appeared before his commander, who properly preferred the charge and specification in this case. However, Appellant refused to sign his orders. At the time of trial, Appellant had not yet been paid for performing active duty on these orders. 3 The Secretary concerned shall prescribe regulations setting forth rules and proce- dures for the exercise of court-martial jurisdiction over reserve component personnel under Article 2(d), subject to the limitations of the Manual for Courts-Martial and the UCMJ. Rule for Courts-Martial (R.C.M.) 204(a). AFI 51-201, Administration of Military Justice, sets forth such rules and procedures for the exercise of court-martial jurisdiction over Air Force Reserve members. 4 10 U.S.C. § 12301(d) provides that “[a]t any time, an authority designated by the Secretary concerned may order a member of a reserve component under his jurisdic- tion to active duty, or retain him on active duty, with the consent of that member.” 3 United States v. Ferrando, No. ACM 39039 On 14 July 2015, three days after preferral, the SECAF approved the GCMCA’s request to recall Appellant. The SECAF’s response stated, On April 23, 2015, you requested my approval, pursuant to Ar- ticle 2(d)(5), Uniform Code of Military Justice [UCMJ], to recall [Appellant] to active duty, as needed. You made this request so that, if convicted, a court-martial may adjudge, and [Appellant] may be required to serve, a sentence to confinement or re- striction on liberty. I hereby approve any recall to active duty of [Appellant] which you have ordered, or may hereafter order. Appellant was placed on one-day active duty orders for his pretrial hear- ing on 27 August 2015. The remarks section of the orders again cited 10 U.S.C. § 12301(d) as the orders’ authority and included the statement, “Member is recalled for a court-martial proceeding.” Appellant attended his pretrial hearing and was paid for performing his duties. Appellant’s three-day active duty orders for his court-martial also cited 10 U.S.C. § 12301(d) as the orders’ authority. The remarks section was silent with respect to any disciplinary purpose and, instead, referenced “Home Sta- tion Training.” At trial, Appellant moved to dismiss the charge and its specification, ar- guing that the errors in his orders divested the court-martial of personal ju- risdiction. The military judge rejected this claim and found that Appellant’s orders and Article 2(c), 10 U.S.C. § 802(c), 5 “gave the Air Force jurisdiction over [Appellant] on the date of preferral and the date of the Article 32 hear- ing as well.” The military judge also sought Appellant’s position regarding his orders for trial. Appellant’s trial defense counsel affirmed “for today’s orders 5 10 U.S.C. § 802(c) provides: Notwithstanding any other provision of law, a person serving with an armed force who— (1) submitted voluntarily to military authority; (2) met the mental competence and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority; (3) received military pay or allowances; and (4) performed military duties; is subject to this chapter until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned. 4 United States v. Ferrando, No. ACM 39039 we believe it’s best just to proceed without a delay, so we would consent to continuing only with regard to today’s orders.” Appellant agreed with his counsel, stating, “I do consent to continue on with the orders that are present today.” The military judge, in turn, concluded, And so with your consent, we will proceed. I will say that I think the same analysis would apply even without your con- sent, but pursuant to Article 2(c), we’re still all here and you’re -- you are objecting to the fact now you could potentially make an argument going forward, but as of -- everything that’s oc- curred up to this point in time, I believe 2(c) covers that and therefore provides jurisdiction to this court. Appellant now raises similar jurisdictional arguments on appeal. Appel- lant claims that “the error in [his] orders go to the heart of whether there was jurisdiction altogether.” Specifically, Appellant maintains that the “error in [his] orders here is critical because 10 U.S.C. 12301(d) is not a proper basis to recall a member to active duty for disciplinary proceedings and because the Air Force’s error in relying on that authority was not an administrative er- ror.” In Appellant’s estimation, this “critical error” demands we “set aside the findings and sentence.” We disagree. Appellant committed his offense while on active duty. Importantly, Appellant retained his military status as a re- servist, thus remaining subject to court-martial jurisdiction. “Jurisdiction is a legal question which we review de novo.” United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006) (internal quotations omitted). There are three general prerequisites “that must be met for courts-martial jurisdiction to vest: (1) jurisdiction over the offense, (2) personal jurisdiction over the accused, and (3) a properly convened and composed court-martial.” Id.; see Rule for Courts-Martial (R.C.M.) 201(b). Here, we are focused only on whether the court-martial had personal jurisdiction over Appellant. “[B]oth the Supreme Court of the United States and [the Court of Ap- peals for the Armed Forces (CAAF)] have insisted that courts-martial not ex- ercise jurisdiction beyond that granted by the applicable statutes.” Willen- bring v. Neurauter, 48 M.J. 152, 157 (C.A.A.F. 1998). Article 2, UCMJ, 10 U.S.C. § 802, establishes the classes of persons sub- ject to the code. See R.C.M. 202(a), Discussion. Generally, a court-martial “may try any person when authorized to do so under the [UCMJ].” R.C.M. 202(a). Accordingly, active duty personnel, to include “persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order,” are subject to the code. See Article 2(a)(1), UCMJ, 10 U.S.C. § 802(a)(1); see also R.C.M. 202(a), Discussion (5) Members of a Reserve Component (“Members of a re- 5 United States v. Ferrando, No. ACM 39039 serve component in federal service on active duty, as well as those in federal service on inactive-duty training, are subject to the code. Moreover, members of a reserve component are amenable to the jurisdiction of courts-martial notwithstanding the termination of a period of such duty.”). In pertinent part, Article 3, UCMJ, 10 U.S.C. § 803, provides, A member of a reserve component who is subject to this chap- ter is not, by virtue of the termination of a period of active duty or inactive-duty training, relieved from amenability to the ju- risdiction of this chapter for an offense against this chapter committed during such period of active duty or inactive-duty training. 10 U.S.C. § 803(d) (emphasis added). In other words, [a] member of a reserve component at the time disciplinary ac- tion is initiated, who is alleged to have committed an offense while on active duty or inactive-duty training, is subject to court-martial jurisdiction without regard to any change be- tween active and reserve service or within different categories of reserve service subsequent to commission of the offense. R.C.M. 204(d); see also Manual for Courts-Martial, United States (2016 ed.) (MCM), App. 21, at A21–13 (“Use of the term ‘member of a reserve compo- nent’ in Article 3(d) means membership in the reserve component at the time disciplinary action is initiated.”). However, a person whose military status was completely terminated after commission of an offense is generally not subject to court-martial jurisdiction. Id.; R.C.M. 204(d) Discussion (“A member of a regular or reserve component remains subject to court-martial jurisdiction after leaving active duty for of- fenses committed prior to such termination of active duty if the member re- tains military status in a reserve component without having been discharged from all obligations of military service.”). Article 30, UCMJ, 10 U.S.C. § 830, establishes the requirements for pre- ferral of charges and specifications. The statute requires the following: (a) Charges and specifications shall be signed by a person sub- ject to this chapter under oath before a commissioned officer of the armed forces authorized to administer oaths and shall state— (1) that the signer has personal knowledge of, or has investi- gated, the matters set forth therein; and 6 United States v. Ferrando, No. ACM 39039 (2) that they are true in fact to the best of his knowledge and belief. (b) Upon the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made thereof in the interest of justice and discipline, and the person accused shall be informed of the charges against him as soon as practicable. Article 30(a)-(b), UCMJ, 10 U.S.C. § 830(a)-(b) (emphasis added). Pursuant to Article 2(d)(1), UCMJ, 10 U.S.C. § 802(d)(1), a member of the reserve component who is not on active duty and who is made the subject of proceedings under [Article 30, UCMJ,] with respect to an offense against the [UCMJ] may be ordered to active duty involuntarily for the purpose of — (A) a preliminary hearing under [Article 32, UCMJ; or] (B) trial by court-martial[.] Article 2(d)(1)(A)-(B), UCMJ, 10 U.S.C. § 802(d)(1)(A)-(B) (emphasis added). “A member of a reserve component must be on active duty prior to ar- raignment at a general or special court-martial.” R.C.M. 204(b). A member ordered to active duty pursuant to Article 2(d) may be retained on active duty to serve any adjudged confinement or other restriction on liberty if the order to active duty was approved in accordance with Article 2(d)(5), but such member may not be retained on active duty pursuant to Article 2(d) af- ter service of the confinement or other restriction on liberty. R.C.M. 204(b)(1). Only a general court-martial convening authority in a regular component of the armed forces may order a member of the reserve component to active duty involuntarily for the purpose of a preliminary hearing and trial by court- martial under Article 2(d). Article 2(d)(4), UCMJ, 10 U.S.C. § 802(d)(4). Moreover, “unless the order to active duty was approved by the Secretary concerned,” a member involuntarily ordered to active duty pursuant to Arti- cle 2(d) may not be sentenced to confinement or generally “be required to serve a punishment consisting of any restriction on liberty during a period other than a period of inactive-duty training or active duty.” Article 2(d)(5), UCMJ, 10 U.S.C. § 802(d)(5). The applicable statutes subjected Appellant to court-martial jurisdiction for the charged offense. Appellant committed the charged offense while on active duty. Appellant was a member of the Air Force Reserve at the time 7 United States v. Ferrando, No. ACM 39039 disciplinary action in this case was initiated and maintained his military sta- tus as a member of the Air Force Reserve. The Air Force had personal juris- diction over Appellant. 6 The Air Force chose to exercise jurisdiction. The charge and specification were properly preferred, 7 making Appellant the subject of proceedings under Article 30, UCMJ, with respect to an offense against the code. A GCMCA in the regular component of the Air Force directed—in no uncertain terms— Appellant be involuntarily ordered to active duty for a pretrial hearing and trial by court-martial. The GCMCA’s command was administratively execut- ed and Appellant was issued active duty orders for the preliminary hearing and trial. These orders were approved by the SECAF, thus authorizing the court-martial to sentence Appellant to confinement. The statutory require- ments necessary to order Appellant onto active duty involuntarily under Ar- ticle 2 were met; Appellant’s consent manifested by his signature was unnec- essary despite the administrative errors in Appellant’s written orders that cited authority requiring Appellant’s consent. See United States v. O’Connor, No. ACM 38420, 2015 CCA LEXIS 47, at 11 (A.F. Ct. Crim. App. 12 Feb. 2015) (unpub. op.) (holding that erroneous citation to 10 U.S.C. § 12301(d) in reservist appellant’s orders was an administrative error that did not divest the court-martial of personal jurisdiction when the Air Force clearly intended to recall Appellant to active duty for his court-martial pursuant to the GCM- CA’s directive and the Secretary’s approval). These administrative errors, while careless and avoidable, did not divest the court-martial of personal ju- risdiction. Put another way, an administrative or clerical error committed by the Air Force in properly exercising its statutory jurisdiction over a member does not divest the court-martial of its otherwise lawful jurisdiction over that member. 6 Appellant conceded these “Jurisdictional Facts” in a stipulation of fact admitted as a Prosecution Exhibit at trial. 7 Contrary to Appellant’s argument that administrative errors on his one-day active duty orders for preferral somehow divested the court-martial of personal jurisdiction, the law does not require Appellant to be on active duty orders the day charges and specifications are preferred in order for the requirements of Article 30 to be met. See Article 30, UCMJ, 10 U.S.C. § 830; see also R.C.M. 308 (The “sole remedy” for failing to inform an accused of the preferred charges and the name of the accuser and of any person who ordered the charges to be preferred, if known, is “a continuance or recess of sufficient length to permit the accused to adequately prepare a defense, and no relief shall be granted upon a failure to comply with this rule unless the accused demonstrates that the accused has been hindered in the preparation of a defense.”). 8 United States v. Ferrando, No. ACM 39039 Nonetheless, we will test the clerical mistakes in Appellant’s orders for prejudice. See id. In addressing the prejudice he suffered due to the errors in his orders, Appellant maintains that the “flaws” in his orders “were not mere- ly clerical.” Accordingly, Appellant contends that there were no facts “present in this case” to indicate that Appellant consented to jurisdiction; did not ob- ject to jurisdiction at the time of preferral, the pretrial hearing, or trial; signed his recall orders; and received pay or would receive pay. Appellant concludes, Here, the error goes directly to [his] recall to active duty at pre- ferral and each of the ensuing proceedings, [he] never took any action that would indicate his consent to jurisdiction—instead challenging it at every opportunity8—and the government’s ac- tions thrice disregard [this court’s decision in O’Connor that made] clear Appellant’s orders [were] plainly wrong. Based on these distinctions, the errors in Appellant’s recall to active duty were not clerical and, even if they were, Appellant was prejudiced. As such, this Court should determine Appel- lant never consented to jurisdiction, was never properly or- dered to active duty, and his court-martial lacked personal ju- risdiction Appellant’s argument hinges on a finding that, in this case, the adminis- trative errors or “flaws” in his orders “were not merely clerical.” Indeed, his orders contained errors, but those administrative errors did not cause any discernable prejudice to Appellant, apart from his circular argument that the court-martial therefore lacked personal jurisdiction. Appellant was issued active duty orders and appeared for duty, in uniform, pursuant to those or- ders, for preferral, his Article 32, UCMJ, hearing, and his general court- martial. There simply was no confusion about his active duty status at the time he committed the charged offense, preferral, the preliminary hearing, and trial. See United States v. Nettles, 74 M.J. 289, 291 (C.A.A.F. 2015) (“The overarching interest implicated by the law of personal jurisdiction . . . is the need—of both servicemember and service—to know with certainty and finali- ty what the person’s military status is and when that status changes.”). Moreover, Appellant was on active duty orders for his general court-martial, prior to arraignment and affirmatively consented to jurisdiction at trial. See 8Appellant’s trial defense counsel made a different argument in seeking clemency on behalf of Appellant. She stated “[Appellant] even consented to being court-martialed so [he] could take responsibility for his actions and move forward with his life.” 9 United States v. Ferrando, No. ACM 39039 R.C.M. 204(b). Appellant’s broad claim of prejudice considering the certainty of his status fails. B. Maximum Punishment Because the specification in this case alleged Appellant violated Article 134, UCMJ, by knowingly possessing in 2010 one or more depictions of a mi- nor engaging in sexually explicit conduct and, thus, committing conduct of a nature to bring discredit upon the armed forces, the maximum authorized punishment was determined by reference to 18 U.S.C. § 2252A(a)(5) (2006), a “closely related” offense in the United States Code. See United States v. Finch, 73 M.J. 144, 147 (C.A.A.F. 2014); R.C.M. 1003(c)(1)(B). Under the statute, the maximum punishment for knowingly possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5) is ten years’ impris- onment. 18 U.S.C. § 2252A(b)(2). [B]ut, if any image of child pornography involved in the offense involved a prepubescent minor or a minor who had not attained 12 years of age, such person shall be fined under this title and imprisoned for not more than 20 years, or if such person has a prior conviction under this chapter, chapter 71, chapter 109A, or chapter 117 [18 USCS § 2251 et seq., § 1460 et seq., § 2241 et seq., or § 2421 et seq.], or under section 920 of title 10 (arti- cle 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years. Id. At trial prior to arraignment, the parties disagreed about what the maxi- mum punishment authorized was in Appellant’s case. The Government ar- gued Appellant could be sentenced to 20 years of confinement due to the age of the minors depicted in the material Appellant possessed and Appellant’s prior conviction in Utah. The Defense argued that neither enhancement pro- vision applied. The military judge took a recess in order to review the depic- tions and consider the matter. During the recess, the convening authority signed the pretrial agreement limiting Appellant’s sentence to no more than 90 days of confinement. Immediately after the recess, the military judge found that both en- hancement provisions applied and Appellant faced a maximum of 20 years of confinement. The military judge noted that he was informed of the signed 10 United States v. Ferrando, No. ACM 39039 pretrial agreement during the recess. Appellant was arraigned; litigated and lost his motion to dismiss the charge and specification; and pleaded guilty pursuant to the pretrial agreement. After completing the providence inquiry with Appellant, the military judge advised Appellant that, on the plea of guilty alone, the court-martial could sentence Appellant, inter alia, to con- finement for 20 years. Appellant did not have any questions regarding the maximum punishment and continued with his guilty plea after being advised that he could withdraw from the pretrial agreement at any time prior to his sentence being announced. The military judge found Appellant guilty con- sistent with Appellant’s pleas and sentenced Appellant. On appeal, Appellant argues that the military judge erred in determining the maximum punishment included 20 years of confinement, instead of 10 years of confinement. Appellant specifically contends that the statutory pro- vision regarding the age of the minors depicted in the child pornography was not part of the legislation until after the charged misconduct and that Appel- lant’s Utah convictions were not “prior convictions” because those convictions were based on conduct that occurred after the charged misconduct in this case. Accordingly, Appellant asks we set aside his sentence. “The maximum punishment authorized for an offense is a question of law, which we review de novo.” United States v. Beaty, 70 M.J. 39, 41 (C.A.A.F. 2011) (citing United States v. Ronghi, 60 M.J. 83, 84–85 (C.A.A.F. 2004); United States v. Ingham, 42 M.J. 218, 229–30 (C.A.A.F. 1995)). “A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substan- tial rights of the accused.” Article 59(a), UCMJ, 10 U.S.C. § 59(a). Here, we need not decide whether the military judge erred in the deter- mination of the maximum lawful sentence to confinement because we find the disparity did not prejudice Appellant. Appellant makes no argument that the military judge’s determination of the maximum confinement rendered his guilty plea improvident in any way. Appellant also makes no argument that any misunderstanding he may have held as to the maximum punishment was a factor, let alone a substantial factor, in his decision to plead guilty. Im- portantly, Appellant makes no showing that he suffered any prejudice when he signed a pretrial trial agreement limiting his confinement to 90 days, be- lieving the maximum confinement he faced was 10 years of confinement 9 ra- 9 In a pretrial memorandum, Appellant certified that “[b]ased solely on the charges [sic] that were preferred upon [him, he understood] the maximum punishment is 10 (Footnote continues on next page) 11 United States v. Ferrando, No. ACM 39039 ther than the 20 years determined by the military judge afterwards. The ad- judged confinement of 13 months was roughly a tenth of a presumed maxi- mum of 10 years of confinement and Appellant’s pretrial agreement limited the confinement that could be approved to only 90 days. If there was an error in the determination of the maximum punishment, we find that it did not materially prejudice the substantial rights of Appellant. C. Effectiveness of Counsel Appellant was represented by a Major (O-4) senior defense counsel and Captain (O-3) area defense counsel. Over the course of their representation, neither one of Appellant’s counsel expressed concern regarding Appellant’s mental responsibility or capacity to stand trial. Appellant expressed his de- sire to reach an agreement that would minimize his exposure to confinement. Accordingly, Appellant’s counsel negotiated a pretrial agreement that would limit Appellant’s confinement to no more than 90 days. Prior to trial, Appellant’s counsel advised him of his rights, including his right to decide how to plead. Appellant decided he wanted to plead guilty to the charge and specification. Appellant’s trial defense counsel’s advice and Appellant’s decision to plead guilty were documented. In a memorandum, Appellant certified the following: both of his detailed counsel explained his rights to him “on multiple occasions during the months leading up to this court-martial;” he was “fully aware of the charges and specifications [sic] against [him;]” he “discussed with [his] attorney the evidence the Govern- ment intends to introduce against [him] at trial;” he chose to plead guilty af- ter consulting with his attorneys; he understood that the decision to plead guilty was his and his alone; he was “only pleading guilty because [he was] guilty and believe[d] that doing so [would] be in [his] best interest;” he under- stood he could change his election to plead guilty with or without good cause; the memorandum was intended to memorialize his decision to plead guilty prior to trial after fully consulting with his attorney; he was “fully counseled by [his senior defense counsel and area defense counsel] and [he] made this decision [to plead guilty] and signed [the memorandum] knowingly, voluntar- ily and of [his] own free will;” “[a]fter a full and in-depth discussion with [both of his counsel], [he felt] fully informed of [his] rights and the potential consequences of [his] decision;” “[he had] plenty of time to discuss this with [his counsel];” he did “not feel the need for additional time to discuss [his guilty plea] with [both of his counsel] or review evidence;” he “fully believe[d] years confinement, forfeiture of all pay and allowances, reduction to the rank of E-1, and a dishonorable discharge.” 12 United States v. Ferrando, No. ACM 39039 [both of his counsel] have provided [him] with all of the necessary infor- mation to enable [him] to make a fully informed decision and that his [coun- sel’s] representation has been to the benefit of [Appellant] and [his] case;” and he has “not been threatened or coerced and [made] these decisions of [his] own free will.” Appellant signed a pretrial offer to plead guilty in exchange for a 90-day limitation on any adjudged confinement. In his offer, Appellant agreed, inter alia, to enter into a reasonable stipulation of fact and waive all waivable mo- tions. Appellant also asserted that he was, in fact, guilty; he understood the agreement “permits the [G]overnment to avoid presentation in court of suffi- cient evident to prove [his] guilt;” he offered to plead guilty because the sen- tencing relief was in his best interest; he was satisfied with his defense coun- sel and considered them competent to represent him at the court-martial; and “[n]o person or persons made any attempt to force or coerce [him] into making this offer to plead guilty.” Appellant further maintained the following: My defense counsel fully advised me of the nature of the charge against me, the possibility of my defending against it, any de- fense which might apply, and the effect of the guilty plea which I am offering to make, and I fully understand their advice and the meaning, effect, and consequences of this plea. The convening authority accepted Appellant’s offer prior to arraignment. After litigating his motion to dismiss the charge, Appellant pleaded guilty pursuant to the pretrial agreement. The military judge admitted a stipula- tion of fact establishing the jurisdictional and factual basis for Appellant’s guilty plea. Appellant signed the stipulation; agreed, under oath, to its con- tents; and agreed, under oath, that he entered into the stipulation voluntari- ly. The military judge conducted a providence inquiry of Appellant, explain- ing the elements of the offense and eliciting from Appellant the factual basis for his guilty plea. Next, the military judge discussed Appellant’s pretrial agreement. Appellant confirmed that he understood the terms of the agree- ment and affirmed that he was not forced in any way to enter into the agree- ment. Appellant then confirmed, once again, that he fully consulted with his defense counsel and was satisfied with their representation and their advice. He also confirmed, once again, that he was pleading guilty voluntarily and of his own free will and affirmatively denied that anyone made any threat or tried in any way to force him to plead guilty. Appellant acknowledged that he understood he had a moral and legal right to plead not guilty and place the burden on the Government to prove his guilt beyond a reasonable doubt. Ap- pellant consulted with his counsel before being found guilty consistent with his plea. 13 United States v. Ferrando, No. ACM 39039 Now on appeal, Appellant claims that his senior defense counsel “was de- ficient in his performance.” In general, Appellant alleges that the senior de- fense counsel “failed to seek the suppression of the evidence that would sup- port the prosecution’s case had Appellant entered a plea of not guilty, and coerced Appellant to plead guilty and waive motions despite the evidentiary weaknesses in the case and Appellant’s mental stress.” In response to Appellant’s claims, we ordered and received a declaration from Appellant’s senior defense counsel. The senior defense counsel’s declara- tion addressed the specific allegations raised by Appellant and included memoranda initialed and signed by Appellant. The Sixth Amendment guarantees Appellant the right to effective assis- tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In assessing the effectiveness of counsel, we apply the standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Accordingly, “an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice.” United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687). “The Strickland test applies in the context of guilty pleas where an appellant challenges the plea based on ineffective assistance of counsel.” United States v. Rose, 71 M.J. 138, 143 (C.A.A.F. 2012) (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)). In determining whether counsel’s performance was deficient, we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Ap- pellant must therefore establish that counsel’s “representation amounted to incompetence under ‘prevailing professional norms.’” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690). To prevail on his ineffective assistance of counsel claim, Appellant must also establish that he was prejudiced. Rose, 71 M.J. at 144. In the context of a guilty plea, the prejudice question is whether “there is a reasonable probabil- ity, but for counsel’s errors, [Appellant] would not have pleaded guilty and would have insisted on going to trial.” Id. (quoting Hill, 474 U.S. at 59). We review allegations of ineffective assistance of counsel de novo. United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)). The record in Appellant’s case, to include the declaration of the senior de- fense counsel and memoranda signed by Appellant, refutes Appellant’s inef- 14 United States v. Ferrando, No. ACM 39039 fective assistance of counsel allegations. 10 Trial defense counsel’s explana- tions and actions in this case were reasonable, and his level of advocacy was at or above the performance ordinarily expected of fallible lawyers. See Gooch, 69 M.J. at 362. Accordingly, we find the senior defense counsel—along with Appellant’s unchallenged area defense counsel—competently represent- ed Appellant. Appellant’s senior defense counsel was presumed to be compe- tent and Appellant failed to overcome that presumption. 11 Moreover, Appel- lant failed to establish prejudice as we find no reasonable probability, given the record of this case and Appellant’s specific allegations of ineffective assis- tance of counsel, that Appellant would have pleaded not guilty and insisted on going to trial. Consequently, Appellant’s ineffective assistance of counsel claim cannot prevail; Appellant cannot demonstrate (1) that his senior de- fense counsel’s performance was deficient and (2) that any deficiency resulted in prejudice. D. Post-trial Confinement Conditions After trial, Appellant served a total of 74 days confinement in a local civil- ian confinement facility. During Appellant’s confinement processing, a mili- tary confinement official explained the civilian confinement facility rules to Appellant and provided Appellant the time to review the facility’s prisoner handbook. The military official also informed Appellant that any requests concerning confinement conditions must be submitted in writing or digitally through the civilian confinement facility’s kiosks. Pursuant to the base’s memorandum of agreement with the civilian con- finement facility, Appellant was placed in a single-person cell in order to avoid any commingling with foreign nationals and other servicemembers in pretrial confinement. However, if another military member shared Appel- lant’s classification, Appellant would have been permitted to commingle with that military prisoner. 10Having applied the principles announced in United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997), and considered the entire record of Appellant’s trial, including a guilty plea during which Appellant expressed his satisfaction with trial defense counsel, we find we can resolve the issues raised by Appellant without additional fact-finding. 11In addition to the specific claims identified in this opinion, we considered all other ineffective assistance of counsel claims raised by Appellant in his declarations and brief pursuant to Grostefon, 12 M.J. 431. We reject those remaining claims, which neither require additional analysis nor warrant relief. See Matias, 25 M.J. at 363. 15 United States v. Ferrando, No. ACM 39039 Appellant was provided the civilian confinement facility uniform provided to all prisoners. Appellant’s cell had two windows and contained two bunk- beds, a desk, a stool, and a standard toilet and sink. Appellant was afforded day room, recreation, and shower access for two hours, four times per week. Appellant was served standard meals. The civilian confinement facility denied Appellant access to materials Ap- pellant packed in preparation for confinement, as such items were considered contraband. Furthermore, Appellant did not have money in his inmate ac- count. However, he was issued basic hygienic supplies and comfort items at no cost. Pencils and toothbrushes were also available to indigent inmates on request. Appellant could request phone access throughout the day, with access limited by scheduling constraints and consideration for other inmates. In- mates had to pay a fixed rate for phone calls and individual calls were limited to 20 minutes. However, Appellant could coordinate free phone calls to his attorneys and authorized Air Force officials. Clergy visits and religious books were available to Appellant upon request. A military confinement official visited Appellant at the civilian confine- ment facility. Appellant lodged only one official complaint or grievance—he was unable to contact his senior defense counsel. Although Appellant submitted no other formal complaints or grievances with the Air Force or civilian confinement facility, he now alleges on appeal that his post-trial confinement conditions warrant meaningful sentence re- lief. In general, Appellant asserts he was placed in solitary confinement and denied the following: access to his defense counsel; access to materials he packed for confinement; access to writing materials; and “any type of com- munication with family, friends, and employers.” Appellant further main- tains, “[d]espite [his] request, diminishing physical well-being, and degrading mental health, Appellant was provided insufficient access to religious mate- rials, religious services, and mental healthcare.” We “may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as we find correct in law and fact and determine, on the basis of the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). In Gay, this court invoked Article 66(c) to grant the appellant sentencing relief even in the absence of cruel or unusual punishment in viola- tion of the Eighth Amendment, U.S. Const. amend. VIII, and Article 55, UCMJ, 10 U.S.C. § 855. United States v. Gay, 74 M.J. 736, 743 (A.F. Ct. Crim. App. 2015). The Court of Appeals for the Armed Forces (CAAF) held that this court did not abuse its discretion in doing so. United States v. Gay, 75 M.J. 264, 269 (C.A.A.F. 2016). However, the CAAF noted that Gay in- 16 United States v. Ferrando, No. ACM 39039 volved unique facts driven by legal errors in the post-trial process that in- cluded both a violation of the appellant’s rights under Article 12, UCMJ, 10 U.S.C. § 812, and the ordering of solitary confinement by an Air Force official where an alternative solution was available. Id. Significantly, the CAAF em- phasized, “[i]n reaching this conclusion, we do not recognize unlimited au- thority of the Courts of Criminal Appeals to grant sentence appropriateness relief for any conditions of post-trial confinement of which they disapprove.” Id. While we have granted sentence relief based upon conditions of post-trial confinement where a legal deficiency existed, we are not a clearing house for post-trial confinement complaints or grievances. See id. Only in very rare cir- cumstances do we anticipate granting sentence relief when there is no viola- tion of the Eighth Amendment or Article 55, UCMJ. United States v. Milner, No. ACM S32338, 2017 CCA LEXIS 84, at 13 (A.F. Ct. Crim. App. 7 Feb. 2017) (unpub. op.); United States v. Garcia, No. ACM 38814, 2016 CCA LEX- IS 490, at *14 (A.F. Ct. Crim. App. 16 Aug. 2016) (unpub. op.); cf. United States v. Nerad, 69 M.J. 138, 145–48 (C.A.A.F. 2010) (holding that despite our significant discretion in reviewing the appropriateness of a sentence, this court may not engage in acts of clemency). This case does not present such circumstances. 12 Moreover, Appellant’s case does not present any evidence to suggest he attempted to utilize any grievance process to address the complaints he now puts forward. The CAAF emphasized, “A prisoner must seek administrative relief prior to invoking judicial intervention to redress concerns regarding post-trial confinement conditions.” United States v. Wise, 64 M.J. 468, 469 (C.A.A.F. 2007). This requirement “promot[es] resolution of grievances at the lowest possible level [and ensures] that an adequate record has been devel- oped [to aid appellate review].” Id. at 471 (quoting United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)). An appellant must show that “absent some unusual or egregious circumstance . . . he has exhausted the prisoner- grievance system [in his detention facility] and that he has petitioned for re- lief under Article 138.” Id. (quoting United States v. White, 54 M.J. 469, 472 (C.A.A.F. 2001)). Appellant failed to make such a showing. 12 Although Appellant claimed that the conditions of his post-trial confinement amounted to cruel or unusual punishment in violation of the Eighth Amendment, U.S. CONST. amend. VIII, or Article 55, UCMJ, his brief acknowledges that “Appel- lant’s allegations may not rise to the level of such a violation.” We agree that Appel- lant’s allegations do not rise to that “level” and we find no such violation. 17 United States v. Ferrando, No. ACM 39039 Plainly, Appellant’s assertions do not warrant the extraordinary use of our Article 66(c) power to grant sentence relief. III. CONCLUSION The findings of guilt and the sentence are correct in law and fact and no error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED. FOR THE COURT KATHLEEN M. POTTER Acting Clerk of the Court 18	{ "pile_set_name": "FreeLaw" }
535 F.Supp. 743 (1981) Samuel TORRENCE, Plaintiff, v. CHICAGO TRIBUNE COMPANY, INC., Charles Levy Circulating Company, Inc., First National Bank of Chicago, Chicago Newspaper Publishers' Association-Drivers Union Pension Administrative Board, Chicago Sun-Times Newspaper Division of Field Enterprises, Inc., Capitol News Agency, Defendants. No. 81 C 0151. United States District Court, N. D. Illinois, E. D. December 1, 1981. 744 James J. Seaberry, Chicago, Ill., for plaintiff. David A. Youngerman, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendants. MEMORANDUM OPINION AND ORDER ASPEN, District Judge: Plaintiff Samuel Torrence brought this action under § 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132(a)(1)(B), seeking relief for the alleged wrongful denial of pension fund benefits. Named as defendants were the Chicago Newspaper Association-Drivers Union Pension Plan ("Plan"), the Chicago Newspaper Association-Drivers Union Pension Administrative Board ("Board"), and the First National Bank of Chicago ("Trustee").[1] Jurisdiction is premised upon 29 U.S.C. § 1132(e). The matter is presently before the Court on defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In support of a summary judgment motion, the moving party has the burden of showing that there is no dispute as to any genuine issue of fact material to a judgment in its favor as a matter of law. Cedillo v. International Association of Bridges and Structural Iron Workers, Local Union No. 1, 603 F.2d 7, 10 (7th Cir. 1979). The non-moving party is entitled to all inferences reasonably made in its favor from the evidence presented. Id. at 11; Moutoux v. Gulling Auto Electric, Inc., 295 F.2d 573, 576 (7th Cir. 1961). Applying these standards, for the reasons set forth below, defendants' motion is granted in part and continued in part pending the filing of the supplementary materials described below. Torrence has been a driver-salesman of newspapers and magazines with various Chicago area enterprises and a dues-paying member of the affiliated union[2] since 1954. Torrence began as a driver-salesman with the Chicago Sun-Times and switched to the Capitol News Agency in 1960, where he worked in the same capacity. This job lasted until 1965, when Torrence began delivering periodicals for the Charles Levy Circulating Company, Inc. ("Levy"). Torrence left Levy in 1972 to work with the Chicago Tribune as a driver-salesman. He continued working with the Tribune until his retirement in 1979. Upon his retirement, Torrence sought benefits under the Union's Pension Plan.[3] The Pension Board denied his application for benefits after determining that he was an independent contractor rather than a covered employee during the 1965-1972 period he was with Levy. According to the Board, this self-employment period constituted a break-in service,[4] cancelling all service credit for work performed prior to the break,[5] and resulting in Torrence failing to accumulate the ten years of vesting service required for pension eligibility.[6] Torrence 745 contends that there was no break-in service and, alternatively, even if a break-in service did occur, the Board is estopped to deny him benefits because prior to the break he had been assured by several Union officials and Board members that the 1965 job switch would not adversely affect his pension eligibility. Since all four companies with whom Torrence was associated were signatory employers of the Plan,[7] it is clear that if Torrence were an employee of Levy during the 1965-1972 period, he would satisfy the Plan's requirement of ten years vesting service and would thus be entitled to pension benefits. On the other hand, if Torrence's business relationship with Levy were one of an independent contractor, his seven-year absence from covered employment would render him ineligible for pension benefits since he would not have accumulated the requisite credited service time by the time he retired in 1979. As to whether an individual is an employee or an independent contractor in a given fact situation, the Supreme Court has stated: [T]here is no shorthand formula or magic phrase that can be applied to find the answer, but all of the incidents of the relationship must be assessed and weighed with no one factor being decisive. What is important is that the total factual context is assessed in the light of pertinent common law agency principles. N.L.R.B. v. United Insurance Company of America, 390 U.S. 254, 258, 88 S.Ct. 988, 990, 19 L.Ed.2d 1083 (1968). In making this determination herein, the self-serving characterizations by the parties are irrelevant. The test is the extent of control Levy exerted over Torrence during the period in question. Wardle v. Central States, Southeast and Southwest Areas Pension Fund, 627 F.2d 820, 824 (7th Cir. 1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981). Factors to be considered in evaluating a business relationship include: the degree of control and supervision over the manner in which the work is performed; whether the worker operates his own independent business or solely performs functions that are an essential part of the company's normal operations; the company's right to hire and discharge the worker; the form of compensation; whether the worker receives the same benefits as the company's regular employees; which party furnishes the tools or materials which the worker needs to perform the job; whether the relationship is of permanent or temporary character; the beliefs of the parties; and how the parties structure their Social Security and income tax relations. United Insurance, supra, 390 U.S. at 259, 88 S.Ct. at 990; Richardson v. Central States, Southeast and Southwest Areas Pension Fund, 645 F.2d 660, 663 (8th Cir. 1981); Wardle, supra, 627 F.2d at 824-25. In support of his assertion that he was an employee of Levy during the 1965-1972 period, Torrence points out several aspects of his relationship with Levy which purport to support his employee status. These include: Torrence was required to pick up the magazines for delivery at specified times, and the company designated all the delivery locations for Torrence. He was barred from handling the competitors' products. He was subject to discipline, including termination, for unsatisfactory performance. He paid Union dues while working with Levy. Torrence's position notwithstanding, Levy suggests that numerous other facets of Torrence's relationship establish an independent contractor status. These are: Rather than being salaried as were Levy's other employees, Torrence purchased the magazines from Levy at a 25% discount and then resold them to newsstands at full price. Unlike the others, he would deliver magazines only to low-volume spots in "troubled areas" of Chicago. In fact, Levy hired Torrence specifically for the purpose of delivering periodicals to areas where it did not want its regular drivers to go. He was required to put up a $4,000 security bond to guarantee payment for the magazines he purchased on credit. He used 746 his own truck to make the deliveries. Levy did not withhold any income or Social Security tax from Torrence, and he represented himself as self-employed on his Social Security records from 1967-1972. Although he allegedly was repeatedly promised by Levy that he would soon be receiving employee fringe benefits, including employer contributions to the Plan, Torrence knew he was not receiving them during the entire period. Last, although he was a Union steward while working with Levy, Torrence was not in charge of any Levy employees. The Pension Administrative Board, after concluding its investigation and a series of meetings with Torrence and upon review of the foregoing factors, concluded that Torrence was not an employee but was, rather, an independent contractor at Levy from 1967-1972. Torrence, in disputing the Board's conclusion, incorrectly relies upon Lee v. Nesbitt, 453 F.2d 1309 (9th Cir. 1971), which he asserts demonstrates that the Board's decision was arbitrary or capricious. In Lee, the Ninth Circuit held that a rule denying benefits to an employee solely because of an involuntary interruption in employment after completion of the minimum employment requirement and before reaching retirement age was unreasonable on its face. 453 F.2d at 1312. In that case, however, the court of appeals expressly limited its holding to situations where, unlike the case at bar, the minimum employment requirement had been fully attained prior to the break-in service. Id. In Richardson v. Central States, Southeast and Southwest Areas Pension Fund, 645 F.2d 660 (8th Cir. 1981), also cited by Torrence, there were numerous factors which buttressed the district court's decision to overturn the Board's denial of Richardson's benefits which are not present in Torrence's situation. Those additional factors include: (1) although Richardson owned the vehicle used, he licensed it to his company and it bore the company's colors; (2) the company collected payments and maintained total authority over Richardson's work under an "exclusive contract" agreement; (3) the company had to authorize any substitute drivers; and (4) Richardson could refuse to make a trip only in an emergency. The absence of these and other factors from Torrence's business relationship with Levy distinguish Richardson from Torrence's situation. Reviewing the record before the Board at the time Torrence's pension application was denied, it is clear, as demonstrated above, that Torrence's business relationship with Levy implicated aspects of both employee and independent contractor status. It is not the proper function of the Court to decide between two reasonable, but conflicting, interpretations of the facts presented. Judicial review of the Board's decision to deny Torrence pension benefits is limited to a determination of whether the Board's action was arbitrary or capricious in light of the language of the Plan. Wardle, supra, 627 F.2d at 823-24; Reiherzer v. Shannon, 581 F.2d 1266, 1272 (7th Cir. 1978); Johnson v. Botica, 537 F.2d 930, 935 (7th Cir. 1976). In light of Torrence's hybrid business relationship with Levy, we cannot say the Board's determination that he was an independent contractor during that period was arbitrary or capricious. Wardle, supra, 627 F.2d at 826-27. Accordingly, even though a contrary conclusion would not be irreconcilable with the facts, the Board's decision cannot be overturned. Id. at 827. Since we hold that there is no genuine dispute of material fact regarding the Board's determination that Torrence was an independent contractor and not an employee with Levy during the 1965-1972 period, defendants' motion for summary judgment must be granted on this issue. Torrence alternatively argues that even if he were not an employee with Levy, the Board is estopped to apply the break-in service rule and deny him pension benefits because several Union officials and Board members assured him prior to his 1965 job switch to Levy that the move would not detrimentally affect his pension eligibility. Specifically, Torrence alleges that in October, 1965, several Union officials and Board members: (1) informed him that Levy was looking for drivers to deliver magazines to 747 low-volume outlets in troubled areas of Chicago (and did not want to use its own drivers for such deliveries); (2) urged him to take the job with Levy;[8] and (3) assured him that the job switch would not impair his pension rights. It is apparent that if Torrence can substantiate his allegations, he may be able to satisfy the requirements of equitable estoppel.[9]See, e.g., Packard Bell Electronics Corp. v. Ets-Hokin, 509 F.2d 634, 637 (7th Cir. 1975). However, the law regarding the propriety of invoking the estoppel doctrine under these circumstances is currently in a state of flux. While numerous cases have explicitly or implicitly recognized that pension boards could be estopped to deny benefits in certain situations,[10] other cases have barred this attack on a pension board's decision, finding that such use of the doctrine improperly infringes upon the rights of qualified beneficiaries.[11] In the case at bar, neither side has adequately discussed the application of estoppel principles in Torrence's situation. In order to allow the Court to decide this issue of defendants' summary judgment motion, defendants are hereby directed to file a brief, affidavits, or other relevant matter as to this issue on or before December 11, 1981. Torrence may file responsive papers by December 18, 1981. Defendants may reply thereto by December 28, 1981. In summary, defendants' motion for summary judgment as to Torrence's claim that the Board's decision denying him benefits was arbitrary or capricious is granted. Our ruling as to Torrence's estoppel argument against granting defendants' summary judgment motion will be stayed pending the foregoing briefing schedule.[12] Our order setting the status date of December 4, 1981, will be vacated. A status hearing will be held on January 29, 1982, at 10:00 A.M. It is so ordered. NOTES [1] Although originally named in this suit, the following defendants have been dismissed as improper parties to this action: the Chicago Tribune Company, the Charles Levy Circulating Company, Inc., the Chicago Sun-Times Newspaper Division of Field Enterprises, Inc., and the Capitol News Agency. [2] The Newspaper, Magazine, Periodical, Salesmen, Drivers, Chauffeurs, Division Men, District Managers, Checkers, Vendors and Handlers Union, Local 706, I. B. of T., C., W. and H. of A. ("Union"). [3] On January 1, 1976, an amended version of the original 1958 Plan was adopted. [4] A break-in service, as defined in § 1.1(f) of the 1976 Plan, occurs when an employee incurs an unexcused termination of active employment with less than ten years of credited vesting service and is re-employed less than ten years later. Vesting service is defined in § 1.1(ff). [5] A Board resolution adopted in 1966 provides for the forfeiture of all prior credited service upon incurring a break-in service in excess of four years. [6] According to § 1.1(r) of the 1976 Plan, an employee must have attained age sixty and accumulated ten years of vesting service to qualify for pension benefits. Torrence was sixty-two years old when he applied for pension benefits. [7] The employers entered into the Plan in 1958. [8] Torrence alleges that the Union officials and Board members "instructed [him] to work for Levy" and "ordered his transfer" thereto. However, while Torrence may be able to show that he reasonably relied upon improper assurances by these individuals to his detriment, there is no evidence in the record to suggest that his job switch was not undertaken voluntarily. At this point in the proceedings, we of course express no opinion as to the merit of Torrence's allegations. [9] Although judicial review of a pension board's decision is limited to a determination of whether the board's actions were arbitrary or capricious, the courts retain the traditional judicial control over fiduciaries in light of federal labor policy. Rosen v. Hotel and Restaurant Employees & Bartenders Union, 637 F.2d 592, 596 (3d Cir.), cert. denied, ___ U.S. ___, 102 S.Ct. 398, 70 L.Ed.2d 213 (1981); Rehmar v. Smith, 555 F.2d 1362, 1371 (9th Cir. 1976). [10] See, e.g., Scheuer v. Central States Pension Fund, 358 F.Supp. 1332 (E.D.Wis.1973), on rehearing, 394 F.Supp. 193 (E.D.Wis.1975), aff'd without opinion, 570 F.2d 347 (7th Cir. 1977); Rosen, supra, 637 F.2d 592; Haeberle v. Board of Trustees of Buffalo Carpenters, 624 F.2d 1132 (2d Cir. 1980); Gordon v. ILWU-PMA Benefit Funds, 616 F.2d 433 (9th Cir. 1980); Rehmar, supra, 555 F.2d 1362. [11] See, e.g., Reiherzer v. Shannon, 581 F.2d 1266, 1267 n.1 (7th Cir. 1978); Aitken v. IP & GCU Employer Retirement Fund, 604 F.2d 1261 (9th Cir. 1979); Thurber v. Western Conference of Teamsters Pension Plan, 542 F.2d 1106 (9th Cir. 1976); Phillips v. Kennedy, 542 F.2d 52 (8th Cir. 1976); Moglia v. Geoghegan, 403 F.2d 110 (2d Cir. 1968), cert. denied, 394 U.S. 919, 89 S.Ct. 1193, 22 L.Ed.2d 453 (1969). Most of the cases rejecting the use of the estoppel doctrine under these circumstances have explicitly left open the possibility of individual liability of the pension board or union officers in their capacity as fiduciaries. The Court expresses no opinion on the possible liability of the individuals who allegedly made the misrepresentations for breach of fiduciary duty or fraud. [12] Torrence also alleges that the Board's decision was arbitrary or capricious because it failed to more thoroughly investigate the alleged misrepresentations. As a practical matter, this Court will be in a better position than the pension board to deal with the estoppel question once the parties file the responsive memoranda described above. See Scheuer, supra, 358 F.Supp. at 1338-39 n.5.	{ "pile_set_name": "FreeLaw" }
Case: 12-40336 Document: 00512195986 Page: 1 Date Filed: 04/03/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 3, 2013 No. 12-40336 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. WILLIAM DOUG MITCHELL, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Texas No. 4:10-CR-57-MAC-ALM-26 Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges. PER CURIAM:* In 2010, a grand jury indicted William Douglas Mitchell on two counts of mail fraud and one count of conspiracy to commit mail and wire fraud. Following a jury trial, Mitchell was convicted and sentenced on all three counts. Mitchell appeals, arguing that there was insufficient evidence to sustain his convictions, and that the district court reversibly erred in sentencing him. For the following reasons, we AFFIRM. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 12-40336 Document: 00512195986 Page: 2 Date Filed: 04/03/2013 No. 12-40336 I. FACTUAL AND PROCEDURAL BACKGROUND On March 10, 2010, a grand jury returned an indictment charging William Mitchell and thirty-nine others with various offenses arising from their participation in a mortgage fraud scheme. The indictment charged Mitchell, in particular, with two counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 2, and one count of conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 1349. Following a jury trial, Mitchell was convicted on all three counts. The evidence adduced at trial showed that, between February 2004 and July 2007, forty individuals—among them real estate agents, mortgage brokers, escrow officers, title company attorneys, property appraisers, and straw buyers—conspired to defraud numerous lending institutions of over $20 million by convincing them to approve mortgage loans for residential properties for which the appraised values had been fraudulently inflated. The scheme was orchestrated by John Barry, who controlled or directed the actions of each of the conspirators through a series of shell companies he owned. At Barry’s direction, Mitchell, a certified and licensed real estate appraiser, allegedly inflated the appraised value of at least thirty-five properties, directly causing over $8 million in losses to lending institutions. The fraud was perpetrated in one of two ways. The first method involved a single transaction in which straw purchasers recruited by Barry agreed to buy homes for significantly greater sums than the homes were worth, and for significantly higher prices than legitimate homeowners were seeking. Appraisers falsely inflated the appraised value of the targeted properties to convince lending institutions to finance the sales. With the assistance of real estate agents, mortgage brokers, and title company employees, straw purchasers obtained inflated mortgage loans based on false representations in loan applications regarding their income, assets, and intent to occupy the properties. The difference between a legitimate seller’s asking price and the inflated loan 2 Case: 12-40336 Document: 00512195986 Page: 3 Date Filed: 04/03/2013 No. 12-40336 amount—which largely was based on the false appraisal—provided the fraudulently-obtained proceeds to the conspirators. In the second method, conspirators again purchased homes from legitimate sellers, but then “flipped” them by selling the properties in a second, often simultaneous, transaction to straw buyers who paid substantially inflated prices. As in the first scheme, lending institutions funded the purchases based on the fraudulent appraisals of the homes’ values and the false representations provided by the straw buyers in loan applications. Because the original transactions often closed simultaneously with the second, “flipped” transactions, the latter purchases usually financed the former purchases. The difference between the original sale price and the second sale price provided the conspirators’ fraudulent proceeds. At trial, the government presented extensive evidence to advance its theory that Mitchell played a critical role in the conspiracy by artificially inflating the property valuations in his appraisals. The government also argued that Mitchell was instrumental in concealing the fraud, insofar as he used the mails or forms of wire communication to submit false or materially misleading documents to lending institutions. In return for his appraisals, Mitchell received approximately $52,000, either directly from Barry or from one of Barry’s companies. Mitchell did not disclose these proceeds to the lending institutions, though he routinely certified to them that he had “no present or prospective personal interest or bias with respect to the participants in the transaction,” and that his “compensation for performing . . . [the] appraisals was not conditioned on any agreement or understanding, written or otherwise, that [he] would report or present analysis supporting a predetermined specific value.” At the conclusion of trial, a jury found Mitchell guilty of two counts of mail fraud and one count of conspiracy to commit mail and wire fraud. On March 27, 2012, the district court sentenced him to 120 months’ imprisonment for each 3 Case: 12-40336 Document: 00512195986 Page: 4 Date Filed: 04/03/2013 No. 12-40336 count, with the sentences to run concurrently. Mitchell also was ordered to pay restitution in the amount of $8,245,423. On April 18, 2012, the district court held another hearing at which it ensured that the withdrawal of Mitchell’s trial attorney after the sentencing hearing had not adversely impacted Mitchell’s rights, and that recently decided Supreme Court cases were not implicated in Mitchell’s case. By that time, Barry had been sentenced to a term of 180 months. In light of Barry’s sentence, the district court expressed that, “in hindsight,” it had reservations about Mitchell’s sentence. Although the court expressed its view that Mitchell’s sentence was “reasonable” and still “legal,” it also stated “for the record that were [it] to sentence [Mitchell] today, [it] would sentence him to about 84 months.” Ultimately, however, the court concluded that did not have the authority “to sua sponte reduce Mr. Mitchell’s sentence.” Mitchell appeals, alleging two errors. First, he argues that there was insufficient evidence for the jury to find him guilty. Second, Mitchell asserts that the district court erred in sentencing him. We will address each of these contentions in turn. II. ANALYSIS A. Evidentiary Sufficiency 1. Standard of Review Mitchell properly preserved his challenge to the sufficiency of the evidence by moving for a judgment of acquittal under Federal Rule of Criminal Procedure 29 and renewing that motion at the close of evidence. See United States v. Frye, 489 F.3d 201, 207 (5th Cir. 2007). “This court reviews preserved challenges to the sufficiency of the evidence de novo.” United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012). “When reviewing the sufficiency of the evidence, we view all evidence, whether circumstantial or direct, in the light most favorable to the government, with all reasonable inferences and credibility choices to be made in 4 Case: 12-40336 Document: 00512195986 Page: 5 Date Filed: 04/03/2013 No. 12-40336 support of the jury’s verdict.” United States v. Ford, 558 F.3d 371, 375 (5th Cir. 2009). On review, the question is whether “a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Seale, 600 F.3d 473, 496 (5th Cir. 2010). “The evidence need not exclude every reasonable hypothesis of innocence or be completely inconsistent with every conclusion except guilt, so long as a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt.” United States v. Moser, 123 F.3d 813, 819 (5th Cir. 1997). A jury, in other words, “is free to choose among reasonable constructions of the evidence.” United States v. Pigrum, 922 F.2d 249, 254 (5th Cir. 1991). Accordingly, our review “is highly deferential to the verdict.” United States v. Harris, 293 F.3d 863, 869 (5th Cir. 2002). 2. Conspiracy to Commit Mail and Wire Fraud Conviction a. Applicable Law As discussed, Mitchell was convicted under 18 U.S.C. § 1349 of one count of conspiracy to commit mail and wire fraud. To establish a conspiracy to commit mail and wire fraud, the government must prove that: (1) two or more persons made an agreement to commit fraud; (2) the defendant knew the unlawful purpose of the agreement; and (3) the defendant joined in the agreement willfully, that is, with the intent to further the unlawful purpose. See Grant, 683 F.3d at 643; Ford, 558 F.3d at 375. “An agreement may be inferred from concert of action, voluntary participation may be inferred from a collection of circumstances, and knowledge may be inferred from surrounding circumstances.” Grant, 683 F.3d at 643 (quoting United States v. Stephens, 571 F.3d 401, 404 (5th Cir.2009)). Turning to the substantive crimes, mail fraud entails: “(1) a scheme to defraud (2) which involves a use of the mails (3) for the purpose of executing the scheme.” United States v. Ingles, 445 F.3d 830, 835 (5th Cir. 2006) (quoting 5 Case: 12-40336 Document: 00512195986 Page: 6 Date Filed: 04/03/2013 No. 12-40336 United States v. McClelland, 868 F.2d 704, 706 (5th Cir. 1989)). Wire fraud involves: “(1) a scheme to defraud and (2) the use of, or causing the use of, wire communications in furtherance of the scheme.” United States v. Radley, 632 F.3d 177, 184 (5th Cir. 2011) (citation omitted). b. The Evidence Against Mitchell Mitchell does not dispute that Barry perpetrated a mortgage fraud conspiracy that involved a use of the mails and wire communications to further the scheme. Rather, Mitchell challenges his convictions based on his claim that he was ignorant of the fraudulent activity in which Barry was engaged. Mitchell thus contends that the government’s evidence was insufficient to establish that he was aware of the unlawful purposes of the conspiracy and that he willfully participated therein with the intent of furthering those unlawful purposes. See Grant, 683 F.3d at 643. Because the record is replete with examples of Mitchell’s knowing and willful involvement in the scheme to defraud, we reject Mitchell’s arguments. First, the government introduced at trial a number of e-mails transmitted between Mitchell and Barry that evidenced Mitchell’s knowing and willful participation in the mortgage fraud scheme. In many of these e-mails, although Barry was neither the buyer nor the seller in the property transactions at issue, he provided Mitchell with artificially high target appraisal values. In others, Barry supplied to Mitchell substantive information about the property transactions, including the names of buyers, sellers, brokers, and other participants in the conspiracy. Mitchell, in turn, routinely submitted to lending institutions appraisals containing this fraudulent information, and containing property valuations exactly matching Barry’s targeted values. The evidence also established that Mitchell never disclosed Barry’s role in these transactions; to the contrary, he purposefully concealed from lenders Barry’s participation. In one e-mail, for example, Mitchell explained to Barry 6 Case: 12-40336 Document: 00512195986 Page: 7 Date Filed: 04/03/2013 No. 12-40336 that a name was needed “on the real property section of [a] report” on which he was working, and he asked Barry “what name other than your own do you want me to use.” Further, using information that only Barry could have provided, Mitchell falsified the names of the individuals who had ordered the appraisals he completed in order to conceal from lenders that the properties were being “flipped” at Barry’s direction. Nevertheless, on a routine basis, Mitchell fraudulently transmitted to lenders certifications that his appraisals were accurate, that he arrived at his conclusions independently, and that he disclosed the nature of any significant assistance he received in preparing his appraisals. In another series of e-mails, Mitchell requested from Barry a copy of a housing form generated in connection with a private sale so that Mitchell could use the associated data as a comparable property in another of his appraisals. Barry responded by sending Mitchell a list of private sales for all the properties involved in the scheme. Information about these private sales was not publicly available, and because the likelihood of fraud increases when lenders are unable to confirm ownership and sales records from publicly available sources, using these forms to acquire comparable values for an appraisal violates industry standards. However, Mitchell used this information to produce his appraisals, and subsequently failed to disclose that he had obtained the underlying data from Barry. Mitchell also suggested to Barry properties that could be included in the scheme based on Mitchell’s ability to fraudulently inflate their appraised value. In one e-mail, for example, Mitchell told Barry that Barry might be interested in a particular house that was listed with a sale price of $245,900. Although the property had been on the market for 446 days, Mitchell told Barry he could “justify” an appraised value of “at least $575,000 on [the] house.” In another instance, Mitchell suggested that Barry acquire a property that had been on the market for 153 days and recently had seen a price decrease of $100,000. 7 Case: 12-40336 Document: 00512195986 Page: 8 Date Filed: 04/03/2013 No. 12-40336 Mitchell indicated to Barry that while the home was listed with a sale price of only $599,900, it was possible to “squeeze about 800 to $825,000 out of [it].” FBI agent Richard Velasquez, the case agent who investigated Barry’s scheme, testified that this suggestion did not “comport [with] his understanding of market value from a common sense perspective.” Other e-mails demonstrated that Mitchell was aware that he was engaged in transactions fraudulently involving two sales of a single property. In one e- mail, for instance, Barry wrote to Mitchell: “You and [an alleged co-conspirator] did the appraisals on Millard Pond and it then listed on [a multiple listing service (“MLS”)], hence the second sale. . . . And also since it sold twice, closing that could be an issue. Not overly concerned since all our sales are that way.” The government also introduced an e-mail Mitchell received from a licensed broker who expressed concerns about the features of the transactions in which Mitchell was engaging. In that e-mail, the broker explained that it could be problematic to regulators if: the sales at issue involved “a closed group of investors”; the lenders were unaware “of the previous sales price or . . . list price”; the properties were “bought at one price and quickly resold for a much higher one within a short time [and there was] little to no tangible reason for the increase”; or “the new buyer of the property on the second sale . . . gets any kind of cash back.” The broker expressed that these types of transactions were troubling to “regulators at all levels up to the Justice Department” because they exposed lenders “to large loss in the event of default and forced sale.” Another witness testified that these features “describe John Barry’s scheme in one paragraph,” indicating that Mitchell was aware of the fraud. Finally, Mitchell himself admitted in an e-mail to a co-conspirator that he had been “blacklisted” by two lenders as a result of his appraisal practices, and that a third lender had expressed concerns about his conduct. Despite these many warnings, Mitchell continued to engage in business with Barry. 8 Case: 12-40336 Document: 00512195986 Page: 9 Date Filed: 04/03/2013 No. 12-40336 Although the correspondence outlined above reasonably could have led the jury to conclude that Mitchell acted in concert with Barry to perpetrate the mortgage fraud, a rational trier of fact also could have found that Mitchell’s appraisals were so far beyond any commonly accepted idea of market value that they were further indicia of his intent to commit fraud.1 The following examples are demonstrative:2 • 810 Hills Creek Drive: This house was listed on the market with a sale price of $375,000 for approximately six months, after which the price was lowered to $350,000. Mitchell appraised it at $545,000. • 1220 Hills Creek Drive: The owner of this property arrived at a listing price of $315,000 based on comparable sales. Mitchell appraised it at $600,000. • 7019 Old York Road: A real estate agent advised the owner of this home to list it for $449,000. After it was on the market for few months, the owner lowered the price to $420,000. Mitchell appraised it at $664,000. • 823 Hills Creek Drive: With the assistance of a real estate agent, the owner of this property valued it at $358,000. Mitchell appraised it at $647,000. • 4716 Seafarer Court: A real estate agent suggested that this property be listed at $514,000. The house remained on the 1 Mitchell suggests that Jack McComb, an investigator with the Texas Appraiser Licensing and Certification Board who testified for the government, was “not able” to state that Mitchell’s appraisals were incorrect as to the actual values of the properties. According to Mitchell, this is significant because McComb was offered as an expert in residential real estate evaluations. Nevertheless, McComb was not retained by the government to prepare separate valuations. Rather, he was asked only to testify as to whether Mitchell’s appraisals complied with the Uniform Standards of Professional Appraisal Practice. According to McComb, they did not. 2 Mitchell contends that the “factual information” in these appraisals—such as the number of rooms, square footage, and other details of the homes—was correct. Mitchell neglects, however, that he falsified information and values related to comparable properties, as well as the ultimate appraised values of the targeted properties. This information, of course, is the very information lending institutions rely on to determine the amount they are willing to lend a borrower. 9 Case: 12-40336 Document: 00512195986 Page: 10 Date Filed: 04/03/2013 No. 12-40336 market for roughly eighteen months, resulting in a price reduction to $482,000. Mitchell appraised it at $698,000. Sellers repeatedly testified that their properties were worth nothing close to the values at which Mitchell arrived.3 In response to the evidence against him, Mitchell submits that the government’s case came “down to the fact that [he] appraised property at a higher rate” than the local governmental appraisal body. This suggestion is based on Mitchell’s argument that Agent Velasquez stated that, in his opinion, “based on the Collin County Appraisal District records,” the appraisals Mitchell submitted “were all too high.” Mitchell contends this was improper because tax appraisals are an inappropriate measure of the value of property. He notes that federal law even provides that appraisals submitted in connection with federally- related transactions cannot be based on property tax records, but rather must be performed by certified or licensed appraisers. Mitchell ignores, however, that the government introduced tax values merely to provide a baseline estimate of the value of a particular piece of property. The government never represented, in other words, that tax assessments were anything more than a data point to orient the jury. Indeed, Agent Velasquez himself testified that tax value is “a baseline” and a “kind of starting point of what value should be.” Further, when asked if tax value was simply a “data point,” he responded, “[t]hat’s all it is.” The government thus did not improperly rely on tax assessments—much less base its entire case on them. Rather, the government’s evidence of Mitchell’s participation in Barry’s mortgage fraud scheme was overwhelming. As he did at trial, Mitchell does no more on appeal than offer an alternative theory—namely, that he was ignorant 3 Mitchell suggests that the evidence showed that the sellers of the homes he appraised all had “financial incentives” to accept lower prices—incentives such as “job transfers, troubled marriages, [and] carrying two mortgages.” This assertion, however, is unsupported by the record. 10 Case: 12-40336 Document: 00512195986 Page: 11 Date Filed: 04/03/2013 No. 12-40336 of the conspiracy and simply was sloppy or incompetent in preparing the appraisals at issue.4 Mitchell’s argument, however, neglects that we must view the evidence in the light most favorable to the verdict. See Ford, 558 F.3d at 375. While the jury was free to adopt Mitchell’s construction of the evidence, it declined to do so. See Pigrum, 922 F.2d at 254. Given the extent of the evidence against him, a reasonable trier of fact easily could have found that the government established Mitchell’s guilt beyond a reasonable doubt. See Moser, 123 F.3d at 819. 3. Mail Fraud Convictions Mitchell also was convicted under 18 U.S.C. §§ 1341 and 2 of two counts of mail fraud. The charges underlying these convictions relate to fraudulent loan documents mailed in connection with properties at 823 Hills Creek Drive and 7019 Old York Road in McKinney, Texas. Evidence introduced at trial demonstrated that Mitchell appraised these properties as part of the scheme to secure fraudulently inflated mortgage loans from Washington Mutual in San Antonio, Texas, and Oak Street Mortgage in Carmel, Indiana. a. Applicable Law As previously noted, the federal mail fraud statute requires the government to prove: “(1) a scheme to defraud (2) which involves a use of the mails (3) for the purpose of executing the scheme.” McClelland, 868 F.2d at 706. “The Government is not required to prove that the defendant specifically intended for the mails to be used in furtherance of the alleged fraudulent scheme.” United States v. Whitfield, 590 F.3d 325, 354 (5th Cir. 2009). Rather, 4 In response to this suggestion, the government argued at trial that the evidence clearly established that Mitchell’s actions were not simply the result of innocent mistakes. If that had been the case, the prosecutor contended, the law of averages would have led to some of the “mistakes” resulting in increased appraised values, and some resulting in lower values. The government suggested to the jury, however, that “Mr. Mitchell did not make at least 35 mistakes in a row that all coincidentally inflated the property values of these homes . . . . That is impossible.” 11 Case: 12-40336 Document: 00512195986 Page: 12 Date Filed: 04/03/2013 No. 12-40336 “[t]he test to determine whether a defendant caused the mails to be used is whether the use was reasonably foreseeable.” United States v. Mann, 493 F.3d 484, 493 (5th Cir. 2007); see also Pereira v. United States, 347 U.S. 1, 8–9 (1954) (“Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he ‘causes’ the mails to be used.”). b. The Evidence Against Mitchell Mitchell does not advance an independent challenge to the substantive mail fraud counts. Rather, in generally arguing that “[t]here was legally insufficient evidence for the jury to find [him] guilty as alleged in the indictment,” Mitchell again merely asserts that he was unaware of the criminal scheme. As explained above, however, there was ample evidence from which a reasonable trier of fact could have concluded that Mitchell was a willful participant in the fraudulent mortgage scheme. Likewise, the evidence was sufficient to establish that Mitchell knew, or intended that, the mails would be used to further the scheme. In connection with the mail fraud statute, we previously have explained that “[t]he requisite statutory purpose exists if the alleged scheme’s completion could be found to have been dependent in some way upon the information and documents passed through the mails, . . . and if the use of the mails was an integral part of the scheme to defraud.” McClelland, 868 F.2d at 707 (omission in original) (internal quotation marks and citation omitted). Here, the false loan documents mailed to lenders were essential to obtaining the fraudulent loans. Moreover, the jury rationally could have found that it was reasonably foreseeable to Mitchell that the mails would be used to advance the scheme. First, it was reasonable to conclude that Mitchell’s experience in the mortgage industry made him aware that those within the industry routinely use the mail to transmit documents to one another. See Whitfield, 590 F.3d at 355. 12 Case: 12-40336 Document: 00512195986 Page: 13 Date Filed: 04/03/2013 No. 12-40336 Second, several of Mitchell’s co-conspirators testified that loan documents regularly were transmitted by mail, suggesting that Mitchell was aware that the mail ordinarily was used to conduct business. See Pereira, 347 U.S. at 8–9. Finally, because the lenders at issue were not located in the same geographic area as the conspirators, the jury rationally could have concluded that the mail was used to perpetrate the conspiracy—especially given testimony to this effect offered by one of the conspirators. See United States v. Flores–Chapa, 48 F.3d 156, 161 (5th Cir. 1995) (“Juries are free to use their common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence.”). In sum, the evidence was sufficient for the jury to convict Mitchell on all charged counts. See Seale, 600 F.3d at 496–97. B. Sentencing The district court sentenced Mitchell on March 27, 2012, to a below- Guidelines sentence of 120 months’ imprisonment for each count, with the sentences to run concurrently. Mitchell also was ordered to pay $8,245,423 in restitution and to serve three years of supervised release. On April 18, 2012, the court held a hearing to determine whether the withdrawal of Mitchell’s attorney immediately after the sentencing hearing had impacted Mitchell’s rights, and whether recently decided Supreme Court cases were at all implicated in his case. By that time, Barry had been sentenced to a term of 180 months, which provoked the district court to express that, “in hindsight,” it did not believe that Mitchell “was two-thirds as much responsible as Mr. Barry.” Accordingly, the court stated “for the record that were [it] to sentence [Mitchell] today, [it] would sentence him to about 84 months.” Ultimately, however, the court concluded that it did not have the authority “to sua sponte reduce Mr. Mitchell’s sentence.” 13 Case: 12-40336 Document: 00512195986 Page: 14 Date Filed: 04/03/2013 No. 12-40336 Mitchell did not assert an objection when these comments were made, and he does not now contend that the district court committed any error when it first imposed sentence. Rather, he argues that the court erred when it “maintained the sentence and the lead defendant, the most culpable defendant in this case received, pursuant to an agreement with the Government, a sentence only one- third longer than Mr. Mitchell’s.” In other words, Mitchell asserts that the district court erred in failing to sua sponte resentence him, and he thus argues that he is entitled to a new sentencing hearing. For the following reasons, we reject Mitchell’s claims. 1. Standard of Review We review de novo whether the district court had authority to resentence a defendant. United States v. Ross, 557 F.3d 237, 239 (5th Cir. 2009); United States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997). 2. Applicable Law and Related Discussion “A federal court generally ‘may not modify a term of imprisonment once it has been imposed.’” Dillon v. United States, 130 S. Ct. 2683, 2687 (2010) (quoting 18 U.S.C. § 3582(c)). However, “the rule of finality is subject to a few narrow exceptions.” Freeman v. United States, 131 S. Ct. 2685, 2690 (2011). Specifically, 18 U.S.C. § 3582(b) authorizes a court to modify a sentence in a limited number of circumstances, such as: (1) when the court receives a motion from the Director of the Bureau of Prisons indicating there are extraordinary and compelling reasons warranting a reduction and that reduction is consistent with applicable policy statements issued by the Sentencing Commission; (2) pursuant to Rule 35[(a)] of the Federal Rules of Criminal Procedure the district court, acting within [14] days after the imposition of sentence, corrects an arithmetical, technical, or other clear error identified in a previously imposed sentence; and (3) when a defendant who has been sentenced to a term of imprisonment based upon a sentencing range that has subsequently been lowered by the Sentencing Commission. 14 Case: 12-40336 Document: 00512195986 Page: 15 Date Filed: 04/03/2013 No. 12-40336 Bridges, 116 F.3d at 1112. Although, as noted, Rule 35 permits modifications in certain narrowly defined circumstances, it “is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing [G]uidelines or for the court simply to change its mind about the appropriateness of the sentence.” United States v. Lopez, 26 F.3d 512, 520 (5th Cir. 1994) (quoting Fed. R. Crim. P. 35 advisory committee’s note). Here, Mitchell concedes that the district court “indicated by its statements and actions that it was aware that the federal sentencing [G]uidelines were advisory,” and that the sentence “comports with United States v. Booker, 543 U.S. 220 (2005)” because the court sentenced Mitchell “in accordance with the factors set forth in 18 U.S.C. [§] 3553(a).” Mitchell also admits that the court “interpreted and applied the Guidelines, resulting in a sentence that may be considered legally reasonable.” Finally, Mitchell expresses awareness “that a district court’s authority to modify or correct a sentence is limited to specific circumstances”—namely, those set forth in 18 U.S.C. § 3582(c)—and he acknowledges that § 3582(c) does “not apply in this case.” Nevertheless, Mitchell argues that the court erred when it maintained his sentence when, in the hearing conducted after sentencing, it expressed that were it to resentence him, it would impose only “about 84 months.” As the district court concluded—and Mitchell himself acknowledges—Mitchell’s sentence was reasonable.5 Although Mitchell believes the court should have sua sponte resentenced him, “a district court is not permitted to withdraw a reasonable sentence and impose what is, in its view, a more reasonable one.” Ross, 557 F.3d at 243. Moreover, as Mitchell concedes, 5 On this score, we note that (1) the factors the district court considered in selecting Mitchell’s sentence were all relevant, proper factors; (2) there are no other factors relating to Mitchell that should have received significant weight; and (3) the district court did not err in balancing the sentencing factors. See United States v. Smith, 440 F.3d 704, 707–08 (5th Cir. 2006); see also Booker, 543 U.S. at 261. 15 Case: 12-40336 Document: 00512195986 Page: 16 Date Filed: 04/03/2013 No. 12-40336 the district court had no authority under 18 U.S.C. § 3582(c) to modify Mitchell’s sentence. Thus, while the court may have “change[d] its mind about the appropriateness of the sentence” after it was imposed, such misgivings are not reflective of error. Lopez, 26 F.3d at 520. Simply put, because the court had no authority to resentence Mitchell, it committed no error, plain or otherwise, in declining to do so. III. CONCLUSION Accordingly, we AFFIRM the district court’s judgment. 16	{ "pile_set_name": "FreeLaw" }
418 F.Supp. 332 (1976) TRI-COUNTY STATE BANK, Individually and on behalf of all other persons and financial institutions similarly situated v. Saul HERTZ et al. Civ. No. 75-1412. United States District Court, M. D. Pennsylvania. May 20, 1976. 333 334 Martin H. Philip, Steven J. Hartz, Palmerton, Pa., for plaintiff. Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., Allan Ramsay, Jr., Rosenn, Jenkins & Greenwald, Wilkes-Barre, Pa., Stroock & Stroock & Lavan, Cole & Deitz, D'Amato, Colstello & Shea, New York City, for defendants. MEMORANDUM AND ORDER NEALON, District Judge. This case arises out of certain loan transactions between plaintiff, Tri-County State Bank (Tri-County Bank), a Pennsylvania state bank with its principal office and place of business in Bowmanstown, Pennsylvania, and its customer, Penn Valley Furniture Industries, Inc. (Penn Valley), which, during the period relevant to this suit, was a wholly-owned subsidiary of Drew National Corporation (Drew), a Delaware corporation which is presently the subject of proceedings under Chapter XI of the Bankruptcy Act in the Southern District of New York. The essence of the complaint is that plaintiff was induced, on the basis of false and fraudulent representations regarding the financial position of Drew, to loan Penn Valley $125,000, in return for which plaintiff received promissory notes executed by Penn Valley and secured by Drew's endorsement. The defendants are individual officers and directors of Drew, as well as the accounting firm, together with two of the firm's partners, that prepared financial statements concerning Drew. On the basis of this allegation, the complaint asserts four causes of action, the first for violations of the federal securities laws,[1] jurisdiction over which is predicated on 28 U.S.C. § 1331, and the remaining 335 three for violations of the Business Corporation Law of Pennsylvania, 15 P.S. § 1401 et seq., and the common law of fraud and negligence, jurisdiction over which is based on diversity of citizenship and pendent jurisdiction. Plaintiff seeks to bring this suit as a class action on behalf of "the hundreds of financial institutions and commercial establishments who from time to time extended loans and credit to the Drew National Corporation or its twenty-two (22) wholly owned subsidiary companies." Complaint, Para. 25. The defendants fall into two classes, (1) individual officers and members of Drew's board of directors, who allegedly conspired to disseminate false and fraudulent financial information regarding Drew, and (2) the accounting firm of Hertz, Herson and Company, together with its co-partners Saul and Ronald Hertz, who are alleged to have participated in the above-described conspiracy and also to have been "negligent, grossly negligent, reckless, wanton, and careless" in the preparation of financial statements and other documents concerning Drew. Complaint, Para. 50. Presently before the Court is defendants' motion to dismiss the first cause of action on the ground that the promissory notes given to plaintiff by Penn Valley, which are the basis for the cause of action under the federal securities laws, are not securities within the meaning of those laws, because they are commercial paper and not investment securities. In addition, assuming that the motion to dismiss is meritorious and that therefore plaintiff has no cause of action under the federal securities laws, defendants maintain that service of process on the remaining three counts, which was made pursuant to the nationwide service of process provisions of the federal securities laws, 15 U.S.C. §§ 77v, 78aa, must be set aside for non-compliance with Rule 4(f) of the Federal Rules of Civil Procedure. Plaintiff argues that the promissory notes are securities within the meaning of the federal statutes, and that, in any event, service of process on the non-federal counts was proper because it was in accordance with Pennsylvania's long arm statute. The parties have submitted affidavits and counter-affidavits in support of their positions, together with various exhibits attached to the affidavits. Because the motion to dismiss is for failure to state a claim upon which relief can be granted,[2] and because matters outside the pleadings have been presented to and not excluded by the Court in consideration of the motion, the motion will be treated as for summary judgment and disposed of as provided in Rule 56, Federal Rules of Civil Procedure. See Rule 12(b), Federal Rules of Civil Procedure. Summary judgment must be awarded the defendants on court I of the complaint if there is no genuine issue as to any material fact and defendants are entitled to judgment as a matter of law. Rule 56(c). From the materials submitted by the parties, the following uncontroverted relevant facts appear. Penn Valley and Tri-County Bank have a relationship that antedates the loan transactions which are the basis of this lawsuit. Penn Valley maintained three deposit 336 accounts with plaintiff bank: a general, a payroll and a petty cash account. Thus, Penn Valley was a customer of the bank prior to the transactions at issue here. Two separate loans between plaintiff and Penn Valley are the focus of plaintiff's claim that it was induced to loan money to Penn Valley by false and fraudulent representatives as to Drew's financial condition: a $50,000 loan in April, 1971, and a $25,000 loan in March, 1974. When the loans were applied for, Penn Valley informed Tri-County that the proceeds would be used for day-to-day working capital, and that was the use to which the proceeds were put. Both loans were issued on plaintiff's standard promissory note form, were due one day after issuance, and were endorsed by Drew. Payments of principal and interest on the loans were made by regular charges to Penn Valley's general account at the bank, a fixed weekly charge in the case of the larger loan, and a monthly charge for the smaller. The payments on the balance due were made from Penn Valley's own operating capital which had been deposited in its general account. The April, 1971 loan of $50,000 was initially at an interest rate of 9½ percent. The record shows that it was subsequently increased and renewed several times in varying amounts and at varying interest rates, and that the weekly payments were made regularly until April, 1975. For example, the bank's ledger sheets show that on October 19, 1973, the loan had an outstanding balance of $66,107.84 and was renewed in the amount of $100,000; on February 7, 1974, it had an outstanding balance of $73,727.98 and was renewed in the amount of $100,000; on July 2, 1974, the balance had been reduced to $62,044.90 and was renewed in the amount of $100,000; on December 31, 1974, the balance was $57,619.72 and was again renewed for $100,000; and by April, 1975, at the time of the last payment, the balance was $68,661.22. The smaller loan was made at an initial interest rate of 12 percent. It was secured by certain of Penn Valley's inventory and all its equipment and machinery. It was also renewed several times, on each occasion in the amount of $25,000 after the outstanding balance had been substantially reduced by the regular monthly charges to Penn Valley's general account. After the last payment made by Penn Valley, in April, 1975, the outstanding balance was $16,749. Besides the above facts concerning the transactions between Tri-County Bank and Penn Valley, plaintiff has also sought to introduce into the record facts concerning other loans made to Drew and its subsidiaries other than Penn Valley by banks other than plaintiff bank. In support of these facts, plaintiff has offered the affidavit of Mr. Carl A. Johnson, president of Tri-County Bank, which contains a list of ten banks, together with sums allegedly owed each bank by Drew and/or its subsidiaries; the list is taken from an exhibit, presumably a list of creditors, in Drew's petition in bankruptcy in the Southern District of New York. In addition to the list, Mr. Johnson's affidavit also contains some conclusory allegations regarding Drew's motivation in securing the various loans and the uses to which the proceeds of the loans were put. In essence these allegations are that the loans were part of a common scheme by Drew to raise capital in order to rejuvenate itself and its subsidiaries at a time of financial crisis in its affairs; that the lenders were unaware of the interrelatedness of the loans and of the purpose of the funds to finance Drew's revitalization; and that the entire scheme was "a common enterprise the success of which was totally dependent upon the ability of Drew National Corporation and its various subsidiaries to rejuvenate their business by and through the substantial amounts of money borrowed." Affidavit of Carl A. Johnson at 3. It seems clear that plaintiff's purpose in advancing these allegations concerning other loans made to Drew and its subsidiaries is to establish that the transactions between it and Penn Valley, which standing alone appear to be ordinary commercial loans by a commercial lending institution to a business in need of working capital, were actually 337 part of a large financing scheme on the part of defendants to rejuvenate Drew and its subsidiaries through a number of individual bank loans to raise capital in an attempt to continue operation in view of Drew's financial straits. Plaintiff's theory is that it and a number of other creditors of Drew, whom it purports to represent as a class, became unwitting joint participants in a common enterprise, the revitalization of Drew and its subsidiaries, and that the notes issued by Drew and its subsidiaries were the investment vehicle. At first blush, however, the allegations concerning the purpose and uses of loans other than those made by Tri-County Bank are not credible, if only because the affiant on whose sworn statement the allegations are based, the president of Tri-County Bank, is not in a position to have any knowledge concerning loans made by banks other than his own institution. Plaintiffs have sought to remedy this defect by filing a discovery motion permitting them to contact the other lending institutions and have them file affidavits and/or briefs concerning the circumstances surrounding their loans to Drew and its subsidiaries in support of plaintiff's opposition to the motion to dismiss.[3] Defendants have opposed the discovery motion on the grounds that by it plaintiff is seeking information concerning other members of the class it seeks to represent in the instant class action in order to establish its eligibility to sue in its own right, and that plaintiff must first establish its own right to sue before it may seek to represent other members of a class. See Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727, 734 (3d Cir. 1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1190, 28 L.Ed.2d 323 (1971). Defendants, however, misperceive the relevance of the information concerning the character of other loans made to Drew and its subsidiaries. Plaintiff does not seek to establish by such information its fitness as a representative of a class, but merely to adduce evidence concerning the loans it made to Penn Valley in order to establish that those loans were part of a larger scheme by Drew and all its subsidiaries to raise capital to be used to rejuvenate the borrowers. Thus, there is no legal reason why plaintiff should be prevented from obtaining the discovery it seeks. Nevertheless, I do not find it necessary to permit plaintiff to obtain the desired discovery, because, even assuming that by it plaintiff could establish the propositions it has advanced, i. e., that its loans to Penn Valley occurred at a time when Drew and its subsidiaries were engaged in a scheme to raise capital for continued operation by individual loans from commercial lending institutions, under the prevailing law it will still have failed to establish that the promissory notes given by Penn Valley in exchange for the loans were securities within the meaning of the federal securities laws. An analysis of that prevailing law must begin with the statutory framework. The Securities Act of 1933 and the Securities Exchange Act of 1934 differ slightly in their handling of the kind of notes that are at issue here. The 1933 act provides that "unless the context otherwise requires (1) The term `security' means any note, stock, treasury stock, bond, debenture . . ." 15 U.S.C. § 77b(1) (emphasis supplied), but exempts from the registration and prospectus requirements "[a]ny note, draft, bill of exchange or banker's acceptance which arises out of a current transaction or the proceeds of which have been or are to be used for current transactions, and which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited." 15 U.S.C. § 77c(a)(3). However, Section 17 of the 1933 Act, the general anti-fraud provision which prohibits fraud in the "offer or sale" of any securities, 15 U.S.C. § 77q(a), provides that the exemptions in 15 U.S.C. § 77c shall be inapplicable to that section. The 1934 act, on the other hand, defines the term "security" as follows: 338 "When used in this title, unless the context otherwise requires . . . [t]he term `security' means any note, stock, treasury stock, bond, debenture . . . or in general, any instrument commonly known as a `security'; or any certificate of interest or participation in, temporary or interim certificate for, receipt for, or warrant or right to subscribe to or purchase, any of the foregoing; but shall not include currency or any note, draft, bill of exchange, or banker's acceptance which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited." 15 U.S.C. § 78c(a)(10). In spite of the slight differences in the language of the two acts defining a security (in the context of notes, the main difference is the reference in the 1933 act, not present in the 1934 act, to "current transactions"), the Supreme Court has termed the definitions "virtually identical," Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967), and, for the purposes of this opinion, they will be regarded as the same. The two acts' handling of short-term commercial paper (essentially, notes with a maturity not exceeding nine months), however, is somewhat different. While the 1934 act exempts such paper altogether, the 1933 act only exempts it from its registration and prospectus requirements. It is still subject to the anti-fraud provisions of the 1933 act. Thus, if the acts were applied literally to the notes at issue here, which had a maturity at the time of issuance of one day, only the 1933 act would apply.[4] It is now well-settled, however, that the federal securities statutes are not to be construed literally in determining what is a security, but are to be applied flexibly in light of Congressional intent, with "form . . . disregarded for substance and the emphasis . . . on economic reality." Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 553, 19 L.Ed.2d 564 (1967). ". . Congress intended the application of these statutes to turn on the economic realities underlying a transaction, and not on the name appended thereto." United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 849, 95 S.Ct. 2051, 2059, 44 L.Ed.2d 621 (1975). Under this approach, the sale of shares in a co-operative housing development has been held not to be a security transaction, even though the shares in the development were called "stock," and the securities statutes' definition of a security includes the words "any . . . stock." Id. In the case of notes, whether a note is within the acts or exempt turns not on its maturity, as it would under a strict interpretation of the statutes, but on whether the note was issued as commercial or investment paper. Lino v. City Investing Co., 339 487 F.2d 689 (3d Cir. 1973); Bellah v. First National Bank of Hereford, Texas, 495 F.2d 1109 (5th Cir. 1974); C.N.S. Enterprises, Inc. v. G. & G. Enterprises, Inc., 508 F.2d 1354 (7th Cir. 1975); Great Western Bank & Trust v. Kotz, 532 F.2d 1252 (9th Cir., opinion filed March 22, 1976) reported in Federal Securities Law Reporter, Para. 95,494 at p. 99,496 (1976); Sanders v. John Nuveen & Co., Inc., 463 F.2d 1075 (7th Cir. 1972); SEC v. Continental Commodities Corp., 497 F.2d 516 (5th Cir. 1974). As stated by the court in McClure v. First National Bank of Lubbock, Texas, 497 F.2d 490, 494-495 (5th Cir. 1974): "On one hand, the Act covers all investment notes, no matter how short their maturity, because they are not encompassed by the `any note' language of the exemption. On the other hand, the Act does not cover any commercial notes, no matter how long their maturity, because they fall outside the `any note' definition of a security. Thus, the investment or commercial nature of a note entirely controls the applicability of the Act . . .." Therefore, whether the promissory notes at issue here are securities depends on whether they are commercial or investment paper as those terms have been defined by the courts in determining the application of the federal securities statutes to notes in particular cases. At the outset, I must address plaintiff's contention that the SEC has conclusively interpreted the exemption for short-term commercial paper as embodying four requirements, all of which must be met before a note may be exempted as commercial paper. The contention is based on SEC Release No. 33-4412, 17 C.F.R. § 231.4412 (1961), in which the Commission elaborated on Section 3(a)(3) of the 1933 act's exemption of short term commercial paper from the registration and prospectus requirements of the statute. The release provides in pertinent part: "The legislative history of the Act makes clear that section 3(a)(3) applies only to prime quality negotiable commercial paper of a type not ordinarily purchased by the general public, that is, paper issued to facilitate well-recognized types of current operational business requirements and of a type eligible for discounting by Federal Reserve Banks." Plaintiff maintains that, because Drew was in a precarious financial position at the time it endorsed the promissory notes under consideration here as evidenced by the subsequent default on the notes, those notes were neither prime quality negotiable commercial paper nor of a type eligible for discounting by Federal Reserve Banks and, therefore, do not fall within the commercial paper exemption from the statutes. A similar argument was accepted by the courts in Sanders v. John Nuveen & Co., Inc. and SEC v. Continental Commodities Corp., supra, as a partial basis at least for findings that the notes at issue in those cases were not commercial paper. The short answer to plaintiff's contention is that Release No. 33-4412 construes the commercial paper exemption from the registration and prospectus requirements of the 1933 act, and does not necessarily apply to the anti-fraud provisions of either the 1933 or the 1934 act. The release seems to have been intended as a guide for prospective issuers by describing generally the type of paper intended to be exempt from registration. It does not purport to establish a rigid, all-inclusive test for determining what is commercial and what is investment paper in the context of an alleged violation of the anti-fraud provisions. Furthermore, application of the release in the manner urged by plaintiff would result in the automatic labeling as "investment" any notes on which an issuer or promisor defaulted, on the conclusory rationale that the default evidences a precarious financial position that precludes the notes being regarded as prime quality or eligible for discounting. That analysis would amount to a determination of the nature of a note at a time subsequent to its issuance, whereas, under the proper procedure, "the nature of an instrument is to be determined at the time of issuance, not at some subsequent time." Great Western 340 Bank & Trust v. Kotz, supra, 532 F.2d at 1255, citing SEC v. United Benefit Life Insurance Co., 387 U.S. 202, 211, 87 S.Ct. 1557, 18 L.Ed.2d 673 (1967), which in turn was quoting SEC v. Joiner Leasing Corp., 320 U.S. 344, 352-353, 64 S.Ct. 120, 88 L.Ed. 88 (1943). Moreover, such an automatic approach would be contrary to the requirement that the nature of an instrument turn on the economic realities underlying it. If the provisions of the release were applied in the fashion urged by plaintiff, no note on which the issuer or promisor defaulted would be commercial paper, because it would have to be ultimately regarded as neither prime quality nor eligible for discounting. Finally, the courts have agreed that, whatever the relevance of the release to the commercial/investment inquiry, it is not dispositive and does not set forth all the factors that are relevant to determining whether a particular note is commercial or investment. "Rather, it is appropriate and preferable to consider and apply the judicially assessed characteristics ascribed to commercial and investment paper." SEC v. Continental Commodities Corp., 497 F.2d at 525. See also Bellah v. First National Bank of Hereford, Texas, 495 F.2d 1109, 1112 n. 3 (5th Cir. 1974). In making the determination, the courts have applied a multi-faceted test that focuses on all aspects of the transaction and instrument in question. As the Court of Appeals for the Third Circuit has advised, "[t]he courts will have to consider the complete context of each transaction in making their determinations." Lino v. City Investing Co., 487 F.2d 689, 696 n. 15 (3d Cir. 1973). An analysis of some of the cases discloses several of the factors which the courts have identified in determining whether particular notes are commercial or investment. The leading case in this circuit is Lino v. City Investing Co., 487 F.2d 689 (3d Cir. 1973), in which the plaintiff, who had purchased franchise sales center licensing agreements (which gave him exclusive rights to market the seller's programs within certain areas) and made payment with cash and several promissory notes, argued that the promissory notes were securities, thus creating federal jurisdiction for his claim that he was induced to purchase the agreements by the defendant's material misstatements. In holding that the notes were not securities, the court stated: "In no way could City Investing be said to have `purchased' Lino's notes for speculation or investment. City Investing was selling a certain contract right to Lino, not buying his security. It simply lacks common sense to describe the transaction as City Investing purchasing John Lino's security by paying him the right to operate one of its Franchise Sales Centers." Id. at 695. The court declined to articulate a fixed test for determining in every case whether a promissory note was a security, advising instead that "[t]he courts will have to consider the complete context of each transaction in making their determinations." Id. at 696 n. 15. In Bellah v. First National Bank of Hereford, Texas, 495 F.2d 1109 (5th Cir. 1974), the plaintiff issued a six-month promissory note secured by a deed of trust to the defendant bank in return for a loan of funds to be used for the operation of plaintiff's livestock business. When plaintiff defaulted on the note and the bank foreclosed on the property, the plaintiff sued under Rule 10b-5, claiming that at the time of the loan, the bank had promised not to foreclose in the event of default. In holding that the note was not a security because it was part of a commercial not an investment transaction, the court expressly relied on the facts that the bank merely intended to aid the plaintiff in the operation of a business when it extended the funds in return for the note, and that the bank did not seek to profit from the successful operation of the plaintiff's enterprise. Id. at 1113. See also McClure v. First National Bank of Lubbock, Texas, 497 F.2d 490 (5th Cir. 1974), a case whose fact pattern and holding are essentially identical to Bellah's, in which the court set forth digests of most of the cases that have considered whether notes are securities. Id. at 493-494. In its analysis of the cases, the court in McClure concluded that 341 ". . . where notes have been deemed securities within the meaning of the securities laws, either of two factors, not present here, usually indicated the investment overtones of the underlying transactions. First, in this case, only the Bank and GCD [the borrower] were involved in the execution of documents related to a commercial loan. GCD's notes were neither offered to some class of investors, nor were they acquired by the Bank for speculation or investment . . . Second, in the case at bar, the Bank ostensibly extended its loan so that GCD might pay off its business debt. Thus, GCD did not obtain investment assets, either directly or indirectly, in exchange for its notes." Id. at 493-494. In C.N.S. Enterprises, Inc. v. G. & G. Enterprises, Inc., 508 F.2d 1354 (7th Cir. 1975), the court held that promissory notes delivered to a bank for loans used to purchase the assets of a small business enterprise were not securities, with the result that there was no federal jurisdiction for a suit by the maker of the notes seeking recission of the sale on the ground of fraudulent misrepresentations by the sellers as to the value of the business enterprise. The court was influenced by the facts that the impetus for the transaction came from the borrowers who needed cash to complete the purchase; that there was no allegation that the bank solicited the plaintiffs to interest them in an investment; and that the business enterprise involved was to be operated by the plaintiffs, not by the bank or by the defendants-sellers or by the defendants-sellers as an investment for the plaintiffs. In addition, the court set forth several other relevant factors that had been identified in a law review article concerning commercial notes and the definition of a security: "A comprehensive and perceptive student comment suggests a long list of possible criteria to distinguish ordinary commercial notes not protected by the act from investment notes or investment securities protected by the act: (1) how is the instrument characterized in the business community? (2) how are the proceeds to be used (if for consumer goods or particular business goods or services not covered, but if for general financing of borrower's enterprise covered)? (3) extent of reliance on efforts of others (placing funds at great risk, giving note payee extensive collateral rights, making repayment of funds contingent upon some event, all tend to indicate security rather than loan); (4) number of notes issued, number of payees, dollar amount of transaction; (5) payable on demand or if payable at fixed time, how long is the time between issuance and maturity? and (6) characterization of notes on relevant financial statements. Comment, Commercial Notes and Definition of `Security' Under Securities Exchange Act of 1934: A Note Is a Note Is a Note? 52 Neb.L.Rev. 478, 510-24 (1973)." Id. at 1361. Finally, in Great Western Bank & Trust v. Kotz, 532 F.2d 1252 (9th Cir., 1976), a case virtually indistinguishable from the instant case, the court held that a promissory note of a corporation given to a bank in exchange for a ten-month, renewable line of credit was not a security, thus foreclosing federal jurisdiction for the bank's suit against the corporation's principal for material misrepresentations made in the course of the transaction. The bank had brought suit after the corporation failed to make payments on the note and entered a Chapter X bankruptcy proceeding. The line of credit was in the amount of $1,500,000, and the note had a maturity of 10 months. The transaction was part of a larger plan on the part of the principal to obtain financing for the corporation. A loan agreement which accompanied the note placed stringent limitations on the borrower, inter alia, a requirement that the bank's funds be used only for working capital. Following the disclosure of some adverse financial information, but prior to the default on the note, the bank renegotiated the agreement to secure itself with the corporation's personal property and other assets. 342 In concluding that the note was not a security,[5] the court in Great Western was influenced by several factors: although the note had a maturity of ten months, it had in effect a much shorter term, as the bank could demand accelerated payment of principal and interest in the event of default; although the note was initially unsecured, the loan agreement required maintenance of a checking account balance of at least $300,000, a readily attachable asset which was tantamount to security; in form, the transaction was commercial rather than investment, characterized as it was by such terms as "borrower," "lender," "loan," and "line of credit"; and because the bank was the only lender involved in the particular transaction at issue in the case, its risk was not interwoven with that of others. Applying the cases and the relevant factors to the promissory notes at issue here, it is clear that they are commercial and not investment paper. With respect to time, "[t]he most important factor[,]" Great Western Bank & Trust v. Kotz, supra, 532 F.2d 1252, the notes were in effect demand notes, being due one day from the date of issuance. This kept the bank's risk to a minimum, inasmuch as full payment of principal and interest could be demanded at the first sign of insolvency or financial difficulty on the part of Penn Valley. Furthermore, the proceeds of the loans were to be used for working capital by Penn Valley, not for any capital expenditure or by an entity other than Penn Valley. The loans arose out of an already existing customer relationship between the bank and Penn Valley, and their impetus came from the borrower, which was seeking funds for working capital. In form the loans had all the indicia of commercial transactions the notes were issued on the bank's own standard promissory note forms; the transaction was referred to as a loan; and payments made on the loan by Penn Valley were referred to as principal and interest payments. The second loan was a secured transaction, and, although the first loan was not secured, it was in effect collateralized by Penn Valley's pre-existing customer relationship with Tri-County, as a result of which Penn Valley maintained three accounts at the bank, and by the requirement 343 that payments of principal and interest on the loan be made by regular monthly charges to Penn Valley's general account. The notes had a fixed rate of interest, which meant that the bank's return on the loans did not depend on the amount of profits earned by Penn Valley's business. In sum, the promissory notes at issue here have all the earmarks of commercial paper. Moreover, even if the inquiry is made in terms of risk capital analysis, see note 5 supra, the result is the same. The bank's anticipated return on the funds loaned to Penn Valley did not depend on the managerial efforts of Penn Valley, but was ensured by the nature of the instruments themselves. Because they were such short term notes, the bank could demand full payment on them at the first sign of financial difficulty on the part of Penn Valley. One of the notes was secured by an interest in Penn Valley's inventory, equipment and machinery, and the other note was, in effect, collateralized. See supra. And the bank's return on the notes was established by the fixed rate of interest; it did not depend on the profitability of Penn Valley's business. Although the bank did not realize its full return on the loans as a result of Penn Valley's default, that does not compel the conclusion that the bank invested risk capital in the enterprise. The "risky loan" must be distinguished from an investment of "risk capital." Great Western Bank & Trust v. Kotz, supra, 532 F.2d 1252, citing Motel Co. v. Commissioner, 340 F.2d 445, 446 (2d Cir. 1965). Plaintiff's contention that its loans to Penn Valley were merely two of several loans to Drew and its subsidiaries that, considered together, must be regarded as a scheme to finance the rejuvenation of a financially troubled enterprise, does not stand up in light of the uncontroverted facts in this case. Assuming arguendo that the loans to Penn Valley occurred at a time when Drew and its subsidiaries were engaged in a scheme to raise revitalization capital by obtaining loans from commercial lending institutions, the loans at issue here were not part of such an interrelated scheme. It is undisputed that the loans were made to supply Penn Valley with working capital. Payments on the loans were made from Penn Valley's own operating capital which had been deposited in its general account at the bank. The first loan was carried for four years in this manner before Penn Valley defaulted on it. During this time the balance fluctuated as monthly payments were regularly made by charges to Penn Valley's general account at the bank, and the loan was renewed on several occasions. The second loan was carried in the same manner for approximately 13 months prior to default. In light of these facts, it cannot seriously be contended that the loans to Penn Valley were part of an interrelated scheme to finance entities other than Penn Valley itself. There is no indication that the proceeds of the loans were used by any entity other than Penn Valley, or for any purpose other than working capital; and it is undisputed that all the payments on the loans were made from Penn Valley's own operating capital. Under these circumstances, I must agree with the court in Great Western Bank & Trust v. Kotz, supra, 532 F.2d at 1259, where it stated, in rejecting an argument almost identical to that made by plaintiff in this case: "Accepting as true GWB's assertion that its loan was but one of many sought by Artko scarcely supports the conclusion that Artko was making the equivalent of a `public offering' resulting in investor risk-pooling. An individual business such as Artko may often solicit funds from numerous financial institutions at the same time. Yet where, as here, a disputed transaction is individually negotiated to suit the needs of both contracting parties, it cannot be seriously argued that the lender has pooled its `investment' with those of other institutions." In short, at issue in this case is a normal commercial loan transaction between a bank and a corporation interested in obtaining funds for working capital. Pointing to 344 other loans negotiated by the borrower's parent at the same time and invoking the talismanic term "venture capital" does not change such a transaction into an investment and does not transform promissory notes issued as part of the transaction into securities. In sum, for the reasons stated, summary judgment must be awarded the defendants insofar as plaintiff seeks to establish a violation of the federal securities laws. It remains to be considered whether the other counts in the complaint must be dismissed for improper service of process. Service on most of the defendants was made by delivering copies of the summons and complaint upon persons in charge of the offices in which they work in New York City. Two of the defendants were personally served in New York City. Because service was thus made outside the territorial limits of Pennsylvania, it must have been in accordance with Rule 4(f), Federal Rules of Civil Procedure in order to be valid. Rule 4(f) provides that service beyond the territorial limits of the state in which the district court is located must be "authorized by a statute of the United States or by these rules" in order to be valid. Because there is no federal statute on which plaintiff may rely for extraterritorial service in light of the holding, supra, that the promissory notes are not securities within the meaning of the federal securities laws, plaintiff must point to some other provision in the federal rules to validate the extraterritorial service in this case. Plaintiff must rely on Rule 4(d)(7), which provides in pertinent part that service on an individual is sufficient if "the summons and complaint are served . . . in the manner prescribed by the law of the state in which the district court is held for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state." Thus plaintiff must rely, as it acknowledges in its opposition to the motion to dismiss, on Pennsylvania's long-arm statute. The manner of service under that statute is set forth in 42 Pa.C.S.A. § 8307, which provides in pertinent part: "Process directed to persons under this chapter shall be served, by the officer to whom such process shall be directed, upon the Department of State, by sending by registered or certified mail, postage prepaid, a true and attested copy of such process, with the fee required by law, and by sending to the defendant, by registered or certified mail, postage prepaid, a true and attested copy thereof, with an endorsement thereon of the service upon the Department of State, addressed to such defendant at his last known address." Without deciding whether service of process in this case was otherwise proper under Section 8307, and without deciding whether the defendants are subject to the in personam jurisdiction of this court, it is clear that service of process was improper here, if only because a copy of the summons and complaint was not sent by registered or certified mail to the Department of State in Pennsylvania. ". . . [F]ailure to follow the procedures prescribed by statute will make the process on which suit is predicated fatally defective." Pittman v. Compton, 277 F.Supp. 772, 773 (N.D.Okl.1968). Cf. Bookout v. Beck, 354 F.2d 823, 824 (9th Cir. 1965) (dictum) see also California Clippers, Inc. v. United States Soccer Football Association, 314 F.Supp. 1057, 1061-1062 (N.D.Cal.1970). For that reason, service must be quashed and the case dismissed. Rule 12(b)(5), Federal Rules of Civil Procedure. NOTES [1] Although the complaint does not specify which provisions of the federal securities laws have allegedly been violated, plaintiffs presumably intend to assert a cause of action under the antifraud provisions of Section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a), and Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), as well as under Rule 10b-5 under the 1934 Act, 17 C.F.R. § 240.10b-5. See Complaint, Para. 35. The failure to specify the portions of the federal securities laws allegedly violated by defendants is one of the bases for the alternate ground asserted in support of defendants' motion to dismiss, a failure to comply with the requirement of Rule 9(b) of the Federal Rules of Civil Procedure that fraud be pleaded with particularity. Proceedings on the Rule 9(b) portion of the motion to dismiss have been stayed pending disposition of the other grounds offered in support of the motion, which grounds are the subject of the instant opinion. [2] Although defendants term their motion as a motion to dismiss for lack of jurisdiction and for failure to state a claim, see Motion to Dismiss and to Set Aside Certain Service, Document No. 14 in the record, the basis of the motion, that the promissory notes are not securities within the meaning of the federal securities laws, goes to whether or not plaintiffs have stated a claim for relief, and not whether this Court has jurisdiction to hear the claim. See Great Western Bank & Trust v. Kotz, 532 F.2d 1252 (9th Cir., 1976). [3] A motion seeking permission to obtain such discovery is necessary because of the order of March 12, 1976 by this Court staying all discovery in this case pending resolution of the instant motion. [4] Ironically, plaintiff, apparently focusing on the portions of both acts which define a security as "any note," and overlooking the exemptions in both acts, argues that the promissory notes in this case should be regarded as securities under a strict per se interpretation of the statutes. However, as has been shown, if the statutes were applied literally, plaintiff would be left only with its asserted cause of action under Section 17 of the 1933 act, and it is by no means clear that there is a private right of action under that section that corresponds to the private right of action under Section 10(b) of the 1934 act and Rule 10b-5, Compare Dorfman v. First Boston Corporation, 336 F.Supp. 1089 (E.D.Pa.1972) with Reid v. Mann, 381 F.Supp. 525 (N.D.Ill.1974). See also SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 867 (2d Cir. 1968), cert. denied sub nom, Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (Friendly, J., concurring). See generally 3 Loss, Securities Regulation 1785-86 (2d Ed. 1961); 6 Loss, Securities Regulation 3912-15 (Supp.1969). Be that as it may, in spite of some early cases which did construe the statutes strictly in determining what is a security, see, e. g., Rekant v. Dresser, 425 F.2d 872, 878 (5th Cir. 1970); Lehigh Valley Trust Co. v. Central National Bank of Jacksonville, 409 F.2d 989, 991-993 (5th Cir. 1969), the current and prevailing view, recently endorsed by the Supreme Court, see United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 848-851, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975), is that the statutes should be construed flexibly to effectuate their purpose so that their application will "turn on the economic realities underlying a transaction, and not on the name appended thereto." Id. at 849, 95 S.Ct. at 2059. This is the approach followed here. See infra. [5] The court framed its inquiry differently than most other courts in determining whether a note is a security. Instead of simply analyzing the transaction to determine whether it was commercial or investment in nature, the court analyzed "the nature and degree of risk accompanying the transaction to the party providing the funds . . . [in order to determine] whether the funding party invested `risk capital.'" 532 F.2d at 1256. The risk capital analysis is apparently the approach followed in the Ninth Circuit. See El Khadem v. Equity Securities Corp., 494 F.2d 1224 (9th Cir.), cert. denied, 419 U.S. 900, 95 S.Ct. 183, 42 L.Ed.2d 146 (1974). Under that approach, "an instrument is generally a security if anticipated return on the funds provided depends largely upon `the undeniably significant . . . essential managerial efforts' of those other than the funding parties." Great Western Bank & Trust v. Kotz, supra, 532 F.2d at 1259, quoting SEC v. Glenn Turner Enterprises, Inc., 474 F.2d 476, 482 (9th Cir. 1973). The Supreme Court recently reserved judgment on the appropriateness of the risk capital approach. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 857 n. 24, 95 S.Ct. 2051, 44 L.Ed.2d 621. Furthermore, it has not been adopted by the Court of Appeals of this circuit, and does not appear to have been adopted by any other circuit. Nevertheless, in spite of the focus of the Great Western case on the risk capital question, instead of on the more general commercial/investment inquiry, it is still relevant to the instant case, if only because risk capital analysis is not significantly different from the more general approach. All the factors considered by the court in Great Western in determining whether the bank had invested risk capital, see infra, are relevant to the instant inquiry. Furthermore, the court in Great Western acknowledged that the significant distinction in its case was that between commercial and investment paper. "In the context of this case we must distinguish between the `risky loan' and `risk capital.' . . . This distinction has been framed by the courts of appeals as the `commercial-investment dichotomy.'" Great Western Bank & Trust v. Kotz, supra, 532 F.2d at 1257. In addition, the extent to which a return on funds depends on the managerial efforts of those other than the funding parties has been identified by other authorities as one of the factors relevant to distinguishing between commercial and investment paper. See C.N.S. Enterprises, Inc. v. G. & G. Enterprises, Inc., 508 F.2d 1354, 1361 (7th Cir. 1975). Finally, the notes in this case are not securities under either approach. See infra.	{ "pile_set_name": "FreeLaw" }
619 N.W.2d 870 (2000) 2000 SD 154 STATE of South Dakota, Plaintiff and Appellee, v. Dean Desire STAHL, Defendant and Appellant. No. 21145. Supreme Court of South Dakota. Argued October 24, 2000. Decided December 13, 2000. 871 Mark Barnett, Attorney General, Paul Cremer, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and appellee. Gary D. Blue, Huron, SD, Attorney for defendant and appellant. PER CURIAM [¶ 1.] Dean Desire Stahl appeals from his judgments of conviction and sentence for possession of marijuana, distribution of marijuana, and distribution of marijuana in a drug-free zone. Stahl claims his 24-year sentence constitutes cruel and unusual punishment and an abuse of the sentencing court's discretion. We affirm. FACTS AND PROCEDURE [¶ 2.] Stahl sold marijuana to Avery Sorenson on December 9 and 11, 1998 while Sorenson was assisting law enforcement with controlled drug buys. Two officers of the Huron Police Department had earlier searched Sorenson, provided him with money with which to purchase drugs from Stahl, and outfitted him with a recording device. The two officers maintained audio contact with Sorenson at all relevant times. Both drug buys took place in Stahl's home, located within 1,000 feet of Jefferson Elementary School in Huron. Sorenson was retrieved by law enforcement immediately after each buy and debriefed. [¶ 3.] Stahl was arrested March 8, 1999.[1] He was subsequently indicted on two counts of possession of marijuana, two counts of distribution of marijuana, two counts of distribution of marijuana within a drug-free zone and witness tampering. He was convicted by a jury on the possession and distribution charges and acquitted of witness tampering. He was sentenced to two years in the state penitentiary on each of the two distribution counts and ten years on each of the two distribution in a drug-free zone counts. On the possession counts, Stahl was ordered to pay court costs. The penitentiary sentences were ordered to run consecutively, resulting in a 24-year prison sentence. [¶ 4.] Stahl appeals, claiming his sentence is an abuse of discretion and a violation of his constitutional protection against cruel and unusual punishment. ANALYSIS AND DECISION [¶ 5.] The Eighth Amendment's protection against cruel and unusual punishment "forbids only extreme sentences that are `grossly disproportionate' to the crime." State v. Bonner, 1998 SD 30, ¶ 15, 577 N.W.2d 575, 579 (quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 2705, 115 L.Ed.2d 836, 869) (Kennedy, J., concurring). [T]o assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate. To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court. If these circumstances fail to suggest gross disproportionality, our review ends. If, on the other hand, the sentence appears grossly disproportionate, we may, in addition to examining the other Solem factors, conduct an intra- and inter-jurisdictional analysis to aid our comparison or remand to the circuit court to conduct such comparison before resentencing. We may also consider other relevant factors, such as the effect upon society of this type of offense. Id. at ¶ 17, 577 N.W.2d at 580. We have long stated that we take "an extremely deferential review of sentencinggenerally, 872 a sentence within the statutory maximum will not be disturbed on appeal." Id. at ¶ 10, 577 N.W.2d at 578 (citing State v. Kaiser, 526 N.W.2d 722 (S.D.1995)). We will not "engage in appellate resentencing, or [ ] `micromanage the administration of criminal justice' in South Dakota, even when individual trial judges impose widely different punishments for the same offense." Id. at ¶ 11, 577 N.W.2d at 578. [¶ 6.] Stahl's relevant past conduct includes a criminal record of nineteen prior misdemeanor convictions and three violations of the terms of suspended sentences. From 1975 to his arrest for the present offense, there is no significant break in his criminal record except for the ten years he served in the United States Army.[2] From 1975 until he entered the Army, the majority of Stahl's violations involved motor vehicle violations, including three DUI's. Following military discharge, Stahl continued collecting misdemeanor convictions. His record spans 24 years and includes offenses such as DUI, open container, furnishing alcohol to a minor, simple assault, and speeding and reckless driving, among others. This history is appropriate for the sentencing court to consider. Id. at ¶ 19, 577 N.W.2d at 580. Although Stahl has not previously been convicted of any crime involving drugs, in his presentence report he admitted past use of illegal substances, specifically marijuana, methamphetamine and LSD. [¶ 7.] A defendant's lack of remorse is also appropriately considered by the sentencing court. Ganrude v. Weber, 2000 SD 96, ¶ 12, 614 N.W.2d 807, 810; State v. Chase in Winter, 534 N.W.2d 350, 355 (S.D.1995). In his presentence report statement, Stahl proclaimed his only crime was in caring too much and helping his fellow man and that he was innocent of the charges. He claimed he did not possess or distribute marijuana at any time, yet alone in a drug-free zone, despite the taped recordings documenting both drug sales and the jury's determination that he did commit these crimes.[3] At the sentencing hearing, Stahl relied on his presentence investigation report and failed to present any additional evidence toward mitigation or his potential for rehabilitation.[4] This report contained several character letters from family members and indicated Stahl had twice participated in alcohol treatment programs. [¶ 8.] As previously noted, we give great deference to the legislature and to the sentencing court. Stahl was convicted of two counts each of violating SDCL 22-42-6 and 22-42-7. Violation of SDCL 22-42-6, a Class 1 misdemeanor, carries a maximum sentence of one-year imprisonment in a county jail or a fine of $1,000 or both. Stahl's sentence for both counts of violating this statute was payment of court costs. Violation of SDCL 22-42-7, a Class 6 felony, carries a maximum sentence of two years imprisonment in the state penitentiary or a fine of $2,000 or both. Stahl's sentence for two counts of violating this statute was two years imprisonment on each count. [¶ 9.] Stahl was also convicted of two counts of violating SDCL 22-42-19(1). SDCL 22-42-20 instructs that a violation of 22-42-19 is to be charged as a separate count in the indictment or information. SDCL 22-42-19, classifying the distribution of drugs within a drug-free zone as a Class 4 felony, provides: Any person who commits a violation of § 22-42-2, 22-42-3, or 22-42-4, or a felony violation of § 22-42-7, if such activity has taken place: (1) In, on or within one thousand feet of real property comprising a public or private 873 elementary or secondary school or a playground; or (2) In, on or within five hundred feet of real property comprising a public or private youth center, public swimming pool, or video arcade facility; is guilty of a Class 4 felony. The sentence imposed for a conviction under this section carries a minimum sentence of imprisonment in the state penitentiary of five years. Any sentence imposed under this section shall be consecutive to any other sentence imposed for the principal felony. The court may not place on probation, suspend the execution of the sentence, or suspend the imposition of the sentence of any person convicted of a violation of this section. However, the sentencing court may impose a sentence other than that specified in this section if the court finds that mitigating circumstances exist which require a departure from the mandatory sentence provided for in this section. The court's finding of mitigating circumstances allowed by this section and the factual basis relied upon by the court shall be in writing. It is not a defense to the provisions of this section that the defendant did not know the distance involved. It is not a defense to the provisions of this section that school was not in session.[5] Having been found guilty of violating two counts of this statute, Stahl was sentenced to serve ten years on each count, consecutive to each two-year sentence for the principal felony, distribution of one ounce or less of marijuana. The court ordered that all of Stahl's sentences were to be served consecutively. Stahl's 24-year sentence is the maximum time that could have been imposed for these four felony convictions. [¶ 10.] SDCL 22-42-19, creating drug-free zones in our state, was enacted in 1992. This appeal presents our first opportunity to review application of this statute. It is reasonably presumed, from review of the greater sanctions imposed therein that are not discretionary with the sentencing court, that the legislature was particularly concerned with protecting this state's youth from illegal drug use. "The sale and use of narcotics causes the greatest scourge on our society today and reaches down into our schools to destroy our most precious asset, the children." State v. Engel, 465 N.W.2d 787, 792 (S.D. 1991) (Henderson, J., concurring); see also State v. Pettis, 333 N.W.2d 717, 720 (S.D. 1983). "[T]he effect upon society of this type of offense" is a relevant factor for courts to consider when determining an appropriate sentence. Bonner, 1998 SD 30 at ¶ 17, 577 N.W.2d at 580. Stahl misses this point when he argues that he deserves a shorter sentence because the drug sale "had nothing to do with the school or anyone that had anything to do with the school." As noted above, SDCL 22-42-19 provides it is no defense "that the defendant did not know the distance involved ... [or] that school was not in session." Likewise, the statute offers no defense or leniency because the drug sale "had nothing to do with the school" or persons associated with it. The violation is complete if the proscribed criminal activity takes place within the expressed statutory distance from the drug-free zone. [¶ 11.] Moreover, the minimum mandatory sentence set at five years by SDCL 22-42-19 and the maximum prison term set for all Class 4 felonies at ten years limits the amount of discretion a sentencing court may exercise in determining an appropriate sentence for violation of this statute.[6] The court's discretion is further limited by the statute's mandate that the sentence for violation of SDCL 22-42-19 run consecutively to the sentence imposed for the principal felony. Here, Stahl was convicted of two counts of violating SDCL 22-42-19; the court ordered each of these sentences to be served consecutively to the 874 principal felony sentences and consecutively to one another. [¶ 12.] At Stahl's sentencing hearing, the judge stated that he had read the presentence report. Therefore, he had the requisite acquaintance with Stahl, his character and history, and previous criminal record to sentence him. Bonner, 1998 SD 30, ¶ 19, 577 N.W.2d at 580; Chase in Winter, 534 N.W.2d at 354-55. The court informed Stahl that "the charges [against him] are severe and the charges are extremely unpopular today. I think that people are absolutely fed up with the drugs and the consequences connected with the use of those drugs and with the consequences of selling them." In these comments, the sentencing court acknowledged the public policy underlying SDCL 22-42-19. [¶ 13.] Stahl did not receive the maximum penalty that could have been imposed under our statutes. No fines were imposed for any of his six convictions and his punishment for each of his two convictions for possession of marijuana was payment of court costs only. He was, however, sentenced to the maximum time on each of the four distribution charges. As previously noted, all of these sentences were ordered to run consecutively. It is presumed from the lack of written findings in the record that the sentencing court found no mitigating circumstances in this case.[7] Given Stahl's lack of remorse or even acknowledgment of guilt, his lengthy criminal record and the limited discretion offered the sentencing court by the legislative mandates in SDCL 22-42-19, no abuse of discretion is shown under this record. The 24-year sentence Stahl received was not grossly disproportionate to the severity of the crimes involving the distribution of drugs within 1,000 feet of an elementary school, a statutorily defined drug-free zone. [¶ 14.] The judgments of conviction and sentence are affirmed. [¶ 15.] MILLER, Chief Justice, and SABERS, AMUNDSON, KONENKAMP and GILBERTSON, Justices, participating. NOTES [1] Law enforcement explained that the delay between the drug buys and Stahl's arrest was due to their desire to protect the secrecy of their confidential informant's identity which enables them to use an informant for additional buys. [2] The record is silent regarding any history of activities during Stahl's ten-year military career except for noting his service during the Gulf War. [3] Stahl appeals only his sentence and does not claim any errors at trial. [4] Although Stahl's attorney attempted to argue these points at oral argument before this Court, the time to make the record is before the sentencing court. [5] SDCL 22-42-18 defines "playground," "video arcade facility," and "youth center" as these terms are used in SDCL 22-42-19. [6] In addition to the maximum term of ten years imprisonment, a fine of $10,000 may be imposed for violation of a Class 4 felony. SDCL 22-6-1(6). [7] SDCL 22-42-19 allows a sentencing court to depart from the statutory sentence mandates if the court finds that mitigating circumstances exist. The statute requires, however, that "[t]he court's finding of mitigating circumstances allowed by this section and the factual basis relied upon by the court shall be in writing."	{ "pile_set_name": "FreeLaw" }
639 So.2d 476 (1994) Shirley B. DEROUEN, et al., Plaintiffs-Appellees, v. Pam AUDIRSCH f/d/b/a Highland Beauty Shop and State Farm Fire & Casualty Insurance Company, Defendants-Appellants. Shirley and Robert DEROUEN, Plaintiffs-Appellees, v. ST. FRANCIS MEDICAL CENTER, INC. and the Louisiana Patient's Compensation Fund, Defendants-Appellants. Nos. 25,847-CA, 25,848-CA. Court of Appeal of Louisiana, Second Circuit. June 28, 1994. 479 Moore, Walters, Shoenfelt & Thompson by Charles R. Moore and Marjorie A. McKeithen, 480 Baton Rouge, for plaintiffs-appellees Shirley and Robert DeRouen. Fewell, Rhymes & Lucas by J. Michael Rhymes, Monroe, for defendants-appellants State Farm Ins. Co. and Pam Audirsch. Provosty, Sadler & deLaunay by Frederick B. Alexius and John P. Doggett, Alexandria, for Louisiana Patient's Compensation Fund. Davenport, Files & Kelly by M. Shane Craighead, Monroe, for Clyde Medaries. Before NORRIS, VICTORY and WILLIAMS, JJ. NORRIS, Judge. Shirley DeRouen's consolidated claims, 25847-CA and 25848-CA, arose from an accident in defendant, Pam Audirsch's, leased beauty shop followed by negligent medical treatment for her injury at St. Francis Medical Center. The original tortfeasors, Pam Audirsch and State Farm Insurance, appeal from an adverse jury verdict, finding Audirsch at fault, and the owner of the premises, Clyde Medaries, free from fault in causing DeRouen's initial injury. They also allege that the trial court erred in omitting one of their requested jury instructions. The Louisiana Patients Compensation Fund ("Fund") appeals the verdict insofar as it apportions 70 percent of DeRouen's total damages to the health care provider. All three contest the damage awards for past and future lost earnings. The DeRouens answer the appeal, seeking an increase in certain damage awards. For the following reasons, we amend and affirm. FACTUAL AND PROCEDURAL HISTORY Pam Audirsch, operator of Highland Beauty Shop, entered an oral agreement with Clyde Medaries in October 1986 to lease the fully equipped salon for $200 a month. On July 1, 1987, Shirley DeRouen, then an x-ray technician at St. Francis and customer of Audirsch's, went to the salon for her hair appointment. Mrs. DeRouen sat down in a beautician's chair, its back against the counter, to await Audirsch, who was with another customer. As DeRouen turned the chair to face Audirsch and the customer, the chair back collapsed, causing her to fall backwards out of the chair onto the floor. DeRouen testified that she hit her back and head on the floor and momentarily lost consciousness; she remained at the shop for another two hours to have her hair done. She also stated that she felt soreness, stiffness and pain in her back a few hours later, which she attempted to treat herself with muscle relaxers, pain pills and a heating pad. Several days after the accident, DeRouen made an appointment with her treating physician, Dr. Don W. Irby, a neurosurgeon. Between her fall and appointment with Dr. Irby, the pain worsened and began radiating down her leg; she also experienced pain in her hip and numbness in her toes. On July 6, Dr. Irby initially diagnosed exacerbation of her pre-existing protruding disc at the L-5/S-1 level, but a subsequent myelogram and CAT scan confirmed that the disc had ruptured. On July 24, DeRouen underwent a lumbar discectomy at St. Francis Medical Center. She awoke from this procedure unable to lift her left foot and later learned that her condition, commonly known as "drop foot," was caused by compression of the peroneal nerve by an improperly fastened leg strap during surgery. Her foot improved slightly over the next few days; however, upon her discharge on August 1, she still suffered from incomplete peroneal nerve damage and had substantial difficulty walking because she could not control her left foot. She complied with the recommended home physical therapy for her back and walked two to three miles a day, but testified that she needed assistance to do so. DeRouen seemed to be improving as of May 1988, according to a letter written by Dr. Irby to James McLemore, the administrative director of radiology services at St. Francis. He anticipated her return to work full-time in August 1988. In the interim, he suggested that she attempt to resume her former job, but work only part-time, and carry or lift no more than 10 pounds. He strictly limited the amount of time she could sit, stand, walk, stoop, bend and climb. Mrs. 481 DeRouen read the letter, but was concerned she would be unable to perform the job and thus lose her disability benefits, and preferred instead to return full-time in August. Dr. Irby felt that DeRouen, the person suffering from the neurological deficit, was in the better position to decide whether she could return to work or not; he agreed not to mail the letter. DeRouen returned to Dr. Irby on February 22, 1989 complaining that she experienced a setback after a fall two weeks earlier; Dr. Irby noted that her foot injury had, in fact, worsened. He then sent her to Dr. Mulbier, a nerve specialist in Memphis, who informed her the nerve damage was permanent. DeRouen testified that she had never in her life felt more depressed than when she was told this. DeRouen last saw Dr. Irby on January 5, 1993. He noted that she no longer had "drop foot," but still suffers from incomplete common peroneal nerve damage and her foot will never function normally. He assigned a total 23 percent partial and permanent disability rating, 15 percent for her back and eight percent for her foot. Dr. Irby did not recommend her returning to her former position at St. Francis unless she could comply with all the restrictions listed in his May 1988 letter. Otherwise, he suggested only light duty work such as a file clerk or receptionist. DeRouen is now 50 years old (44 at the time of the accident) and must wear a leg brace to help her walk. Even with this brace, she must make a conscious effort to lift her foot. She has stumbled and fallen numerous times and constantly worries about falling. She also experiences numbness, stiffness, cramping, spasms and swelling in her foot, which negatively impacts the physical activities she was once able to enjoy. She requires help performing routine tasks, such as climbing stairs and household chores. As a result of her dependency on others, she suffers from depression, low self-esteem and decreased self-confidence. She experiences back spasms and pain and cannot sit for long periods of time. Her husband also noticed the deleterious effects both injuries had on his wife and on their marriage. The DeRouens filed suit against Pam Audirsch d/b/a Highland Beauty Shop and State Farm Insurance in June 1988 and against St. Francis Medical Center in October 1989. The defendants in the first action brought a third-party demand against Clyde Medaries and St. Francis. In the second action, St. Francis filed a third-party demand against Audirsch and State Farm. The actions were consolidated in November 1989. In June 1990, the plaintiffs settled with St. Francis, which conceded liability, for $100,000, and reserved their rights to proceed against the Fund for excess damages.[1] The remaining parties proceeded to jury trial in January 1993. Defendants, Audirsch and State Farm, sent Mrs. DeRouen to Vernon Moss, an occupational therapist, for a functional capacity assessment on September 1 and 2, 1992. DeRouen performed poorly in 23 out of 29 tested physical activities. Moss testified that DeRouen was capable of only sedentary work, which he conceded was basically just sitting somewhere. In light of her diminished physical ability, Moss admitted she was incapable of performing aspects of her job "where speed in walking and mobility is critical," such as reacting to an emergency and preventing a faint or weak patient from falling. 25847-CA, Vol. IIK, p. 780. Finally, he recommended treatment for muscle weakness, help with coping skills and a work fitness program. Audirsch and State Farm also hired Louis Lipinski, a vocational rehabilitation counselor, to conduct a labor market survey. Lipinski testified on direct examination that he found there was a demand for x-ray technicians, even with DeRouen's disability, and that employers were willing to make accommodations for qualified disabled individuals. He also stated that he discussed the case with rehab professionals from the Job Accommodations Network, a telephone service for disabled persons. He was told that most hospitals provide assistants to transfer and position patients, stools for those who cannot 482 stand for long periods of time, and lifts and other devices to transfer patients to gurneys from beds. Not only did Monroe have a job market for Mrs. DeRouen with her limitations, but, according to Lipinski, she would be able to earn at least $14 an hour and possibly as high as $25 an hour. In addition, he testified that he found a market for non-typing clerical positions, such as administrative, file, ward or medical records clerk at five to six dollars an hour. On cross exam, however, he reluctantly admitted that not one of the 32 clinics and centers surveyed in his report had x-ray tech or clerical positions available. Exh. P-17. On direct exam, Lipinski also insisted that the Americans With Disabilities Act ("ADA"), enacted only recently in July 1992, would prevent employers from denying her jobs because it mandates that employers hire and make reasonable accommodations for disabled persons. Nevertheless on cross exam, he admitted the effect of that legislation would not be immediate. Moreover, he testified that the ADA did not require employers to hire a disabled individual, but only required them to consider that person. He further conceded that the act did not require employers to hire a disabled person, such as DeRouen, who posed a direct threat to the health and safety of patients. Finally, Lipinski's credibility was damaged on rebuttal. Though he testified that he called various hospitals, identified himself and explained Mrs. DeRouen's situation, rebuttal witness, Dot Tolar, chief x-ray technician at E.A. Conway Hospital, testified that he never mentioned physical disabilities in connection with his questions during their telephone conversation. She also denied informing him that the hospital would accommodate a person with physical limitations. DeRouen's supervisor, James McLemore, also testified on behalf of defendants. McLemore stated that he would have allowed Mrs. DeRouen to return to her former job and made the necessary accommodations for the physical limitations noted by Dr. Irby, if she had asked. According to McLemore, neither Dr. Irby nor Mrs. DeRouen called about her position. He was unable to recall a telephone conversation, documented by Dr. Irby in April 1988, regarding the possibility of her returning to work. DeRouen testified that she is no longer capable of performing her essential duties as an x-ray technician. According to DeRouen, her responsibilities included lifting patients, heavy cassettes and machines, standing for long periods of time, bending, stooping, wearing a heavy lead apron, and being able to act quickly in emergency situations for the patients' safety. Mr. DeRouen, who observed his wife daily, testified that she was having difficulty performing even simple chores around the house. In any event, DeRouen stated that she was never told her job was still available or that accommodations would be made for her. In fact, Mr. DeRouen testified that hospital personnel would not speak to them when they tried to reach them by telephone or return their calls. In February 1992, she submitted an application to her friend, Jerry Stewart, owner of Heritage Personnel Service in Monroe; Stewart was unable to find her a job. At the time of trial, DeRouen had not worked since her accident. JURY VERDICT The jury found Pam Audirsch 100 percent at fault in causing DeRouen's original injury under both negligence and strict liability theories, and absolved Clyde Medaries of any fault. It awarded the following damages: Mrs. DeRouen Medical expenses (uncontested) $ 14,811.38 Past lost wages $236,476.00 Future earning capacity $150,000.00 Physical injury, pain, suffering and mental anguish $150,000.00 Permanent disability $ 50,000.00 Mr. DeRouen Loss of consortium $ 500.00 The jury then assessed 70 percent of the total damages against St. Francis and the Fund for the hospital's admitted liability.[2]483 Thereafter, a consolidated judgment was rendered in favor of the DeRouens and against Audirsch and State Farm for plaintiffs' total damages. Judgment was entered in favor of plaintiffs and against the Fund (liable in solido with Audirsch and State Farm) for 70 percent of the medical expenses incurred after DeRouen's back surgery (70 percent of $5,370.67) and the remaining damages (70 percent of $586,976), less a credit of $100,000. The judgment dismissed the third party demand against Clyde Medaries with prejudice. Judgment was also rendered in favor of Audirsch and State Farm, ordering the Fund to indemnify them to the extent that the judgment against them reflects sums for which the Fund had been adjudged liable to the DeRouens. Audirsch, State Farm and the Fund appealed. The DeRouens filed an answer to the appeal, requesting an increase in certain damage awards. DISCUSSION I. LIABILITY Strict LiabilityLa.C.C. art. 2317 Audirsch and State Farm contend that the jury committed manifest error in failing to find third party defendant, Clyde Medaries, strictly liable for DeRouen's injuries. To recover under La.C.C. art. 2317, a plaintiff must prove: (1) the thing was defective and created an unreasonable risk of harm; (2) the damages were caused by that defective thing; and (3) the thing was in the defendant's custody. Ross v. La Coste de Monterville, 502 So.2d 1026 (La.1987). C.C. art. 2317 imposes strict liability on the person maintaining custody (garde) of the defective thing; this rule is premised on one's legal responsibility to keep his thing in good condition to avoid harming others. King v. Louviere, 543 So.2d 1327 (La.1989); Loescher v. Parr, 324 So.2d 441 (La.1975). As a general rule, the guardian of the thing is in a better position than the innocent victim to detect, evaluate and take steps to eliminate the unreasonable risk of harm arising from a defective thing. Kent v. Gulf States Utilities Co., 418 So.2d 493, 497 n. 5 (La.1982). In King, our Supreme Court reiterated the longstanding principle that "[t]he things in one's care are those things to which one bears such a relationship as to have the right of direction and control over them, and to draw some kind of benefit from them." King, supra at 1329; Loescher v. Parr, 324 So.2d 441, 449 (La.1975), quoting Verlander, We Are Responsible ..., 2 Tulane Civil Law Forum, No. 2, p. 64 (1974). Ownership, in many cases, establishes the requisite benefit, control and authority to find garde; however, the two are not synonymous. Fonseca v. Marlin Marine Corp., 410 So.2d 674 (La.1981); Loescher, supra. Ownership creates only a presumption of garde, which is rebuttable by the owner. Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461 (La.1991). As noted by our Supreme Court, to find otherwise would impermissibly rewrite article 2317 as it stands today, to impose strict liability based on "ownership," as in C.C. articles 2321 and 2322, rather than on "custody" of a defective thing. Doughty, supra. In Doughty, the Supreme Court clearly rejected a finding of garde based on a wife's community ownership interest in certain defective equipment because she, in fact, had no control or authority over the equipment. Doughty, supra at 465. Based on the foregoing, it is clear that the strict liability contemplated by article 2317 arises out of "custody" of a thing, not "ownership." Whether the law imposes a duty of garde upon Audirsch is a factual inquiry. Doughty, 576 So.2d at 464, King, 543 So.2d at 1330, Kent, 418 So.2d at 497. We must therefore determine (1) what type of direction and control Audirsch maintained over the chair and (2) whether she received any benefit from it. Doughty, supra. A jury's factual findings are entitled to great weight and will not be overturned absent manifest or clear error. Stobart v. State, Through Dept. of Transp. & Dev., 617 So.2d 880 (La. 1993). 484 The jury embraced one permissible view of the evidence. Medaries bought the chair at Audirsch's request and for her ultimate benefit because she wanted to add an operator and needed an additional chair. He inspected both the hydraulic unit and the back of the chair twice, once when he bought it and then again at the beauty shop; both times, he found that the chair was working properly and was not defective in the manner in which plaintiff was injured. Medaries then placed the chair in the salon. Thereafter, Medaries virtually relinquished control over the chair and had no further contact with it. There was evidence that he had repaired specific things in the past at Audirsch's request, but he was never notified that this chair needed repairs; Audirsch confirmed this. Though she and Katherine Cagle, another operator, testified that the chair was broken since the first day in the salon, Audirsch admitted that she did not advise Medaries of any problem, but used the chair in the salon for possibly as long as five months. During this time, she could have either removed it herself or asked Medaries to do so, but instead she pushed it against the wall to support the back on the day of the accident. Medaries denied that he ever agreed to "maintain" the equipment in the salon; he admits to merely making occasional repairs at Audirsch's request. Both Audirsch and her husband testified at trial to Medaries's alleged maintenance agreement; however, Mr. Audirsch admitted that in deposition he stated that they had not agreed to any additional terms besides the rent. The record shows that it was mutually understood that the beauty shop was Audirsch's business. Medaries purposely did not visit the salon often because he did not want to "interfere with their operation of their business." Medaries Dep., p. 18. Furthermore, the chair was in his possession for an inconsequential amount of time, simply long enough to transport the chair to Audirsch, in compliance with her direct request. Cf. Franklin v. Ford Motor Corp., 617 So.2d 57 (La.App. 4th Cir.1993); Ellison v. Conoco, Inc., 950 F.2d 1196 (5th Cir.1992). Finally, it is obvious that Audirsch received a direct and substantial benefit from leasing a fully equipped beauty shop for only $200 a month, using that equipment daily and having an additional chair installed for another operator. In contrast, Medaries merely received the fixed monthly rent and would not have benefitted greatly from Audirsch adding an operator. The jury was not clearly wrong to find that the chair was not defective when Medaries placed it in the shop, and that Audirsch, not Medaries, actually had control and exercised authority over the defective chair and received substantial benefit as well. On this record, it was not manifestly erroneous for the jury to conclude that Medaries successfully rebutted the presumption that he had garde of the chair. Though Medaries owned the premises, he was in no better position than an innocent victim to detect, evaluate or take steps to eliminate an unreasonable risk of harm arising from the defective chair. Doughty, supra. The jury's finding that Audirsch, and not Medaries, is strictly liable for DeRouen's injury is affirmed. Negligence Audirsch contends that the jury erred in finding her negligent and failing to find any negligence on the part of Medaries. We disagree. Under a duty-risk analysis, Audirsch, as operator of the beauty salon, owed a duty to protect her customers against potential harm from a chair that she knew was dangerous. La.C.C. art. 2315; Roberts v. Benoit, 605 So.2d 1032 (La.1992); Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Carr v. City of New Orleans, 626 So.2d 374 (La.App. 4th Cir.1993). However, Audirsch breached that duty to DeRouen. Audirsch knew of the chair's dangerous condition, but took no steps to remedy it. Moreover, on the day in question, she failed to warn DeRouen that the chair was broken and allowed her to sit in it. In fact, Audirsch admitted that she had never warned any customer to avoid using the chair. Finally, as noted above, the jury could have easily believed that Medaries had no knowledge that the chair was not working properly. Clearly, the 485 risk that DeRouen, a customer in her shop, would be injured while sitting in the defective chair fell within the scope of Audirsch's duty. On this record, the jury was not clearly wrong in finding Audirsch, and not Medaries, negligent. II. DAMAGES All three appellants contend that the jury committed manifest error in awarding damages without considering DeRouen's alleged earning potential and reducing her past lost wages accordingly. In light of this earning potential, they argue that she was not entitled to any award for lost earning capacity. By answer to the appeal, the DeRouens seek increases in the awards for past and future lost wages, general damages and loss of consortium. Mitigation As background, we first briefly address the basis for these awards and then consider their soundness with respect to any duty to mitigate. Plaintiffs' economist, Dr. Moser, and defendants' economist, Dr. Culbertson, both provided estimates of past lost wages to the jury. The jury obviously found $37,225.74, Dr. Moser's estimate representing DeRouen's average salary over 1985, 86, and 87, most reasonable. This figure was well within the range of projected estimates, from $33,982.64 to $50,000, for her yearly earnings. These estimates were also rather conservative and did not take into account normal wage increases. Moreover, the jury was entitled to accept Dr. Moser's economic evaluation over that of Dr. Culbertson's. American Motorists Ins. Co. v. American Rent-All, 579 So.2d 429 (La.1991); Crane v. Exxon Corp., 613 So.2d 214, 226 (La.App. 1st Cir.1992). Thus, her past economic loss over 5.5 years, including fringe benefits at 15.5 percent of her wages, totalled $236,476 ($37,225.74 × 5.5 yrs. = $204,741.57 × .155 = $31,734.94 + $204,741.57 = $236,476). With regard to future earnings, both economists again submitted figures. Dr. Moser's calculations were based on four different estimated annual earnings, 20.45 fringe benefit ratio, a work life expectancy of 9.77 years and a three percent discount factor. Dr. Moser's estimates ranged from $335,197.07 to $214,749.96 based on a $42,123.96 annual salary, which was offset by potential future earnings of $4.25, $6.00, $8.00 and $10.00 an hour. Dr. Culbertson's estimates were, of course, much lower, ranging from $130,670 to $69,920 because they were premised upon the assumption that DeRouen could return to her former job as an x-ray technician. He also used a 15.5 fringe benefit ratio, 7.8 year work life expectancy, and four percent discount factor. Considering all this evidence, the jury ultimately awarded her $150,000, clearly believing that she could return to some type of employment in the future. Appellants contend, however, that DeRouen could have returned to work as early as May 1988, and therefore request a reduction in past lost wages for those potential earnings and elimination of the award for loss of earning capacity. An injured plaintiff has a duty to take reasonable steps to mitigate damages, including attempting to find suitable employment if she is, in fact, employable. Parmelee v. Martin Marietta Michoud, 566 So.2d 441 (La.App. 4th Cir.1990); American Motorists Ins. Co. v. American Rent-All, supra; Burke v. Safeway Stores, Inc., 554 So.2d 184 (La.App. 2d Cir.1989). Past Lost Wages The only evidence suggesting that DeRouen could return to work less than one year after the injury was Dr. Irby's statement, in a letter to McLemore dated May 2, 1988, that she try to resume part-time employment in May at St. Francis (subject to restrictions and limitations) and that he anticipated full-time hours in August. DeRouen read the letter, but was concerned that she would not be able to perform the essential functions of her former job and did not want to risk losing her disability benefits, her family's sole source of income. Instead, because at this time both she and Dr. Irby anticipated that her foot would soon return to normal, she preferred to wait and return full-time in August, with no limitations. However, DeRouen's condition never improved. In fact, over the next nine months, Dr. Irby saw DeRouen regularly, documented numerous problems with spasms in her 486 foot and back, cramping in her calf and swelling of her foot, and continued to prescribe pain medication. Then, in February 1989, she suffered a severe setback and again lost control of her foot. By July 1989, DeRouen had improved to only slightly above the level of functioning she possessed before her setback. DeRouen continued to see Dr. Irby through May 1993; during this time, he documented complaints of significant amounts of pain and cramping in her foot and back. Dr. Irby's office notes also show that she was taking pain medicine at least through February 1992. Significantly, after July 1989, Dr. Irby never again recommended to plaintiff that she return to work. DeRouen actually attempted some sedentary work, answering the phone for Stewart for two days, but she testified that it caused her foot to swell and she experienced back pain. Stewart corroborated this. In February 1992, she applied to Stewart's personnel service; the search proved fruitless. The only other record evidence of DeRouen's condition is Vernon Moss's functional capacity assessment of her physical ability as of September 1992. DeRouen performed poorly on 23 out of 29 physical tests. Moss, like Dr. Irby, classified DeRouen's capabilities at the sedentary level, at best. He defined sedentary work as lifting and carrying no more than 10 pounds, occasionally lifting small things, sitting only six hours a day, and standing and walking no more than two hours a day. It is appellants' burden to prove that DeRouen unreasonably failed to mitigate her damages. Jacobs v. New Orleans Public Service, Inc., 432 So.2d 843 (La.1983). Appellants argue that McLemore would have permitted DeRouen to return to her former job, which he would have tailored to suit her specific needs. At trial, however, McLemore candidly admitted that the hospital has not offered her a job and refused to agree at that time to rehire her. Additionally, McLemore plainly refused to make any assurances of job security if she could not perform essential functions of the job. Further, he admitted he did not know the results of Moss's functional capacity assessment. Mrs. DeRouen, who has worked as an x-ray technician for the past 27 years, testified without contradiction that she could not perform the essential functions of her job. Further, she testified that she suffered severe depression and embarrassment because she could not handle even simple tasks. Mr. DeRouen testified that upon discussing Dr. Irby's suggestion that she return to work part-time, he told his wife, "you can't even make your own bed, Shirley, how in the world do you think you're going to work?" 25847-CA, Vol. III, p. 720. Jerry Stewart observed DeRouen during the few days she worked for him simply answering the telephone and testified to the severe swelling of her foot. Upon viewing this evidence in its entirety, the jury, which was in the best position to weigh and assess the witnesses' credibility, obviously believed that Shirley DeRouen was not able to return to her former profession. As for sedentary or light duty work, the jury was not clearly wrong in finding that DeRouen could not perform this type of employment prior to trial. DeRouen had no typing or computer skills and was therefore not qualified for clerical work. Though Dr. Irby suggested a position as receptionist, Jerry Stewart testified that there were no positions available in the Monroe job market for a non-typing receptionist. Louis Lipinski's more detailed job market survey confirmed this and further indicated that there were no openings for clerical positions in general. Moreover, as late as September 1992, DeRouen's condition did not allow her to sit, according to Moss, for more than six hours a day and Mrs. DeRouen, herself, testified that she could not sit for long periods of time without suffering pain and swelling. Stewart, as noted, corroborated this. The record also shows that through at least February 1992, DeRouen had continuously experienced significant pain, requiring use of pain medicine. Additionally, both Mr. and Mrs. DeRouen testified to her severe depression after the accident, particularly after she learned that her nerve damage was permanent and she would never be able to function normally. Finally, appellants did not attempt to show that the accommodations necessary 487 for DeRouen to return to any type of employment were reasonable. Considering the evidence in its entirety, the jury was entitled to conclude that Shirley DeRouen did not unreasonably refuse to seek employment between her accident and trial. The record supports this view and we cannot substitute the factfinder's reasonable evaluations of credibility or inferences of fact for our own, even if we would have weighed the evidence differently. Stobart v. State, Through Dept. of Transp. and Dev., supra. The jury's findings are entitled to great deference on appeal. Rosell v. ESCO, 549 So.2d 840 (La.1989). The jury was not plainly wrong to find, on the record presented, that DeRouen was unemployable between her accident and trial. By answer to this appeal, Mrs. DeRouen requested an increase in past lost wages, but failed to brief the issue. It is thus deemed abandoned. U.R.C.A. Rule 2-12.4. In any case, the record does not suggest that the award was inadequate. The jury's award for past lost wages will be affirmed. Future Loss of Earnings With respect to future earnings, the record wholly supports that DeRouen suffered a decrease in her earning capacity. Loss of earning capacity is based on the plaintiff's capacity to earn money rather than her actual wages before the injury. Folse v. Fakouri, 371 So.2d 1120 (La.1979). An award for impairment of earning capacity encompasses the loss of plaintiff's earning potentialthe loss of her ability to do that for which she is equipped by nature, training and experience. Coffin v. Bd. Of Sup'rs of La. Univ., 620 So.2d 1354 (La.App. 2d Cir. 1993); Burke v. Safeway Stores, Inc., supra. Also significant is plaintiff's inability to pursue work as vigorously as before the accident. Hobgood v. Aucoin, 574 So.2d 344 (La.1990). Because loss of earning capacity cannot be calculated with mathematical certainty, the factfinder is accorded great discretion in making such an award. La.C.C. art. 2324.1; Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Burke v. Safeway Stores, Inc., supra at 190. Sound discretion, however, must be exercised to render awards consistent with the record and avoid injustice to either party. Burke v. Safeway Stores, Inc., supra. DeRouen, a lifelong x-ray technician, whose education, training, and experience is limited to that field, now suffers a 23 percent partial and permanent disability over her entire body and can no longer perform many essential functions required for the job. One permissible view of the evidence is that she can no longer work as an x-ray technician and with her limitations will be relegated to performing light duty work in the future. Jerry Stewart, manager of Heritage Personnel Services, testified that he was unable to find DeRouen a job, and in his opinion, it would be extremely difficult to place her in the competitive Monroe job market. State Farm and Audirsch argue that as a direct result of the recent ADA, 42 U.S.C. § 12101 et seq., effective July 1992, it is easier for a disabled individual to obtain employment; consequently, they urge DeRouen's earning capacity has not changed. According to Lipinski, otherwise qualified, disabled employees must now be reasonably accommodated; he found that mobile stools and lifts to carry and transfer patients were available for x-ray technicians. Even given these accommodations, however, the jury was not clearly wrong in finding that an x-ray tech job significantly exceeds DeRouen's functional abilities. Her speed and mobility are substantially limited and she testified that she can no longer respond properly in an emergency situation. She thus places her patients' health and safety, as well as her own, in jeopardy. In light of DeRouen's decreased mobility and sedentary level of functioning, and the failed attempts to place her in the Monroe job market, the jury was not clearly wrong to find that the ADA does not remedy her decreased earning capacity. Considering the instant record and the breadth of the jury's discretion, we simply cannot say that the jury abused its discretion in awarding DeRouen $150,000 for future economic loss. Furthermore, this award is not abusively low. It is affirmed. 488 General Damages In assessing damages in tort cases, much discretion is left to the judge or jury. La.C.C. art. 2324.1. We may only disturb such an award on review if the record reveals a clear abuse of discretion, based upon the specific injuries and their effect on the particular individual. Hae Woo Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La. 1993); Reck v. Stevens, 373 So.2d 498 (La. 1979). After finding such abuse, we may consider whether the contested award is truly disproportionate to past awards for similar injuries. Youn, supra. The jury awarded $150,000 for past and future physical injury, pain, suffering and mental anguish and $50,000 for permanent disability. Dr. Irby assessed a 23 percent partial and permanent disability rating. DeRouen suffers occasional spasms in both her back and foot and has trouble sitting for long periods of time. She now wears a brace, but is embarrassed by it and her difficulty climbing stairs and walking. DeRouen demonstrated for the jury her diminished ability to walk and climb stairs. She also stated that she has stumbled and fallen in the past, though not while wearing her brace, and worries about this occurring. Because of this fear of falling, she has become less confident and more dependent on others. She is less physically active outdoors than before the injuries, but is still able to and does attend social events. Unquestionably, DeRouen has suffered in the past due to these injuries and will have to learn to cope with her disability in the future. Nevertheless, on this record, we do not deem a total general damage award of $200,000 to be abusively low. It is affirmed. Loss of Consortium The jury awarded Mr. DeRouen $500 for loss of consortium. On appeal, he claims this amount is clearly inadequate. We agree. This court recognizes the loss of the following elements in analyzing a claim for consortium: love and affection; society and companionship; sexual relations; performance of material services; right of support; aid and assistance; and felicity. Finley v. Bass, 478 So.2d 608 (La.App. 2d Cir.1985). Mr. DeRouen's uncontroverted testimony established that Mrs. DeRouen's entire demeanor and personality has changed since the accident. After the accident, his outgoing, personable wife became a hermit; he testified that she was embarrassed about her brace and awkward gait. As a result, they were unable to attend many social functions for some time following the accident. In addition, he and his wife led a very active life before her injuries, boating and taking trips to amusement parks, but are no longer able to go on these outings. Mr. DeRouen was afraid she would fall if left alone, even in their own home. Both he and his son had to accompany and physically support Mrs. DeRouen on outdoor walks. He also testified that she became deeply depressed because she could not work or complete even simple tasks, such as household chores; Mr. DeRouen and his son assumed many of these duties. Given these facts, an award of only $500 is abusively low. The lowest amount we could affirm under the circumstances is $5000. Cf. Bade v. Wade, 607 So.2d 927 (La.App. 2d Cir.1992); Finley v. Bass, supra. Apportionment The Fund claims that the jury committed manifest error in apportioning it 70 percent of the damages, urging it was responsible only for the lesser of the two injuries, her foot. Where multiple accidents and tortfeasors are involved, each tortfeasor is liable only for the direct and proximate results of his wrongful acts. Sanders v. Collins, 551 So.2d 644 (La.App. 1st Cir.1989), writ denied, 556 So.2d 1261 (1990). Here, the original tortfeasor, Audirsch, is liable for 100 percent of DeRouen's damages because she is the legal cause of 100 percent of the harm (though she may not ultimately bear the entire judgment). Lambert v. United States Fidelity & Guaranty Co., supra. The Fund correctly asserts that it is not liable for DeRouen's initial back injury, resulting from her fall in Audirsch's beauty shop. However, we decline to apportion damages, as the Fund suggests, according to the relative assignments of disability for each injury, roughly twice as much for the back as for the *489 foot. In assigning 70 percent of the damages to St. Francis's malpractice, the jury obviously placed more emphasis on the nerve damage and resulting foot injury. Upon thorough review of the instant record and much consideration, we find the evidence sufficient to show that the foot injury affected DeRouen more severely than her back. In sharp contrast to the voluminous testimony regarding the deleterious effects from her foot injury, there is only limited testimony, even by Mrs. DeRouen herself, about prolonged negative effects from the back injury. It is apparent from Mrs. DeRouen's testimony that she was more distressed about wearing a brace, her unsteady gait, her inability to engage in physical activities and decreased mobility rendering it impossible to continue her chosen profession, than occasional stiffness and pain in her back. On this record, we do not consider the jury's apportionment to be manifestly erroneous. It will be affirmed. III. JURY INSTRUCTIONS Audirsch and State Farm claim that the trial court erred in failing to instruct the jury on the ADA, 42 U.S.C. § 12112, in contravention of their specific written request. 25848-CA, Vol. I, p. 190. To preserve this issue for appeal, a timely objection must be made on the record by appellants, which states specifically the matter to which they object and the grounds of that objection. La.C.C.P. 1793 C; Menzie Tile Co. v. Professional Centre, 594 So.2d 410 (La.App. 1st Cir.1991), writ denied, 600 So.2d 610 (1992). Audirsch and State Farm failed to make sure that their objection (if made) was preserved in the record; a mere assertion in brief that timely objection was made after the jury retired is insufficient. Menzie, supra. This issue is thus not properly before this court. CONCLUSION Based on the foregoing, the trial court judgment is amended to increase the award to Robert DeRouen for loss of consortium to $5000. In all other respects, the judgment is affirmed. The judgment, as amended, is affirmed. Costs of this appeal are assessed against appellants, one-half to Pam Audirsch and State Farm and one-half to the Patients Compensation Fund. AMENDED AND AFFIRMED. VICTORY, J., concurs in part, dissents in part. VICTORY, Judge, concurring in part, dissenting in part. I concur in the majority's result except in two aspects: (1) The jury's verdict compensating Ms. DeRouen for past lost wages of $236,476 as if she could not work at all before trial is inconsistent with the verdict of $150,000 for future loss of earning capacity, indicating an ability to perform some work in the future. Ms. DeRouen's condition reached maximum improvement long before trial. She clearly had the ability to return to some work long before trial, thus I would reduce the jury's award of past lost wages to reflect this ability. (2) The jury was clearly wrong in apportioning damages 70/30 based on the evidence presented. I would reapportion fault at 50/50. NOTES [1] The DeRouens also settled and executed a release with Medaries and his insurer; however, our resolution of the liability issue precludes discussion of this. [2] The original tortfeasor is liable not only for the injuries he directly causes, but also for the tort victim's additional suffering caused by inappropriate medical treatment by the health care provider who treats the initial injuries. The action for contribution is still available to the original tortfeasor; here, apportionment of fault is necessary. Each party is then liable for his virile share. This result relieves the tort victim of proving which of the two tortfeasors caused specific injuries and appropriately places the burden on the original tortfeasor whose actions are the legal cause of all of the victim's injuries. Lambert v. United States Fidelity & Guaranty Co., 629 So.2d 328 (La.1993).	{ "pile_set_name": "FreeLaw" }
423 So.2d 594 (1982) Alan Mark LEONARD, Appellant, v. The STATE of Florida, Appellee. No. 80-2411. District Court of Appeal of Florida, Third District. December 21, 1982. 595 Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant. Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee. Before BARKDULL and PEARSON, DANIEL S. and JORGENSON, JJ. PER CURIAM. Appellant appeals his convictions and sentences following a jury trial, which found him guilty of conspiracy to commit robbery with a firearm, attempted robbery with a firearm and second degree felony murder. He was sentenced to 15 years imprisonment for conspiracy to commit robbery, concurrently with two 40 year terms for attempt to commit robbery and second degree murder. This appeal followed. We find no merit in this appeal and the points urged for reversal, save and except one which relates to a double jeopardy sentence. As to the alleged error in cross-examination, see Leonard v. State, 386 So.2d 51 (Fla. 2d DCA 1980); Thorpe v. State, 350 So.2d 552 (Fla. 1st DCA 1977); State v. Young, 283 So.2d 58 (Fla. 1st DCA 1973). As to the alleged error in regard to certain hearsay testimony, first, no objection was made to part of it and no motion to strike was made, therefore the error has not been preserved. Jalbert v. State, 95 So.2d 589 (Fla. 1957); McRae v. State, 383 So.2d 289 (Fla. 2d DCA 1980). As to the remainder, it at best was harmless. Ballard v. State, 323 So.2d 297 (Fla. 3d DCA 1975); Russell v. State, 270 So.2d 462 (Fla. 3d DCA 1972); Wells v. State, 256 So.2d 580 (Fla. 3d DCA 1972); Section 924.33 Florida Statutes (1975). There is no error found in the original instructions as given and no objection was made. State v. Lowery, 419 So.2d 621 (Fla. 1982). No error has been demonstrated in the court, upon a request from the jury for a reinstruction in regard to the degrees of homicide, by giving to the jury written instructions citing the different degrees of homicide, notwithstanding the provisions of Florida Rules of Criminal Procedure. It was apparent from the jury's question that they had resolved the issue of guilt adversely to the defendant and were only interested in reinstruction as to what degree of homicide the defendant had committed. Henry v. State, 359 So.2d 864 (Fla. 1978); State v. Kurns, 397 So.2d 463 (Fla. 2d DCA 1981). Further the trial court gave defense counsel every opportunity to object to the procedure followed and he declined the opportunity to make any objections and therefore we find it waived. Wherefore the convictions, adjudications and sentences are affirmed except the sentence for attempted robbery with a firearm, which is stricken. 596 Therefore the actions of the trial court hereunder review, except as modified as above, are affirmed. Affirmed.	{ "pile_set_name": "FreeLaw" }
19 F.3d 37 Hockmanv.Hodge* NO. 93-8748 United States Court of Appeals,Eleventh Circuit. Mar 11, 1994 1 Appeal From: M.D.Ga. 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3	{ "pile_set_name": "FreeLaw" }
4 Cal.2d 499 (1935) N. HAMAKAWA, Respondent, v. CRESCENT WHARF & WAREHOUSE COMPANY (a Corporation), Appellant. L. A. No. 15322. Supreme Court of California. In Bank. October 24, 1935. George H. Moore for Appellant. J. Marion Wright for Respondent. SHENK, J. The plaintiff sued the defendant for damages for personal injuries sustained while he was about to board the "Norfolk Maru", a freighter docked at a municipal pier in Los Angeles harbor. The jury awarded damages to the plaintiff. The defendant moved in the alternative for a new trial and for judgment notwithstanding the verdict, a motion for a directed verdict having been made before the cause was submitted to the jury. The motion for judgment notwithstanding the verdict was denied and the defendant has appealed from the order denying the motion. 501 [1] If the trial court should have granted the motion for a directed verdict, the defendant was entitled to a judgment non obstante veredicto. (Code Civ. Proc., sec. 629.) The court should have directed a verdict for the defendant if, disregarding conflicting evidence and giving to the plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff. (Estate of Flood, 217 Cal. 763, 768 [21 PaCal.2d 579].) The plaintiff is a fisherman. A sailor, member of the crew of the "Norfolk Maru" invited him to come on board to inspect some goldfish which could be purchased. The sailor gave the plaintiff a card signed by himself purporting to be a pass to the ship which was docked at berth 230-D at the municipal pier. The plaintiff with two fishermen friends arrived at the pier in an automobile. A sign on the warehouse at the pier announced that parking of automobiles on municipal piers was absolutely prohibited. The plaintiff and his friends parked the car outside and walked along the pier outside the warehouse past berth 230-E toward the gangplank of the "Norfolk Maru" at berth 230-D. The defendant was a stevedoring concern and with the permission of the General Steamship Corporation, which had control of the dock, and of the shipowners, was engaged in loading cargo from a balcony of the warehouse above where the plaintiff and his friends were walking, into the hold of the "Norfolk Maru". When the plaintiff was within the area occupied by the defendant, an empty sling which was returning from the ship to the balcony struck a bale of paper on the balcony and caused the bale to fall on the plaintiff, causing him the injuries for which he sought redress. [2] If the facts disclose only that the plaintiff was on the premises then occupied by the defendant without its consent, express or implied, the defendant owed the plaintiff no legal duty except to refrain from inflicting upon him any wilful or wanton injury (Means v. Southern California Ry. Co., 144 Cal. 473 [77 P. 1001, 1 Ann. Cas. 206]; Powers v. Raymond, 197 Cal. 126, 131 [239 P. 1069]), and to conduct its activities with reasonable care for his safety only after it knew or from facts within its knowledge should have known of the 502 plaintiff's presence. (2 A. L. I. Restatement of the Law of Torts, sec. 346; Lucas v. Walker, 22 Cal.App. 296 [134 P. 374]; Pomponio v. New York, N. H. & H. R. Co., 66 Conn. 528 [34 Atl. 491, 50 Am.St.Rep. 124, 32 L.R.A. 530]; Sage's Admr. v. Creech Coal Co., 194 Ky. 415 [240 S.W. 42].) That the defendant gave no express consent to the plaintiff's presence in the place where he was at the time of his injury is conceded, and that the plaintiff was there for a private purpose having no connection with either the business of the defendant or the ship is not disputed. There was therefore no implied consent to the plaintiff's presence within the area occupied by the defendant. The question then is resolved by the state of the record on the inquiry, having in mind the governing rule hereinabove stated, whether the defendant knew or from facts within its knowledge should have known of the plaintiff's presence, or should reasonably have expected him to be where he was. As to the evidence in the record tending to prove that it did not know nor become aware of the plaintiff's presence in fact, there is no conflict. [3] The existence of any duty owing by the defendant to refrain from committing negligent acts calculated to cause injury to the plaintiff presupposes that the plaintiff was rightfully where he was at the time (Lucas v. Walker, supra; Herold v. P. H. Mathews Paint House, 39 Cal.App. 489 [179 P. 414]; Sage's Admr. v. Creech Coal Co., supra; Sughrue v. Booth, 231 Mass. 538 [121 N.E. 432]), and that his right to be there was at least equal to the right of the defendant licensee to occupy the premises. (Cameron v. Vandegriff, 53 Ark. 381 [13 S.W. 1092]; Commonwealth Elec. Co. v. Melville, 210 Ill. 70 [70 N.E. 1052].) [4] The uncontradicted evidence is that the General Steamship Company had general control of the dock and that all visitors to the "Norfolk Maru" were required to obtain a permit from the office of that company, which was in the pier warehouse, before boarding the ship. The plaintiff testified that he knew that he should obtain permission from that office to go on board. He did not apply at the office nor obtain that permission. It was undisputed that visitors upon applying to the office, were conducted over a safe passageway through the warehouse to the ship, and that such passageway did not traverse the portion of the premises occupied by the defendant. The conclusion from these facts is inescapable 503 that the plaintiff had wandered into a portion of the premises where he had no right to be and where the defendant did not know, and had no reason to expect, him to be at the time he was injured. In this state of the factual situation the plaintiff would not be entitled to recover for an act of negligence of the defendant. (Lindholm v. Northwestern Pac. R. R. Co., 79 Cal.App. 34 [248 P. 1033].) As declared in such cases as Kennedy v. Chase, 119 Cal. 637 [52 P. 33, 63 Am.St.Rep. 153], Medcraft v. Merchants Exchange, 211 Cal. 404, 407 [295 P. 822], and Bush v. Weed Lumber Co., 63 Cal.App. 426, 433 [218 P. 618], the plaintiff might be an invitee or a licensee as to a portion of certain premises, and a trespasser upon another portion thereof. The facts in the present case do not admit of any different conclusion than that the plaintiff was a trespasser upon the portion of the premises occupied by the defendant, and upon which he was at the time the injury occurred, and the trial court, upon such showing, should have directed a verdict for the defendant. [5] The plaintiff urges that only the owner of the property may invoke the rule limiting liability as to trespassers. He cites 45 C.J., page 786, section 191; Fitzpatrick v. Penfield, 267 Pa. 564 [109 Atl. 653], and other decisions in support of the rule that the defense of no liability for injury to a trespasser is personal to the owner of the premises trespassed upon and does not inure to the benefit of strangers to the title, adjoining owners or other trespassers. The principle invoked by the plaintiff is well supported by authority but it is not applicable to the facts presented here. In none of the cases referred to, with the exception of the case of Guinn v. Delaware & A. Tel. Co., 72 N. J. L. 276 [62 Atl. 412, 111 Am.St.Rep. 668], which is shown by a note in 3 L.R.A. (N. S.) 988 to be opposed to the weight of authority, did it appear that the defendant as against the plaintiff had any greater or exclusive right to the premises, and in none of them was the plaintiff shown to have been a trespasser as against the person charged with liability. In the final analysis, as recognized by those same authorities, the test is whether the defendant engaged in the commission of the negligent act knew of or had reason to expect the presence of the person injured within the range of his negligent activities. In 45 C.J., page 786, it is also stated: "But ownership of the property trespassed upon is not an absolute test, for the rule of nonliability may be successfully 504 invoked by one who, although not the owner of the property on which the injury occurred, had rights therein superior to those of the trespasser who was injured ..." The invocation of the rule of nonliability may be made by the owner or the person who has the right of control of the premises. (45 C.J., p. 787, and cases cited.) That the defendant stood in that relation to the plaintiff under the facts here cannot be questioned. The order denying the defendant's motion for judgment notwithstanding the verdict is reversed. Thompson, J., Seawell, J., Curtis, J., Langdon, J., and Waste, C.J., concurred.	{ "pile_set_name": "FreeLaw" }
22 A.3d 388 (2010) 2010 VT 65 STATE of Vermont v. Jorge L. DELAOZ. No. 09-001. Supreme Court of Vermont. July 16, 2010. Motion for Reargument Granted August 30, 2010. Opinion on Reargument Filed March 18, 2011. 391 William H. Sorrell, Attorney General, David Tartter and John Treadwell, Assistant Attorneys General, and Andrew Delaney, Law Clerk, Montpelier, for Plaintiff-Appellee. Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant. Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, Rebecca Turner, Appellate Defender, and Rachel Westropp, Law Clerk (on the 392 Brief), Montpelier, for Amicus Curiae Office of the Defender General. Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ. JOHNSON, J. ¶ 1. Following a jury trial, defendant was convicted of felony possession of cocaine, misdemeanor possession of marijuana, and misdemeanor providing false information to an officer. Defendant appeals his conviction and sentence, arguing that the trial court: (1) failed to suppress physical evidence that was the fruit of an illegal interrogation; (2) allowed prejudicial testimony concerning defendant's possession of contraband while at the police station for questioning; (3) considered impermissible information in sentencing defendant; and (4) imposed a fixed term of imprisonment for the cocaine possession charge in violation of 13 V.S.A. § 7031(a). We affirm the judgment of conviction on all three charges, reverse the sentence for cocaine possession, and remand for resentencing on this charge. ¶ 2. On July 13, 2007, police responded to a report of a person screaming in the South Main Street area of Brattleboro, Vermont. An officer was dispatched to the scene where he encountered three people outside on the street. The officer approached and asked the individuals whether they were responsible for the noise, to which they responded affirmatively. The officer then asked them to identify themselves. Defendant gave the officer a fake name; the fake name he used, however, was that of an individual who had an extraditable warrant from Florida. The officer informed defendant of the warrant and defendant responded that he had never been to Florida. ¶ 3. As the police dispatch was confirming the warrant information, defendant dropped a dollar bill on the ground directly in front of the officer. The dollar bill was folded into a small pouch, and the officer testified that based on his training and experience, he immediately recognized the pouch as a device used to carry illegal drugs. Defendant put his foot over the bill and then quickly picked it up and placed it in his pocket. After defendant picked up the bill, the officer asked defendant if he could see it. Defendant handed the pouch to the officer. Before the officer opened the pouch, he asked defendant what was inside it, to which defendant responded that it was "a little bit for play." The officer then opened the pouch and found a white powdery substance later identified as cocaine. The officer again asked defendant what was inside the pouch, and defendant responded that it was "coke." ¶ 4. The officer subsequently arrested defendant, handcuffed him, and proceeded to search him incident to the arrest. The officer found two small bags in defendant's pocket, one containing cocaine and the other containing marijuana. In another pocket, the officer found a wooden box containing more marijuana and a bag of six Seroquel tablets. Finally, the officer felt another object located in defendant's underwear. When questioned about this object, defendant responded that it was "a little more coke." ¶ 5. After searching defendant, the officer transported him to the Brattleboro police station, where he was asked processing questions, but was not questioned further about the incident. Defendant's real identity was subsequently confirmed. While at the station, the officer asked defendant to remove the cocaine from his underpants. He did so, placed the package on a desk, then grabbed the package 393 and ripped it open, spewing cocaine all over the room. Defendant was restrained, handcuffed, and placed in a cell. ¶ 6. Defendant was charged with felony possession of cocaine in violation of 18 V.S.A. § 4231(a)(2), misdemeanor possession of marijuana in violation of 18 V.S.A. § 4230(a)(1), and misdemeanor providing false information to a police officer in violation of 13 V.S.A. § 1754(a). ¶ 7. Defendant moved to suppress all of the evidence gathered and statements made over the course of the encounter, arguing that he was in police custody at the time the officer asked him to hand over the dollar bill drug pouch. Because the officer had not apprised defendant of his Miranda rights prior to inspecting the contents of the pouch, defendant claimed that the cocaine and all subsequent evidence gathered were the products of an illegal search. The trial court granted in part and denied in part defendant's motion. The court concluded that once the officer learned that defendant had an extraditable warrant from Florida and relayed this information to defendant, defendant was not free to leave and was in custody. Because defendant was not apprised of his Miranda rights at this time, the trial court suppressed all of defendant's unwarned statements, including: defendant's first response to what was in the pouch ("a little bit for play"); defendant's second statement after the officer had opened the pouch and observed its contents (that the pouch contained "coke"); and defendant's third statement as to what the bulge was in his pants ("a little more coke"). ¶ 8. The court, however, denied defendant's motion to suppress the physical evidence discovered over the course of the encounter, evidence that included the cocaine found in the dollar bill drug pouch and the cocaine and marijuana found on defendant's person. The court concluded that at the time the dollar bill drug pouch fell onto the ground it was in plain view, and the officer's training and experience gave him reason to believe it contained illegal drugs and probable cause to seize and open it. The court also found that the officer had reason to ask defendant to show him the bill and that by giving the officer the bill defendant consented to its search. The court concluded that once the officer discovered the cocaine in the pouch, he had probable cause to arrest defendant, and the subsequent marijuana and cocaine were discovered as part of a permissible search incident to arrest. ¶ 9. During trial, the State presented evidence that defendant had a handcuff key secreted in his shoe while in the Brattleboro police station. Defendant objected, arguing that this evidence was irrelevant and prejudicial, but the court overruled the objection. Following a two-day trial, defendant was convicted on all three counts and was subsequently sentenced to four years and eleven months to five years for the cocaine possession charge, "all suspended but five years," and concurrent sentences of five-to-six months for the marijuana possession charge and eleven-to-twelve months for the false information charge. ¶ 10. On appeal, defendant contends that the trial court: (1) erred in failing to grant his suppression motion with regard to the physical evidence seized; (2) erred in allowing testimony as to defendant's possession of a handcuff key; (3) relied on impermissible information in imposing a sentence; and (4) imposed a sentence for a fixed term in violation of 13 V.S.A. § 7031(a). We address each argument in turn. I. ¶ 11. Defendant's primary argument with regard to the motion to suppress is 394 that the officer engaged in a custodial interrogation, but failed to give defendant the required warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that the arrest and subsequent search incident to that arrest were all the result of the unwarned interrogation. Defendant asserts that the officer thus violated his rights to be free from self-incrimination and unlawful search and seizure under both the Vermont and Federal Constitutions. The State argues, and we agree, that even conceding that defendant was in custody at the time of the search, the physical evidence obtained was justified on grounds other than the unwarned statements, including the fact that defendant dropped the pouch of cocaine in plain view of the officer. This gave the officer probable cause to seize the pouch, arrest defendant, and search defendant incident to that lawful arrest. ¶ 12. A motion to suppress presents a mixed question of fact and law. State v. Fleurie, 2008 VT 118, ¶ 10, 185 Vt. 29, 968 A.2d 326. In reviewing the trial court's decision on a motion to suppress, we review the court's legal conclusions de novo and its findings of fact under a clearly erroneous standard. State v. Pontbriand, 2005 VT 20, ¶ 12, 178 Vt. 120, 878 A.2d 227; Fleurie, 2008 VT 118, ¶ 10, 185 Vt. 29, 968 A.2d 326 ("While we uphold the trial court's factual findings absent clear error, we review the trial court's conclusions of law de novo." (quotation omitted)). ¶ 13. Once a suspect is in custody, he is entitled to Miranda warnings. State v. Garbutt, 173 Vt. 277, 282, 790 A.2d 444, 448 (2001). Here, the trial court found that defendant was in custody as soon as the officer told him of the potential warrant for his arrest. All statements made by defendant as a product of this custodial interrogation were, therefore, correctly suppressed. Defendant argues, however, that the trial court erred in denying his motion to suppress the physical evidence, in the form of cocaine and marijuana, found over the course of the entire encounter because seizure of this evidence amounted to tainted "fruit" of the initial illegality. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We disagree. ¶ 14. The question here turns on whether the discovery of the cocaine and marijuana were the result of defendant's unwarned statements or whether there was an independent basis justifying the searches. The United States Supreme Court has held that a police officer's failure to give a Miranda warning does not mandate the suppression of the physical fruits of the suspect's unwarned but voluntary statements. United States v. Patane, 542 U.S. 630, 636-37, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004). In State v. Peterson, however, we diverged from the United States Supreme Court and held that the scope of the remedy for a Miranda violation is greater under Article 10 of the Vermont Constitution than under the Fifth Amendment. 2007 VT 24, ¶ 18, 181 Vt. 436, 923 A.2d 585. Thus, we held that physical evidence obtained as a result of statements made in contravention of Miranda is excludable under Article 10 of the Vermont Constitution. Id. ¶ 28. ¶ 15. Simply citing Peterson, however, without demonstrating a connection between the constitutional violation and the physical evidence seized, does not justify application of the exclusionary rule as the appropriate remedy. See State v. Phillips, 140 Vt. 210, 218, 436 A.2d 746, 751 (1981) (noting that inquiry must be "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead 395 by means sufficiently distinguishable to be purged of the primary taint" (quotation omitted)); see also United States v. Ramirez, 523 U.S. 65, 72 n. 3, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998) (application of the exclusionary rule depends on the existence of a "sufficient causal relationship" between the unlawful conduct and the discovery of the evidence). Thus, the exclusionary rule prohibits the introduction of evidence directly resulting from unconstitutional conduct, but does not apply to evidence that is obtained through an independent source or that would have been inevitably discovered. See State v. Dupaw, 134 Vt. 451, 453, 365 A.2d 967, 968 (1976) (noting that in deciding whether to apply the exclusionary rule, the question is whether the challenged evidence was discovered through exploitation of an illegality); Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (concluding that in situations where "the information ultimately or inevitably would have been discovered by lawful means," the exclusionary rule does not apply). ¶ 16. We agree with the trial court that defendant's answers to the officer's question of what was in the pouch "a little bit for play" and "coke"were the product of an unwarned interrogation and must be suppressed. We also agree that these statements were of no moment because the officer had probable cause to seize and inspect the pouch. ¶ 17. The State argues that the distinct characteristics of the pouch, which was dropped by defendant in plain view of the arresting officer, made its incriminating nature immediately apparent to the officer, thus justifying the pouch's seizure. We have held that two elements must be met to justify this sort of warrantless seizure: first, the police must have had probable cause to believe that the pouch contained incriminating evidence; and second, "there had to have been some exigent circumstance of sufficient weight to justify immediate seizure without resort to a warrant." State v. Badger, 141 Vt. 430, 446, 450 A.2d 336, 345 (1982). ¶ 18. Our inquiry turns on whether the unique features of the dollar bill pouch, which was dropped in plain view of the officer, made its illicit contents immediately recognizable, providing probable cause for its seizure. See In re C.C., 2009 VT 108, ¶ 11, 186 Vt. 474, 987 A.2d 1000 ("For probable cause to exist, a reasonable officer must have been able to perceive the contraband or evidentiary nature of the object before its seizure."). We note that "[p]robable cause is a flexible, commonsense standard ... requir[ing] that the facts available to the officer would warrant a man of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime." State v. Trudeau, 165 Vt. 355, 359, 683 A.2d 725, 728 (1996) (quotations omitted). ¶ 19. With these standards in mind, we turn to whether the characteristics and outward appearance of a folded-paper pouch telegraphed the contraband contained inside, justifying its seizure. We note that state and federal courts alike have agreed that because the use of such paper bindles to conceal narcotics is incredibly common and well-known to law enforcement officers, observation of these bindles is enough to justify their seizure. See Texas v. Brown, 460 U.S. 730, 750-51, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (Stevens, J., concurring) (noting that a balloon full of an illicit substance "could be one of those rare single-purpose containers which by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance" (quotation omitted)); Ambrose v. State, 221 P.3d 364, 366-67 396 (Alaska Ct.App.2009) (upholding search of cocaine bindle discovered during legal pat-down incident to arrest based on principle that "an officer may open a package in plain view if it is immediately apparent that the package is a single-purpose container used to carry illegal drugs"); People v. Mascarenas, 972 P.2d 717, 722 (Colo. App.1998) (concluding that probable cause existed for officer to seize "bindle" of cocaine when officer's training and experience indicated that such a bindle was commonly used to conceal narcotics); People v. Germany, 157 Misc.2d 932, 599 N.Y.S.2d 416, 417-18 (Sup.Ct.1993) (denying a defendant's motion to suppress and finding that officer had probable cause to seize three "tightly wrapped newspaper objects" based on officer's trained expertise in narcotics arrests involving decks of heroin "similarly packaged in tightly wrapped newspaper coverings"); State v. Cornwall, 810 P.2d 484, 488 (Utah Ct.App.1991) (reversing suppression of evidence where officer observed a paper bindle in plain view and officer's training and experience indicated that "small, tightly shut paper packets are commonly used as containers for cocaine"); State v. Courcy, 48 Wash.App. 326, 739 P.2d 98, 100 (1987) (affirming denial of defendant's motion to suppress and recognizing officer had probable cause to seize a paper bindle containing cocaine when bindle was in plain view, officer testified he immediately recognized container as cocaine bindle and defendant attempted to hide bindle). ¶ 20. Here, the distinctive characteristics of the dollar bill pouch combined with the officer's testimony that, based on his training and experience, such a container is commonly used to carry drugs, provided the officer with probable cause to believe a crime was afoot and to seize the pouch. We note that our decision today is consistent with our recent opinion in In re C.C., where we held that simply feeling a plastic baggie during the course of a legal pat-down did not provide an officer with the requisite probable cause to seize the baggie. 2009 VT 108, ¶ 15, 186 Vt. 474, 987 A.2d 1000. In In re C.C., we concluded that "mere possession of a plastic bag in a pocket is [not] sufficiently incriminating to render it immediately apparent that the contents of that bag are contraband." Id. ¶ 12. The facts before us now differ markedly from those in In re C.C., primarily because what may be observed based on an officer's "tactile perception" over the course of a blind pat-down search is distinct from what may be observed when a pouch immediately recognized as contraband is dropped directly in front of an officer. ¶ 21. Finally, the seizure of the pouch here meets the exigent circumstances exception to the warrant requirement because if the officer had attempted to secure a warrant, there was a substantial likelihood that the evidence would have disappeared. See State v. Rocheleau, 142 Vt. 61, 65-66, 451 A.2d 1144, 1147 (1982) (concluding that seizure of marijuana fell within the exigent circumstances exception to warrant requirement when delaying seizure to wait for warrant would have likely resulted in destruction of evidence); Badger, 141 Vt. at 445-46, 450 A.2d at 345-46. ¶ 22. Having concluded that the pouch was legally seized, we must determine whether opening the pouch was an unreasonable search. We have held that Article 11 of the Vermont Constitution protects the people of the state "from unreasonable, warrantless governmental intrusion into affairs which they choose to keep private." State v. Zaccaro, 154 Vt. 83, 91, 574 A.2d 1256, 1261 (1990). We note that this Court has a well-developed Article 11 jurisprudence independent of the Federal Constitution, particularly with regard to warrantless 397 searches of closed containers. See State v. Neil, 2008 VT 79, ¶ 10, 184 Vt. 243, 958 A.2d 1173 ("Our divergence from federal precedent governing warrantless searches of closed containers is well-settled."). Our inquiry turns on whether a reasonable expectation of privacy is implicated; if it is, "the State has the burden of showing that the circumstances of defendant's arrest justified a warrantless search." Id. ¶ 12; see also State v. Kirchoff, 156 Vt. 1, 13, 587 A.2d 988, 996 (1991) ("[W]e differ from federal doctrine by placing on the State the burden to prove that a warrantless search of open fields is not prohibited under [Article 11]."). ¶ 23. Here, we conclude that the threshold determination of whether a reasonable expectation of privacy is implicated is not met. "Article 11 does not protect areas willingly exposed to the public, but instead requires an `objective' inquiry into whether a reasonable person would know that someone placing articles as defendant did intended to exclude them from public view." State v. Savva, 159 Vt. 75, 89, 616 A.2d 774, 782 (1991) (citation omitted). Though in Savva we ultimately determined that the defendant had a reasonable expectation of privacy in a bag he clearly meant to conceal from public view, we noted that "if a container discloses its contents either because it is open (`plain view') or its configuration gives away what is inside (e.g., a pistol in a holster), Article 11's requirement for an expectation of privacy may not be met." Id. at 90, 616 A.2d at 782; see also Courcy, 739 P.2d at 101 (concluding that "because it was immediately apparent to the experienced officers the bindle contained contraband, [the defendant] did not have a reasonable expectation of privacy which would prevent opening the bindle or field testing it"). ¶ 24. Here, the officer had reason to approach defendant and the two other individuals with defendant as part of his lawful investigation of a noise complaint in the area, a noise complaint for which defendant and his two companions said they were responsible. See State v. Gray, 150 Vt. 184, 191, 552 A.2d 1190, 1195 (1988). Once at the scene, defendant dropped the bindle at the officer's feet, thus placing the bindle in the officer's plain view. The dollar bill was folded in such a distinctive way that it essentially "proclaim[ed] its contents unambiguously" to the officer, justifying not only its seizure, but the officer's subsequent inspection of its contents. See United States v. Cardona-Rivera, 904 F.2d 1149, 1155 (7th Cir.1990) (opining that such objects "taken together with the circumstances in which it is seized" obviate the need for a warrant). ¶ 25. We note that such a holding is consistent with the fundamental principles of our search and seizure jurisprudence, principles which seek to balance the legitimate goals of law enforcement with the right of citizens to be protected from government intrusion. Where incriminating evidence is literally dropped in front of a police officer who is lawfully carrying out his duties and where the incriminating nature of the evidence is immediately apparent, there is no intrusion into a constitutionally protected area that would preclude seizure of that evidence. Thus, we conclude that a seizure in this circumstance is justified under Article 11 of the Vermont Constitution and under the Fourth Amendment. See State v. Cunningham, 2008 VT 43, ¶ 16, 183 Vt. 401, 954 A.2d 1290 ("We have consistently held that Article 11 provides greater protections than its federal analog, the Fourth Amendment ...."); see also Brown, 460 U.S. at 740, 103 S.Ct. 1535. 398 ¶ 26. Having determined that the officer's seizure and inspection of the drug pouch was legal, we look to whether the completion of each sequential step of the investigation justified further restrictions on defendant's liberty, ultimately providing probable cause for his arrest. See Cunningham, 2008 VT 43, ¶ 15, 183 Vt. 401, 954 A.2d 1290; State v. Greenslit, 151 Vt. 225, 228, 559 A.2d 672, 674 (1989) (noting that probable cause exists "where the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a person of reasonable caution to believe that a crime is being committed"). Here, the officer's lawful discovery of the cocaine in the pouch, combined with defendant's suspicious attempts to conceal the pouch with his foot, were in turn enough to give the officer probable cause to arrest defendant for drug possession and thus justified the subsequent search of defendant's person incident to arrest. See State v. Guzman, 2008 VT 116, ¶ 11, 184 Vt. 518, 965 A.2d 544 (noting that an officer "may permissibly search a suspect when the search is incident to an arrest supported by probable cause."). Because the pat-down of defendant did not extend beyond a reasonable search incident to arrest, the additional evidence found on defendant's personcocaine and marijuanawas properly seized and introduced into evidence. ¶ 27. Defendant's argument, therefore, is based on the faulty premise that it was his statement that the pouch contained "a little bit for play" that gave the officer probable cause to open the pouch. This is not so. Given the independent basis for the seizure and search of the drug pouch, the fact that defendant told the officer what he was about to discover was of no moment. See State v. O'Neal, 190 N.J. 601, 921 A.2d 1079, 1088 (2007) (concluding that defendant's unwarned answer to officer's question of what was in his sock had no bearing on legality of subsequent seizure of cocaine that was in his sock because at time cocaine was seized, officer had probable cause to arrest defendant for drug transaction). Defendant's reliance on Peterson is thus misplaced. In Peterson, we addressed a situation in which following suspect's arrest, officers, without providing the suspect with a Miranda warning, continued questioning him, eventually eliciting the suspect's admission to growing marijuana plants in his home. Because it was undisputed that the marijuana plants in that case were a fruit of the unwarned interrogation, we found that the trial court erred in failing to suppress them. 2007 VT 24, ¶ 28, 181 Vt. 436, 923 A.2d 585. Unlike the situation in Peterson, here, there was an independent basis for the officer's search. Indeed, had defendant said nothing, the officer would still have been justified in seizing the pouch and inspecting it, thus giving the officer probable cause to arrest and search defendant.[1] II. ¶ 28. Defendant next contends that the trial court erred by allowing the State to introduce evidence that was both irrelevant and prejudicial when it denied defendant's motion to exclude testimony that officers had found a handcuff key inside of defendant's shoe. The trial court denied the motion, finding that the testimony was "relevant to the false information to a police officer ... because one of the elements the State needs to prove for 399 the false information count is that [defendant] intended, when he gave the false name, to divert an investigation from himself." The court also concluded that defendant's possession of the key was relevant to a showing of the intent element of the two drug possession charges because it showed that defendant knew his behavior was unlawful. In weighing the probative value of the evidence against its prejudicial effects, the court concluded that "it is prejudicial, obviously, but so is most evidence that the State intends to offer," and that in this case, the probative value was not outweighed by any danger of unfair prejudice. At the close of the evidence, the trial court denied defendant's request for a limiting instruction that the handcuff key was not evidence of possession of drugs or false information to a police officer. ¶ 29. A trial court is charged with determining first whether offered evidence is relevant. See V.R.E. 402. Even if relevant, a court must nonetheless exclude evidence if the probative value "is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." V.R.E. 403. We apply a deferential standard of review to the trial court's evidentiary rulings, and we will reverse the trial court's decision "only when there has been an abuse of discretion that resulted in prejudice." State v. Desautels, 2006 VT 84, ¶ 12, 180 Vt. 189, 908 A.2d 463; accord State v. Ogden, 161 Vt. 336, 341, 640 A.2d 6, 10 (1993). Moreover, we have held that Rule 403 rulings in particular are "highly discretionary," because of the requirement that "the danger of unfair prejudice must substantially outweigh the probative value of the evidence." State v. Lee, 2005 VT 99, ¶ 11, 178 Vt. 420, 886 A.2d 378 (quotation omitted). ¶ 30. Here, the false information charge requires proof that a person knowingly gave false information to a law enforcement officer "to deflect an investigation from the person." 13 V.S.A. § 1754(a). Possession of a means to escape arrest may be an indication that a defendant had a plan to deflect investigation, a plan that included fleeing possible prosecution. With regard to drug possession charges, the State had to prove that defendant "knowingly and unlawfully" possessed illegal substances. 18 V.S.A. § 4230; id. § 4231. Because intent must be inferred from a person's acts and proved by circumstantial evidence, possession of a handcuff key triggers a reasonable inference that defendant knew his behavior was illegal and had taken steps to avoid prosecution and punishment. See State v. Cole, 150 Vt. 453, 456, 554 A.2d 253, 255 (1988) ("Intent is rarely proved by direct evidence; it must be inferred from a person's acts and proved by circumstantial evidence."). The trial court allowed use of the evidence in this way and we discern no abuse of discretion. ¶ 31. The trial court also acted within its discretion in refusing to give the limiting instruction that defendant requested. Defendant sought an instruction that testimony regarding the handcuff key was "not evidence of possession of drugs or false information to a police officer." The court refused to issue such an instruction because it concluded that the evidence was relevant to the intent element present in all three charges and thus it was "not a correct statement of law to say that it's not relevant to possession." We have already concluded that the trial court did not abuse its discretion in admitting evidence that defendant possessed a handcuff key as evidence that defendant "knowingly" possessed cocaine and marijuana, and we see no error in the trial court's refusal to 400 essentially reverse this earlier decision by issuing such a broad limiting instruction. See State v. Synnott, 2005 VT 19, ¶ 17, 178 Vt. 66, 872 A.2d 874 (concluding that trial court acted within its discretion in denying defendant's request for broad limiting instruction, which would have prevented jury from considering certain evidence as proof that defendant engaged in particular criminal act because trial court had admitted same evidence for broader purpose). III. ¶ 32. Next, defendant argues that the trial court considered information beyond the record and not established by a preponderance of the evidence in fashioning a sentence and impermissibly used her prior experience as a prosecutor to infer that defendant had engaged in selling illegal drugs. We disagree. ¶ 33. In reviewing a sentence imposed by the trial court, "we defer to the lower court and will not review sentences within the statutory limits absent exceptional circumstances." State v. Cyr, 141 Vt. 355, 358, 449 A.2d 926, 927 (1982). "Sentences are imposed with regard to the situation and nature of the offender as well as according to the crime charged." Id.; see V.R.Cr.P. 32(c)(2) (authorizing preparation of presentence investigation report containing wide range of information, including "any prior criminal record of the defendant and such information on his characteristics, his financial condition, and the circumstances affecting his behavior as may be helpful in imposing sentence ... and such other information as may be required by the court"). ¶ 34. A sentencing judge necessarily has broad discretion over what information may be considered in fashioning a just and fair sentence and considers a wide range of factors, including the "propensity and nature of the offender, the particular acts by which the crime was committed, and the circumstances of the offense." State v. Bushway, 146 Vt. 405, 407, 505 A.2d 660, 661 (1985); see also Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (concluding that sentencing judge must have "the fullest information possible concerning the defendant's life and characteristics"). We have thus "relaxed the scrutiny ordinarily paid to the adequacy of findings" in sentence considerations. State v. Derouchie, 157 Vt. 573, 578, 600 A.2d 1323, 1326 (1991) (finding it was not clearly erroneous for trial court to conclude that defendant's acknowledgment of guilt was insincere during sentence reconsideration proceeding). Moreover, when "mere assertions of criminal activities are in fact supported by factual information, then the evidence should be considered by the sentencing court, after timely disclosure and an opportunity to rebut." State v. Ramsay, 146 Vt. 70, 81, 499 A.2d 15, 22 (1985) (quotation and emphasis omitted). Finally, on appeal, the defendant bears the burden to show that materially inaccurate information was relied upon by the sentencing court. Id. at 79, 499 A.2d at 21. ¶ 35. We turn to the relevant portions of the sentencing hearing. The sentencing judge apparently considered a variety of factors in her sentencing decision, including defendant's completion of numerous certificate programs. Weighing against his certificate completion, however, was defendant's prior history of drug possession convictions, the circumstances of the present charges, and his uncooperative behavior at the police station. In response to defendant's claim that despite his history, "it's not always necessarily true [that] how a person perceives you is what you really are," the sentencing judge responded: 401 Okay. I guess I have some training that some people don't have, in how to perceive people who are involved with selling narcotics. In a former career, I was a drug prosecutor. And, have attended numerous trainings, and held numerous, or dealt with, numerous cases about the ability to distinguish someone who's in possession of controlled substances for their own purposes or for purposes of sale. And you're not charged with sale in this case. But, it is something that, the Court can consider, and based on my experience, I would find at this point that, you were engaged in selling. I'm not saying there's been any evidence presented that you were actually involved in a sale. But, to possess two, excuse me, to possess an ounce of cocaine, have more than $1,500 on your person . . . have a knife on your person, a cell phone, and to give a false name when the police ask you what your name is are all indications, in my experience, of someone who's been engaged, and is engaged, in selling drugs. And the best indicator of that is that you've been convicted of that in the past, conspiracy to sell drugs. And, prior behavior is indicative of future behavior. So, all this evidence leads me to believe that you weren't here, in possession of cocaine, for your own personal use, but that you had intended to sell that. And that was your purpose in being here. I would add the fact that you had a handcuff key on your person as evidence of your inclination to use it . . . . The court acknowledged defendant's participation in some rehabilitative programming, but when weighed against the circumstances of the present offenses and defendant's history, the court noted that: [Y]ou've been in a lot of trouble there, being involved in disciplinary reports, and even major infractions for fighting behavior and disruptive behavior. So that, in my opinion, kind of negates the good work that you've done there. Based on this information, the trial court concluded: I feel that rehabilitation is not a goal here. You know, you've got . . . four previous convictions of felonies, three of them, drug-related, and you've served, according to [your attorney] three years in jail. The PSI says ten, . . . . [T]he point is that . . . we discipline our children the same way. You start with a warning, and then you start with a time out, and then you start with some time in the bedroom. And then, it gets worse. And here, you've served fifty-seven months and a year in jail and then been sentenced to five years to ten years in jail. And, that didn't really do much. And so, I'm a firm believer in not going backwards, but going forward. And, you know the sentences get more intense, as time goes by and as further convictions happen. I don't see any reason but to give you the maximum sentence that the court can give you here. ¶ 36. The above transcript excerpts indicate that the court weighed defendant's drug-related history as well as the circumstances surrounding the present offense, including defendant's possession of an ounce of cocaine, $1,500, a cell phone, and a handcuff key, coupled with his lies about his identity. The court also weighed the mitigating evidence of defendant's participation in some rehabilitative programming, but ultimately found that these program certificates were not enough to overcome the overwhelming evidence indicating rehabilitation was not a reasonable goal of sentencing. These facts are within the boundaries of V.R.Cr.P. 32 and the broad discretion afforded 402 to the sentencing court in devising a fair sentence. With regard to the court's inference that defendant was engaged in selling drugs, we conclude that this inference was relevant to sentencing because it shed light on the nature of the crime and defendant's proclivities. See State v. Thompson, 150 Vt. 640, 645, 556 A.2d 95, 99 (1989) (concluding sentencing court's finding that defendant used force when he sexually assaulted victim, despite fact that use of force was not element of crime for which defendant was convicted, was "relevant to sentencing because it shed light on the nature of the assault and defendant's proclivities, and therefore assisted the judge in determining an appropriate sentence"). ¶ 37. Finally, defendant's argument that the sentencing judge improperly relied on her prior experience as a prosecutor also fails. We cannot conclude that it was error for the sentencing judge here to reference her experience in drug-related criminal proceedings as an aid to her analysis of the unchallenged facts before her. Indeed, a contrary rule would require judges to make decisions in a vacuum, a situation that is neither possible nor particularly useful. See Barclay v. Florida, 463 U.S. 939, 948-50, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983) (rejecting defendant's claim that sentencing judge improperly relied on his own experiences with Nazi concentration camps in imposing sentence and concluding that "[i]t is neither possible nor desirable for a person to whom the State entrusts an important judgment to decide in a vacuum, as if he had no experiences"); Simonson v. Hepp, 549 F.3d 1101, 1107-08 (7th Cir.2008) (rejecting defendant's claim that sentencing judge improperly considered his own experience regarding recidivism rates in sentencing because defendant failed to prove that this finding was inaccurate). IV. ¶ 38. Defendant's final argument concerns the sentence imposed for the cocaine possession charge, a sentence which imposed a minimum term of four years and eleven months and a maximum term of five years. Defendant argues that this sentence violated 13 V.S.A. § 7031(a) by imposing a fixed term.[2] We agree. ¶ 39. Though we generally defer to the sentencing court absent exceptional circumstances, we will engage in a de novo review of whether a sentence conforms to our indeterminate sentence law. See State v. Pollander, 167 Vt. 301, 304, 706 A.2d 1359, 1360 (1997) (noting that we review a trial court's decision regarding questions of law de novo). In construing statutes, this Court looks first to the language of the statute to determine whether the meaning is plain. In re Margaret Susan P., 169 Vt. 252, 262, 733 A.2d 38, 46 (1999). If we must go beyond the words of the statute to ascertain legislative intent, we look to the statute's "subject matter, its effects and consequences, and the reason and spirit of the law" for meaning. State v. Thompson, 174 Vt. 172, 175, 807 A.2d 454, 458 (2002). 403 ¶ 40. With these principles in mind, we turn to Vermont's sentencing law. Under 13 V.S.A. § 7031(a), the trial court must establish a maximum sentence in accordance with the maximum term fixed by law for the offense and may establish a minimum sentence not less than the shortest term fixed by law for the offense. In addition, the statute provides that "the court imposing the sentence shall not fix the term of imprisonment." Id. In adopting this proscription on determinate sentences, the Legislature has indicated its intent to transfer some sentencing discretion from the courts to the State's parole authority. The parole board is granted authority to undertake an individualized assessment and considers factors, such as a defendant's individual characteristics and culpability, in deciding whether to terminate a sentence after the minimum term has been served. See 28 V.S.A. § 501 (providing that inmate is eligible for parole subject to any minimum sentence imposed); id. § 502(a) (providing that parole board shall interview inmates eligible for parole, considering "all pertinent information regarding an inmate" to determine whether to grant parole). ¶ 41. An indeterminate sentencing law thus allows a parole authority the necessary discretion to release an offender who has rehabilitated himself, giving an offender an incentive to avail himself of rehabilitative programs. See 28 V.S.A. § 1(a) (providing that department of corrections "shall have the purpose of developing and administering a correctional program designed to . . . render treatment to offenders with the goal of achieving their successful return and participation as citizens of the state and community, to foster their human dignity and to preserve the human resources of the community"); People v. West, 70 Cal.App.4th 248, 82 Cal.Rptr.2d 549, 554 (1999) ("[T]he purpose of the indeterminate sentence law . . . is to mitigate the punishment which would otherwise be imposed upon the offender. These laws place emphasis upon the reformation of the offender. They seek to make the punishment fit the criminal rather than the crime." (quotation omitted)); State v. Peckenschneider, 236 N.W.2d 344, 351 (Iowa 1975) (McCormick, J., dissenting) ("The indeterminate sentence law was born in the concept that the main purpose of a criminal sentence is rehabilitation of the offender, and it is intended that a parole board determine whether or not the felon must serve the maximum number of years or whether he has been cured and ready to return to society." (quotation omitted)). ¶ 42. In keeping with the legislative purpose behind indeterminate sentencing schemes, we have construed 13 V.S.A. § 7031(a) as prohibiting a court from imposing a definite term of incarceration through identical minimum and maximum sentences. See State v. Lambert, 2003 VT 28, ¶¶ 17-18, 175 Vt. 275, 830 A.2d 9. In Lambert, we reversed a sentence where the sentencing court "specifically attempted to establish a minimum equal to the maximum term" by imposing a sentence of not less than twenty-four months or more than two years. Id. ¶ 18; see also State v. Bruley, 129 Vt. 124, 130, 274 A.2d 467, 471 (1970) (reversing sentence of "not more or less than nine months" (quotation marks omitted)). ¶ 43. We have also held, however, that slight differences between minimum and maximum sentences do not amount to a fixed sentence. See State v. Kimmick, 2007 VT 45, ¶ 11, 181 Vt. 635, 928 A.2d 489 (mem.). In Kimmick, we upheld a sentence with a minimum of fourteen years and a maximum of fifteen years, concluding that "even though the difference between the maximum and minimum terms 404 is slight, the terms are not identical." Id. ¶ 14; see also State v. Stanley, 2007 VT 64, ¶ 13, 182 Vt. 565, 933 A.2d 184 (mem.) (affirming sentence with minimum term of eight years and maximum term of nine years); Bushway, 146 Vt. at 408, 505 A.2d at 662 (affirming sentence with maximum of twenty years and minimum of eighteen years). ¶ 44. The cases cited above have all involved intervals between the minimum and maximum terms that forward the goals behind the indeterminate sentence law by allowing the offender at least the chance to take advantage of the possibility of parole. By contrast, the sentence before uswhich provides an interval of a mere thirty dayscloses the window in which the parole board can exercise its discretion, essentially thwarting the rehabilitative purpose behind both the indeterminate sentence law and our laws governing parole. The sentencing court here saw no rehabilitative purpose to be served, so the sentence makes sense in that context; however, the same logic behind our invalidation of identical minimum and maximum terms necessitates a similar proscription against any sentence where the interval between the minimum and maximum terms is so small as to effectively amount to a circumvention of the indeterminate sentence law. ¶ 45. The Michigan Supreme Court addressed a strikingly similar set of facts in its review of an appeal of a sentence under that state's indeterminate sentencing law in People v. Tanner, and we find its analysis particularly useful. 387 Mich. 683, 199 N.W.2d 202 (1972). In that case, the defendant appealed his sentence of a minimum term of fourteen years and eleven months and a maximum term of fifteen years, arguing that the short interval between the minimum and maximum terms amounted to a fixed sentence in violation of Michigan's indeterminate sentence law. The court recognized "that though technically providing some period, though brief, within which the correction authorities may exercise the discretion vested in them by the legislature, such sentences fail to comply with the clear intent and purpose of the indeterminate sentence act." Id. at 204; see also People v. Howland, 2 Ill. App.3d 553, 276 N.E.2d 818, 820 (1971) (affirming trial court's refusal to consider recommendation from state's attorney for sentence of one year to one year and a day because such sentence "violated the spirit and purpose of the indeterminate sentence law"). ¶ 46. Here, where the difference between the minimum and maximum termsamounting to a minimum term that is over 98% of the maximum termis so minimal as to effectively be nonexistent, we cannot see how the legislative intent and purpose behind 13 V.S.A. § 7031(a) is met. We, therefore, vacate the sentence imposed for the possession of cocaine charge and remand to the trial court for a new sentencing hearing on this charge. The judgment of conviction on all three charges is affirmed. The sentence for cocaine possession is reversed and the matter is remanded. DOOLEY, J., dissenting in part. ¶ 47. Given defendant's failure to challenge the validity of the small difference between his minimum and maximum sentence, I find no reason to address this argument and respectfully dissent from Part IV of the foregoing decision. ¶ 48. On appeal, defendant's sole challenge to his sentence is that in directing that his four-year-and-eleven-month-to-five-year sentence would all be suspended except five years, the court effectively imposed a fixed sentence in violation of 13 V.S.A. § 7031(a). Defendant specifically 405 concedes that the slight difference between his maximum and minimum sentences is in accordance with this Court's precedent and does not violate the statute because of the amount of the difference. The majority does not address the error defendant raises. Instead, the majority reverses on the theory expressly conceded by defendant: that the one-month differential between his minimum and maximum sentences contravenes the indeterminate sentencing law. ¶ 49. "[I]n all but a few exceptional instances, matters which are not briefed will not be considered on appeal." State v. Settle, 141 Vt. 58, 61, 442 A.2d 1314, 1315 (1982). Certainly, this Court may affirm a trial court decision based on a rationale different from that employed by the parties or the trial court. See In re Handy, 171 Vt. 336, 343, 764 A.2d 1226, 1234 (2000) (explaining that this Court may affirm trial court on alternative grounds, even if not raised by parties). We should, however, be much more hesitant to employ novel theories to reverse the trial court, especially where defendant concedes the issue on appeal. Given the lack of argument and briefing on the validity of a one-month difference between a maximum and minimum sentence, I would decline to address this issue. BURGESS, J., dissenting in part. ¶ 50. Certainly defendant's sentence requires clarification. Intentionally or not, the district court misspoke when it imposed a 4-year-and-11-month-to-5-year sentence "all suspended but 5 years" to serve, which would seem to defeat the statutory prohibition on identical minimum and maximum terms. See 13 V.S.A. § 7031(a) (mandating that the court "shall not fix the term of imprisonment, . . . but shall establish a maximum and may establish a minimum term"). The majority, however, reaches beyond any argument offered by defendant to invalidate his minimum term, when that part of his sentence fully comports with the statute and our case law. Because the majority's strained application of § 7031(a) is unnecessary, departs from the statutory language, and is practically unworkable, I respectfully dissent from Part IV of the foregoing decision. ¶ 51. To begin with, defendant concedes that his underlying 4-year-and-11-month-to-5-year sentence is lawful.[3] That is because, 406 as was expressly recognized by defendant, our precedents interpreting 13 V.S.A. § 7031(a) are clear: "A sentence is not fixed as long as the maximum and minimum terms are not identical." State v. Kimmick, 2007 VT 45, ¶ 13, 181 Vt. 635, 928 A.2d 489 (mem.). Defendant's minimum and maximum terms are not identical; they are different. That the difference is slight is of no import. Id. ¶ 14; see also State v. Bushway, 146 Vt. 405, 408, 505 A.2d 660, 662 (1985) (rejecting a challenge to a 18-to-20-year sentence to serve based on the "slight difference" between the maximum and minimum term, "when both are within the respective limits set by law"). ¶ 52. Why the majority pursues an approach not advocated by defendant to reach its result is unclear. Defendant explicitly did not challenge as invalid the one-month difference between his minimum and maximum terms. Defendant agreed the one-month difference was proper as a matter of law, but maintained that the trial court's suspension of all "but five years" to serve effectively rendered the minimum the same as the maximum in violation of the statute. This claim appears to have merit, but rather than address the issue raised by defendant, the majority embarks on an unsolicited attack on a valid underlying minimum sentence through an interpretation of the statute not supported by its terms or by our prior decisions. ¶ 53. Ignoring the language of the statute, the majority invalidates defendant's sentence on a theory that the interval between the minimum and maximum must somehow be long enough to give the parole board "the necessary discretion to release an offender who has rehabilitated himself." Ante, ¶ 41. This is just not in the statute. As cited above, the statute directs that the court "not fix the term of imprisonment. . . [but] may establish a minimum term." 13 V.S.A. § 7031(a). ¶ 54. In construing this language, we first consider its plain meaning. Kimmick, 2007 VT 45, ¶ 12, 181 Vt. 635, 928 A.2d 489. Where the meaning is unambiguous, we need not look beyond the statutory language to ascertain the Legislature's intent. State v. Thompson, 174 Vt. 172, 174-75, 807 A.2d 454, 458 (2002) ("We will enforce the statute without resorting to statutory construction if the legislative intent is clear from the language."). This Court has already found this section unambiguous in that " § 7031 clearly mandates that a court may not fix the term of a sentence by imposing minimum and maximum sentences that are the same." Kimmick, 2007 VT 45, ¶ 13, 181 Vt. 635, 928 A.2d 489. Thus, a sentence meets the statutory requirement so long as the minimum and maximum terms are not identical. Id. ¶ 55. The majority posits that our past approvals of slight differences in minimum and maximum terms "have all involved intervals between the minimum and maximum terms that forward the goals behind the indeterminate sentence law by allowing the offender at least the chance to take advantage of the possibility of parole." Ante, ¶ 44. Characterizing these sentences of 18-to-20 years to serve, Bushway, 146 Vt. at 408, 505 A.2d at 662, 8-to-9 years to serve, State v. Stanley, 2007 VT 64, ¶ 13, 182 Vt. 565, 933 A.2d 184 (mem.), 407 or 14-to-15 years to serve, Kimmick, 2007 VT 45, ¶ 5, 181 Vt. 635, 928 A.2d 489, as vindicating the rehabilitative opportunities for parole will surely prompt wry smiles within the criminal justice bar. Irony aside, the majority's new standard for setting minimum terms that "forward the goals behind the indeterminate sentence law," ante, ¶ 44, cannot be found in the legislation, is amorphous at best, and arrives without any instruction to the trial bench as to its application. ¶ 56. There can be no direction because this new construct defies certain or meaningful measurement. Although it is settled that a minimum term that is one year, or 7%, less than the maximum is acceptable, see Kimmick, 2007 VT 45, ¶ 13, 181 Vt. 635, 928 A.2d 489, today we learn that a minimum term's difference of one month, or roughly 2%, less than the maximum is not acceptable. Picking the correct number between a one and twelve month interval, or between 2% and 7% differential, remains a mystery. Failure by this Court to divine a line to match its reading of the statute invites litigation and appeals whenever there is a difference between minimum and maximum terms falling within that range.[4] ¶ 57. Despite the trial court's compliance with the statute, the majority reaches beyond the plain meaning to discover a newfound limit on the sentencing court's authority to set a minimum term. Without any such legislative declaration, the majority relates that "the Legislature has indicated its intent to transfer some sentencing discretion from the courts to the State's parole authority." Ante, ¶ 40. Based on this perceived intent, defendant's sentence is invalidated because the majority deems, without knowing, that a one-month interval between the minimum and maximum terms is too short to allow the parole board discretion to release the defendant before his maximum term is done. If this construction is correct, the question of whether enough minimum time has passed before parole can be granted must always be left to the parole board, regardless of the minimum term imposed by the sentencing courta result clearly at odds with our case law and the statute as written. ¶ 58. There is no reason to distinguish this case from State v. Kimmick, 2007 VT 45, 181 Vt. 635, 928 A.2d 489, where this Court rejected an argument that a sentence of 14-to-15 years violated the spirit of 13 V.S.A. § 7031(a) because, after good-time credit was applied, the defendant's effective maximum and minimum sentences were the same. Based on the plain language of the statute, Kimmick held that "even though the difference between the maximum and minimum terms is slight, the terms are not identical." Id. ¶ 14. We declined to import the effects of the good time rule into § 7031 because there was no "clear legislative intent to impose such a requirement." Id. ¶ 15. Exactly the same rationale applies here, and there is no need to import parole administration into the sentencing statute absent any such direction from the Legislature. ¶ 59. Sentencing and parole are separate processes; the first under the discretion of the court and the second controlled by the parole board. State v. Bensh, 168 Vt. 607, 607-08, 719 A.2d 1155, 1156 (1998) (mem.) ("Whereas the court imposes sentences within the limits established by the Legislature, parole follows the imposition of sentence 408 and is a purely legislative function."). The board's authority to grant parole is expressly subject to the minimum term set by the court. 28 V.S.A. § 501 (providing that an inmate with a minimum sentence is eligible for parole "after the inmate has served the minimum term of the sentence"). The parole board has discretion in deciding whether to grant parole to an eligible inmate, but nothing in the statute requires the court to promote parole by adhering to unwritten limits on its minimum sentencing authority beyond what the statute commands. Whatever rehabilitative goal the sentencing court may, or may not, consider, see State v. Corliss, 168 Vt. 333, 342, 721 A.2d 438, 445 (1998) (listing sentencing factors to include "punishment, deterrence, or rehabilitation"), rehabilitation is not a per se requirement of sentencing. ¶ 60. There is no silent and implied parole-promoting limitation, as the majority would have, on the court's authority to impose a minimum term. Nor should there be since, based on the specifics of their particular crime or their criminal history, some offenders will merit less opportunity for parole compared to others. This reality is accounted for in the Legislature's grant of flexible trial court discretion to set a minimum and maximum term under 13 V.S.A. § 7031(a) within the range of jail time specified for a given offense, and the court's sentence in this case is in accord with the statute. Bushway, 146 Vt. at 408, 505 A.2d at 662. ¶ 61. Finally, if such a different policy is to be drawn, it is not for the authorship of the judicial branch. No self-contradiction appears in the statutes to compel judicial revision. Rewriting the statute properly belongs to the Legislature. See Smith v. Parrott, 2003 VT 64, ¶ 14, 175 Vt. 375, 833 A.2d 843 (holding that policy questions are better suited to legislative process). Because we need not abandon the statute as written and need not impose extra-legislative limitations on sentencing discretion, I dissent from the majority's decision to do so. SKOGLUND, J. On Motion for Reargument ¶ 62. The State moved for reargument on the question of whether defendant's sentence violated the indeterminate sentencing statute, raising three grounds: (1) defendant may be eligible for release more than a year before he reaches his minimum sentence if he complies with the "plan preparing [him] for return to the community" adopted pursuant to 28 V.S.A. § 1(b); (2) the Legislature has not always required meaningful parole eligibility, and, thus, it is not clear that such meaningful eligibility is required under the indeterminate sentencing statute; and (3) our opinion may have significant consequences for the criminal justice system that have not been addressed. We granted supplemental briefing and reargument. We now reaffirm our decision and again conclude that the sentence imposed violates the indeterminate sentencing statute. ¶ 63. The trial court sentenced defendant to a minimum term of four years and eleven months and a maximum term of five years on the cocaine possession charge. In concluding that this sentence violated the indeterminate sentencing statute, we looked at all the statutes governing Vermont's sentencing laws to ascertain the legislative intent. Statutes in pari materiathose dealing with the same general subject matter or having the same general purposemust be read together and construed as parts of a unified statutory system. See Rutz v. Essex Junction Prudential Comm., 142 Vt. 400, 405, 457 A.2d 1368, 1370 (1983). 409 ¶ 64. Under 13 V.S.A. § 7031(a), the trial court is to establish a maximum sentence in accordance with the maximum term fixed by law for the offense and may establish a minimum sentence not less than the shortest term fixed by law for the offense. In addition, the statute provides that "the court imposing the sentence shall not fix the term of imprisonment." Id. This clear proscription against determinate sentences has been a part of Vermont corrections law since 1898 when the Legislature passed "An Act Relating to Sentences to the State Prison or House of Correction," which first set forth these restrictions in virtually the same language. 1898, No. 127. That same year the Legislature created the parole board. 1898, No. 126 (establishing a board of prison commissioners). Though this first parole board was later found unconstitutional, In re Conditional Discharge of Convicts, 73 Vt. 414, 429, 51 A. 10, 15 (1901) (per curiam), the Legislature formally established a parole board and parole procedures again in 1968. 1967, No. 319 (Adj.Sess.). Under this act, the parole board was granted authority to undertake an assessment of the offender and to consider such factors as an offender's individual characteristics and culpability in deciding whether to release an inmate after the minimum term had been served. See 28 V.S.A. § 501 (providing that inmate is eligible for parole consideration subject to any minimum sentence imposed); id. § 502(a) (providing that parole board shall interview inmates eligible for parole considering "all pertinent information regarding an inmate" to determine whether to grant parole). ¶ 65. The State points to the several forms of supervised release now authorized by statute and suggests that the rehabilitative tools available to the Department of Corrections now include more than just parole. The State argues the Legislature effectively condoned fixed sentences in connection with its policy on reductions in term of imprisonment, citing 28 V.S.A. § 811 (2000), which provided for good time reductions off the maximum, but not the minimum termthe Legislature later repealed this provision. See 2005, No. 63, § 3. According to the State, "[b]y allowing for the reduction in maximum terms but not in the minimum terms the Legislature authorized fixed or determinate sentences notwithstanding 13 V.S.A. § 7031(a)." ¶ 66. We will not find an implied repeal of a statute so easily. See State v. Baron, 2004 VT 20, ¶ 10, 176 Vt. 314, 848 A.2d 275 ("When interpreting statutes we presume that there has been no repeal by implication."); State v. Scribner, 170 Vt. 537, 538, 746 A.2d 145, 146 (1999) (mem.) ("Out of judicial respect for legislative authority over lawmaking, we recognize a presumption against implied repeal."). Either we are an indeterminate sentencing state or we are not. If we permit sentences that are not, in fact, indeterminate, then we have eliminated 13 V.S.A. § 7031(a). It is for the Legislature to decide whether it is time for a change in sentencing philosophy. ¶ 67. As we noted in our opinion, the indeterminate sentence law was designed to promote rehabilitation of prisoners by allowing the offender at least the chance to take advantage of the possibility of parole. Supra, ¶ 44. We found the sentence in this case to have effectively closed the window during which the parole board could exercise its discretion, "essentially thwarting the rehabilitative purpose behind both the indeterminate sentence law and our laws governing parole." Id. We remain convinced that, in adopting this proscription on determinate sentences, the Legislature has indicated its intent to 410 transfer some sentencing discretion from the courts to the state's parole authority. ¶ 68. Justice Dooley maintains the position laid out in his dissent to the original opinion: that this issue was not challenged below and should not be addressed by this Court. See supra, ¶¶ 47-49 (Dooley, J., dissenting). ¶ 69. Justice Burgess, likewise, holds to his original dissent on this issue founded, first, on defendant's explicit concession that the underlying minimum and maximum terms were lawful according to the statute and our prior decisions; second, on defendant's failure to raise the argument adopted by the majority; and alternatively, contending that the majority's application of 13 V.S.A. § 7031(a) departs from the legislative direction, rewrites the statute, and is practically unworkable. See supra, ¶¶ 50-61 (Burgess, J., dissenting). Upon consideration of the motion for reargument the original mandate remains unchanged. NOTES [1] The State also argues that defendant consented to the search of the pouch. Because we conclude that the officer had probable cause to open the pouch even absent defendant's consent, we do not reach this issue. [2] In his dissent, Justice Burgess contends that defendant has conceded that the underlying four year and eleven month to five year sentence is lawful. Post, ¶ 51. This is simply a mischaracterization of defendant's brief. The paragraph to which the dissent refers takes issue with the trial court's added (and concededly superfluous) language that all of the sentence was suspended "but five years." That this language is unnecessary is not in dispute by the parties. Indeed, striking this language does not affect the sentence. In focusing on this paragraph, however, Justice Burgess ignores the thrust of defendant's argument with regard to his sentence, which is that the trial court "cannot impose a minimum and maximum sentence that are of identical length." [3] Defendant admits in his brief that "under this Court's jurisprudence, a sentence of 4 years 11 months to 5 years to serve . . . would be lawful." The majority imagines this as "simply a mischaracterization of defendant's brief," ante, ¶ 38 n. 2, but plainly it is not. Defendant's argument consists of but four paragraphs: the first recites § 7031 with a preface and conclusion reiterating, correctly, that this Court has "construed the statute as prohibiting a sentence with the same maximum and minimum terms of confinement" (emphasis added; quotations omitted); and the second paragraph acknowledges, correctly, that while "[c]lose minimum and maximum terms have been found proper, when both are within the respective limits of the law," a "minimum sentence equal to the maximum" is invalid (emphasis added, quotations omitted). The entire balance of defendant's argument, and concession, is as follows: While, under this Court's jurisprudence, a sentence of 4 years 11 months to 5 years to serve or a sentence of 4 years 11 months to 5 years all suspended but 4 years 11 months (or any unsuspended portion that was less than 5 years) would be lawful, imposition of the sentence 4 years 11 months to 5 years, all suspended but 5 years is unlawful because the minimum sentence that [defendant] will necessarily be required to serve, involving no other considerations, is the maximum sentence. Here as in Lambert, it was the court's intention to create a sentence where the minimum and maximum were the same. The court imposed a flat sentence which is unlawful. [Defendant's] sentences must be vacated and the matter remanded for new sentencing. (Emphases added.) What defendant complains about is the court's purported "suspension" of all his sentenceexcept for the maximum termthat melds the maximum and minimum into the same time to serve, since release could not occur until the maximum is completed. Thus, according to the court's illusory suspension, the minimum is irrelevant because the maximum must be served. Not addressing defendant's point, the majority instead gratuitously reverses the part of the sentence that defendant agrees is valid. [4] Solution of the mystery is further clouded by our affirmance of defendant's concurrent sentences of 5-to-6 months for marijuana possession and 11-to-12 months for false information to a police officer.	{ "pile_set_name": "FreeLaw" }
March 16,1971 Honorable J. C. Dingwall Opinion No. M-809 State Highway Engineer State Highway Department Re: Whether the State Highway Austin, Texas 78701 Department may legally ad- vertise and award Highway Construction projects fi- nanced with both state and federal funds without pro- vision for the general rate of per diem wages provided Dear Mr. Dingwall: in Article 5159a, V. C. S. We quote, in part, from your letter requesting an opinion of our office, as follows: “The President’s proclamation of February 23, 1971, suspended the provisions of the Davis-Bacon Act and the provisions of all other Acts providing for the payment of wages which provisions are dependent upon determinations by the Secretary of Labor, under the Davis-Bacon Act. The Federal Highway Administrator has advised that proposals for Federal-Aid projects on which bids are opened after March 5th, 1971, must con- tain no wage determinations made under the provisions of State Statutes or other wage determination processes. “Can the State Highway Department legally ad- vertise and award Highway Construction projects fi- nanced with both State and Federal Funds that do not contain the general prevailing rate of per diem wages as provided in Article 5159a, V. C. S. ? “The general prevailing rate of per diem wages will be included in Highway Construction projects fi- nanced entirely with State Highway Funds as provided in Article 5159a, V. C. S. . . . ” -3928- Honorable J. C. Dingwall, page 2 (M-809) Also, you have furnished us copies of a legal memorandum and ad- ministrative construction by the Solicitor of Labor, U.S. Department of Labor, dated March 1, 1971, addressed to all States’ Attorneys General (Appendix “A” attached hereto) and a legal opinion dated March 1, 1971, from the Attorney General’s Office, to the Solicitor of Labor (Appendix “B” attached hereto. ) We are in agreement with their interpretation of the effect of President Nixon’s action and emergency proclamation, which was to remove from the federally involved construction contracts entered into on or after February 23, 1971, all otherwise applicable federal requirements that laborers and mechanics be paid at least the wage rate determined by the Secretary of Labor, U.S. Department of Labor, to be prevailing for their crafts. We also concur in the Attorney General’s interpretation that all state-required wage standards pro- visions have been rendered inapplicable for the duration of such sus- pension to federally involved construction contracts on which the wage payment requirements of the federal statutes and regulations have been suspended. As we construe that interpretation, it is limited to federally- assisted construction projects which are subject to statutory provisions (e. g., 12 U.S.C. 17Olq(c), 20 U.S.C. 848, 42 U.S.C. 2685, 3107), requiring the payment of wages determined in accordance with the Davis- Bacon Act, 46 Stat. 1494, as amended. You also have advised that the federal Department of Transporta- tion has notified all Regional Federal Highway Administrators and Division Engineers that in order to comply with the federal contractual requirements for obtaining the construction funds on which bids are opened after March 5, not only must the deletion of Davis-Bacon provisions be effected, but the bids f, .. * must contain no wage determinations made under the provisions of state statutes or other wage de- termination processes. I’ Such are the conditions of the federal grant, and failure to comply there- with will apparently preclude the state from obtaining such federal monies. First, we will consider the standing and effect of the President’s proclamation. The principle is well established in both the realm of federal law and federal-state relations that -3929 - Honorable J. C. Dingwall, page 3 (M-809) ‘1. . . where Congress has authorized a public officer to take some specified legislative action when in his judgment that action is neces- sary or appropriate to carry out the policy of Congress, the judgment of the officer as to the existence of the facts calling for that action is not subject to review . . .‘I U.S. v. Bush, 310 U.S. 37 1 ( 1940. ) In this Bush case, the President of the United States acted, as author- ized under Act of Congress, by Proclamation to increase the duty and changes in classification of certain foreign imports. In the earlier case of Dakota Cent. Telephone Co. v. State of South Dakota, 250 U. S. 163 (1919) the very broad powers of the President to take possession and control of telegraph, telephone, and other communication companies, and operate them, by Proclamation, under authorization of Congress and his wartime powers, was upheld. An Executive Order of the Presi- dent ‘1. . is to be accorded the force and effect given to a statute enacted by Congress. .” Farkas v. Texas Instrument, Inc. 375 F. 2d 629 (5th Cir. 1967, cert. den. 389 U.S. 977. ) The power of the President to act by the Proclamation under con- sideration is fully sustained by the authorities cited in support of the text in the text book entitled Modern Constitutional Law, by Chester J. Antieau, Volume II, Section 11:21 at pages 222-231, and Sections 13:22 through 13:25 at pages 526-531. The interpretation of a federal statute subject to construction by the executive department charged with its administration and enforce- ment is entitled to the highest respect from the courts. 42 Am. Jur. 392, Public Administrative Law, Sec. 78; Roland Electric Co. v. Walling, 326 U. S. 657 (1946); Mabee v. White Plains Pub. Co. , 327 U. S. 178 (1946); Boutell v. Walling, 327 U. S. 463 (1946. ) Article 5159a, Vernon’s Civil Statutes, which provides for wage standards provisions in Texas, is thus inapplicable to the above mentioned federally involved construction contracts for the duration of such suspension. The suspension provision (40 U. S. C. 276a-5) in our view precludes a state -3930- Honorable J. C. Dingwall, page 4 (M-809) from imposing its own “Davis-Bacon” requirements on construction other- wise subject to the Davis-Bacon statutes. The purpose of those statutes was to provide a federal wage floor on those affected construction contracts in which the federal government had an interest. This floor was removed by the President’s emergency proclamation in the national interest. lf the state were empowered to interpose its own wage floor on such federal con- struction contracts, such would frustrate and render impotent the essential purpose of the suspension provision, which was designed to permit the President to suspend any wage floor, whether federal or state, in the national interest. In Attorney General Opinion No. S-185 (19561, it was held that Ar- ticle 5159a was in conflict with the Davis-Bacon Act, as applied to the con- struction of armories by the Texas National Guard Armory Board. How- ever, as that Opinion makes clear that construction was being carried out under a different Act of Congress, the National Defense Facilities Act of 1950, Section bb, as amended, which expressly recognized that the con- struction “shall be done in accordance with the laws of such state . . . ” Furthermore, the amendment had been interpreted by the Department of Defense ‘1. . . to mean that State laws and procedures con- trol the letting of construction contracts only insofar as such laws are in conflict with Federal Statutes and pro- cedures and that the Federal laws apply if there is no such conflict. ” The Attorney General thereupon concluded: “Accepting this interpretation, the Davis-Bacon Act will apply if it is not in conflict with the State law, but Article 5159a will apply if there is a conflict be- tween these two statutes. ” In other words, the conditions of the grant were controlled by another and specific federal Act, outside the scope of the Davis-Bacon Act. We have concluded that the factual and legal situation presented by your request is legally distinguishable from that. presented in Attorney General Opinion No. S-185. In the present situation, the Davis-Bacon Act -3931- Honorable J. C. Dingwall, page 5 (M-809) and federal laws and regulations under which the construction work is being performed do not expressly provide for state laws and pro~cedures to control the letting of the construction contracts. Furthermdre, they have been interpreted by the Labor Department and Department of Jus- tice to the effect that such state statutes were not applicable under the suspension provision. Since Article 5159a would, if applicable, neces- sarily conflict with the federal law, we are not required to hold that the state law controls, as was held in Opinion S-185. It is our opinion that our state statute must yield to any conflict- ing provisions of congressional acts and federal regulations pursuant thereto pertaining to those subjects within the scope of federal power. Contineital Radio Co. v. Continental Bank & Trust Co. , 369 S.W. 2d 359 (Tex. Civ.App. 1963, error ref., n. r. e. ); Free v. Bland, 369 U.S. 663 (1962, revg. 344S.W.Zd435, Tex.Sup., 1961, and conformed to 359 S. W. 2d 27) holding that any state law, however clearly within state ac- knowledged power, which interferes with or is contrary to federal law, must yield. The Davis-Bacon Act and its related statutes involve a pro- prietary function of the federal government. If state policy were to pre- vail, a collision between it and federal policy would result and therefore, the latter policy must govern. See Paul v. United States, 371 U.S. 245 (1963. 1 In view of the foregoing, we answer your question in the affirma- tive. SUMMARY The State Highway Department may legally advertise and award federally involved highway con- struction contracts, financed with both state and federal funds, which do not contain the general pre- vailing rate of per diem wages as provided in Ar- ticle 5159a, Vernon’s Civil Statutes, in view of President Nixon’s emergency proclamation suspend- ing the provisions of the Davis-Bacon Act (46 Stat. 1494, as amended) as well as all other federal acts for the payment of wage rates on such projects which are dependent upon prevailing wage determinat.ions by th,e Secretary of Laborunder the Davis-Bacon Act. -3932- . . I. Honorable J. C. Dingwall, page 6 (M-809) Article 5159a, V. C. S., has been rendered in- applicable, for the duration of such suspension to all federal construction contracts entered into on or sub- sequent to February 23, 1971, and until otherwise provided, calling for the payment of wages as provided in the Davis-Bacon Act of March ‘3, 1931, as amended, or any other Acts calling for the payment of wages, the provisions of which are dependent upon determina- tions by the Secretary of Labor under the Davis-Bacon Act. Very truly yours, CRAWFORD C. MARTIN Attorney General of Texas By:& a NOLA WHITE ’ First Assistant Prepared by Kerns Taylor Assistant Attorney General APPROVED: OPINION COMMITTEE W. E. Allen, Acting Chairman J. C. Davis Pat Bailey John Reeves Jack Goodman MEADE F. GRIFFIN Staff Legal Assistant ALFRED WALKER Executive Assistant -3933-	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-60527 Conference Calendar JAMES ALLEN ROTH, Plaintiff-Appellant, versus ROBERT JOHNSON, Commissioner; JAMES V. ANDERSON; WALTER BOOKER; BOBBY BUTLER; ANN LEE, Director of Offender Services; LAWRENCE HENDERSON; JIMMY PARKER; GENE CROCKER, Chief of Security; ROBERT ARMSTRONG, Defendants-Appellees. -------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:00-CV-294-D-A -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges. PER CURIAM:* James Allen Roth, Mississippi inmate #76800, appeals the district court’s dismissal of his pro se, in forma pauperis (“IFP”), 42 U.S.C. § 1983 complaint for failure to state a claim upon which relief may be granted. Roth contends that he has been confined in administrative segregation for more than three years without due process and despite the fact that he has not received disciplinary action. Roth contends that his confinement is a * 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. 01-60527 -2- violation of his right to due process and his right against cruel and unusual punishment. We review de novo the district court’s dismissal of an inmate’s IFP, 42 U.S.C. § 1983 complaint for failure to state a claim upon which relief may be granted. Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998); 28 U.S.C. § 1915(e)(2)(B)(ii). An inmate does not have a protectible property or liberty interest in his custody classification. Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988). Administrative segregation is an incident to ordinary prison life and, absent extraordinary circumstances, is not a ground for a constitutional claim. Pichardo v. Kinker, 73 F.3d 612, 612 (5th Cir. 1996). The loss of the opportunity to earn good time credits does not implicate a constitutionally protected liberty interest. See Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995). Roth has not shown that his extended confinement in administrative segregation amounts to a constitutional violation. See Sandin v. Conner, 515 U.S. 472, 483-86 (1995). The record refutes Roth’s contentions regarding the reasons for his confinement to administrative segregation and demonstrates that Roth is receiving periodic reviews of his custodial classification. Roth has not demonstrated the violation of a constitutional right. See Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995). Roth’s contention that the district court’s February 14, 2001, order required the defendants to respond to his complaint and that the district court erred by denying his motions for default judgments are without merit. No. 01-60527 -3- Roth’s appeal is without arguable merit and is dismissed as frivolous. See 5th Cir. R. 42.2; Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The dismissal of the appeal as frivolous and the district court’s dismissal of Roth’s 42 U.S.C. § 1983 complaint for failure to state a claim count as “strikes” under the three-strikes provision of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996); 28 U.S.C. § 1915(e)(2)(B)(ii). Roth is CAUTIONED that if he accumulates a third “strike” under 28 U.S.C. § 1915(g), he will not be able 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 28 U.S.C. § 1915(g). APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4157 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AGUSTIN JERONIMO-RODAS, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:13-cr-00841-RBH-1) Submitted: July 30, 2014 Decided: September 5, 2014 Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Michael A. Meetze, Assistant Federal Public Defender, Florence, South Carolina, for Appellant. William N. Nettles, United States Attorney, Jimmie Ewing, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Agustin Jeronimo-Rodas pled guilty pursuant to a written plea agreement to one count of illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) (2012). The court imposed a sentence of time served and one year of supervised release. On appeal, Jeronimo-Rodas contends that the district court erred by imposing a one-year term of supervised release when he likely will be deported. For the reasons that follow, we affirm. We review a sentence imposed by a district court for reasonableness, applying a deferential abuse-of-discretion standard. United States v. Rivera–Santana, 668 F.3d 95, 100 (4th Cir. 2012). The first step in our review requires us to ensure that the district court did not commit significant procedural error, such as improperly calculating the Sentencing Guidelines range, failing to consider the factors under 18 U.S.C. § 3553(a) (2012), or failing to adequately explain the sentence. United States v. Carter, 564 F.3d 325, 328-29 (4th Cir. 2009). We then review the sentence for substantive reasonableness, taking into account the totality of the circumstances. United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). Jeronimo-Rodas only alleges procedural error. Jeronimo-Rodas argues that the district court erred by imposing supervised release because he would likely be deported. 2 The Sentencing Guidelines normally counsel against imposing a term of supervised release for someone who is a deportable alien, noting that “the court ordinarily should not impose a term of supervised release.” U.S. Sentencing Guidelines Manual (“USSG”) § 5D1.1(c) (2013). Nonetheless, courts are encouraged to consider imposing a term of supervised release on a deportable alien if the court determines that such an imposition would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case. See USSG § 5D1.1 comment. (n.5). Here, the court sought an added measure of “deterrence” given Jeronimo-Rodas’ repeated illegal reentries into this country and his convictions for driving under the influence and possession of cocaine base. (J.A. 75). The court stated that “placement on supervised release will provide further protection to the public.” (J.A. 75). Under these circumstances, we conclude that the imposition of a term of supervised release was not reversible error under USSG § 5D1.1(c). See United States v. Dominquez-Alvarado, 695 F.3d 324, 329 (5th Cir. 2012) (observing that the word “ordinarily” in this provision is an encouragement, not a mandatory requirement). Accordingly, we affirm Jeronimo-Rodas’ sentence. We dispense with oral argument because the facts and legal 3 contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 4	{ "pile_set_name": "FreeLaw" }
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MILANI CONSTRUCTION, LLC, Plaintiff, v. Civil Action No. 19-3669 (TJK) CREATIVE CONCEPTS GROUP, INC. et al., Defendants. MEMORANDUM OPINION AND ORDER This case illustrates why Congress provided for recovery of attorneys’ fees under 28 U.S.C. § 1447(c) when a party removes a case to federal court without a reasonable basis for doing so. The parties litigated this matter in the Superior Court of the District of Columbia for nearly two years, and Milani Construction, LLC secured a final judgment against Creative Concepts Group, Inc. On the eve of a hearing related to the satisfaction of that judgment, a third party—the sole member of which is Creative’s President, see ECF No. 1 at 3—filed a notice of removal that brought the litigation to a standstill. Before the Court is Milani’s motion to remand and request for attorneys’ fees, ECF No. 5. The parties agree that the case must be remanded because diversity jurisdiction is lacking, but they disagree on whether an award of costs and expenses, including attorneys’ fees, is warranted. Section 1447 seeks “to deter removals sought for the purpose of prolonging litigation and imposing costs on the opposing party.” Martin v. Franklin Capital Corp., 546 U.S. 132, 140 (2005). Because the third party’s dilatory maneuver had no reasonable basis, the Court will remand the case and award Milani the costs and expenses it incurred as a result of the improper removal. Background Milani sued Creative, its contractor, and Creative’s President, Bryan Neumann, in Superior Court in December 2017. See ECF No. 1-3 (“Compl.”) at 1–2. Milani alleges that Creative failed to reimburse a steel subcontractor after Milani paid Creative for the steel. Id. at 2–5. The Superior Court judge granted Milani’s Motion for Partial Summary Judgment as to its breach of contract claim against Creative. See ECF No. 1-6. After Milani dismissed its claim against Neumann with prejudice in April 2019, the judge entered final judgment in Milani’s favor in the amount of $393,623.30. Id. In June 2019, Milani moved for a writ of attachment under D.C. Code § 16-546 to satisfy the judgment with funds due from a contract with a non-party, Fort Myer Construction Corp. See ECF No. 5-1 at 2; ECF No. 6 at 1. But Fort Myer had not contracted with Creative Concepts Group, Inc.—the defendant—but with another entity, Creative Concepts Group, LLC (“CCGI LLC”). See ECF No. 5-1 at 1–2; ECF No. 6 at 1. The court held a hearing on November 26, 2019, to determine whether Creative and CCGI LLC were “all one and the same entity” and whether there had been “a fraudulent conveyance” from Creative to CCGI LLC to avoid Creative’s debt to Milani. ECF No. 6-1 at 1, Hrg. Tr. 6:8–10. The hearing was scheduled to resume on December 10, 2019. Hrg. Tr. 69:1–5. But on December 9, 2019—the day before the hearing was to continue—CCGI LLC filed (1) an opposed motion to intervene, arguing that the LLC had an interest in the case because the Superior Court “intended to sua sponte garnish funds owed to [CCGI LLC] under contracts it has with Fort Myer Construction to satisfy a judgment entered against Creative,” ECF No. 1-2 at 1, and (2) a notice of removal to this Court, citing diversity jurisdiction, ECF No. 1 at 2–3. Needless to say, when CCGI LLC filed the notice of removal, the Superior Court judge had yet to rule on the motion to intervene, although she denied it the next day. ECF No. 5-1 at 3. Milani 2 now seeks to remand the case back to Superior Court and recover its costs and attorneys’ fees in litigating the remand; it argues that removal was improper because (1) the parties are not diverse and (2) CCGI LLC, the removing party, was not a defendant in the Superior Court action, as is required. ECF No. 5. Legal Standards A “defendant or the defendants” may remove an action brought in state court if the federal court has original subject matter jurisdiction. 28 U.S.C. § 1441(a). Diversity jurisdiction exists where the amount in controversy exceeds $75,000 and the action involves citizens of different states, 28 U.S.C. § 1332(a), meaning that “no plaintiff may share state citizenship with any defendant.” CostCommand, LLC v. WH Adm’rs, Inc., 820 F.3d 19, 21 (D.C. Cir. 2016). The citizenship of a limited liability company is determined by the citizenship of each member of the limited liability company. Id. “[T]he case shall be remanded” if the district court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). Upon a plaintiff’s motion to remand for “lack of subject matter jurisdiction, the defendant bears the burden of establishing that federal subject matter jurisdiction exists.” Busby v. Capital One, N.A., 932 F. Supp. 2d 114, 127 (D.D.C. 2013). The plaintiff may also obtain “payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal,” 28 U.S.C. § 1447(c), if “the removing party lacked an objectively reasonable basis for seeking removal.” Knop v. Mackall, 645 F.3d 381, 382 (D.C. Cir. 2011) (quoting Martin, 546 U.S. at 141). “Conversely, when an objectively reasonable basis exists, fees should be denied.” Martin, 546 U.S. at 141. Analysis The parties agree that the Court lacks diversity jurisdiction over this suit between Maryland corporations. See ECF No. 5-1 at 3–4, 7; ECF No. 6 at 2; CostCommand, 820 F.3d at 3 21. There is therefore no dispute on the issue of remand. Under the statute, the Court must remand the case for lack of subject matter jurisdiction. 28 U.S.C. § 1447(c). The remaining issue is Milani’s request for costs and expenses relating to the removal, which turns on whether CCGI LLC had an objectively reasonable basis for removing the suit from Superior Court. The Court holds that, even if CCGI LLC reasonably (but mistakenly) believed that the parties were diverse, see ECF No. 6 at 2, it lacked an objectively reasonable basis to remove the case because it was not a defendant when it did so. 28 U.S.C. § 1441(a); see Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019) (“[I]n the context of the[] removal provisions the term ‘defendant’ refers only to the party sued by the original plaintiff.”); cf. MPAC, LLC, v. D.C., 181 F. Supp. 3d 81, 83 (D.D.C. 2014), aff’d sub nom. MPAC, LLC v. D.C. Alcoholic Beverage Regulation Admin., No. 14-7090, 2014 WL 4628997 (D.C. Cir. Aug. 11, 2014) (“Because federal courts are courts of limited jurisdiction, removal statutes are strictly construed.”). Indeed, Milani only sued Creative Concepts Group, Inc., ECF No. 1-3, and CCGI LLC concedes that it is “a separate and legally distinct entity from Inc.,” ECF No. 6 at 1, that was never “served with any process or other summons” in the case, ECF No. 1-2 at 1. CCGI LLC offers two theories about why it was a defendant under 28 U.S.C. § 1441(a) when it removed the case. To avoid having to pay attorneys’ fees and costs, of course, it need only show that it had an objectively reasonable basis to believe that it was a defendant. But neither of its theories passes even that modest bar. In its notice of removal, CCGI LLC suggests that it became a defendant on December 9, 2019, when it moved to intervene. ECF No. 1 at 1. But at that point, of course, the Superior Court judge had not granted the motion, and in fact she denied it the next day. See ECF No. 5-1 at 3. For a party seeking to intervene as a defendant and remove a case to federal court, “the 4 intervention must precede the removal.” 14C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3730 (4th ed. 2014). And those circuits that have considered the question have uniformly held that “until a third party’s motion for leave to intervene is granted, a case cannot be properly removed” by that party.1 Wellmark Inc. v. Chicoine, Nos. 18-90018-Q, 18-90019-Q, 2019 U.S. App. LEXIS 966, at *25 (11th Cir. Jan. 10, 2019) (per curiam); see, e.g., MB Fin., N.A. v. Stevens, 678 F.3d 497, 499 (7th Cir. 2012) (motion to intervene “proposing to become a party” insufficient for removal without first “wait[ing] for the state court’s decision on [the] motion” to intervene); Vill. of Oakwood v. State Bank and Tr. Co., 481 F.3d 364, 369 n.3 (6th Cir. 2007) (party could not remove case “before the state court had an opportunity to act on [its] motion to intervene”). CCGI had no objectively reasonable basis to conclude that the mere filing of its motion to intervene caused it to become a defendant for removal purposes. And that it simultaneously removed the case before the hearing the next day suggests that its purpose was simply to delay the Superior Court proceedings. Later, in its response to Milani’s motion to remand, CCGI LLC argues instead that it became a defendant on December 10, 2019, when the Superior Court continued the hearing, because that hearing was “a new proceeding” against CCGI LLC that threatened to attach its property. ECF No. 6 at 1. That theory fails for several reasons. First, CCGI LLC filed its notice of removal on December 9, 2019, see ECF No. 1, so even under that theory it was not a defendant until the day after it removed the case. Second, CCGI LLC offers no reason why the purported “new proceeding” began on December 10, 2019, instead of November 26, 2019, when the Superior Court first “indicated from the bench that it would garnish monies owed to” CCGI LLC. ECF No. 1 at 1. Indeed, if November 26, 2019, was a “new proceeding” in which CCGI 1 The D.C. Circuit does not appear to have considered the question. 5 LLC was a defendant for removal purposes, it would have had no reason to move to intervene a couple of weeks later, ECF No. 5-2. Third, regardless of the hearing’s timing, CCGI LLC is wrong that the hearing made it “effectively . . . a party to the case,” ECF No. 6 at 1, such that it could remove it. For that proposition, CCGI LLC cites two cases from outside this Circuit that are readily distinguishable; the litigants that removed those cases were actually—as opposed to “effectively”—parties to them. See ECF No. 6 at 1–2. In both Jackson-Platts v. GE Capital Corp., 727 F.3d 1127 (11th Cir. 2013), and Travelers Prop. Cas. v. Good, 689 F.3d 714 (7th Cir. 2012), the court held that a supplemental proceeding intended to satisfy a judgment was an “independent civil action” that could be removed “because it seeks to impose new liability on new parties founded on wholly new legal theories.” Jackson-Platts, 727 F.3d at 1131–32, 1139; Travelers, 689 F.3d at 725. But even so, in Jackson-Platts, the court had granted the plaintiff’s motion to add the removing party “as a new defendant to the underlying action,” 727 F.3d at 1132 (cleaned up). Similarly, in Travelers, the plaintiff had filed a separate action against the removing party, 689 F.3d at 717. Nothing of the sort happened here. CCGI LLC was not a party to the Superior Court case or any ancillary proceeding.2 For that reason, it lacked an objectively reasonable basis to believe that it was entitled to remove the case under 28 U.S.C. § 1441(a). 2 District of Columbia law provides a procedure for third parties like CCGI LLC to protect their property, but it appears that procedure—which could be construed as a supplemental or ancillary proceeding—is available only after a court has attached the property. See D.C. Code § 16-551 (“garnishee or stranger to the action” may “make claim to the property attached” by filing “an answer defending against the attachment”). The Superior Court judge cited the availability of that subsequent procedure as a reason she conducted the hearing, even in CCGI LLC’s absence, to determine whether to attach funds due from the Fort Myer contract. See Hrg. Tr. 5:24–6:17, 46:22–47:4, 63:6–10, 67:11–19, 69:17–70:11. But at the time of removal, the judge had not attached CCGI LLC’s property, nor had CCGI LLC filed an answer defending against attachment. 6 Conclusion and Order For all these reasons, Plaintiff’s Motion to Remand and Request for Attorneys’ Fees, ECF No. 5, is GRANTED. It is hereby ORDERED that this case shall be remanded to the Superior Court of the District of Columbia. It is further ORDERED that: 1. CCGI LLC shall pay Plaintiff the costs and expenses it incurred as a result of its improper removal of the case to this Court in an amount to be determined by the Court; 2. By February 21, 2020, Plaintiff shall file an itemized list of costs and expenses arising from CCGI LLC’s improper removal; 3. By February 28, 2020, CCGI LLC may file a response to Plaintiff’s list, not to exceed five pages in length, addressing the appropriate calculation of the compensatory sum owed to Plaintiff; and 4. The Clerk of Court shall mail a copy of this Memorandum Opinion and Order to the Clerk of the Superior Court. SO ORDERED. /s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: February 6, 2020 7	{ "pile_set_name": "FreeLaw" }
238 N.W.2d 592 (1976) Howard LEPPLA, as Trustee for the Wrongful Death of Barbara Leppla, Deceased, Respondent-Appellant, v. AMERICAN FAMILY INSURANCE GROUP, Appellant-Respondent. Nos. 45322, 45362. Supreme Court of Minnesota. January 9, 1976. 593 Peterson, Bell & Converse, Willard L. Converse and Martin J. Costello, St. Paul, for defendant. Schermer, Schwappach, Borkon & Ramstead, Irvin E. Schermer and Richard I. Diamond, Minneapolis, for plaintiff. Heard before PETERSON, KELLY and MacLAUGHLIN, JJ., and considered and decided by the court en banc. MacLAUGHLIN, Justice. Plaintiff's daughter, Barbara Leppla, died as a result of an accident while riding as a passenger in an automobile operated by defendant's insured, David L. Roehler. In an action to recover damages for wrongful death, plaintiff obtained a $10,000 stipulated default judgment against Roehler. Plaintiff then brought suit against defendant, American Family Insurance Group, for the $10,000 judgment, plus punitive damages. Defendant denied liability, alleging that it did not insure the car involved in the accident and stating further that it did not receive any notice of the accident or the subsequent action against its insured, Roehler. Plaintiff countered that defendant was estopped from denying liability because of the Safety Responsibility Act (SRA), Minn.St.1971, c. 170. Both parties moved for summary judgment. The district court granted summary judgment to plaintiff in the amount of $10,024 plus interest and costs, but denied plaintiff's claim for punitive damages. Defendant appeals from the summary judgment, and plaintiff also appeals from the judgment on the issue of punitive damages. For reasons stated herein, we reverse the determination of the trial court that plaintiff was entitled to summary judgment. Most of the facts are not in dispute. On March 12, 1971, defendant through its wholly owned subsidiary, American Standard Insurance Company, issued an automobile liability policy to Roehler covering the operation of a 1963 Ford. Roehler was required to furnish proof of financial responsibility under the SRA. Thus, defendant filed the required form, an SR-22 certificate, with the commissioner of highways showing liability coverage for Roehler while driving the 1963 Ford. On or about August 15, 1971, Roehler, through defendant's agent, requested that the insurance on the 1963 Ford be transferred to a 1971 Honda. Prior to March 1, 1970, defendant would have informed the commissioner of highways of this change by filing with the commissioner a change of vehicle certificate, referred to as form SR-24. However, on March 1, 1970, the financial responsibility procedure was altered by the commissioner so that the change of vehicle certificate was no longer required. Under the new procedure, the original SR-22 certificate by its terms covered the vehicle described on the certificate or "any replacement(s) thereof by similar classification." Consequently, defendant did not file a change of vehicle certificate, and thus the filed SR-22 certificate for Roehler described the 1963 Ford while the insurance policy actually in effect described the 1971 Honda. At the time of the accident, October 18, 1971, Roehler was driving the 1963 Ford which he still owned. On November 13, 1972, after commencement of the lawsuit against him, Roehler stipulated to a default judgment for $10,000 in exchange for plaintiff's agreement that if plaintiff failed to recover against any insurance carrier he would accept $500 from Roehler as full payment of the judgment. Defendant did not receive any notice of the accident, the suit against Roehler, or of the resulting judgment, until November 19, 1973. On June 13, 1972, National Family Insurance Company, which insured plaintiff, paid$19,000 to plaintiff for the wrongful death of Barbara Leppla under an uninsured motorist provision contained in the National Family policy. At the same time, National Family obtained from plaintiff a release and trust agreement in which plaintiff agreed to reimburse National Family up to the amount of $19,000 if plaintiff recovered against any other party. 594 On January 28, 1974, plaintiff brought suit against defendant for the $10,000 judgment, plus punitive damages. In its answer defendant denied liability, alleging that its insurance policy did not provide coverage for the 1963 Ford and that defendant had received no notice of the accident or the suit against its insured. Both sides then moved for summary judgment on the question of defendant's liability under the SR-22 certificate, which showed the 1963 Ford as being insured by defendant. The trial court, based on Minn.St.1971, § 170.38, which requires that an SR-22 certificate "shall designate by explicit description * * * all motor vehicles covered thereby, unless the policy is an operator's policy," held that defendant was estopped to deny coverage on the 1963 Ford because of its failure to file a notice with the commissioner that there had been a change of insured vehicle. The trial court then ordered summary judgment for plaintiff, but denied plaintiff's claim for punitive damages, and this appeal followed. The principal issues are (a) whether Minnesota's Safety Responsibility Act can be used to impose liability upon defendant insurance company when plaintiff is bound by an agreement to pay the proceeds of any recovery from defendant to his uninsured motorist carrier, and (b) whether a filed SR-22 certificate which describes a particular vehicle estops an insurer from asserting that coverage of the described vehicle has been transferred to a replacement vehicle, thereby leaving the described vehicle uninsured. We have concluded that it is unnecessary for us to decide the second issue because the first issue is determinative of this appeal. It is clear that on the basis of the insurance policy alone defendant would not be liable to plaintiff. Not only was Roehler driving a vehicle not covered by the policy, but he also failed to give defendant any notice of the accident or the subsequent suit. It is for this reason that plaintiff must rely on the provisions of the SRA[1] to impose liability on defendant. However, the critical issue before us is whether plaintiff is in a position to properly claim the benefits of the act. The Minnesota Safety Responsibility Act was enacted to "make the owner of motor vehicles liable to those injured by their operation upon public streets or highways where no such liability would otherwise exist." (Italics omitted.) Christensen v. Hennepin Transportation Co. Inc., 215 Minn. 394, 409, 10 N.W.2d 406, 415 (1943); Holmes v. Lilygren Motor Co., Inc., 201 Minn. 44, 275 N.W. 416 (1937). The act subjects "drivers and owners of vehicles involved to suspension of their `licenses' unless liability insurance coverage * * * is carried by the owner or driver of the vehicle." City of St. Paul v. Hoffmann, 223 Minn. 76, 77, 25 N.W.2d 661, 662 (1946). Since the SRA "is remedial and will be broadly construed to carry out its purpose of providing compensation to those who have been injured," an "insurer on a compulsory insurance liability policy may be held liable to one injured by the insured notwithstanding the fact that the insured himself has lost his rights under the policy by failure to comply with its terms and conditions." Nimeth v. Felling, 282 Minn. 460, 463, 165 N.W.2d 237, 239 (1969). Although plaintiff in the instant case is nominally the injured party and thus within the protection of the SRA, the facts show that plaintiff has no beneficial interest in the recovery. If plaintiff recovers the $10,000 judgment, he is obligated under the release and trust agreement to pay the entire sum to his uninsured motorist carrier, National Family Insurance Company. If plaintiff fails to recover the $10,000, he is not obligated to pay anything to his insurance company. Thus, the party with the actual beneficial interest in this action is National Family Insurance Company. The 595 question, then, is whether National Family, as plaintiff's uninsured motorist carrier, may claim the benefits and protection of the SRA. As indicated above, the dominant purpose of the SRA is to assure that members of the traveling public are compensated for injuries sustained in traffic accidents, and its provisions should be liberally construed to effect that legislative aim. But "[w]hile the statute is remedial, it is remedial solely in favor of an injured third person." Christensen v. Hennepin Transportation Co. Inc., 215 Minn. 394, 412, 10 N.W.2d 406, 416. In City of St. Paul v. Hoffmann, supra, this court endorsed the general principle that the SRA is not applicable so long as the public is assured of adequate compensation. In holding drivers of city vehicles exempt from the provisions of the SRA, we stated (223 Minn. 78, 25 N.W.2d 663): " * * The purpose of the [SRA] was to effect financial responsibility to injured persons. The city is liable for injuries inflicted by negligent acts performed in the discharge of its corporate or proprietary functions. [Citations omitted.] In cases involving the proprietary functions of cities, it would be futile to require additional security to the public." In Corcoran v. The State Auto. Ins. Assn., 256 Minn. 259, 264, 98 N.W.2d 50, 54 (1959), a significant case for purposes of resolving the issue before us, we stressed that compulsory liability insurance is intended to compensate only "members of the traveling public." The facts in Corcoran were similar to the instant case. Joseph Beck, who was injured when his automobile collided with a truck, obtained a judgment against both the owner and the driver of the truck. Western Casualty, which held a policy covering the owner of the truck, compensated Beck and obtained an assignment of Beck's judgment to the plaintiff, John Corcoran, as trustee for Western Casualty. The plaintiff then sought judgment from the truck-driver's insurance company, State Auto, on the basis of an endorsement in the State Auto policy which was required by the Minnesota Railroad and Warehouse Commission. The endorsement obligated State Auto to pay any judgment against its insured (the truckdriver) resulting from the negligent operation of a motor vehicle for which a permit had been issued by the commissioner. The plaintiff sought to recover on the basis of the endorsement because it was clear that State Auto would not otherwise have been liable under the provisions of its policy which expressly excluded coverage of a motor vehicle not of the private-passenger type while used in business. We refuse to impose liability on the basis of the endorsement stating (256 Minn. 264, 98 N.W.2d 54): "* * * [W]here there is other insurance fully covering the loss, as in the instant case, it would seem logical that the standard liability provisions of the policies should govern. Obviously, the described endorsement was required by the commission for protection of members of the traveling public and not as a measure of the liability obligations existing between the insurers under their respective policies." In reaching our decision, we relied on CitizensCas. Co. v. Allied Mutual Ins. Co., 217Md. 494, 144 A.2d 73 (1958), which rejectedAllied Mutual's claim for contribution fromanother insurance company (Citizens) onthe basis of Maryland's financial responsibilitylaw. We cited with approval the following language from the Maryland decision (256 Minn. 265, 98 N.W.2d 54): "`Though Citizens could not, because of Section 131(a)(6)(F) [the Financial Responsibility Law], set up against injured third parties, who are members of the public, a defense based upon its insurance being excess rather than primary insurance, this is not conclusive in the present controversy. This is not a suit by injured third parties on one side against one or more insurers on the other, but is a controversy between two insurers as to 596 whether one or the other, or both of them, should bear the ultimate loss resulting from an accident caused by a person covered by their respective policies, where such loss includes, and consists chiefly of, the amounts paid to the injured third parties. The result of the Celina case, [194 Md. 236, 71 A.2d 20, 21 A.L.R.2d 605] seems quite inconsistent with any idea that one insurance company is a party sought to be protected, as a matter of legislative policy, by an insurance policy furnished by another insurance company pursuant to * * [Financial Responsibility Law].'" Adopting the above principle, we concluded in Corcoran that (256 Minn. 265, 98 N.W.2d 54): "* * * [T]he liability for the loss as between the two insurers would be determined by the standard terms and provisions of the respective policies rather than by the endorsement affixed at the instigation of the commission." We then held that Western Casualty alone was responsible for the losses arising out of the accident and that State Auto was not required to make any contribution toward the payment of damages. Other courts have arrived at similar conclusions concerning public liability insurance coverage. Thus, it has been held that, as between two insurance companies, compulsory liability insurance does not render a company a primary insurer. Miller v. National Farmers Union Property & Cas. Co., 470 F.2d 700 (8 Cir. 1972); Marwell Const. Inc. v. Underwriters at Lloyd's, London, 465 P.2d 298 (Alaska 1970). Similarly, excess clauses in insurance policies which would have been void against injured parties have been held valid against other insurance companies. Allstate Ins. Co. v. Shelby Mutual Ins. Co., 269 N.C. 341, 152 S.E.2d 436 (1967); Allied Mutual Ins. Co. v. Farm Bureau Mutual Ins. Co., 257 Iowa 100, 131 N.W.2d 798 (1964). The recurring general principle in all of these cases is that so long as the public is protected the insurance policy may contain any provisions not contrary to statute or the public interest. And as between the insurance companies, the policy provisions limiting their liabilities are effective and determinative. See, Continental Cas. Co. v. Travelers Ins. Co., 84 Ill.App.2d 200, 228 N.E.2d 141 (1967). Although none of the above cases involved a dispute between an uninsured motorist carrier and a public liability insurer,[2] we hold that the logic of the general rule extends to the question at issue on this appeal. In the instant case, plaintiff's decedent died in an automobile accident; and plaintiff, as trustee, was subsequently compensated for that injury from an insurance fund. The purpose behind the SRA was thereby fulfilled. The question of which insurance company should ultimately bear the burden of loss is an issue to be resolved according to the terms of the particular insurance policies involved. The fact that one of the insurance companies was an uninsured motorist carrier is irrelevant to the resolution of this question. We believe that plaintiff's argument that a liability carrier for a joint tortfeasor is not entitled to credit for payments made by an uninsured motorist carrier is not applicable under the facts of this case. This argument assumes that the liability carrier is in fact liable when in this case, under the terms of the insurance policy and disregarding the effect of the SRA, it is not. The question before us is not whether an uninsured motorist carrier can demand payment from a liability carrier covering the same risk, but whether an uninsured *597 motorist carrier can use the provisions of the SRA to impose liability upon another insurance carrier where no such liability would otherwise exist. On the facts here, under the terms of the policy and by failing to comply with the conditions of the policy, Roehler was in effect an uninsured motorist. By accepting premiums, National Family agree to indemnify plaintiff against injury by an uninsured motorist. Thus, National Family was contractually bound to compensate plaintiff for the injury caused by Roehler. In contrast, defendant insurance company did not agree to provide coverage for the 1963 Ford, nor did it agree to assume the risk that its insured would give no notice of the accident or the subsequent litigation. Therefore, inasmuch as we find no legal or equitable basis for extending the remedial provisions of that act to the trustee for National Family, we reverse the trial court's determination that plaintiff was entitled to summary judgment against defendant. Reversed. NOTES [1] Those portions of the Safety Responsibility Act applicable to the circumstances of this case were repealed by L.1974, c. 408, § 33, effective January 1, 1975. [2] In National Service Fire Ins. Co. v. Jordan, 258 S.C. 56, 187 S.E.2d 230 (1972), the court allowed an uninsured motorist carrier to use the provisions of that state's financial responsibility law to impose liability on the compulsory insurance carrier. However, the issue of whether the statute provided protection to an insurance company was neither raised nor considered by that court. See, also, United States Fidelity & Guaranty Co. v. Security Fire and Ind. Co., 248 S.C. 307, 149 S.E.2d 647 (1966).	{ "pile_set_name": "FreeLaw" }
STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED May 22, 2018 Plaintiff-Appellant, v No. 320768 Grand Traverse Circuit Court ROBERT JENSEN SCHWANDER, LC No. 2011-011239-FC Defendant-Appellee. ON REMAND Before: GLEICHER, P.J., and K. F. KELLY and SERVITTO, JJ. K. F. KELLY J. (dissenting) I respectfully dissent. Under the newly-stated framework for evaluating sentences, I would affirm defendant’s sentence. In People v Schwander, unpublished per curiam opinion of the Court of Appeals, issued July 21, 2015 (Docket No. 320768 (“Schwander II”), our Court quoted at length Judge Rodgers’ justifications for sentencing defendant as he did: Judge Rodgers commenced defendant’s resentencing by outlining the “substantial, compelling and objective reasons” for a departure sentence. Echoing Judge Power, Judge Rodgers found “the depravity and the stabbing death of this young woman, which took her 30 to 60 minutes to die,” a reason for departure. “First aid was not provided,” Judge Rodgers continued, which “probably would have saved her life.” Additionally, defendant “gross[ly]” abused the trust of the victim’s family, and showed no remorse. “Fourth,” Judge Rodgers continued, “there was a 12 day search for the victim. And, the publicity generated reasonable community fear for the safety of other children not knowing how or why Ms. Lewis had disappeared.” Next, “after the death the body was treated with what can only be described as complete and utter disrespect.” Lastly, Judge Rodgers observed, the Department of Corrections recommended an upward departure. Judge Rodgers then turned to the “principles of proportionality” which supported the extent of the departure sentence he intended to impose. Addressing defendant, he began “by . . . determining who you are:” -1- And, I look at your prior record variable score and I see that that’s zero, that can mean a variety of things. That could mean you were one free of prior criminal behavior, an innocent man caught in circumstances that were overwhelming, who out of anger and spite murdered another human being, that however is not you. I looked carefully at this record. What this record reflects, among other things, is prior multiple acts of criminal sexual conduct in the third degree, which were scored in the offense variables as a continuing pattern of criminal behavior. They weren’t scored in the prior record variables because there were no convictions, but they are recorded in the diary and in the testimony of your girlfriend, Ms. Tezak. Page 1 of your original pre-sentence report reflects that you made a threat to a corrections officer and his family while confined in the county jail awaiting trial. And, your pre-sentence report also indicates due to escalating negative behavior in the school your own high school principal was afraid of you. So you were, then, at the time this occurred a person who committed a series of high severity felonies and whom others legitimately feared. I emphasize this only because the principles of proportionality that derive from [People v] Milbourn[, 435 Mich 630; 461 NW2d 1 (1990)] recognize that more serious sentences should be for people who not only commit the most serious crimes, but for whom the community should have a reasonable fear. Not as important were the concurrent offenses of larceny in a building from the Lewis home, trespass, vandalism and the theft of electricity from a structure you did not own. And, the prior provision on at least one occasion of providing marijuana to a minor. Judge Rodgers moved on to the manner of Lewis’s death. Again speaking to defendant, Judge Rodgers queried: So which is more depraved, stabbing a victim multiple times and watching her slowly bleed to death or choking her to the point where she became unconscious and could no longer fight or resist, continuing to do so for two additional minutes then dropping the body, going for a walk and returning finally to allegedly doing some chest compressions. That’s the trial record. In either case the level of depravity is stunning. Next, Judge Rodgers determined that because defendant had actually committed first-degree murder, a sentence substantially above the guidelines was proportionate to the crime: -2- You were initially charged with murder in the first degree, the premeditated and deliberate killing of another. What does that actually mean? People like me, juries, have been directed to the Michigan Supreme Court opinion in People versus Vail, it’s an old opinion, a 1975 opinion . . . , 393 Michigan 460. And, I would direct you to pages 468 and 469. Premeditated is to think about beforehand. To deliberate is simply to measure and evaluate facts. But, the important part of the Vail decision reads as follows, while the minimum time necessary to exercise this thought process is incapable of exact determination the interval between thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a second look. Judge Rodgers then described the process of strangulation that defendant claimed had occurred. That process, Judge Rodgers indicated, would have taken more than two minutes—”a long enough interval to give a reasonable man time to subject the nature of his response to a second look.” Judge Rodgers continued: What you actually did was stab her to death and sit there a half an hour and watch her bleeding, the lung punctured, the blood and foam coming out of her mouth. Clearly, there was adequate time to give a reasonable man the interval to reflect upon his actions. So in my view by a preponderance of the evidence, which is the standard we use for purposes of sentencing, this was first degree murder and a departure because of the far more serious crime of 600 to 900 months, or 50 to 75 years, is not only legally justifiable it’s consistent with who you are, what you did and your projected life expectancy. I will be candid with you, I hesitate to impose that sentence, or even 493 to 840 month sentence which the guideline analogy would mathematically support, because I believe it would be honestly found by the Court of Appeals to be retributive. So, I am simply going to reinstate your original sentence, 480 to 840 months, or 40 to 70 years, and trust the magnitude of the departure has now been fully explained . . . . [Schwander II, unpub op at 2-5 (emphasis added).] As this Court recently explained in People v Dixon-Bey, 321 Mich App 490; ___ NW2d ___, lv pending, slip op at 16: “A sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). “[T]he standard of review to be applied by appellate courts reviewing a sentence for reasonableness on appeal is abuse of discretion.” -3- People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017) [Steanhouse II]. In Steanhouse, the Michigan Supreme Court clarified that “the relevant question for appellate courts reviewing a sentence for reasonableness” is “whether the trial court abused its discretion by violating the principle of proportionality....” Id. The principle of proportionality is one in which “a judge helps to fulfill the overall legislative scheme of criminal punishment by taking care to assure that the sentences imposed across the discretionary range are proportionate to the seriousness of the matters that come before the court for sentencing. In making this assessment, the judge, of course, must take into account the nature of the offense and the background of the offender.” [Id. at 472], quoting Milbourn, 435 Mich [at 651]. Under this principle, “ ‘[T]he key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range.’ ” Steanhouse II, 500 Mich at 472, quoting Milbourn, 435 Mich at 661. [Dixon-Bey, 321 Mich App at 490 slip op at 16.] The sentencing guidelines are an “aid to accomplish the purposes of proportionality . . . .” Id. at ___; slip op at 18. Our Court elaborated: Because the guidelines embody the principle of proportionality and trial courts must consult them when sentencing, it follows that they continue to serve as a ‘useful tool’ or ‘guideposts’ for effectively combating disparity in sentencing. Therefore, relevant factors for determining whether a departure sentence is more proportionate than a sentence within the guidelines range continue to include (1) whether the guidelines accurately reflect the seriousness of the crime, People v Houston, 448 Mich 312, 321-322; 532 NW2d 508 (1995), see also Milbourn, 435 Mich at 657, (2) factors not considered by the guidelines, Houston, 448 Mich at 322-324, see also Milbourn, 435 Mich at 660, and (3) factors considered by the guidelines but given inadequate weight, Houston, 448 Mich at 324-325, see also Milbourn, 435 Mich at 660 n 27. [Dixon-Bey, 321 Mich App at 490; slip op at 18-19.] Other factors to consider “include ‘the defendant’s misconduct while in custody, Houston, 448 Mich at 323, the defendant’s expressions of remorse, id., and the defendant’s potential for rehabilitation, id.’ ” Dixon-Bey, 321 Mich App 490; slip op at 19 n 9. However, this Court has stressed that the proportionality review is “based upon the seriousness of the offense and not a deviation from the guidelines.” Dixon-Bey, 321 Mich App 490; slip op at 22. And our Supreme Court has noted: Rather than impermissibly measuring proportionality by reference to deviations from the guidelines, our principle of proportionality requires “sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender.” Milbourn, 435 Mich at 636. [Steanhouse II, 500 Mich at 474.] -4- Both Schwander I and Schwander II reviewed the departure sentence under the legislatively created “substantial and compelling” framework which has since been struck down as unconstitutional. Lockridge, 498 Mich at 391-392. The former “substantial and compelling” framework has been replaced by Milbourn’s principle of proportionality, Steanhouse II, 500 Mich at 459-460. I would conclude that the trial court’s sentence was reasonable, as the trial court did not abuse its discretion in determining that the sentence was proportionate to the crimes. People v Walden, 319 Mich App 344, 351; 901 NW2d 142 (2017). The record is quite clear that the trial court considered the nature of the offense and the background of the offender. The trial court also discussed why some of the guidelines did not adequately address the circumstances of this case and this particular offender. The trial court took the sentencing guidelines into consideration but concluded in great detail that a longer sentence was more appropriate. Such a conclusion was not an abuse of discretion. Again, although trial courts must consider the guidelines when fashioning a sentence, “ ‘the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range[.]’ ” Steanhouse II, 500 Mich at 475, quoting Milbourn, 435 Mich at 661. As a result, the focus of our review is whether the trial court’s sentence was proportionate to the seriousness of the crime, which is determined in part by the factors outlined in Milbourn. I believe that the trial court did just that and that the resulting sentence was reasonable. I would affirm. /s/ Kirsten Frank Kelly -5-	{ "pile_set_name": "FreeLaw" }
887 F.2d 1080Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Joseph M. PULLEY, Plaintiff-Appellant,v.UNITED STATES of America; Pearl Davis; James Perry;Federal Bureau of Investigation; SBI, Defendants-Appellees. No. 89-7149. United States Court of Appeals, Fourth Circuit. Submitted: July 31, 1989.Decided: Sept. 26, 1989. Joseph M. Pulley, appellant pro se. Before DONALD RUSSELL, PHILLIPS and CHAPMAN, Circuit Judges. PER CURIAM: 1 Joseph M. Pulley appeals from the district court's order denying relief under 42 U.S.C. Sec. 1983. Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Pulley v. United States, C/A No. 89-292-CRT-F (E.D.N.C. May 2, 1989). 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. 2 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
504 F.Supp.2d 1333 (2007) COMMON CAUSE/GEORGIA, League of Women Voters of Georgia, Inc., The Central Presbyterian Outreach and Advocacy Center, Inc., Georgia Association of Black Elected Officials, Inc., The National Association for the Advancement of Colored People (NAACP), through its Georgia State Conference of Branches, Georgia Legislative Black Caucus, Concerned Black Clergy of Metropolitan Atlanta, Inc., Bertha B. Young, and Eugene Taylor, Plaintiffs, v. Evon BILLUPS, Superintendent of Elections for the Board of Elections and Voter Registration for Floyd County and the City of Rome, Georgia, Tracy Brown, Superintendent of Elections of Bartow County, Georgia, Gary Petty, Michelle Hudson, Amanda Spender, Ron McKelvey, and Nina Crawford, Members of the Board of Elections and Registration of Catoosa County, Georgia, Judge John Payne, Superintendent of Elections of Chattooga 1334 County, Georgia, Shea Hicks, Superintendent of Elections for Gordon County, Georgia, Jennifer A. Johnson, Superintendent of Elections for Polk County, Georgia, Individually and in their Respective Official Capacities as Superintendents or Members of the Elections Board in their Individual Counties, and as Class Representatives, and Karen Handel, individually and in her official capacities as Secretary of State of Georgia and Chair of the Georgia Elections Board, Defendants, and The State Election Board, Intervenor-Defendant. Civil Action File No. 4:05-CV-0201-HLM. United States District Court, N.D. Georgia, Rome Division. September 6, 2007. 1335 1336 David G.H. Brackett, Emmet J. Bondurant, II, Jason James Carter, Bondurant Mixson & Elmore, Elizabeth Lynn Littrell, Gerald R. Weber, Margaret Fletcher Garrett, American Civil Liberties Union Foundation of Georgia, Inc, Meredith Bell-Platts, Moffatt Laughlin McDonald, Neil T. Bradley, American Civil Liberties Union Foundation Southern Regional Office, Miles J. Alexander, Seth Aaron Cohen, Lauren T. Estrin, Kilpatrick Stockton, Ralph Irving Knowles, Jr., Doffermyre Shields Canfield Knowles & Devine, Tisha 1337 Rae Tallman, Mexican American Legal Defense & Educational Fund, Atlanta, GA, Edward Hine, Jr., Office of Edward Hine, Jr., Rome, GA, Jon M. Greenbaum, Lawyers' Committee for Civil Rights Under Law, Washington, DC, for Plaintiffs. Michael D. McRae, Smith Shaw & Maddox, Brad J. McFall, Gammon & Anderson, Cedartown, GA, Thomas Hunter Manning, Smith Shaw & Maddox, Rome, GA, Peter R. Olson, Jenkins & Olson, Cartersville, GA, Clifton M. Patty, Jr., Office of Clifton M. Patty, Jr., Ringgold, GA, Christopher Lee Corbin, Farrar & Corbin, P.C., Summerville, GA, Martha Suzanne Hutchinson, Calhoun, GA, Robert Harris Smalley, III, McCamy Phillips Tuggle & Fordham, Dalton, GA, Anne Ware Lewis, Strickland Brockington Lewis, Mark Howard Cohen, Troutman Sanders, Stefan Ernst Ritter, Office of State Attorney General, Atlanta, GA, for Defendants. ORDER MURPHY, District Judge. This case is an action to have the photo identification ("Photo ID") requirement set forth in Senate Bill 84 ("The 2006 Photo ID Act") declared unconstitutional both on its face and as applied, and to enjoin its enforcement on the ground that it imposes an unauthorized, unnecessary, and undue burden on the fundamental right to vote of hundreds of thousands of registered Georgia voters, in violation of the Fourteenth and Twenty-Fourth Amendments to the federal Constitution, the Civil Rights Act of 1964 (42 U.S.C.A. ง 1971(a)(2)(A) and (a)(2)(B)), and Section 2 of the Voting Rights Act of 1965 (42 U.S.C.A. ง 1973(a)). The case came before the Court on August 22 through August 24, 2007, for a bench trial on Plaintiffs' request for a permanent injunction. This Order first sets forth the procedural background for the case, and then sets forth the Court's findings of fact and conclusions of law from the bench trial. At the outset, the Court commends counsel on both sides of this case for their courteousness and professionalism. Counsel worked diligently to prepare this case for trial within a very short time frame, and managed to complete discovery in an equally short time frame with only minimal intervention by the Court. Counsel's preparation, diligence, competence, and professionalism all made the litigation of this case much easier for the Court and the parties. I. Procedural Background 1. On September 1, 2005, Plaintiffs filed this lawsuit. (Docket Entry No. 1.) Plaintiffs initially asserted that the Photo ID requirement in the 2005 Amendment to O.C.G.A. ง 21-2-417 (Act. No. 53) ("The 2005 Photo ID Act") violated the federal and Georgia constitutions, was a poll tax that violated the Twenty-Fourth Amendment and the Equal Protection Clause, unduly burdened the fundamental right to vote, violated the Civil Rights Act of 1964, and violated Section 2 of the Voting Rights Act of 1965. 2. On September 19, 2005, Plaintiffs requested that the Court schedule a preliminary injunction hearing. 3. On that same day, the Court entered an Order scheduling a preliminary injunction hearing for October 12, 2005. (Order of Sept. 19, 2005.) 4. On October 6, 2005, Plaintiffs filed a formal Motion for Preliminary Injunction. 5. On October 7, 2005, former Secretary of State Cathy Cox and the State Election Board (the "State Defendants") filed a Motion to Dismiss Individual Capacity Claims. 6. On October 11, 2005, individual Plaintiff Tony Watkins filed a Stipulation 1338 of Dismissal Without Prejudice of his claims. 7. On October 12, 2005, Plaintiffs filed their First Amendment to Complaint, which addressed the issue of standing for the organizational Plaintiffs. 8. On October 12, 2005, the Court held a hearing with respect to Plaintiffs' Motion for Preliminary Injunction. (Oct, 12, 2005, Hr'g Tr.) During the October 12, 2005, hearing, the parties presented evidence and arguments in support of their respective positions. (Id.) 9. On October 18, 2005, the Court entered an Order granting Plaintiffs' Motion for Preliminary Injunction and finding that Plaintiffs had a substantial likelihood of success on their claims that the 2005 Photo ID Act unduly burdened the right to vote, and that the 2005 Photo ID Act constituted a poll tax. (Order of Oct. 18, 2005.) 10. On October 19, 2005, the Court denied the State Defendants' Motion to Dismiss Individual Capacity (aims. (Order of Oct. 19, 2005.) 11. On October 20, 2005, the Court denied the State Defendants' Motion to Stay Preliminary Injunction Pending Appeal. (Order of Oct. 20, 2005.) 12. The State Defendants appealed the October 18, 2005, Order to the United States Court of Appeals for the Eleventh Circuit, requesting that the Eleventh Circuit stay the Court's October 18, 2005, Order pending resolution of the appeal: 13. On October 27, 2005, the Eleventh Circuit denied the State Defendants' Motion to Stay the October 18, 2005, Order pending resolution of the appeal. 14. In January 2006, the Georgia General Assembly passed the 2006 Photo ID Act, which Governor Purdue signed into law. 15. On February 23, 2006, Plaintiffs filed a Motion for Leave to File Second Amended Complaint. In that Motion, Plaintiffs sought permission to amend their First Amended to Complaint to assert claims that both the 2005 Photo ID Act and the 2006 Photo ID Act violated the Georgia Constitution, the federal Equal Protection Clause, the Fourteenth and Twenty-Fourth Amendments to the federal Constitution, the Civil Rights Act of 1964, and Section 2 of the Voting Rights Act of 1965. 16. On March 2, 2006, the Court held a telephone conference with counsel to discuss the issues relating to preclearance of the 2006 Photo ID Act by the United States Department of Justice ("DOJ"). The Court stayed the proceedings in this case pending notification of the DOJ's decision concerning preclearance of the 2006 Photo ID Act. (Order of Mar. 2, 2006.) 17. On April 21, 2006, former Secretary of State Cox filed a Notice of Section 5 Preclearance of Act 432 (SB 84). 18. On that same day, the Court entered an Order lifting the stay in this case, and setting forth a briefing schedule for Plaintiffs' Second Motion for Preliminary Injunction. (Order of Apr. 21, 2006.) 19. On April 26, 2006, Plaintiffs filed their Second Amended Complaint. 20. On May 5, 2006, Plaintiffs filed a Motion to Revise Scheduling Order of April 21, 2006, pending the State Election Board's adoption of rules and regulations implementing the 2006 Photo ID Act, and pending DOJ preclearance of those rules and regulations. 21. On that same day, the Court approved a Consent Order revising the briefing schedule for Plaintiffs' Second Motion for Preliminary Injunction to require Plaintiffs to file that Motion within ten days after the rules and regulations adopted by the State Election Board received preclearance from the DOJ. (Order of May 5, 2006.) 1339 22. On May 10, 2006, former Secretary of State Cox and the State Election Board filed a Motion to Dismiss Plaintiffs' Second Amended Complaint for Declaratory and Injunctive Relief in Part. 23. On May 25, 2006, Plaintiffs filed a Second Motion for Order to Certify Questions of State Law to the Georgia Supreme Court. 24. On June 29, 2006, the Court entered an Order granting the Motion to Dismiss Plaintiffs' Second Amended Complaint for Declaratory and Injunctive Relief in Part, dismissing Counts One and Three of Plaintiffs' Second Amended Complaint, as well as the portions of Counts Two, Five, and Six of Plaintiffs' Second Amended Complaint that challenged the 2005 Photo ID Act. (Order of June 29, 2006.) In that same Order, the Court denied Plaintiffs' Second Motion for Order to Certify Questions of State Law to the Georgia Supreme Court. (Id.) 25. After the Court's June 29, 2006, Order, the following claims asserted in Plaintiffs' Second Amended Complaint remained pending. In Count Two of their Second Amended Complaint, Plaintiffs contended that the Photo ID requirement imposes an undue burden on the right to vote, in violation of the Equal Protection Clause. (Second Am. Compl. ถถ 89-91.) In Count Four of their Second Amended Complaint, Plaintiffs asserted that the 2006 Photo ID Act is an unconstitutional poll tax if it is construed or applied to require voters to pay a fee for a birth certificate or other documents to obtain a Georgia voter Photo ID card. (Id. ถถ 96-97.) In Count Five of their Second Amended Complaint, Plaintiffs alleged that the Photo ID requirement violates the Civil Right Act of 1964, as set forth in 42 U.S.C.A. งง 1971(a)(2)(A) and 1971(a)(2)(B). (Id. ถถ 98-102.) Finally, in Count Six of their Second Amended Complaint, Plaintiffs asserted that the Photo ID requirement violates Section 2 of the Voting Rights Act of 1965, 42 U.S.C.A. ง 1973(a). (Id. ถถ 103-106.) 26. On July 5, 2006, Plaintiffs filed their Second Motion for Preliminary Injunction. Plaintiffs sought to have the 2006 Photo ID Act declared invalid, both on its face and as applied, and to enjoin its enforcement. Plaintiffs contended that the 2006 Photo ID Act imposes an unauthorized, unnecessary, and undue burden on the fundamental right to vote of hundreds of thousands of registered Georgia voters, in violation of article II, section I, paragraph 2 of the Georgia Constitution, the Fourteenth and Twenty-Fourth Amendments to the United States Constitution, the Civil Rights Act of 1964 (42 U.S.C.A. งง 1971(a)(2)(A) and (a)(2)(B)), Section 2 of the Voting Rights Act of 1965 (42 ง 1973(a)), and 42 U.S.C.A. งง 1983 and 1988. Plaintiffs requested that the Court enter a preliminary injunction that prohibits Defendants from: (1) enforcing or attempting to enforce or apply the 2006 Photo ID Act and the regulations issued by the State Election Board under that Act at any elections in Georgia; or (2) discouraging, interfering with, or preventing any person who is lawfully registered from voting in person in any such elections, pending a final trial on the merits or a further Order from the Court. Plaintiffs requested that the Court enjoin Defendants "and [that] all state or local election officials be further enjoined from making any public announcement or statements or other communications that advise registered voters or election officials in Georgia that registered voters may not cast a ballot in any election if the voter does not have, one of the forms of photo identification specified in the 2006 Photo ID Act." (Pls.' Mot. Second Prelim. Inj. at 2.) Plaintiffs also asked the Court to order and direct Defendants "to send prompt written notice to each of the 675,000 registered 1340 voters who have been identified by the Secretary of State as not having Georgia driver's licenses, informing them that they are not required to present photographic identification as a condition to being admitted to the polls or allowed to vote and that they will not be discouraged, interfered with, or otherwise prevented from voting in person by defendants or other election officials on the ground that they are unable to present photographic identification to election officials at the polls." (Id. at 2-3.) 27. On July 7, 2006, the State Election Board filed a Motion to Dismiss Plaintiffs' Second Motion for Preliminary Injunction and to Cancel Hearing. That Motion to Dismiss followed a temporary restraining order issued by the Superior Court of Fulton County, Georgia, on July 7, 2006, enjoining the defendants in that case from enforcing the 2006 Photo ID Act during the July 18, 2006, primary election or any resulting run-off election. Lake v. Perdue, Civil Action File No.2006CV119207, slip op. at 3-4 (Fulton County Super. Ct. July 7, 2006.) The plaintiffs in Lake had argued that the 2006 Photo ID Act violated the Georgia Constitution. 28. On July 10, 2006, following a telephone conference with counsel, the Court entered an Order indicating that the Court would postpone the July 12, 2006, preliminary injunction hearing in this case if the Supreme Court of Georgia entered an Order denying the Lake defendants' request to stay the temporary restraining order in that case prior to July 12, 2006. (Order of July 12, 2006.) 29. On July 12, 2006, the Court held a hearing concerning Plaintiffs' Second Motion for Preliminary Injunction. (July 12, 2006, Hr'g Tr.) Near the conclusion of the hearing, counsel received information that the Georgia Supreme Court had denied the Lake defendants' request to stay the temporary restraining order in that case, leaving the temporary restraining order in place for at least thirty days. (Id.) 30. At the conclusion of the July 12, 2006, hearing, the Court orally granted Plaintiffs' Second Motion for Preliminary Injunction with respect to Plaintiffs' claim under the Equal Protection Clause. (July 12, 2006, Hr'g Tr.) On July 14, 2006, the Court entered a written Order that formally set forth the Court's findings and conclusions concerning Plaintiffs' Second Motion for Preliminary Injunction. (Order of July 14, 2006.) The Court granted Plaintiffs' Second Motion for Preliminary Injunction solely with respect to the July 2006 primary elections and associated runoffs, reasoning that 2006 Photo ID Act posed an undue burden on certain voters with respect to those elections. (Id.) The Court declined to extend the preliminary injunction to cover subsequent elections, reasoning that if the State Defendants continued their education efforts with respect to the 2006 Photo ID Act, the requirements of that Act might no longer prove unduly burdensome for voters in subsequent elections. (Id.) 31. After the Court's July 14, 2006, Order, and after the Georgia Supreme Court's refusal to stay the temporary restraining order issued in the Lake case, the State Defendants stopped all of their attempts to educate voters concerning the 2006 Photo ID Act. In early September 2006, the State Election Board voted to resume those educational efforts. 32. On September 5, 2006, the Court held a telephone conference with the parties to address Plaintiffs' concerns with respect to the educational efforts and the application of the 2006 Photo ID Act to the September 2006 special elections. 33. On September 6, 2006, Plaintiffs filed their Motion for Hearing on Plaintiffs' Second Motion for Preliminary Injunction 1341 in Advance of the September 2006 special elections. 34. On September 14, 2006, the Court held its third preliminary injunction hearing in this case. (Sept. 14, 2006, Hr'g Tr.) At the conclusion of the September 14, 2006, hearing, the Court verbally granted Plaintiffs' request for a preliminary injunction with respect to the September 2006 special elections. (Id.) 35. On September 26, 2006, the State Defendants filed a Motion to Stay Proceedings Pending Resolution of Appeal of the Superior Court of Fulton County's Declaratory Judgment and Permanent Injunction to the Georgia Supreme Court. (Docket Entry No. 144.) On September 28, 2006, the Court granted that Motion. (Order of Sept. 28, 2006.) 36. On June 11, 2007, the Georgia Supreme Court issued its decision in Perdue v. Lake, 647 S.E.2d 6 (Ga.2007). In that decision, the Georgia Supreme Court concluded that the plaintiff in Lake lacked standing because she possessed a MARTA card that was acceptable for in-person voting under the 2006 Photo ID Act, and vacated the Fulton County Superior Court's determination that the 2006 Photo ID Act violated the Georgia Constitution. Lake, 647 S.E.2d at 8. On July 27, 2007, the Georgia Supreme Court denied a request for reconsideration by the plaintiff. (Docket Entry No. 151-3.) 37. On July 27, 2007, the State Defendants filed a Motion for Order Lifting Stay of Proceedings and Setting Trial on Merits. (Docket Entry No. 151.) On August 1, 2007, the Court granted that Motion. (Order of Aug. 1, 2007.) 38. On August 2, 2007, the Court entered an Order directing the parties and their counsel to appear before the Court on August 22, 2007, for a final trial on the merits. (Order of Aug. 2, 2007.) 39. On August 13, 2007, Plaintiffs filed a Motion for Leave to Amend to Add Plaintiffs and to Reflect the Substitution of a Defendant. (Docket Entry No. 159.) Plaintiffs sought to amend their Second Amended Complaint to add new individual plaintiffs in light of the Georgia Supreme Court's finding that a MARTA card is an acceptable form of Photo ID for purposes of the 2006 Photo ID Act, the lone individual Plaintiff, Clara Williams, lacked standing to pursue this action because she had a MARTA card. (Id.) Plaintiffs also sought to substitute the current Georgia Secretary of State, Karen Handel, for the former Georgia Secretary of State, Cathy Cox. (Id.) 40. On August 14, 2007, the State Defendants filed a Motion to Dismiss Plaintiff Clara Williams for Lack of Standing. (Docket Entry No. 166.) 41. On August 16, 2007, counsel for Plaintiffs filed a new lawsuit challenging the 2006 Photo ID Act. Young v. Billups, Civil Action File No. 4:07-CV-0163-HLM. Plaintiffs sought to add the named plaintiffs in the Young case as individual Plaintiffs in this lawsuit. On August 17, 2007, the Young Plaintiffs filed an Emergency Motion to Consolidate the Young case with the instant case. 42. On August 17, 2007, the Court entered an Order granting Plaintiffs' Motion for Leave to Amend, and allowed Plaintiffs to add Bertha B. Young and Eugene Taylor as individual Plaintiffs and to substitute current Secretary of State Karen Handel for former Secretary of State Cox. (Order of Aug. 17, 2007.) The Court denied as moot the Emergency Motion to Consolidate the Young case with this one. (Id.) On that same day, the Court granted the State Defendants' Motion to Dismiss Plaintiff Clara Williams for Lack of Standing, and dismissed Plaintiff Williams from this suit. (Id.) 1342 43. On August 22, 2007, the case proceeded to a bench trial. The bench trial concluded on August 24, 2007. During the bench trial, the Court orally granted the State Defendant's Motion for a Directed Verdict, and dismissed six organizational Plaintiffs, including Common Cause/Georgia, the League of Women Voters of Georgia, Inc., The Central Presbyterian Outreach and Advocacy Center, Inc., the Georgia Association of Black Elected Officials, Inc., the Georgia Legislative Black Caucus, and Concerned Black Clergy of Metropolitan Atlanta, Inc., for lack of standing. The Court denied the Motion with respect to Plaintiffs Young and Taylor and Plaintiff NAACP, but indicated that it would reconsider the question of standing after the conclusion of the trial. 44. During the bench trial, Plaintiffs proceeded forward only on their claim that the 2006 Photo ID Act unduly burdens their right to vote, in violation of their equal protection rights. This Order therefore addresses only that claim and the question of standing. II. Findings of Fact A. History of the 2006 Photo ID Act 1. Prior to the 1998 elections, voters in Georgia, like registered voters in a majority of other states, were not required to present identification as a condition of voting. In 1997, the Georgia General Assembly adopted O.C.G.A. ง 21-2-417, which required registered voters in Georgia to identify themselves by presenting one of seventeen forms of identification to election officials as a condition of being admitted to the polls and of being allowed to vote. Prior to its amendment in 1997, O.C.G.A. ง 21-2-417 permitted, but did not require, registered voters to present a Georgia driver's license or other form of official photographic identification as a method of identification as a condition of voting. Under the version of O.C.G.A. ง 21-2-417 as amended in 1997, voters remained free to use any of eight other methods of identification for voting, including a birth certificate, a social security card, a copy of a current utility bill, a government check, a payroll check, or a bank statement showing the voter's name and address. Additionally, voters who did not have, or could not find, one of the seventeen forms of identification specified in former O.C.G.A. ง 21-2-417(a), were entitled to be admitted to the polls, to be issued a ballot, and to be allowed to vote simply by signing a statement under oath swearing or affirming that he or she is the person identified on the elector's certificate. 2. In 2005, the Georgia General Assembly adopted House Bill 244, or Act 53 ("HB 244"), which amended O.C.G.A. ง 21-2-417 to require that all registered voters in Georgia who vote in person in all primary, special, or general elections for state, national, and local offices held on or after July 1, 2005, present a government-issued Photo ID to election officials as a condition of being admitted to the polls and before being issued a ballot and being allowed to vote. The Georgia House of Representatives approved the Conference Committee Report on Act 53. Eighty-nine Republicans and two Democrats voted for HB 244, while seventy-two Democrats and three Republicans voted against it. The Georgia Senate adopted the Conference Committee Report on Act 53, with thirty-one Republicans and no Democrats voting in favor of it and eighteen Democrats and two Republicans voting against it. (Id.) 3. On April 22, 2005, Governor Sonny Perdue signed HB 244, and the Photo ID requirement of HB 244 became effective on July 1, 2005, subject to pre-clearance by the United States Department of Justice. The Photo ID requirement of HB 244 was codified in O.C.G.A. ง 21-2-417. HB 244 1343 also eliminated the requirement that voters seeking to vote via absentee ballot by mail provide one of several statutory excuses in order to obtain an absentee ballot. 4. In January 2006, a majority of legislators in the Georgia House of Representatives and the Georgia Senate adopted the 2006 Photo ID Act. The 2006 Photo ID Act repealed the 2005 Photo ID Amendment, replacing it with identical Photo ID requirements for in-person voting and a new code section, O.C.G.A. ง 21-2-417.1, which requires the Board of Elections in each county to issue a "Georgia voter identification card" containing a photograph of the voter, without charge to voters residing in the county, upon presentation of certain identifying documents. The 2006 Photo ID Act amended O.C.G.A. ง 40-5-103 by striking the previous subsection (d) in the 2005 Photo ID Act, which had required a voter to execute an affidavit of poverty to obtain a Photo ID without charge from the Department of Drivers Services ("DDS"). In its place, the 2006 Act substituted a requirement that the voter swear "that he or she desires an identification card in order to vote . . . and that he or she does not have any other form of identification that is acceptable under Code ง 21-2-417" and to "produce evidence that he or she is registered to vote in Georgia." 5. On January 9, 2006, the first day of the 2006 legislative session, the House Committee on Governmental Affairs of the Georgia House of Representatives approved SB 84 by a straight party-line vote of seven to three, sending the bill to the floor of the House. 6. On January 24, 2006, the Senate passed SB 84 by a vote of thirty-two to twenty-two, with two members excused. Thirty-two Republicans voted in favor of it, and twenty-one Democrats and one Republican voted against it. On January 25, 2006, the House of Representatives passed SB 84 by a vote of 111 to sixty, with three members excused. Ninety-eight Republicans and thirteen Democrats voted in favor of it, while sixty Democrats voted against it. On January 26, 2006, Georgia's Governor, Sonny Perdue, signed the Act. The Georgia General Assembly refused to delay the effective date of the 2006 Photo ID Act until after the 2006 primary and general elections. On April 21, 2006, the DOJ precleared the 2006 Photo ID Act. 7. The 2006 Photo ID Act changed O.C.G.A. ง 40-5-103(d)(1) to eliminate the affidavit of indigency requirement. That portion of the statute now provides: The department shall not be authorized to collect a fee for an identification card from any person: (1) Who swears under oath that he or she desires an identification card in order to vote in a primary or election in Georgia, and that he or she does not have any other form of identification that is acceptable under Code Section 21-2-417 for identification at the polls in order to vote; and (2) Who produces evidence that he or she is registered to vote in Georgia. This subsection shall not apply to a person who has been issued a driver's license in this state. O.C.G.A. ง 40-5-103(d). 8. The 2006 Photo ID Act also amended the text of O.C.G.A. ง 21-2-417. O.C.G.A. ง 21-2-417 currently provides: (a) Except as provided in subsection (c) of this Code section, each elector shall present proper identification to a poll worker at or prior to completion of a voter's certificate at any polling place and prior to such person's admission to the enclosed space at such polling place. Proper identification shall consist of any one of the following: 1344 (1) A Georgia driver's license which was properly issued by the appropriate state agency; (2) A valid Georgia voter identification card issued under Code Section 21-2-417.1 or other valid identification card issued by a branch, department, agency, or entity of the State of Georgia, any other state, or the United States authorized by law to issue personal identification, provided that such identification card contains a photograph of the elector; (3) A valid United States passport; (4) A valid employee identification card containing a photograph of the elector and issued by any branch, department, agency, or entity of the United States government, this state, or any county, municipality, board, authority, or other entity of this state; (5) A valid United States military identification card, provided that such identification card contains a photograph of the elector; or (6) A valid tribal identification card containing a photograph of the elector. (b) Except as provided in subsection (c) of this Code section, if an elector is unable to produce any of the items of identification listed in subsection (a) of this Code section, he or she shall be allowed to vote a provisional ballot pursuant to Code Section 21-2-418 upon swearing or affirming that the elector is the person identified in the elector's voter certificate. Such provisional ballot shall only be counted if the registrars are able to verify current and valid identification of the elector as provided in subsection (a) of this Code section within the time period for verifying provisional ballots pursuant to Code Section 21-2-419. Falsely swearing or affirming such statement under oath shall be punishable as a felony, and the penalty shall be distinctly set forth on the face of the statement. (c) An elector who registered to vote by mail, but did not comply with subsection (c) of Code Section 21-2-200, and who votes for the first time in this state shall present to the poll workers either one of the forms of identification listed in subsection (a) of this Code section or a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of such elector. If such elector does not have any of the forms of identification listed in this subsection, such elector may vote a provisional ballot pursuant to Code Section 21-2-418 upon swearing or affirming that the elector is the person identified in the elector's voter certificate. Such provisional ballot shall only be counted if the registrars are able to verify current and valid identification of the elector as provided in this subsection within the time period for verifying provisional ballots pursuant to Code Section 21-2-419. Falsely swearing or affirming such statement under oath shall be punishable as a felony, and the penalty shall be distinctly set forth on the face of the statement. O.C.G.A. ง 21-2-417. 9. The 2006 Photo ID Act also added O.C.G.A. 21-2-417.1, which provides: (a) Each county board of registrars shall provide at least one place in the county at which it shall accept applications for and issue Georgia voter identification cards to registered Georgia electors which shall under state law be valid only for purposes of voter identification under Code Section 21-2-417 and available only to registered electors of this state. No fee shall be charged or collected for the application for or issuance 1345 of a Georgia voter identification card. (b) No person shall be eligible for a Georgia voter identification card if such person has a valid unexpired driver's license or identification card issued under Code Section 40-5-100. (c) The Georgia voter identification card shall be captioned `GEORGIA VOTER IDENTIFICATION CARD' and shall contain a prominent statement that under Georgia law it is valid only as identification for voting purposes. The Georgia voter identification card shall be laminated, shall contain a digital photograph of the applicant, and shall include the following information: (1) Full legal name; (2) Address of residence; (3) Birth date; (4) Date identification card was issued; (5) Sex; (6) Height; (7) Weight; (8) Eye Color; (9) County where the identification card was issued including a county number to be assigned for each county by the Secretary of State; and (10) Such other information or identification as required by rule of the State Election Board. (d) The application for a Georgia voter identification card shall elicit the information required under subsection (c) of this Code section and such other information as may be required by rule of the State Election Board. The application shall be signed and sworn to by the applicant and any falsification or fraud in the making of the application shall constitute a felony offense under Code Section 16-10-71, relating to the offense of false swearing. (e) The board of registrars shall require presentation and verification of the following information before issuing a Georgia voter identification card to a person: (1) A photo identity document, except that a nonphoto identity document is acceptable if it includes both the person's full legal name and date of birth; (2) Documentation showing the, person's date of birth; (3) Evidence that the person is registered ti) vote in this state; and (4) Documentation showing the person's name and address of principal residence. (f) A Georgia voter identification card shall remain valid so long as a person resides at the same address and remains qualified to vote. It shall be the duty of a person who moves his or her residence within the State of Georgia to surrender his or her card to the board of registrars of the county of his or her residence; and such person may after such surrender apply for and receive a new card if such person is otherwise eligible under this Code section. It shall be the duty of a person who moves his or her residence outside the State of Georgia or who ceases to be qualified to vote to surrender his or her card to the board of registrars by which it was issued. (g) The State Election Board shall provide each county board of registrars with the necessary equipment, forms, supplies, and training for the production of the Georgia voter identification cards and shall maintain such equipment. (h) The State Election Board shall adopt rules and regulations for the administration of this Code section and, without limiting the generality of the foregoing, such rules and regulations may further define or prescribe the 1346 types of documentation required under subsection (e) of this Code section. O.C.G.A. ง 21-2-417.1. 10. On June 22, 2006, the State Board of Elections adopted rules and regulations to implement the 2006 Photo ID Act. The State submitted the rules and regulations to the DOJ for review, and the DOJ precleared the rules and regulations on June 27, 2006. The rules and regulations provide: 183-1-20.01 Georgia Voter Identification Card (1) Intent and Purpose. These rules are promulgated pursuant to the authority granted the State Election Board under O.C.G.A. งง 21-2-417.1 and 21-2-31. It is the intent of the State Election Board to provide for the time, place and manner in which each county Board of Registrars shall issue the Georgia. Voter Identification Card to eligible electors and to provide for the acceptable types of documentation necessary to obtain a Georgia Voter Identification Card. To this end, the State Election Board has promulgated these rules and regulations. (2) Application for the Georgia Voter Identification Card. Beginning with the July 18, 2006 Party Primary Election each county registrar shall provide the application for the Georgia Voter Identification Card in the form designed and published by the State Election Board or its member designee(s). Any registered voter who meets the criteria in O.C.G.A. ง 21-2-417.1 and wishes to obtain a Georgia Voter Identification Card shall be required to submit the information requested in such application. It shall be the responsibility of each county registrar to ensure that each accepted application is complete. (3) Availability of the Georgia Voter Identification Card (a) Each county shall provide a place within the voter registrar's primary or main office location, as previously approved by the Department of Justice, to process applications for Georgia Voter Identification Cards and to process and distribute such cards. (b) Each county registrar's office may provide additional locations or extended hours for processing applications for the Georgia Voter Identification Card and processing and distributing the cards but shall be required to comply with criteria for establishment of additional voter registration places as outlined in 183-1-6-.03(3). (c) Each county registrar's office shall be open a minimum of eight hours per day on Monday through Friday of the week before the final primary, election, or run-off election day, except for legally observed holidays, and shall otherwise be open during normal business hours of the office in order to allow registered voters to apply for and obtain a Georgia Voter Identification Card. (d) The voter registrar's office of each county shall provide the application and process the Georgia Voter Identification Card using the equipment, forms, supplies, and written training materials and/or verbal training provided by the State Election Board. (e) Each county Board of Registrars shall sign and maintain an intergovernmental agreement provided by the State Election Board outlining the use of the equipment. (4) Documentation required for application and issuance of the Georgia Voter Identification Card. (a) In accordance with O.C.G.A. ง 21-2-417.1(e), the Board of Registrars shall require the presentation and verification of the following information 1347 before issuing a Georgia Voter Identification Card: 1. A photo identity document, except that nonphoto identity document is acceptable if it includes both the applicant's full legal name and date of birth; 2. Documentation showing the applicant's date of birth; 3. Evidence that the applicant is registered to vote in the State of Georgia, either by voter precinct card, a new voter registration application or confirmation of voter's record on the statewide voter registration system or by verifying the original application in the voter registrar's office; and 4. Documentation showing the applicant's name and principal residence address. (b) in' determining whether the requirements of O.C.G.A. ง 21-2-417.1(e) have been met, the following shall apply: 1. Any of the following which contains a photograph of the applicant shall constitute a photo identity document, as provided in O.C.G.A. ง 21-2-417.1(e)(1): (i) Student ID Card including public or private high school, college, university, or vocational school; (ii) Transit Card; (iii) Pilot's License; (iv) Nursing Home Identification Card; (v) Employee Identification Card; (vi) Government Housing Authority Identification Card; (vii) Any government issued license; (viii) Any card accepted by local, state or federal government for the provision of benefits; or (ix) Any card accepted by local, state or federal government for access to buildings. 2. Any of the following shall constitute a nonphoto identity document in lieu of a photo identity document as provided in O.C.G.A. ง 21-2-417,1(e)(1) only if it includes both the applicant's full legal name and date of birth: (i) Original birth certificate or certified copy of birth certificate; (ii) Certificate of birth registration; (iii) Voter Registration Application; (iv) Copy of records filed in court by the applicant or on behalf of the applicant by the applicant's counsel; (v) Naturalization documents; (vi) Copy of Marriage License Application; (vii) A copy of the applicant's State or Federal Tax Return filed for the previous calendar year; (viii) Any other document issued by local, state, or federal government so long as the document provides a reasonably reliable confirmation of the identity of the applicant; (ix) Paycheck or paycheck stub bearing the imprinted name of the applicant's employer; (x) An original of the annual social security statement received by the applicant for current or preceding calendar year; (xi) An original of a Medicare or Medicaid statement received by the applicant; (xii) Certified school record or transcript for current or preceding calendar year; (xiii) Hospital birth certificate; (xiv) An authenticated copy of a doctor's record of post-natal care; or (xv) A federal Affidavit of Birth, form DS-10. 1348 3. The registrar shall accept as documentation showing the applicant's date of birth under O.C.G.A. ง 21-2-417.1(e)(2) any of the documents described in subparagraph (b)2 above. 4. The registrar shall accept as proof of voter registration under O.C.G.A. ง 21-2-417.1(e)(3) the applicant's voter registration application or a voter's precinct card. 5. Any of the documents described in subparagraphs (b)(1) and (2) shall be acceptable as documentation showing the applicant's name and address of principal residence under O.C.G.A. ง 21-2-417.1(e)(4) if the documentation contains the applicant's name and address of principal residence. In addition, the registrar shall also accept the following as documentation showing the applicant's name and address of principal residence if the applicant's name and address of principal residence appears on the document: (i) Voter Precinct Card; (ii) Utility or cable bill issued within the last sixty (60) days; (iii) Bank statement issued within the last sixty (60) days; (iv) Currently valid rental contracts and/or receipts for payments made within the last sixty (60) days for rent payments; (v) A copy of the applicant's State or Federal income tax return filed for the preceding calendar year; (vi) Homeowners insurance policy or bill for current or preceding calendar year; (vii) Mortgage, payment coupon, deed, or property tax bill for current or preceding calendar year; (viii) Current Automobile Registration Receipt; (ix) Homestead Exemption documentation; or (x) W-2 for the preceding calendar year. 6. The application and supporting documentation of any applicant who is denied a Georgia Voter Identification Card shall be immediately forwarded via facsimile and U.S. mail to the State Election Board for automatic review to determine if the applicant has provided reasonably reliable documentary indicia confirming the identity of the applicant in which case the State Election Board shall direct the voter registrar to issue the Georgia Voter Identification Card. B. Individual Plaintiffs and Others Claiming Injury 1. Plaintiff Bertha B. Young 11. Plaintiff Bertha B. Young lives in Rome, Georgia. (Aug. 22, 2007, Trial Tr. at 8-9.) 12. Plaintiff Bertha B. Young is seventy-eight years old. (Aug. 22, 2007, Trial Tr. at 9.) 13. Plaintiff Bertha B. Young asserts that she has been registered to vote for the last fifteen to twenty years. (Aug. 22, 2007, Trial Tr. at 10.) 14. Plaintiff Bertha B. Young voted in the last presidential election. (Aug. 22, 2007, Trial Tr. at 10) Plaintiff Bertha B. Young does not know how many times she has voted. (Id.) 15. Plaintiff Bertha B. Young's regular polling place is approximately one block from her home, and she can walk to it. (Aug. 22, 2007, Trial Tr. at 10, 19) Alternatively, Plaintiff Bertha B. Young can obtain a ride from her sons or a friend to the polling place. (Id. at 13.) 16. Plaintiff Bertha B. Young has no driver's license or passport, and has not served in the military or as a state, city, or county employee. (Aug. 24, 2007, Trial Tr. at 10-11.) Plaintiff Bertha B. Young has a 1349 photo identification card issued by the City of Rome Police Department approximately thirty years ago. (Id. at 11.) Plaintiff Bertha B. Young obtained that identification card to enable her to draw social security benefits after her husband died. (Id.) 17. Plaintiff Bertha B. Young has four children, one of whom lives in Rome, Georgia. (Aug. 22, 2007, Trial Tr. at 11-12, 15.) 18. Plaintiff Bertha B. Young had surgery on her right eye in March 2007, and needs surgery on her left eye. (Aug. 22, 2007, Trial Tr. at 12.) Plaintiff Bertha B. Young has difficulty in reading small print, as her eyes begin to water. (Id.) 19. Plaintiff Bertha B. Young does not drive; however, she rides a bus, takes a cab, or gets her sons to drive her. (Aug. 22, 2007, Trial Tr. at 12-13.) According to Plaintiff Bertha B. Young, her sons will take her anywhere she wants to go. (Id. at 15.) Plaintiff Bertha B. Young also has friends who will drive her places. (Id.) In fact, Plaintiff Bertha B. Young uses a bank that is across town from her residence, and her friends and family members drive her there. (Id. at 16-17.) 20. Plaintiff Bertha B. Young sometimes works two days per week; on those occasions, her employer, who is one of Plaintiffs' counsel, pays someone to give her a ride.[1] (Aug. 22, 2007, Trial Tr. at 14-15.) 21. Plaintiff Bertha B. Young does not have a Voter Identification Card ("Voter ID Card"). To obtain a Voter ID Card, Plaintiff Bertha Young could ride a bus to the registrar's office in downtown Rome, which is approximately two miles from her home. (Aug. 22, 2007, Trial Tr. at 13, 22.) According to Plaintiff Bertha B. Young, a bus trip from her home to the registrar's office would take her approximately one hour, and a trip home from the registrar's office would take' her approximately another hour. (Id. at 13-14.) Plaintiff Bertha B. Young, however, testified that her son or a friend also could drive her. (Id. at 21.) 22. Plaintiff Bertha B. Young feels that she should not have to obtain a Voter ID card, as she uses her police identification card to cash checks. (Aug. 22, 2007, Trial Tr. at 14.) If the Court upholds the 2006 Photo ID Act, however, Plaintiff Bertha B. Young can and will obtain a Voter ID card. (Id. at 14-15, 23.) 23. Plaintiff Bertha B. Young received a letter from Secretary of State Handel during the week of August 13, 2007. (Aug. 22, 2007,. Trial Tr. at 13, 21.) Plaintiff Bertha B. Young read some of the letter and could understand most of it. (Id.) 24. Plaintiff Bertha B. Young listens to the radio and watches television every day. (Aug. 22, 2007, Trial Tr. at 17.) Plaintiff Bertha B. Young also reads the local paper, the Rome News-Tribune. (Id.) 25. Plaintiff Bertha B. Young can read and write. (Aug. 22, 2007, Trial Tr. at 19.) Plaintiff Bertha B. Young also can sign her name and write her address. (Id.) 26. Plaintiff Bertha B. Young sends, receives, and reads mail. (Aug. 22, 2007, Trial Tr. at 19-20.) 27. Plaintiff Bertha B. Young understands that she could obtain an absentee ballot without giving a reason. (Aug. 22, 2007, Trial Tr. at 20.) Plaintiff Bertha B. Young has never voted absentee. (Id. at 20, 24.) 28. Plaintiffs' counsel asked Plaintiff Bertha B. Young to become involved in this lawsuit. (Aug. 22, 2007, Trial Tr. at 20.) 1350 2. Plaintiff Eugene Taylor 29. Plaintiff Eugene Taylor resides in Screven County, Georgia. (Aug: 22, 2007, Trial Tr. at 52.) 30. Plaintiff Eugene Taylor traveled to Rome to testify at the bench trial. (Aug. 22, 2007, Trial Tr. at 52.) The trip took approximately four hours. "(Id.) 31. Plaintiff Eugene Taylor quit school in the fifth grade because he had to help care for his siblings after his father died. (Aug. 22, 2007, Trial Tr. at 55-56.) Plaintiff Eugene Taylor testified that he reads a little, and that he can write his name, although writing is difficult. (Id. at 56.) 32. Plaintiff Eugene Taylor has never used a computer. (Aug. 22, 2007, Trial Tr. at 56.) Plaintiff Eugene Taylor watches television, and generally watches Augusta, Georgia, channels. (Id. at 56-57, 68.) Plaintiff Eugene Taylor also listens to a gospel radio program on Sunday mornings that is broadcast by a South Carolina radio station. (Id. at 57, 69) 33. Plaintiff Eugene Taylor does not have a Photo ID. (Aug. 22, 2007, Trial Tr. at 57.) 34. Plaintiff Eugene Taylor does not drive. (Aug. 22, 2007, Trial Tr. at 57, 62.) Plaintiff Eugene Taylor's daughter takes him places if he needs to go somewhere. (Id. at 57, 63.) Plaintiff Eugene Taylor's daughter has a job. (Id. at 58.) 35. Plaintiff Eugene Taylor's daughter picks up his medicine and his groceries. (Aug. 22, 2007, Trial Tr. at 59.) 36. Plaintiff Eugene Taylor cashes checks at his bank, but does not need a Photo ID to cash those checks because the tellers know who he is. (Aug. 22, 2007, Trial Tr. at 58.) 37. Plaintiff Eugene Taylor works a couple of times a month on a farm. (Aug. 22, 2007, Trial Tr. at 67-68.) On those occasions, someone comes and gets Plaintiff Eugene Taylor and brings him home. (Id.) 38. Plaintiff Eugene Taylor is registered to vote, and he has voted. (Aug. 22, 2007, Trial Tr. at 59.) According to Plaintiff Eugene Taylor, he last voted in the 1980s. (Id. at 59, 65-66.) Plaintiff Eugene Taylor voted for the current Screven County sheriff, and, if the sheriff ran again, Plaintiff Eugene Taylor would vote for him. (Id. at 59.) 39. Plaintiff Eugene Taylor's polling place is at the senior citizen's center, which is approximately seven miles from his house. (Aug. 22, 2007, Trial Tr. at 60-61, 66.) The registrar's office, which is located at the county courthouse, is approximately the same distance from Plaintiff Eugene Taylor's house. (Id. at 67.) 40. Plaintiff Eugene Taylor has never voted by mail, and does not think he would do so. (Aug. 22, 2007, Trial Tr. at 62.) Plaintiff Eugene Taylor's daughter would help him vote by mail. (Id. at 74.) 41. Plaintiff Eugene Taylor is aware of the Photo ID requirement. (Aug. 22, 2007, Trial Tr. at 63.) If the Court upholds the Photo ID requirement, Plaintiff Eugene Taylor can obtain a Voter ID card by going to his local registrar's office. (Id. at 64.) Plaintiff Eugene Taylor's daughter will take him to the registrar's office, but she may need to take time off from work to do so. (Id.) 42. Plaintiff Eugene Taylor learned of this lawsuit through his grandson, who attended law school with one of Plaintiffs' counsel. (Aug. 22, 2007, Trial Tr. at 70.)[2] Plaintiff Eugene Taylor first learned of this case approximately two or three months ago. (Id.) 1351 43. In response to questioning from Plaintiffs' counsel, Plaintiff Eugene Taylor indicated that he had joined Plaintiff NAACP at some point. (Aug. 22, 2007, at 72-73.) Plaintiff Eugene Taylor does not remember when he joined Plaintiff NAACP, and could provide only vague details about joining Plaintiff NAACP. (Id.) Plaintiff Eugene Taylor failed to indicate whether he still is a member of Plaintiff NAACP. (Id.) The Court finds that this testimony is, at best, equivocal, and finds that Plaintiff Eugene Taylor's testimony on this issue was not credible. Consequently, the Court declines to accept any testimony by Plaintiff Eugene Taylor as to his membership in Plaintiff NAACP. 3. Declarations 44. Plaintiffs proffered the declarations of several Georgia voters who lacked Photo ID cards in connection with the 2005 and 2006 preliminary injunction hearings. The State Defendants objected to the Court's consideration of those declarations at trial, arguing that the declarations were hearsay. The Court agrees that the declarations, in general, are hearsay, and have not been rendered admissible by the parties.[3] At trial, Plaintiffs proffered the declarations of Eleanor Whittenburg and Ruth White, who had passed away since proffering their declarations, arguing that those declarations met the requirements of Federal Rule of Evidence 803(b)(1) or Federal Rule of Evidence 807. The Court finds that the declarations of Ms. Whittenburg and Ms. White do not satisfy Rule 803(b)(1), as Defendants did not have an opportunity to develop the testimony contained in those declarations via cross-examination. The Court further finds that those declarations do not meet the requirements of the residual exception of Rule 807, which should be used only in exceptional circumstances. The Court therefore does not consider the declarations of Ms. Whittenburg and Ms. White in connection with this Order. 4. Other Deponents a. Annie L. Johnson 45. After the trial of the case, Plaintiffs submitted the deposition of Annie L. Johnson, who previously executed two declarations on behalf of Plaintiffs. (Docket Entry No. 225.) Ms. Johnson is seventyseven years old and lives in Plains, Georgia. (Dep. of Annie L. Johnson at 5.) Ms. Johnson quit school in the sixth grade. (Id.) Ms. Johnson testified that she can read and write a little, or "[e]nough to get by." (Id. at 25.) 46. Ms. Johnson has anemia and must take protein shots each week or month. (A. Johnson Dep. at 6, 22.) Ms. Johnson also suffers from pain in her legs. (Id. at 6-7.) 47. Ms. Johnson's daughter lives in Terrell County. (A. Johnson Dep. at 21.) Ms. Johnson has a son who lives in Plains, whom she sees nearly every day. (Id. at 21-22.) Ms. Johnson's other son lives in Albany, Georgia. (Id. at 21.) 48. Ms. Johnson does not drive. (A. Johnson Dep. at 7.) Ms. Johnson's son and daughter drive her places, including driving her to her doctor's appointments. (Id. at 7, 21-22, 42.) According to Ms. Johnson, her son in Plains provides transportation to her wherever she needs to go. (Id. at 21-22.) That son does not have a vehicle, but will arrange to provide one if necessary. (Id. at 21-22, 42.) 1352 49. Friends also drive Ms. Johnson. (A. Johnson Dep. at 7, 23, 42.) Ms. Johnson testified that sometimes she has to pay someone $5.00 or $10.00 to drive her places. (Id. at 43-44.) Ms. Johnson's son and daughter do not charge her for transportation. (Id. at 44.) 50. As far as Ms. Johnson is aware, Plains does not have a public transportation service. (Id. at 7, 22.) If Ms. Johnson needs to go somewhere, her friends or her family will take her. (Id. at 23.) 51. Ms. Johnson has never had a driver's license, or passport, or any other government identification other than a Social Security card. (A. Johnson Dep. at 8.) Ms. Johnson lost her social security card, and does not have a birth certificate. (Id.) Ms. Johnson does not have a government-issued Photo ID, and is not a government employee. (Id. at 9.) 52. According to Ms. Johnson, she is registered to vote. (A. Johnson Dep. at 9.) Ms. Johnson recalls voting for President Carter and in city elections. (Id. at 9-10, 17, 39.) Ms. Johnson testified that she last voted approximately two years ago, and that she voted in Americus, Georgia, on that occasion. (Id. at 10-11, 20.) Ms. Johnson testified that she believed she voted in Americus because there was a problem with the voting machines in Plains. (Id. at 11, 17.) A member of the city council transported Ms. Johnson and other people from Plains to Americus to vote via a van. (Id. at 11-12, 20.) 53. Ms. Johnson ordinarily would vote in Plains, and someone would transport her to the polls. (A. Johnson Dep. at 12, 21.) When Ms. Johnson votes in Plains, people generally know her. (Id. at 13.) 54. According to Ms. Johnson, her county registrar's office is located in the courthouse in Americus. (A. Johnson Dep. at 13.) Ms. Johnson also testified that the closest driver's license was somewhere in Americus. (Id. at 13.) Ms. Johnson goes to Americus at least once a month. (Id. at 13, 44.) 55. Ms. Johnson's husband voted absentee on one occasion. (A. Johnson Dep. at 14.) Ms. Johnson apparently assisted her husband in voting his absentee ballot. (Id. at 14, 18-19.) 56. Ms. Johnson prefers to vote in person. (A. Johnson Dep. at 14, 34.) When asked why she prefers to vote in person, Ms. Johnson testified: Well, I guess because one thing if the papers, you send them in the mail, they may get lost or I don't understand all the questions on it and I can't fill it out like I should. And if I come to vote I maybe don't have to do the writing. That's all. Nothing I got against it, just more convenience for me if I can get here to vote in person. It saves a lot of papers. (Id. at 14.) Ms. Johnson testified that she does not wait until the day of the election to decide which candidate will receive her vote. (Id. at 15.) Ms. Johnson did not know that she could vote absentee by mail without presenting a Photo ID. (Id. at 35.) 57. Ms. Johnson does not have a computer, and does not use the Internet. (A. Johnson Dep. at 15.) 58. Ms. Johnson initially testified that she did not recall giving two declarations in this case. (A. Johnson Dep. at 25, 27.) Ms. Johnson later testified that "President Carter's deacon" came to her house with the statements, and she signed the statements. (Id. at 27-29, 37-38, 40, 45.) Ms. Johnson's testimony indicates that she did not fully understand what she was signing. (Id. at 38, 45-46.)[4] 1353 59. Ms. Johnson does not believe that she should have to show a Photo ID to vote, because she has been voting without one for many years. (A. Johnson Dep. at 15, 26.) Ms. Johnson did not know that she could go to her registrar's office and get a free Voter ID card. (Id. at 31-32.) 60. Ms. Johnson testified that she knew she would be able to get a Voter ID card, and that she planned to go to Americus during either the week of her deposition or the following week. (A. Johnson Dep. at 31.) Ms. Johnson testified that she would not mind getting a Voter ID card if she did not have to have a birth certificate to obtain one and if the Voter ID card were free. (Id. at 32, 41.) 61. Ms. Johnson further stated that she did not think that it would be hard to get a Voter ID card. (A. Johnson Dep. at 33.) According to Ms. Johnson: If I can get the photo ID, I don't mind getting it. She told me I can get it and don't have to pay for it. I didn't know all the details of getting one and I do now. That's why I haven't gotten one. But since she says it's free, I will get one, pick up one as soon as I get over there. (Id. at 41.) b. Larry. Dewberry 62. Plaintiffs also filed the deposition of Larry Dewberry after the trial of this case concluded. (Docket Entry No. 224.) Mr. Dewberry lives in Fort Valley, Georgia, and is fifty-four years old. (Dep. of Larry Dewberry at 5.) Mr. Dewberry completed high school and attended, but did not complete, college. (Id. at 5-6, 13.) 63. Mr. Dewberry previously had a driver's license, but does not currently have one. (L. Dewberry Dep. at 7, 15-16.) Mr. Dewberry can drive, but does not drive. (Id. at 7.) 64. Mr. Dewberry has an expired military ID and an expired college ID. (L. Dewberry Dep. at 7, 18-19.) 65. Mr. Dewberry either walks places or has his brother or sister drive him places. (L. Dewberry, Dep. at 8.) Mr. Dewberry's brother and sister previously have taken time off from work to drive Mr. Dewberry places. (Id. at 8.) Additionally, Mr. Dewberry's children give him rides. (Id. at 17.) 66. According to Mr. Dewberry, Fort Valley has vans that will transport people. (L. Dewberry Dep. at 10.) Mr. Dewberry believes the fee for the van ride is $2.00. (Id.) 67. Mr. Dewberry is registered to vote, and thinks he registered in the 1970s. (L. Dewberry Dep. at 8, 12, 20.) Mr. Dewberry also recalls registering to vote on May 4, 2006, at his local registrar's office. (Id. at 20-21, 28.) Some people from Atlanta took Mr. Dewberry to register to vote on that occasion. (Id. at 21-22.) 68. Mr. Dewberry is not certain when he last voted, but believes he last voted in 2005 or 2006. (L. Dewberry Dep. at 8-9, 22-23.) Ms. Dewberry rode with a lady named "Inez" or in cars provided by candidates to his polling place. (Id. at 9-10.) 69. The closest DDS service center to Mr. Dewberry's residence is in Perry, Georgia. (L. Dewberry Dep. at 10.) According to Mr. Dewberry, that DDS service 1354 center is approximately ten to twelve miles from his residence. (Id. at 10-11.) 70. Mr. Dewberry's local registrar's office is approximately one-quarter of a mile from Mr. Dewberry's residence, and he can walk there in, approximately seven to eight minutes (L. Dewberry Dep. at 17.) 71. Mr. Dewberry has never voted via absentee ballot. (L. Dewberry Dep. at 11, 34.) Mr. Dewberry testified that he prefers to vote in person, but stated that he did not know why. (Id. at 11.) 72. Mr. Dewberry further testified that he did not really think that people should be required to have Photo ID to vote, although "it could be good to have." (L. Dewberry Dep. at 12, 39.) 73. Mr. Dewberry now understands that he does not have to pay for a Voter ID card. (L. Dewberry Dep. at 29.) According to Mr. Dewberry, no one told him that he could go to his registrar's office and get a Voter ID card for free. (Id. at 32.) If Mr. Dewberry had known that information, he would have gotten a Voter ID card. (Id.) Mr. Dewberry plans to get a Voter ID card. (Id.) 74. Mr. Dewberry thought he needed a birth certificate to get a Voter ID card. (L. Dewberry Dep. at 35.) 75. Mr. Dewberry testified that it was not a hardship for him to walk to the registrar's office and get a Voter ID card. (L. Dewberry Dep. at 36.) 76. Mr. Dewberry' signed two declarations for use in this case. (L. Dewberry Dep. at 24 & Exs. 1-2.) Mr. Dewberry contends that he had registered to vote before he signed the declarations. (Id. at 27.) C. Organizational Plaintiffs 77. Edward DuBose, who resides in Columbus, Georgia, serves as the state president for the Georgia State Conference of Plaintiff NAACP. (Aug. 22, 2007, Trial Tr. at 27, 29.) In that position, Mr. DuBose's responsibilities include overseeing all operations of Plaintiff NAACP's units in Georgia. (Id. at 29.) 78. Plaintiff NAACP's mission is to ensure political, educational, and economic equality for its members, as well as to eliminate racial discrimination and hatred. (Aug. 22, 2007, Trial Tr. at 29.) Plaintiff NAACP seeks to empower voters to go to the polls and to vote on issues. (Id.) To that end, Plaintiff NAACP is involved in voter registration, mobilization, and education. (Id. at 30.) 79. Plaintiff NAACP sets up voter registration drives across Georgia. (Aug. 22, 2007, Trial Tr. at 30.) At present, Plaintiff NAACP has fifteen to twenty voter registration drives scheduled throughout Georgia. (Id. at 31.) 80. Plaintiff NAACP's voter education efforts include attempting to inform voters concerning issues. (Aug. 22, 2007, Trial Tr. at 31.) To accomplish that goal, Plain: tiff NAACP provides a political forum and literature, and grades politicians on issues important to Plaintiff NAACP's constituents. (Id.) 81. As part of Plaintiff NAACP's voter mobilization efforts, Plaintiff NAACP has undertaken initiatives to get voters to the polls that involve working with other organizations. (Aug. 22, 2007, Trial Tr. at 32.) Plaintiff NAACP uses churches and civic organizations to transport individuals to polls, and many of the individuals transported are elderly, disabled, or disadvantaged individuals. (Id.) 82. In 2004, Plaintiff NAACP spent $20,000 to $30,000 on its voter empowerment initiative. (Aug. 22, 2007, Trial Tr. at 32, 39.) Funds for that effort came from both local and national sources. (Id. at 39.) Plaintiff NAACP's national organization will attempt to examine voting laws 1355 to determine which states need additional money. (Id. at 39-40.) In the past, Plaintiff NAACP's national organization has attempted to re-direct resources to other states with Photo ID requirements. (Id. at 40.) The reallocation could occur with any change in election law. (Id. at 40.) Alternatively, Plaintiff NAACP could encourage its members to vote by mail. (Id. at 49.) 83. Plaintiff NAACP generally uses volunteers to staff its voter empowerment initiatives, but it must use funds to purchase literature and set up forums. (Aug. 22, 2007, Trial Tr. at 32.) 84. Plaintiff NAACP is aware of the Photo ID requirement. (Aug. 22, 2007, Trial Tr. at 33.) Plaintiff NAACP generally uses its voter empowerment resources to maximize voter mobility and education. (Id.) If the Court sustains the Photo ID requirement, Plaintiff NAACP might have to redistribute its resources for voter education to help registered voters learn of the Photo ID requirements and to get voters in rural areas to obtain Photo ID cards. (Id.) 85. According to Mr. DuBose, some of the chapter presidents of the Georgia State Conference of Branches of Plaintiff NAACP informed him that at least five individuals would require assistance in obtaining a Photo ID card. (Aug. 22, 2007, Trial Tr. at 34.) Mr. DuBose, however, did not identify those individuals or specifically indicate whether those individuals actually were NAACP members. (Id.) 86. Mr. DuBose testified that the Photo ID requirement is an important issue for Plaintiff NAACP because the Photo ID requirement potentially affects Plaintiff NAACP's members, and because the Photo ID requirement potentially will affect the population that Plaintiff NAACP serves. (Aug. 22, 2007, Trial Tr. at 34.) 87. Mr. DuBose testified that Plaintiff NAACP educates voters who are physically unable to travel to the polls, and makes an effort to engage those voters in absentee voting. (Aug. 22, 2007, Trial Tr. at 37) Absentee voting in Georgia has become easier, as it now is "no-excuse" absentee voting. (Id.) Mr. DuBose, however, stated that many African-American voters, particularly elderly voters, are afraid of voting by mail, as they are concerned that their vote will not be counted. (Id. at 44-45.) According to Mr. DuBose, those voters have more reassurance that their votes will be counted if they vote in person. (Id.) Mr. DuBose further testified that some individuals are illiterate and will have problems using an absentee ballot; however, he also acknowledged that those individuals can get a family member to request an absentee ballot and to assist them in completing the ballot. (Id. at 46-47.) Although some individuals who need assistance in voting may be embarrassed to ask for assistance at the polls, voting by mail eliminates that particular embarrassment. (Id. at 47-48.) D. Voting Procedures, Changes in the Voting Laws, and Efforts to Inform Voters of Changes 1. Changes in Voting Laws and Concerns of Fraud 88. Prior to January 8, 2007, Cathy Cox served as Georgia's Secretary of State. (Oct. 12, 2005, Hr'g Tr. at 12.) During that same period, former Secretary of State Cox also served as the Chair of the State Election Board. (Id. at 13.) During the relevant period, the State Election Board consisted of five members, including former Secretary of State Cox, a representative from the Georgia Democratic Party, a representative from the Georgia Republican Party, a representative from the Georgia Senate, and a representative from the Georgia House of Representatives. (Id. at 13-14.) During her 1356 tenure, former Secretary of State Cox served as the principal official in the State Government in charge of elections and for purposes of the Help America Vote Act of 2002 ("HAVA") and the National Voter Registration Act. (Id. at 14.) 89. During the ten years in which former Secretary of State Cox was affiliated with the Secretary of State's Office, that office received no reports of voter impersonation involving a scenario in which a voter appeared at the polls and voted as another person, and the actual person later appeared at the polls and attempted to vote as himself. (Oct. 12, 2005, Hr'g Tr. at 15-20; July 12, 2006, Hr'g Tr. at 10-11, 29.) Former Secretary of State Cox did not dispute that under the previous law, it was possible for the above voter impersonation scenario or another form of in-person voter fraud to occur. (Oct. 12, 2005, Hr'g Tr. at 15-20.) 90. Further, former Secretary of State Cox and her staff were not physically present in all 159 counties and the various municipalities on election days. (Oct. 12, 2005, Hr'g Tr. at 15-20; July 12, 2006, Hr'g Tr. at 30.) Secretary of State Cox therefore acknowledged that issues related to in-person voter fraud may have arisen and yet not been reported to her office. (Oct. 12, 2005, Hr'g Tr. at 15-20; July 12, 2006, Hr'g Tr. at 31.) According to former Secretary of State Cox, local election officials are in the best position to know of such incidents. (Oct. 12, 2005, Hr'g Tr. at 15-20.) 91. According to former Secretary of State Cox, during her tenure, the State Election Board received a number of complaints of irregularities with respect to absentee ballots. (Oct. 12, 2005, Hr'g Tr. at 15; July 12, 2006, Hr'g Tr. at 11.) In fact, former Secretary of State Cox recalled that the State Election Board discussed complaints of fraud and irregularities in absentee voting at most of the hearings she attended. (Oct. 12, 2005, Hr'g Tr. at 15.) A number of those complaints involved irregularities in collecting and returning absentee ballots, in which someone who was not authorized to collect or mail the absentee ballots did so for another voter. (Oct. 12, 2005, Hr'g Tr. at 15; July 12, 2006, Hr'g Tr. at 46.) 92. Former Secretary of State Cox also was aware of a previous incident in Dodge County, Georgia, involving vote buying and selling of absentee ballots. (Oct. 12, 2005, Hr'g Tr. at 18-19.) The Dodge County incident involved in-person absentee voting. (Id.) 93. During former Secretary of State Cox's tenure, Georgia had procedures and practices in place to detect voter fraud. (Oct. 12, 2005, Hr'g Tr. at 42.) Those procedures included verifying the voter's correct address, as well as the voter's name, during the check-in process for inperson voters. (Id.) Georgia also imposed criminal penalties for voter impersonation. (Id.) Most violations of Georgia election laws were punishable as felonies. (Id.) According to former Secretary of State Cox, no evidence indicated that the criminal penalties failed to deter in-person voter fraud sufficiently. (Id.) 94. According to former Secretary of State Cox, the integrity of the voter list also is extremely important in preventing. voter fraud. (Oct. 12, 2005, Hr'g Tr. at 59.) Former Secretary of State Cox's office undertook an investigation in response to an article published in the Atlanta Journal-Constitution concerning fraudulent voting. (Id.) The investigation revealed that the specific instance of voter fraud outlined in the Atlanta Journal-Constitution, involving a report that Alan J. Mandel had voted after his death, actually did not occur. (Id. at 59-61.) 95. During former Secretary of State Cox's tenure, her office attempted to ensure 1357 that voter records were maintained and up to date. (Oct. 12, 2005, Hr'g Tr. at 62-63; July 12, 2006, Hr'g Tr. at 19.) Former Secretary of State Cox testified that, during her tenure, the Secretary of State's Office sent information concerning dead voters to local elections officials on a monthly basis, and had the authority to remove the names of deceased voters from the voter rolls if the local elections officials failed to do so in a timely manner. (Oct. 12, 2005, Hr'g Tr. at 62-63; July 12, 2006, Hr'g Tr. at 19) To former Secretary of State Cox's best knowledge, the procedures for removing dead voters were consistently followed during her tenure; however, former Secretary of State Cox could not vouch for what every individual county did. (July 12, 2006, Hr'g Tr. at 19.) Former Secretary of State Cox's office was authorized to remove only deceased voters from the voter registration list, and could not remove voters who are otherwise ineligible to vote. (Id. at 19-20.) Former Secretary of State Cox's office also relied on the counties to add voters who had newly registered to vote, and had no authority to add newly registered voters. (Id.) 96. Former Secretary of State Cox expressed concerns with respect to H.B. 244, noting that allowing individuals to vote absentee ballots without showing identification and removing the conditions previously required for obtaining absentee ballots opened a gaping opportunity for fraud. (October 12, 2005, Hr'g Tr. at 15-17.) Former Secretary of State Cox indicated that concerns with respect to absentee ballots involved incidents of individuals picking up absentee ballots for other individuals without the required family relationship and individuals removing absentee ballots from voters' mailboxes. (Id. at 17-19.) According to Secretary of State Cox, the only restrictions on absentee voting that tended to prevent fraud were the restrictions for obtaining an absentee ballot. (Id.) 97. Former Secretary of State Cox also informed Governor Perdue that she believed the Photo ID requirement for in-person voting was unnecessary, created a significant obstacle to voting for many voters, was unlikely to receive preclearance from the Justice Department, violated the Georgia Constitution, and unduly burdened the fundamental right to vote. (Oct. 12, 2005, Hr'g Tr. at 21-22.) The opinion that former Secretary of State Cox expressed in her letter to Governor Purdue remained her personal opinion at the time of the preliminary injunction hearings; however, former Secretary of State Cox acknowledged that she was obligated to enforce and carry out the Photo ID requirement in her official capacity until the law is declared invalid. (Id. at 22.) 98. Former Secretary of State Cox also requested that Governor Perdue seek the opinion of Georgia's Attorney General before approving HB 244. (Oct. 12, 2005, Hr'g Tr. at 23.) Former Secretary of State Cox was not aware that Governor Perdue sought an opinion from Georgia's Attorney General concerning HB 244, and was not aware of any opinion issued by Georgia's Attorney General concerning the Photo ID requirement. (Id. at 23-24.) 99. Former Secretary of State Cox was aware of efforts to submit fraudulent voter registrations. (Oct. 12, 2005, Hr'g Tr. at 25.) Those efforts occurred both before and after Georgia enacted its Photo ID requirement. (Id.) 100. According to former Secretary of State Cox, at the time of the preliminary injunction hearings, Georgia had no requirement that a person seeking to register to vote present a Photo ID. (Oct. 12, 2005, Hr'g Tr. at 25-26.) Indeed, HB 244 did not address voter registration. (Id.) 1358 101. Former Secretary of State Cox testified that HB 244 expanded the opportunity for voters to obtain absentee ballots. (Oct. 12, 2005, Hr'g Tr. at 31; July 21, 2006, Hr'g Tr. at 43-44.) Prior to July 1, 2005, voters seeking to obtain absentee ballots had to aver that they met certain requirements. (Oct. 12, 2005, Hr'g Tr. at 31.) After July 1, 2005, those requirements no longer applied for purposes of obtaining absentee ballots. (Id.) 102. Former Secretary of State Cox opined that a number of Georgia voters are elderly, have no driver's licenses, and have no need for a state-issued Photo ID card other than for voting purposes. (Oct. 12, 2005, Hr'g Tr. at 43.) Further, according to former Secretary of State Cox, a number of Georgia voters who are elderly or have low incomes do not have automobiles or use mass transit, and would have difficulty obtaining a Photo ID to vote. (Id.) 103. On January 8, 2007, Karen C. Handel took office as Georgia's Secretary of State. (Aug. 22, 2007, Trial Tr. at 76.) 104. Secretary of State Handel had no role in drafting, advocating, or preparing the 2005 Photo ID Act, and has not spoken to individuals involved in those activities. (Aug. 22, 2007, Trial Tr. at 77.) 105. Similarly, Secretary of State Handel had no role in drafting, advocating, or preparing the 2006 Photo ID Act, and has not spoken to individuals involved in those activities. (Aug. 22, 2007, Trial Tr. at 77.) 106. Secretary of State Handel has no knowledge indicating that her office has received a complaint of in-person voter fraud during her tenure. (Aug. 22, 2007, Trial Tr. at 78.) 107. Secretary of State Handel pointed out that any such reports would not come to her personal attention, but rather would come to the attention of the Inspector General, who would investigate the complaint. (Aug. 22, 2007, Trial Tr. at 78; Aug. 24, 2007, Trial Tr. at 31-32.) After investigating the complaint, the Inspector General would bring the matter before the State Election Board. (Aug. 22, 2007, Trial Tr. at 78; Aug. 24, 2007, Trial Tr. at 31 โ 32.) Secretary of State Handel does not learn the details of a complaint until the complaint actually comes before the State Elections Board. (Aug. 22, 2007, Trial Tr. at 78; Aug. 24, 2007, Trial Tr. at 31-32.) 108. Secretary of State Handel testified that her office does not physically update the voter registration rolls to reflect address changes and deaths. (Aug. 22, 2007, Trial Tr. at 79-81.) 109. Instead, Secretary of State Handel's office forwards any information that it receives concerning address changes and deaths to the counties, which in turn bear responsibility for making the changes. (Aug. 22, 2007, Trial Tr. at 79-81.) 110. Secretary of State Handel's office receives a report from the Department of Vital Statistics listing deaths that have occurred. (Aug. 22, 2007, Trial Tr. at 80-81.) Secretary of State Handel does not know how frequently her office receives that report. (Id. at 81.) 111. According to Secretary of State Handel, her office needs to be more systematic with respect to keeping the voter list updated. (Aug. 22, 2007, Trial Tr. at 81.) 112. Secretary of State Handel's office is working with another State association to attempt to develop technology that will enable Secretary of State Handel's office to manage the voter registration list and associated data better. (Aug. 22, 2007, Trial Tr. at 82.) 113. Secretary of State Handel did not know the date that the voter rolls last were purged to remove voters who had died. (Aug. 22, 2007, Trial Tr. at 81-83.) 1359 2. In-Person Voting 114. Presently, elections officials do not compare signatures on voter certificates of in-person voters to signatures on voter registration cards. (Oct. 12, 2005, Hr'g Tr. at 34.) 115. The voter registration cards are not physically present at the polling places. (Oct. 12, 2005, Hr'g Tr. at 34.) 116. Former Secretary of State Cox testified that it would be possible to send voter registration cards to polling places, but that comparing signatures on voter certificates to signatures on voter registration cards for in-person voters would be time-consuming. (Oct. 12, 2005, Hr'g Tr. at 35.) 117. Similarly, current Secretary of State Handel observed that comparing voter signatures for in-person voters on election day would be a "very onerous process." (Aug. 22, 2007, Trial Tr. at 127.) 118. Although former Secretary of State Cox testified that her office discussed digitizing the signatures on voter education cards, her office did not pursue that option. (July 12, 2006, Hr'g Tr. at 57.) 119. Local elections officials for counties are connected to the Secretary of State's Office through a mainframe computer. (Oct. 12, 2005, Hr'g Tr. at 64, 72.) The Secretary of State's Office does not have that capacity for municipal elections officials; however, in many cases, county elections officials also manage elections for municipalities within their counties. (Id.) 120. An individual who votes in person but does not present a Photo ID may vote a provisional ballot. (Oct. 12, 2005, Hr'g Tr. at 82, 86.) Elections officials, however, will not count the provisional ballot unless the voter returns to the registrar's office within forty-eight hours and presents a Photo ID. (Id. at 82.) 121. Voters who vote in-person are required to sign a voter certificate certifying that the information provided on the certificate is true, under penalty of perjury. (Oct. 12, 2005, Hr'g Tr. at 34; July 12, 2006, Hr'g Tr. at 24-25; Aug. 22, 2007, Trial Tr. at 83, 85-86, 126.) Making a false statement on the certificate is a felony. (July 12, 2006, Hr'g Tr. at 24, 26; Aug. 22, 2007, Trial Tr. at 84, 86.) 122. The Georgia legislature recently amended the voting laws to increase the penalties for fraudulently casting an absentee ballot and for completing a voter certificate falsely to provide for a term of imprisonment of up to ten years. (Aug. 22, 2007, Trial Tr. at 84.) 123. A voter who presents a Photo ID, or any other form of identification, with an address that differs from the address on the voter's voter registration, may cast a vote, but must do so using a provisional ballot. (Aug. 22, 2007, Trial Tr. at 88-89.) 3. Absentee Voting in Georgia 124. To obtain an absentee ballot, a voter must send in a request to the local registrar providing his or her name, address, and an identifying number, or must appear in person at the registrar's office and provide such information. (Oct. 12, 2005, Hr'g Tr. at 31, 46; July 12, 2006, Hr'g Tr. at 42.) A voter wishing to apply for an absentee ballot, however, need not complete a particular form. (Oct. 12, 2005, Hr'g Tr. at 46; July 12, 2006, Hr'g Tr. at 42-43.) 125. Instead, a voter who desires an absentee ballot need only send a letter or piece of paper to his or her county registrar stating that the voter wants an absentee ballot and providing the voter's name and address. (July 12, 2006, Hr'g Tr. at 42-43, 47; Aug. 24, 2007, Trial Tr. at 29.) If the voter cannot complete such a letter or piece of paper himself, he may obtain 1360 assistance from someone else. (July 12, 2006, Hr'g Tr. at 43, 59; Aug. 24, 2007, Trial Tr. at 29.) 126. Similarly, a voter may obtain assistance from someone else when completing an absentee ballot and placing it in the required inner and outer envelopes. (July 12, 2006, Hr'g Tr. at 43, 48-49.) 127. Local elections officials are supposed to compare the signature on an absentee ballot request to the signature on the voter's registration card. (Oct. 12, 2005, Hr'g Tr. at 32-33; Aug. 22, 2007, Trial Tr. at 93.) If the signatures match, the local elections officials will send an absentee ballot to the address listed on the voter's registration. (Oct. 12, 2005, Hr'g Tr. at 32-33.) A voter who wishes to vote an absentee ballot need not provide a Photo ID unless that voter registered by mail, did not provide identification, and is voting for the first time by absentee ballot. (Id. at 84-85.) 128. After receiving an absentee ballot, the voter must complete the ballot and return it to the registrar, either by hand-delivery to the registrar's office by the voter or certain relatives of the voter, or by mail. (Oct. 12, 2005, Hr'g Tr. at 46-47; Aug. 22, 2007, Trial Tr. at 127.) Even if an absentee ballot contains a postmark indicating that the voter mailed it on an earlier date, elections officials will not count the absentee ballot if the ballot is not received in the registrar's office by 7:00 p.m. on the day of the applicable election. (Oct. 12, 2005, Hr'g Tr. at 47; Aug. 22, 2007, Trial Tr. at 127.) Exceptions to this rule exist for voters who are members of the military or reside overseas. (Oct. 12, 2005, Hr'g Tr. at 47.) 129. An absentee ballot that arrives in the registrar's office should be returned in two envelopes โ an inner blank "privacy" envelope and an outer envelope that contains an oath signed by the voter. (Oct. 12, 2005, Hr'g Tr. at 32.) Local elections officials compare the signature on the oath contained on the outer envelope to the signature on the voter's registration card to verify the voter's identity. (Id. at 32-33, 76; Aug. 22, 2005, Trial Tr. at 93.) 130. Former Secretary of State Cox testified that the signature verification procedure is the only safeguard currently in place in Georgia to prevent imposters from voting by using absentee ballots. (Oct. 12, 2005, Hr'g Tr. at 33.) The verification process is done manually. (Id.) 131. Absentee ballots are submitted to the local registrars' offices over a forty-day period. (Oct. 12, 2005, Hr'g Tr. at 33.) However, if fifty percent of voters decided to vote by absentee ballot in any given election, local elections officials would have a difficult time completing the necessary signature verifications. (July 12, 2006, Hr'g Tr. at 51.) 132. Once a voter returns an absentee ballot to the registrar's office, the voter cannot change that ballot. (Oct. 12, 2005, Hr'g Tr. at 50-51.) The voter, however, has the right to notify the registrar that the voter intends to cancel the absentee ballot and vote in person. (Id.) 4. The Data Matches 133. In June 2006, former Secretary of State Cox's office issued a press release indicating that over 600,000 voters lacked either a valid Georgia driver's license or a Photo ID card issued by DDS. (July 12, 2006, Hr'g Tr. at 12-14) Former Secretary of State Cox's office obtained that information from a data match that former Secretary of State Cox authorized. (Id. at 14.) To conduct the data match, former Secretary of State Cox's office provided DDS with a list of registered voters that former Secretary of State Cox's office maintained. (Id. at 14-15, 33-34; Aug. 23, 2007, Trial Tr. at 106-07.) DDS then compared the list of registered voters to its database of 1361 individuals who had valid Georgia driver's licenses and Photo ID cards issued by DDS. (July 12, 2006, Hr'g Tr. at 15-17, 33-34; Aug. 23, 2007, Trial Tr. at 107-08.) DDS returned a list of over 600,000 individuals who appeared on the voter registration list and who appeared to lack either a valid Georgia driver's license or a DDS-issued Photo ID card. (July 12, 2006, Hr'g Tr. at 20-21; Aug. 23, 2007, Trial Tr. at 108.) 134. The list returned by DDS intended to match individuals by last name, date of birth and social security number. (July 12, 2006, Hr'g Tr. at 21.) Individuals whose social security numbers were not in the database appeared on the list as not having a valid Georgia driver's license or DDS-issued Photo ID card. (Id.) 135. According to former Secretary of State Cox, in ordering the data match, her office was not intending to inflate the numbers of voters who purportedly lacked a Georgia driver's license or Photo ID card. (July 12, 2006, Hr'g Tr. at 17.) Rather, her office was attempting to identify the smallest number of voters possible who lacked a Photo ID so that her office could do a direct mailing to advise those voters of the 2006 Photo ID Act's requirements. (Id.) 136. On June 23, 2006, former Secretary of State Cox's office issued another press release stating that the voters who purportedly lacked a Photo ID were disproportionately elderly or minority voters. (July 12, 2006, Hr'g Tr. at 18.) The numbers used for that press release came from the data match that former Secretary of State Cox's office ordered. (Id.) 137. Former Secretary of State Cox testified that she was not aware of other data available to her office or to the State that would provide more accurate information concerning the number of voters who lacked a Photo ID. (July 12, 2006, Hr'g Tr. at 17-18.) 138. Former Secretary of State Cox testified that she had learned of a "few dozen" inaccuracies in the data match list of voters. (July 12, 2006, Hr'g Tr. at 21, 35.) Former Secretary of State Cox, however, had no personal knowledge of the data match list's accuracy. (Id. at 21, 35-36.) 139. Former Secretary of State Cox did not know how many Georgia voters lack any acceptable form of Photo ID under the 2006 Photo ID Act. (July 12, 2006, Hr'g Tr. at 32-33, 38.) Specifically, her office did not match its list of registered voters to federal government databases, to databases of other state government agencies that issue identification cards, or to tribal identification lists. (Id. at 37-38.) 140. After the Court issued its July 14, 2006, Order enjoining the Photo ID requirement for the July 2006 primary elections, the State Election Board continued to work with DDS representatives to attempt to obtain a list of registered Georgia voters who appeared to lack either a Georgia driver's license or a Georgia Photo ID card issued by DDS. (Sept. 14, 2006, Hr'g Tr. at 26-28; Aug. 22, 2007, Trial Tr. at 134; Aug. 23, 2007, Trial Tr. at 109-110.) 141. In response to the State Election Board's request, the DDS eventually returned a list in August or September 2006 of 106,522 Georgia voters who purportedly lacked a Georgia driver's license or Georgia Photo ID card, and approximately 198,000 other voters who had previously had a Georgia driver's license that either had been canceled, revoked, suspended, or declared invalid. (Pls.' Ex. 22; Sept. 14, 2006, Hr'g Tr. at 30; Aug. 22, 2007, Trial Tr. at 134.) 142. DDS has over eleven million driver's records in its database. (Aug. 22, 2007, Trial Tr. at 135; Aug. 23, 2007, Trial Tr. at 101.) 1362 143. DDS's database includes a number of expired driver's licenses, some with listed expiration dates occurring as early as 1900. (Aug. 22, 2007, Trial Tr. at 135, 138-39; Aug. 23, 2007, Trial Tr. at 104-05.) According to DDS information technology manager Loraine Piro, the earliest reliable expiration date listed in the DDS database likely is from the 1970s. (Aug. 22, 2007, Trial Tr. at 139.) 144. In June 2007, the Secretary of State's Office sent information to DDS and requested that DDS perform another data match. (Aug. 22, 2007, Trial Tr. at 104, 136-37; Aug. 23, 2007, Trial Tr. at 111.) In particular, the Secretary of State's Office sent 5,084,239 voter names to DDS, and requested that DDS use the same matching criteria and procedures as it used to create the August or September 2006 data match. (Aug. 22, 2007, Trial Tr. at 136-37; Aug. 23, 2007, Trial Tr. at 110-11) 145. DDS ran another data match, and concluded that 4,568,919 of the individuals on the Secretary of State's list had a valid, current Georgia driver's license. (Aug. 22, 2007, Trial Tr. at 104-05; Aug. 23, 2007, Trial Tr. at 111-12; Pls. Ex. 98; State Defs.' Ex. 37.) 146. DDS, however, was unable to match 198,378 of the records provided by the Secretary of State. (Aug. 22, 2007, Trial Tr. at 104; Pls. Ex. 98; State Defs.' Ex. 37.) 147. DDS did not run other screens on the database to determine whether it could decrease the number of "no-match" voters. (Aug. 23, 2007, Trial Tr. at 104.) 148. The DDS data matches simply match the voter registration information to the DDS's own database, and do not indicate whether the voters have Photo ID cards issued by an agency other than DDS. (Aug. 23, 2007, Trial Tr. at 123.) 149. The Secretary of State's Office also provided DDS with information concerning 1,075,467 registered voters in twenty-two Georgia counties that intend to hold special elections in September 2007. (Aug. 22, 2007, Hr'g Tr. at 107, 137.) 150. DDS ran a data match comparing the Secretary of State's list of registered voters in the twenty-two counties with the DDS's own records. (Aug. 22, 2007, Hr'g Tr. at 107, 137, 155.) 151. DDS's data match indicated that, of the 1,075,467 registered voters from the twenty-two counties, 948,014 of the voters had valid Georgia driver's licenses, 792 of the voters had cancelled driver's licenses, fifty of the voters had canceled permits, ten of the voters had been denied licenses, eight voters had been disqualified, twenty-seven voters had been disqualified from holding a commercial driver's license ("CDL"), three voters were not licensed, 367 of the voters had revoked licenses, 13,389 of the voters had surrendered licenses; 10,295 of the voters had suspended licenses, and 51,707 of the voters had expired licenses or DDS-issued ID cards. (Pls.' Ex. 99; State Defs.' Ex. 38.) Of the 51,707 voters with expired DDS-issued documents, 6,961 of the voters had expired DDS-issued ID cards. (Pls.' Ex. 99; State Defs.' Ex. 38.) 49,054 voters appeared as "no matches" on the list, indicating that DDS could not match those voters' information to any record in DDS's database. (Aug. 22, 2007, Trial Tr. at 107, 155.) 152. After Secretary of State Handel's office learned that Berrien County, Georgia, also planned to hold elections on September 18, 2007, the office requested that the DDS run another data match for registered voters in Berrien County. (Aug. 22, 2007, Trial Tr. at 158.) 153. Although Secretary of State Handel's office has information pertaining to the race, gender, and age of voters, Secretary 1363 of State Handel's office did not use the DDS data match to determine how many of the individuals appearing on the no-match lists are African-American or elderly. (Aug. 22, 2007, Trial Tr. at 119-20, 159.) 5. Attempts to Educate Voters 154. After the Photo ID requirement received preclearance from the Justice Department, Secretary of State Cox ensured that the Elections Division conducted necessary training, distributed necessary supplies, and did everything possible to ensure that the Photo ID requirement was carried out in every election, including the elections held on August 26, 2005, September 20, 2005, September 27, 2005, and November 8, 2005. (Oct. 12, 2005, Hr'g Tr.) The Elections Division also provided information to the public concerning the Photo ID requirement via the website for the Secretary of State's Office and through other public information efforts. (Id.) 155. The State Election Board has promulgated rules and regulations to enforce the 2006 Photo ID Act. (July 12, 2006, Hr'g Tr. at 38, 70.) To former Secretary of State Cox's knowledge, no copies of those rules and regulations have been mailed to any registered voters. (Id. at 38.) Former Secretary of State Cox testified that her office would mail copies of the rules and regulations to voters who requested copies. (Id.) Former Secretary of State Cox's office shared the rules and regulations with the county registrars. (Id.) Former Secretary of State Cox's office also posted the rules and regulations on its website. (Id.) 156. Before the State Election Board adopted the rules and regulations, it posted those rules and regulations for comment. (July 12, 2006, Hr'g Tr. at 39, 70.) 157. The State Election Board drafted a letter to give to voters who came to vote in-person during the July 18, 2006, primary election that described the requirements of the 2006 Photo ID Act and explained where to obtain a Voter ID card. (July 12, 2006, Hr'g Tr. at 71-72.) The State Election Board made that letter available to any organization that wished to distribute the letter; however, no testimony indicated that any organization had distributed the letter. (Id. at 76.) 158. The State Election Board received some comments concerning the content of the letter and its readability during the hearing in which the State Election Board approved the letter. (July 12, 2006, Hr'g Tr. at 115, 133-34.) The State Election Board did not ask a literacy expert to review the letter to determine whether the average Georgia voter can read and understand the letter. (Id.) 159. The letter to be provided to voters during the July 2006 primary instructed the voters that they could vote a provisional ballot if they lacked a Photo ID. (Pls.' Ex. 12.) The letter to be provided to voters at the polls during the July 2006 primary did not contain a statement informing voters who voted provisional ballots that they had to return with a Photo ID within forty-eight hours to have their provisional ballots counted. (Id.) Instead, the State intended to have poll workers give verbal instructions concerning the forty-eight hour requirement to voters who receive provisional ballots. (July 12, 2006, Hr'g Tr. at 134.) 160. Prior to the July 2006 primary, the State Election Board made information concerning the process and requirements for obtaining Voter ID cards available to local registrars, and placed that information on its website. (July 12, 2006, Hr'g Tr. at 72.) 161. Prior to the July 2006 primary, the State Election Board also used television and radio paid public service announcements ("PPSAs") to inform voters 1364 of the Photo ID requirement and the process and locations for obtaining Voter ID cards. (July 12, 2006, Hr'g Tr. at 73-74.) 162. The television PPSAs that ran prior to the July 2006 primary elections were thirty-second advertisements that ran on channels that were members of the Georgia Association of Broadcasters. (July 12, 2006, Hr'g Tr. at 110-11.) The total number of Voter ID cards issued increased after the State Election Board began running its PPSAs. (Id.) 163. The radio PPSAs that ran prior to the July 2006 primary ran on the Clear Channel network, which consists of 115 radio stations in Georgia. (July 12, 2006, Hr'g Tr. at 110-11, 132-33.) The network has a total estimated listening population of 900,000, including individuals who reside in neighboring states. (Id. at 111.) Some of the radio PPSAs that ran prior to the July 2006 primary aired very early on Saturday and Sunday mornings. (Id.) 164. After the Court issued its July 14, 2006, Order, the State Election Board discontinued its voter education efforts with respect to the 2006 Photo ID Act. (Sept. 14, 2006, Hr'g Tr. at 24.) 165. On September 1, 2006, the State Election Board held a meeting that addressed, among other things, voter education efforts for the 2006 Photo ID Act. (Sept. 14, 2006, Hr'g Tr. at 30-31.) 166. At the September 1, 2006, meeting, the State Election Board approved a letter to be mailed to approximately 305,000 voters listed on the DDS match report created in August or September 2006. (Sept. 14, 2006, Hr'g Tr. at 31.) 167. On September 13, 2006, the State Election Board began to mail that letter directly to those 305,000 voters, mailing 30,000 letters each day. (Sept. 14, 2006, Hr'g Tr. at 32-33, 54-56.) 168. On or about September 13, 2006, the Elections Division of the Secretary of State's Office sent a memorandum to county registrars that attached the letter mailed to the voters and that requested that the registrars also distribute the letter. (Sept. 14, 2006, Hr'g Tr. at 36-37.) 169. In September 2006, the State Election Board also adopted a voter education program for the 2006 Photo ID Act. (Sept. 14, 2006, Hr'g Tr. at 33-34.) The plan called for the State Election Board to distribute the letter mailed to voters to counties, local civic groups, churches, and other interested groups for further distribution. (Id. at 35-36, 57.) The plan also called for the State Election Board to resume running the PPSAs, and to develop an e-mail list to distribute the letter mailed to voters. (Id. at 37-38.) The plan also called for the State Election Board to provide the list of voters who purportedly lack Georgia driver's licenses or Georgia Photo ID cards to local political parties and candidates, and to telephone the individuals on the list. (Id.) Finally, the plan called for the State Election Board to produce a brochure concerning the 2006 Photo ID Act's requirements, for distribution through the Elections Division of the Secretary of State's Office. (Id.) 170. The State Election Board placed information concerning the 2006 Photo ID Act's requirements on the Secretary of State's website, and individuals who visited that website could access information through a link. (Sept. 14, 2006, Hr'g Tr. at 39-40.) 171. Although the State Election Board developed a list of organizations to which it planned to distribute the letter to be mailed to certain voters in September 2006, and the letter that it planned to distribute at the polls in July 2006, it had not distributed the letters to those organizations as of September 14, 2006. (Sept. 14, 2006, Hr'g Tr. at 41-43, 48.) 1365 172. Further, the State Election Board found that it lacked sufficient funding in September 2006, to telephone each of the approximately 305,000 Georgia voters who purportedly lacked a Georgia driver's license or Georgia Photo ID card. (Sept. 14, 2006, Hr'g Tr. at 43.) 173. The State Elections Board approved a brochure concerning the Photo ID requirement to be distributed by the Elections Division of the Secretary of State's Office; however, that brochure had not been distributed as of September 14, 2006. (Sept. 14, 2006, Hr'g Tr. at 43-44.) 174. On September 5, 2006, the State Election Board resumed running PPSAs on television stations. (Sept. 14, 2006, Hr'g Tr. at 37.) 175. On September 6, 2006, the State Election Board resumed running PPSAs on radio stations. (Sept. 14, 2006, Hr'g Tr. at 37-38, 60-61.) The PPSAs ran on the same radio stations on which the PPSAs aired before the July 2006 primary elections. (Id.) 176. In February 2007, Secretary of State Handel's office began discussing a plan to educate voters concerning the Photo ID requirement. (Aug. 23, 2007, Trial Tr. at 134.) 177. Secretary of State Handel's office eventually developed such an education plan. (State Defs.' Ex. 1; Aug. 22, 2007, Trial Tr. at 149; Aug. 23, 2007, Trial Tr. at 132.) 178. The education plan includes three phases: (1) July 2007 through September 2007, which will focus on the September 18, 2007, elections and educating the voters in the twenty-three counties affected by those elections; (2) September 2007 through November 2007, which will focus on educating voters in counties that are holding elections on November 6, 2007; and (3) November 2007 through February 2008, which will focus on' educating voters across the state. (State Defs.' Ex. 1; Aug. 22, 2007, Trial Tr. at 149-50; Aug. 23, 2007, Trial Tr. at 135.) 179. Although Secretary of State Handel's office has demographic information about voters, including age, gender, and race information, Secretary of State Handel's office did not take that information into account in developing the education plan. (Aug. 22, 2007, Trial Tr. at 119-20, 159.) According to Secretary of State Handel, she intended to reach out to as many voters as possible. (Id. at 119-20.) 180. Robert Simms, Deputy Secretary of State, testified that the Secretary of State's Office will measure the success of its voter education plan, in part, by determining whether counties are able to conduct elections in a fair, efficient, and successful manner and whether the counties comply with applicable State laws. (Aug. 22, 2007, Trial Tr. at 145, 151-54; Aug. 23, 2007, Trial Tr. at 133.) Mr. Simms further testified that the Secretary of State's Office also will measure the success of its voter education plan by determining whether more people obtain Voter ID cards, vote absentee, or vote provisional ballots that are counted, and by determining whether voters who choose to participate in elections are able to do so. (Aug. 22, 2007, Trial Tr. at 152; Aug. 23, 2007, Trial Tr. at 133.) 181. Secretary of State Handel's office's budget for educating voters is $500,000 for fiscal year 2008, which runs from July 1, 2007, through June 30, 2008. (Aug. 22, 2007, Trial Tr. at 131.) As of August 24, 2007, Secretary of State Handel's office had spent between $123,000 and $125,000 on the Photo ID education effort. (Aug. 23, 2007, Trial Tr. at 150.) 182. Secretary of State Handel testified that she will have an opportunity in January 2008 to ask for additional voter education funds if her office determines 1366 that such funds are necessary. (Aug. 22, 2007, Trial Tr. at 131; Aug. 24, 2007, Trial Tr. at 27.) At this point, Secretary of State Handel plans to request more voter education funds, and believes that her request will be granted. (Aug. 22, 2007, Trial Tr. at 131.) In the event that the request for additional funds is denied, or in the event that Secretary of State Handel's office uses all of the $500,000 funds prior to January 2008, Secretary of State Handel plans to adjust her budget to make funds available for the Photo ID education effort. (Aug. 24, 2007, Trial Tr. at 26.) 183. Secretary of State Handel's office developed a letter, dated August 8, 2007, to mail to the voters in the counties holding elections on September 18, 2007, who appeared on the DDS no match list. (Aug. 22, 2007, Trial Tr. at 106; State Defs.' Ex. 4; Pls.' Ex. 68.) 184. The August 8, 2007, letter states, in relevant part: Our records indicate that you are a registered voter who may not have a Driver's License or Photo ID card issued by the Georgia Department of Driver Services (DDS). As Georgia's Secretary of State, I would like to take this opportunity to provide you important information about voting procedures in Georgia. Georgia law requires registered voters to show photo identification when voting in person. This photo identification requirement applies to all September 18, 2007 Special Elections and all future elections. You are not required to include any identification when you vote absentee by mail. If you do not have a valid or expired, Driver's License or a Photo ID issued by Georgia DDS you can still use one of the following: โ Any valid state or federal government issued Photo ID, including a free voter ID card issued by your county registrar or DDS โ Valid U.S. passport โ Valid employee photo ID from any branch, department, agency, or entity of the U.S. Government, Georgia, or any county, municipality, board, authority, or other entity, of this state โ Valid U.S. military photo ID โ Valid tribal photo ID If you DO NOT have one of these forms of identification, you are eligible to receive a FREE Georgia voter identification card. To receive this voter identification card, please contact any DDS office or your county registrar's office . . . For more information, you can call 1(877)725-9797. Or, please visit our website at www.GaPhotoID.com or call our office at (404)656-2871. (Pls.' Ex. 68 (emphasis in original); State Defs.' Ex. 4 (same).) The letters provide the address and phone number for the voter's county registrar's office. (Pls.' Ex. 68; State Defs.' Ex. 4.) 185. Secretary of State Handel's office did not have the August 8, 2007, letter reviewed by a literacy expert prior to mailing it. (Aug. 22, 2007, Trial Tr. at 162-63.) 186. Secretary of State Handel's office did not hire a literacy expert to examine the August 8, 2007, letter, partly because the office had only limited funds for the voter education initiative. (Aug. 23, 2007, Trial Tr.) 187. The August 8, 2007, letter originally was mailed to the voters in twenty-two counties who appeared on the DDS match as a no-match, as having a suspended, canceled, surrendered, or revoked license, or as being not licensed or denied a license. (Aug. 22, 2007, Trial Tr. at 108, 156-57; Aug. 23, 2007, Trial Tr. at 141-43.) 188. During the week of August 15, 2007, Secretary of State Handel's office 1367 mailed the August 8, 2007, letter to voters in the twenty-two counties who appeared on the DDS match as having an expired DDS-issued Photo ID card; however, the letter was not mailed to voters in the twenty-two counties who appeared on the DDS match as having expired Georgia driver's licenses. (Aug. 22, 2007, Trial Tr. at 109-112; Aug. 23, 2007, Trial Tr. at 143.) An expired Georgia driver's license is an acceptable form of Photo ID for purposes of the 2006 Photo ID Act. (Aug. 22, 2007, Trial Tr. at 158; Aug. 23, 2007, Trial Tr. at 173.) 189. During the week of August 17 through August 20, 2007, Secretary of State Handel's office also sent a copy of the August 8, 2007, letter to Berrien County, Georgia, voters who appeared on a DDS data match run for that county as being a no-match, as having a suspended, canceled, surrendered, or revoked license, or as being not licensed or denied a license. (Aug. 22, 2007, Trial Tr. at 158; Aug. 23, 2007, Trial Tr. at 144-45.) 190. Secretary of State Handel's office has developed a brochure addressing the Photo ID requirement that the office plans to mail before the September 18, 2007, elections, to the voters who received the August 8, 2007, letter. (Aug. 22, 2007, Trial Tr. at 162.) 191. Secretary of State Handel's office did not have the brochure document reviewed by a literacy expert. (Aug. 22, 2007, Trial Tr. at 162.) 192. Secretary of State Handel's office also developed a postcard that the office plans to send to the voters who were sent the August 8, 2007, letter. (Aug. 23, 2007, Trial Tr. at 147-48; State Defs.' Ex. 13.) Secretary of State Handel's office plans to mail the postcards to voters during the week of September 3, 2007. (Aug. 23, 2007, Trial Tr. at 148.) 193. Further, Secretary of State Handel's office developed an updated Georgia Voter Information Guide that includes information concerning the Photo ID requirement. (State Defs.' Ex. 3; Aug. 23, 2007, Trial Tr. at 217-18.) 194. Secretary of State Handel's office also developed a flyer that includes information about the Photo ID requirement. (State Defs.' Ex. 14.) The flyer also is available in a poster format. (State Defs.' Ex. 15.) 195. Secretary of State Handel's office also plans to make automated telephone calls to the voters who were mailed the August 8, 2007, letter. (Aug. 23, 2007, Trial Tr. at 149.) 196. Secretary of State Handel's office also purchased paid radio advertisements concerning the Photo ID requirement for the weeks of August 13, August 20, and August 27, and contemplated purchasing radio advertisements for later weeks. (Aug. 22, 2007, Trial Tr. at 160, 174; Aug. 23, 2007, Trial Tr. at 158; State Defs.' Ex. 26.) 197. The paid radio advertisements have run, and are scheduled to run, on the Clear Channel Network, which includes certain traffic reports, as well as the Georgia News Network. (Aug. 22, 2007, Trial Tr. at 174-75; State Defs.' Ex. 26; Aug. 23, 2007, Trial Tr. at 158; Aug. 24, 2007, Trial Tr. at 11.) Secretary of State Handel's office chose the Clear Channel Network, in part, because that network already has a contract with the State of Georgia, and using the network would allow Secretary of State Handel's office to bypass the often-lengthy State procurement process. (Aug. 24, 2007, Trial Tr. at 11.) 198. The paid radio advertisements are concentrated to cover the area that includes twenty-two of the counties that are holding elections on September 18, 2007. 1368 (Aug. 22, 2007, Trial Tr. at 174-75; Pls.' Ex. 117.) 199. Secretary of State Handel's office did not perform a demographic analysis of the listening audience for the radio stations that are to run the paid radio advertisements, and did not measure the audience of those radio stations within the areas of the twenty-three counties that are holding September 18, 2007, elections. (Aug. 22, 2007, Trial Tr. at 174-75.) 200. Secretary of State Handel's office had planned to run unpaid public service announcements ("PSAs") prior to the September 18, 2007, elections; however, no such PSAs had run as of the date of the trial. (Aug. 22, 2007, Trial Tr. at 180; Aug. 24, 2007, Trial Tr: at 10.) 201. Secretary of State Handel's office has not purchased television or billboard advertisements addressing the Photo ID requirement to run prior to September 18, 2007. (Aug., 22, 2007, Trial Tr. at 160; Aug. 24, 2007, Trial Tr. at 12.) 202. The voter education plan developed by Secretary of State Handel's office also includes asking nongovernmental organizations and chambers of commerce to partner with the office in getting information concerning the Photo ID requirement to voters. (Aug. 23, 2007, Trial Tr. at 153-54.) 203. Secretary of State Handel's office sent a letter requesting assistance in notifying voters about the Photo ID requirement to a number of non-governmental organizations in the twenty-three counties who are holding elections in September 2007. (Aug. 23, 2007, Trial Tr. at 150-52; State Defs.' Exs. 5-6.) 204. Secretary of State Handel's office has received responses to the letter sent to the non-governmental organizations that include requests for materials, and has provided materials to the requesters for distribution. (Aug. 23, 2007, Trial Tr. at 152, 155.) The materials included for distribution include the Voter ID brochure and flyer. (Id. at 152.) 205. Secretary of State Handel's office has provided the Voter ID brochure, the flyer, and the poster to the registrars for, twenty-two of the counties that are holding September 18, 2007, elections, and will mail those materials to the registrars in other counties. (Aug. 23, 2007, Trial Tr. at 153; Aug. 24, 2007, Trial Tr. at 8.) Secretary of State Handel's office also has provided those materials to some registrars in person. (Aug. 23, 2007, Trial Tr. at 153.) 206. Secretary of State Handel's office also wrote a letter to the libraries located in the twenty-three counties that are holding September 18, 2007, elections. (Aug. 23, 2007, Trial Tr. at 154-55; State Defs.' Exs. 11-12.) Secretary of State Handel's office enclosed materials relating to the Photo ID requirement with those letters. (Aug. 23, 2007, Trial Tr. at 155; Aug. 24, 2007, Trial Tr. at 7.) 207. Secretary of State Handel's office requested that Governor Sonny Perdue also speak about the Photo ID requirement. (Aug. 23, 2007, Trial Tr. at 220.) 208. Secretary of State Handel's office also sent a letter to all of the members of the Georgia General Assembly who represent constituents in the twenty-three counties that plan to hold September 18, 2007, elections, requesting that those legislators assist in informing voters of the Photo ID requirement. (Aug. 23, 2007, Trial Tr. at 155-56, 220.) 209. The 2006 Photo ID Act also has been the subject of numerous newspaper articles and television news reports. 210. Additionally, Secretary of State Handel's office has written editorials and articles, which the office has provided to newspapers in the twenty-three counties that are holding September 18, 2007, elections. 1369 (Aug. 23, 2007, Trial Tr. at 168-70; Aug. 24, 2007, Trial Tr. at 13-14.) 211. Further, Secretary of State Handel's office contacted representatives from several utility companies, and requested that the utility companies include information about the Photo ID requirement in their bills. (Aug. 23, 2007, Trial Tr. at 156-57; State Defs.' Ex. 18.) SCANA, a gas marketer that operates throughout Georgia, has agreed to include that information on its bills. (Aug. 23, 2007, Trial Tr. at 157.) 212. Secretary of State Handel's office also created a website for the Voter ID requirement, www.gaphotoid.com. (Aug. 23, 2007, Trial Tr. at 159; Aug. 24, 2007, Trial Tr. at 12; State Defs.' Ex. 25.) That website contains information pertaining to the Photo ID requirement, and is accessible both directly by typing in the website address or via a link from the Secretary of State's webpage. (Aug. 23, 2007, Trial Tr. at 159; Aug. 24, 2007, Trial Tr. at 13.) The website began operating during the first week of August 2007. (Aug. 23, 2007, Trial Tr. at 161.) 213. Secretary of State Handel's office also presented information concerning the Photo ID requirement and the process for issuing Voter ID cards to the county registrars during a state-wide, mandatory registrar training held on August 13 through August 15, 2007. (Aug. 23, 2007, Trial Tr. at 161-62; Aug. 24, 2007, Trial Tr. at 15-19; State Defs.' Exs. 27, 29-30.) Additionally, Secretary of State Handel's office plans to hold additional training for registrars between September 2007 and December 2007, and to make on-line training available to registrars. (Aug. 23, 2007, Trial Tr. at 162.) The registrars, in turn, are responsible for training poll workers. (Aug. 23, 2007, Trial Tr. at 163.) 214. Secretary of State Handel also is scheduled to speak to voters concerning the Photo ID requirement prior to the September 18, 2007, elections. (Aug. 24, 2007, Trial Tr. at 14.) Secretary of State Handel's appearances prior to the September 18, 2007, elections primarily will target voters in the twenty-three counties that are holding the September elections. (Id.) 215. According to Secretary of State Handel, her office began distributing educational materials to voters at the optimal time โ approximately six weeks prior to the September 18, 2007, elections โ as the educational efforts will lead up to the September 18, 2007, elections and provide a sense of urgency. (Aug. 24, 2007, Trial Tr. at 46.) 6. Obtaining a Voter ID Card 216. The State purchased equipment to create Voter ID cards. (July 12, 2006, Hr'g Tr. at 67; Sept. 14, 2006, Hr'g Tr. at 46.) The State selected a vendor for the equipment, and the equipment was installed in all of Georgia's 159 counties. (July 12, 2006, Hr'g Tr. at 67.) 217. Registrars received training concerning the Voter ID card equipment during the Georgia Registrars Convention held in May 2006. (July 12, 2006, Hr'g Tr. at 67.) Twenty to thirty counties also requested, and received, individual training from the vendor of the equipment. (Id.) 218. Counties began issuing Voter ID cards during June or July 2006. (July 12, 2006, Hr'g Tr.) As of July 12, 2006, Georgia counties had issued a total of 420 Voter ID cards, 109 of which were issued by Atlanta metropolitan area counties. (Id.) 219. Counties issue a temporary Voter ID card to voters on the day that the voters appear to request the Voter ID card. (July 12, 2006, Hr'g Tr. at 68-69; Aug. 22, 2007, Trial Tr. at 122-23.) The temporary Voter ID cards are valid for forty-five days. (July 12, 2006, Hr'g Tr. at 1370 68-69.) The vendor is responsible for mailing permanent Voter ID cards to the voters, and usually does so within three days after the voters request the cards. (Id.) The counties may issue an unlimited number of temporary Voter ID cards, and the counties have supplies of applications for the Voter ID cards. (Id. at 69.) 220. The State contracted with the vendor of the Voter ID card equipment for the vendor to provide 10,000 Voter ID cards. (July 12, 2006, Hr'g Tr. at 123.) The State's contract with the vendor, however, provides that the State may purchase additional Voter ID cards if necessary. (July 12, 2006, Hr'g Tr. at 123; Aug. 24, 2007, Trial Tr. at 31.) If the State needs to purchase additional Voter ID cards, Secretary of State Handel's office will pay for the purchase. (Aug. 24, 2007, Trial Tr. at 31.) 221. The State Election Board's rules and regulations specify the hours that registrars' offices must remain open. (Aug. 22, 2007, Trial Tr. at 114-15.) The rules and regulations specifically require that the registrars' offices remain open from eight a.m. to five p.m. on the Monday through Friday during the week prior to an election. (Id.) No provision exists requiring the offices to be open at night, on weekends, or on holidays. (Id. at 115.) 222. Under the State Election Board's rules and regulations, a voter may present his or her voter registration application as a form of identification in order to obtain a Voter ID card from a county registrar. (July 12, 2006, Hr'g Tr. at 23, 26-27.) To register to vote, an individual need not provide a social security number, and is not required to provide any other identifying documentation, including a Photo ID. (July 12, 2006, Hr'g Tr. at 23-24, 26-27; Aug. 22, 2007, Trial Tr. at 93, 96.) A voter thus could register to vote, provide his or her voter registration application to the registrar, and, once his or her voter registration application is accepted, obtain a Voter ID card, all without showing any other form of identifying information. (July 12, 2006, Hr'g Tr. at 23-24, 26-27; Aug. 22, 2007, Trial Tr. at 96.) In theory, a voter who registered fraudulently several years ago now may use his or her fraudulent voter registration application to obtain a Voter ID card, which he or she may use to vote in person. (July 12, 2006, Hr'g Tr. at 24, 27.) 223. A voter also may use other non-Photo ID documents to obtain a voter identification card. (July 12, 2006, Hr'g Tr.) 224. Former Secretary of State Cox testified that the process of obtaining a Voter ID card is an additional step that an individual must go through to vote in person. (July 12, 2006, Hr'g Tr. at 28.) To that extent, the Voter ID card process could serve as a deterrent to fraud. (Id.) 225. As of 5:00 p.m. on September 13, 2006, the State of Georgia had issued 953 Voter ID cards. (Sept. 14, 2006, Hr'g Tr. at 46.) 192. Through July 2007, the State of Georgia had issued 2,830 total Voter ID cards through the registrars' offices. (Aug. 22, 2007, Trial Tr. at 151.) Between August 1, 2007, and August 23, 2007, the State of Georgia issued 198 additional Voter ID cards through the registrars' offices. (Aug. 24, 2007, Trial Tr. at 21.) E. Expert Testimony 1. Dr. Sheryl Gowen The State Defendants moved to exclude Dr. Sheryl Gowen's expert testimony, arguing that Dr. Gowen was not qualified to offer that testimony, and that Dr. Gowen's opinions did not satisfy Daubert's relevance and reliability requirements. For the reasons stated in the Court's separate Order addressing the State Defendants 1371 Motion to Exclude Reports and Testimony of Plaintiffs' Experts, the Court agrees with the State Defendants that Dr. Gowen's opinions and testimony fail to satisfy Daubert and have little, if any, relevance to the issues before the Court. The Court therefore does not consider those opinions and testimony. 2. Dr. Trey Hood The State Defendants also moved to exclude Dr. Trey Hood's expert testimony, arguing that Dr. Hood was not qualified to offer that testimony, and that Dr. Hood's opinions did not satisfy Daubert's relevance and reliability requirements. For the reasons stated in the Court's separate Order addressing the State Defendants' Motion to Exclude Reports and Testimony of Plaintiffs' Experts, the Court agrees with the State Defendants that Dr. Hood's opinions and testimony fail to satisfy Daubert, and, for the most part, are irrelevant to the issues before the Court. The Court therefore does not consider those opinions and testimony. III. Conclusions of Law A. Standing 1. "Article III of the United States Constitution limits the power of federal courts to adjudicating actual `cases' and `controversies.'" Nat'l Alliance for the Mentally 114 St. Johns, Inc. v. Bd. of County Comm'rs of St. Johns County, 376 F.3d 1292, 1294 (11th Cir.2004). "The most significant case-or-controversy doctrine is the requirement of standing." Id. "`In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.'" Id. (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). 2. To satisfy the standing requirement, a party must show: (1) that he has suffered an injury in fact; (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) that it is likely, as opposed to merely speculative, that the injury "will be `redressed by a favorable decision.'" Bischoff v. Osceola County, Fla., 222 F.3d 874, 883 (11th Cir. 2000). 3. "An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). To possess standing, however, an organizational plaintiff must show that one of its constituents otherwise has standing to sue. Doe v. Stincer, 175 F.3d 879, 882 (11th Cir.1999); see also Nat'l Alliance for the Mentally Ill, 376 F.3d at 1296 (noting, with respect to organizational plaintiffs, that failure to identify injured constituent prevented organizational plaintiffs from asserting associational standing). 4. The party invoking federal jurisdiction bears the burden of showing that it has standing to assert its claim. Fla. Pub. Interest Research Group Citizen Lobby, Inc. v. Envtl. Prot. Agency, 386 F.3d 1070, 1083 (11th Cir.2004). The party asserting that it has standing must support each element of the standing showing "`in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.'" Id. (quoting Bischoff 222 F.3d at 878). Thus, in connection with a motion to dismiss, a party may simply "provide `general factual allegations of injury resulting from the defendant's conduct.'" Id. (quoting Bischoff 222 F.3d at 878). Similarly, 1372 in connection with a request for a preliminary injunction, a party's standing may be judged based on the allegations of the party's complaint. Bischoff 222 F.3d at 882 n. 8 (citing Church v. City of Huntsville, 30 F.3d 1332, 1336 (11th Cir.1994)). At the summary judgment stage, however, a plaintiff may not simply rest on mere allegations, but instead "`must set forth by affidavit or other evidence specific facts which for purposes of the summary judgment motion will be taken to be true.'" Id. (quoting Bischoff 222 F.3d at 878). 5. Given the above standard, during the trial on the merits, the organizational Plaintiffs were required to come forth with evidence showing that they each had at least one member who otherwise would have standing to sue in his own right, or that the organizations had standing independent of their membership. Stincer, 175 F.3d at 882. As Plaintiffs acknowledged at trial, all of the organizational Plaintiffs except Plaintiff NAACP failed to make that showing. Consequently, the Court need only examine whether Plaintiff NAACP has presented sufficient evidence to establish that it has standing. 6. Plaintiff NAACP first argues that it has standing to sue on behalf of its members. As the Court previously concluded, Plaintiff Eugene Taylor's testimony as to whether he is a member of Plaintiff NAACP is not credible. Plaintiff NAACP consequently cannot establish standing based on Plaintiff Eugene Taylor's membership. 7. Further, although Mr. DuBose testified that he was generally aware of at least five individuals who would be affected by the Photo ID requirement, Mr. DuBose did not provide the names of those individuals, or even indicate whether those individuals actually were members of Plaintiff NAACP. Mr. DuBose's testimony consequently does not satisfy Plaintiff NAACP's burden to identify a member who otherwise would have standing to sue in his or her own right. Stincer, 175 F.3d at 882. Consequently, Plaintiff NAACP does not have standing to sue based on an injury to its members. See also Ind. Democratic Party v. Rokita, 458 F.Supp.2d 775, 815-16 (S.D.Ind.2006), aff'd, 472 F.3d 949 (7th Cir.2007), pet'n for cert. filed, No. 07-25 (U.S. July 2, 2007) (finding organizational plaintiffs lacked standing to sue on behalf of members where organizational plaintiffs failed to identify single member who did not already possess required photo identification or have injury beyond mere offense at having to present photo identification in order to vote). 8. Alternatively, Plaintiff NAACP argues that it has standing to sue in its own right, based on the possibility that it may have to re-allocate resources to educate its members concerning the Photo ID, requirement and to ensure that its members who lack Photo ID cards obtain those. In support of this argument, Plaintiff NAACP cites to Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), and Central Alabama Fair Housing Center, Inc. v. Lowder Realty Co., 236 F.3d 629 (11th Cir.2000). Both Havens Realty and Central Alabama Fair Housing Center, however, are Fair Housing Act cases, which involve special sets of circumstances. Rokita, 458 F.Supp.2d at 815-16. Plaintiff NAACP simply has not demonstrated that the United States Court of Appeals for the Eleventh Circuit would extend the standing analysis applied in those Fair Housing Act cases outside the context of housing discrimination, and the Court therefore declines to do so here. Id. 9. Additionally, Plaintiff NAACP, like the organizational plaintiffs in Rokita, failed to show that it already has expended resources in connection with the Photo ID requirement, but instead simply presented 1373 testimony indicating that at some undetermined time in the future, it may have "to divert unspecified resources to various outreach efforts." Rokita, 458 F.Supp.2d at 816. As the Rokita court noted, "[s]uch imprecise and speculative claims concerning potential future actions designed to combat speculative discrimination are a far cry from, the kind of organizational expenditures found to convey standing in Havens." Id. The Court therefore declines to apply Havens and its progeny to conclude that Plaintiff NAACP has standing to sue in its own right. 10. Further, the Court finds that, like the organizational plaintiffs in Rokita, any injury that Plaintiff NAACP would suffer would be of its own making. Rokita, 458 F.Supp.2d at 816-17. Indeed, as the Rokita court noted: [T]he claimed injury suffered by the Organization Plaintiffs is entirely of their own making since any future reallocation of resources would be initiated at the Organization Plaintiffs' sole and voluntary discretion. Such an optional programming decision does not confer Article III standing on a plaintiff. As the D.C. Circuit observed: "The diversion of resources . . . might well harm the [plaintiffs] other programs, for money spent on testing is money that is not spent on other things. But this particular harm is self-inflicted; it results not from any actions taken by [defendant], but rather from the [plaintiffs] own budgetary choices." Id. (quoting Fair Employment Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C.Cir.1994)). 11. Additionally, the Court agrees with the Rokita court that [T]he interpretation of Havens proffered by [Plaintiff NAACP], if accepted, would completely eviscerate the standing doctrine. If an organization obtains standing merely by expending resources in response to a statute, then Article III standing could be obtained through nothing more than filing a lawsuit. Such an interpretation flies in the face of well-established standing principles. Indeed, "[a]n organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit. Were the rule otherwise, any litigant could create injury in fact by bringing a case, and Article III would present no real limitation." Rokita, 458 F.Supp.2d at 817 (quoting Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C.Cir.1990)). Consequently, the Court declines to find that Plaintiff NAACP has standing to pursue this case. 12. For the reasons discussed above, the Court finds that Plaintiff NAACP has failed to establish that it has standing to sue on behalf of its members, or that it has standing to sue in its own right. Consequently, Plaintiff NAACP may not pursue this lawsuit. 13. Additionally, for the following reasons, the Court finds that the individual Plaintiffs, Plaintiff Bertha B. Young and Plaintiff Eugene Taylor, also have failed to demonstrate that they have standing. 14. First, although Plaintiff Bertha B. Young lacks a Photo ID that is acceptable for purposes of the 2006 Photo ID Act, she testified unequivocally that she can and will obtain a Photo ID card from her local registrar if the Court upholds the Photo ID requirement. Plaintiff Bertha B. Young further testified that she can go to her registrar's office, which is approximately two miles away from her house, by taking a bus. Although Plaintiff Bertha B. Young contends that the bus ride would take approximately one hour, she also testified that her sons and friends often drive her places. Indeed, Plaintiff Bertha B. Young uses a bank across town, and her 1374 friends or family members drive her there. Under those circumstances, the Court simply cannot find that requiring Plaintiff Bertha B. Young to obtain a Photo ID card will impose a significant burden on her, or that Plaintiff Bertha B. Young has shown, by a preponderance of the evidence, that she has suffered, or is in imminent danger of suffering, an injury in fact because of the 2006 Photo ID Act. In particular, Plaintiff Bertha B. Young has not shown that she has suffered "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural, or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quotation marks and citations omitted). Plaintiff Bertha B. Young therefore lacks standing to pursue this lawsuit. 15. Similarly, Plaintiff Eugene Taylor testified that he has not voted since sometime in the 1980s, and that, if the Court upholds the Photo ID requirement, he can and will get a Photo ID card from his local registrar to allow him to vote. Plaintiff Eugene Taylor testified that his daughter will drive him to get the Photo ID card, and the evidence in the record indicates that Plaintiff Eugene Taylor's local registrar's office is approximately the same distance from Plaintiff Eugene Taylor's home as is his polling place. Consequently, the Court cannot find that Plaintiff Eugene Taylor is in danger of suffering "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (quotation marks and citations omitted). Further, although Plaintiff Eugene Taylor contends that his daughter may, have to take off time from work to take him to the registrar's office, Plaintiff Eugene Taylor has not demonstrated that he will suffer any harm from his daughter taking off from work, and he may not use any alleged injury to his daughter from missing work to support his own claim of standing. Plaintiff Eugene Taylor therefore lacks standing to pursue this action. 16. In sum, the Court finds that Plaintiffs have failed to prove, by a preponderance of the evidence, that they have standing to pursue this action. The Court therefore may not entertain this case. Consequently, the Court need not address Plaintiffs' substantive challenge to the 2006 Photo ID Act. In an abundance of caution, however, the Court will address the merits of that challenge. B. Undue Burden[5] 1. Standard for Obtaining a Permanent Injunction 17. A court may grant a preliminary injunction "only if the moving party shows that: (1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest." Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir.2004) (quoting Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.2000)) (en banc) (per curiam). "The standard for a permanent injunction is essentially the same as for a preliminary injunction except that the 1375 plaintiff must show actual success on the merits instead of a likelihood of success.'" Id. (quoting Siegel, 234 F.3d at 1213). Additionally, "most courts do not consider the public interest element in deciding whether to issue a permanent injunction." Id. 18. A plaintiff seeking to enjoin enforcement of a state statute bears a particularly heavy burden. "`[P]reliminary injunctions of legislative enactments โ because they interfere with the democratic process and lack the safeguards against abuse or error that come with a full trial on the merits โ must be granted reluctantly and only upon a clear showing that the injunction before trial is definitely demanded by the Constitution and by the other strict legal and equitable principles that restrain courts.'" Bankwest, Inc. v. Baker, 324 F.Supp.2d 1333, 1343 (N.D.Ga. 2004) (quoting Ne. Fla. Chapter of the Ass'n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir.1990)). 2. Success on the Merits 19. The Supreme Court has made it clear that voting is a fundamental right, Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992), under the Fourteenth Amendment in the context of equal protection, Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 629, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). 20. Indeed, in Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), the Court observed: No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right. 376 U.S. at 17-18, 84 S.Ct. 526. 21. Similarly, in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Court stated: Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. 377 U.S. at 561-62, 84 S.Ct. 1362. 22. "[A] citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction." Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). 23. The equal right to vote, however, is not absolute. Dunn, 405 U.S. at 336, 92 S.Ct. 995. 24. Instead, states can impose voter qualifications and can regulate access to voting in other ways. Dunn, 405 U.S. at 336, 92 S.Ct. 995. 25. Under the United States Constitution, states may establish the time, place, and manner of holding elections for Senators and Representatives. U.S. Const. art. ง 4, cl. 1. 26. The qualifications and access regulations established by the states, however, cannot unduly burden or abridge the right to vote. Tashjian v. Republican Party, 479 U.S. 208, 217, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986) ("[T]he power to regulate the time, place, and manner of elections does not justify, without more, the abridgment of fundamental rights, such as the right to vote.") (citing Wesberry, 376 1376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481); see also Dunn, 405 U.S. at 359-60, 92 S.Ct. 995 (striking down. Tennessee's durational residency voting requirement of one year in state and three months in county); Beare v. Briscoe, 498 F.2d 244, 247-48 (5th Cir.1974) (invalidating provisions of Texas Constitution and implementing statute requiring persons who wished to vote in any given year to register each year during registration period beginning on October 1 and ending on January 31 of following year) (per curiam). In particular, the Supreme Court has observed that wealth or the ability to pay a fee is not a valid qualification for voting. Harper v. Va. State Bd. of Elections, 383 U.S. 663, 666-68, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (citations omitted; footnote omitted). 27. A number of Supreme Court cases have set forth standards for determining whether a state statute or regulation concerning voting violates the Equal Protection clause. 28. In Dunn, the Supreme Court stated that a court must examine: "the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification." Dunn, 405 U.S. at 335, 92 S.Ct. 995. 29. Another Supreme Court case indicates that the Court should "`consider the facts and circumstances behind' the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification.'" Kramer, 395 U.S. at 626, 89 S.Ct. 1886. 30. Those cases apply strict scrutiny when examining state statutes or regulations that limit the right to vote. Kramer, 395 U.S. at 627, 89 S.Ct. 1886 ("[I]f a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest."); see also Hill v. Stone, 421 U.S. 289, 298, 95 S.Ct. 1637, 44 L.Ed.2d 172 (1975) ("in an election of general interest, restrictions on the franchise of any character must meet a stringent test of justification"). 31. In a more recent line of cases, the Supreme Court has not necessarily applied the strict scrutiny test automatically to regulations that relate to voting. Burdick, 504 U.S. at 433-34; 112 S.Ct. 2059; Tashjian, 479 U.S. at 213, 107 S.Ct. 544 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)). 32. Indeed, the Supreme Court observed in Burdick: Election laws will invariably impose some burden upon individual voters. Each provision of a code, "whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects โ at least to some degree โ the individual's right to vote and his right to associate with others for political ends. Consequently, to subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest, as petitioner suggests, would tie the hands of States seeking to assure that elections are operated equitably and efficiently." Accordingly, the mere fact that a State's system "creates barriers . . . tending to limit the field of candidates from which voters might choose . . . does not of itself compel close scrutiny." Instead, . . . a more flexible standard applies. A court considering a challenge to a state election law must weigh "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the 1377 State as justifications for the burden imposed by its rule," taking into consideration "the extent to which those interests make it necessary to burden the plaintiffs rights." Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to "severe" restrictions, the regulation must be "narrowly drawn to advance a state interest of compelling importance." But when a state election law, provision imposes only "reasonable, nondiscriminatory restrictions" upon, the First and Fourteenth Amendment rights of voters, "the State's most important regulatory interests are generally sufficient to justify" the restrictions. Burdick 504 U.S. at 433-34, 112 S.Ct. 2059 (citations omitted). 33. The Court finds that the appropriate standard of review for evaluating the 2006 Photo ID Act is the Burdick sliding scale standard. 34. Under that standard, the Court must weigh "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the State as justifications for the burden imposed by its rule," taking into consideration "the extent to which those interests make it necessary to burden the plaintiffs rights," Burdick, 504 U.S. at 433-34, 112 S.Ct. 2059. a. The Asserted Injury 35. For the reasons discussed below, the Court finds that Plaintiffs simply have failed to prove that the character and magnitude of the asserted injury to the right to vote is significant. Although Plaintiffs contended at the preliminary injunction hearings that many voters who do not have driver's licenses, passports, or other forms of photographic identification have no transportation to a voter registrar's office or DDS service center, have impairments that preclude them from .waiting in often-lengthy lines to obtain Voter ID cards or Photo ID cards, or cannot travel to a registrar's office or a DDS service center during those locations' usual hours of operation because the voters do not have transportation available, Plaintiffs failed to produce admissible evidence to that effect at trial. Indeed, the two named Plaintiffs both testified that they could and would travel to their local registrars' office to obtain a Photo ID card if the Court upheld the 2006 Photo ID Act, and their testimony, contrary to Plaintiffs' arguments, did not establish that either of the two named Plaintiffs would suffer an undue burden from traveling to the local registrar's office to obtain a Photo ID card. In particular, although the two named Plaintiffs testified that their children would have to take time off from work to take them to the registrar's office, the testimony in the record demonstrates that the two named Plaintiffs' children regularly take the two named Plaintiffs places, and that transportation may be available from other sources, including rides from friends. Additionally, although Plaintiff Bertha B. Young stated that her bus ride to the registrar's office would take one hour each way, she also testified that her friends could drive her, and it appears from the record that her friends and employer regularly transport her. Similarly, Mr. Dewberry testified that he could walk one-quarter of a mile to the registrar's office to obtain a Voter ID card, and stated that obtaining a Voter ID card would not be a significant hardship for him. Consequently, the Court cannot find 1378 that the Photo ID requirement is unduly burdensome for Mr. Dewberry. Likewise, Annie Johnson testified that she goes to Americus at least once a month, that her friends or family members drive her there, and that she would obtain a Voter ID card the next time she went to Americus. This testimony fails to support Plaintiffs' contention that requiring Ms. Johnson to obtain a Voter ID card would unduly burden her right to vote. Further, although Plaintiffs contended at the preliminary injunction hearing that many voters who lack an acceptable Photo ID for in-person voting are elderly, infirm, or poor, and lack reliable transportation to a DDS service center or a county registrar's office, the evidence in the record fails to support that contention. Even if the Court accepted Dr. Hood's testimony indicating that a higher percentage of the individuals who appear on the DDS no-match lists are elderly, or are African-American or other minorities, the testimony in the record established that the large numbers reported on the DDS no-match list were far from reliable.[6] Additionally, as previously noted, Plaintiffs proffered precious little admissible evidence showing that voters who lacked Photo ID had no transportation to a DDS office or a county registrar's office. Further, even if a voter's name appears on a DDS no-match list, the voter still may have some other form of acceptable Photo ID, and neither Dr. Hood's analysis nor the DDS no-match list purported to address that issue. Plaintiffs thus simply have not satisfied their burden of proving that the 2006 Photo ID Act unduly burdens minority or elderly voters. 36. Although Plaintiffs argue that the State's education efforts are irrelevant to the question of whether the 2006 Photo ID Act unduly burdens voters, the Court finds this argument unpersuasive. The Court's earlier rulings on the preliminary injunction motions, which found that the Photo ID requirements in the 2006 Photo ID Act unduly burdened voters, hinged in large part on the fact that many of the voters who might lack a Photo ID had no real notice of the Photo ID requirement or of how to get a Photo ID or vote absentee. At the trial, however, the evidence revealed that the State made exceptional efforts to contact voters who potentially lacked a valid form of Photo ID issued by the DDS and who resided in the twenty-three counties that planned to hold September 18, 2007, elections, and to inform those voters of the availability of a Voter ID card, where to obtain additional information, and the possibility of voting absentee without a Photo ID.[7] The evidence in the record indicates that the State also provided information to voters in general by advertising on the Clear Channel radio network, and by partnering with libraries 1379 and nongovernmental organizations. Additionally, the Photo ID requirement has been the subject of many news reports, editorials, and news articles. Under those circumstances, Plaintiffs are hard-pressed to show that voters in Georgia, in general, are not aware of the Photo ID requirement: 37. Additionally, individuals who do not have an acceptable Photo ID for in-person voting can obtain an absentee ballot and vote absentee by mail without providing an excuse. Although Plaintiffs contend that the average Georgia voter cannot read and understand the absentee ballot request form, there is no requirement that a voter complete that form. Instead, a voter need only write his name, address, and date of birth on a piece of paper, indicate in which election he wishes to vote absentee, and mail the piece of paper to his registrar. If he cannot do this, or if he cannot complete the absentee ballot request form, he can obtain assistance from a family member. Similarly, if the voter cannot read and complete the absentee ballot, a family member can help him. The State thus has not, as Plaintiffs contend, completely barred voters who lack Photo ID from voting. 38. The Court acknowledges that in its previous Orders addressing the preliminary injunction motions, it concluded that the Photo ID requirement severely burdened voters. It is important to note, however, that the preliminary injunction motions were made at an earlier stage of the litigation and were made under more relaxed evidentiary standards. Here, however, Plaintiffs must actually prove their contentions by a preponderance of the evidence, using evidence reduced to an admissible form. Plaintiffs have failed to do so here. 39. Additionally, the Orders on the preliminary injunction motions were written under factual backgrounds that differ significantly from the admissible evidence presented to the Court at trial. In the case of the 2005 Photo ID Act, voters had no alternative for obtaining a Photo ID except to go to the DDS service centers or the Glow Bus. The evidence at the time indicated that the Glow Bus ran only sporadically and could not have possibly traveled to all of Georgia's 159 counties in time for the relevant elections, and also indicated that the DDS service centers often had long lines and long wait times. Further, under the 2005 Photo ID Act, voters either had to pay for their Photo ID card to vote in-person or swear to an affidavit of indigency, perhaps falsely. Voters also might have been required to pay fees to obtain the "documents necessary to obtain a Photo ID Card from DDS. 40. At the time of the July 12, 2006, and September 14, 2006, preliminary injunction hearings, the evidence indicated that the State had given voters a choice of obtaining a free DDS-issued Photo ID card for voting purposes or a free Voter ID card issued by their local registrars. Unfortunately, the evidence indicated that the State had begun voter education efforts only shortly prior to those hearings, and that the voter education efforts used by the State did not appear to be reasonably calculated to reach the voters who lacked Photo ID. The Court's primary concern in connection with those hearings was that voters likely would not have sufficient time to learn about the Photo ID requirement, to discover how to obtain a Photo ID, and to travel to their respective DDS service centers or registrar's offices to obtain a Photo ID. Under those circumstances, the Court found that the Photo ID requirement was likely to cause voters without Photo ID to refrain from voting, and, consequently, the Photo ID requirement was an undue burden on the right to vote. 1380 41. Here, however, the State has undertaken a serious, concerted effort to notify voters who may lack Photo ID cards of the Photo ID requirement, to inform those voters of the availability of free DDS-issued Photo ID cards or free Voter ID cards, to instruct the voters concerning how to obtain the cards, and to advise the voters that they can vote absentee by mail without a Photo ID. Although the State's educational effort may not be as extensive as Plaintiffs would like, the evidence demonstrates that the educational effort is reasonably calculated to inform voters of the change in the law and to inform voters what action they need to take. Additionally, the State's educational effort began sufficiently early to afford most voters who lack a Photo ID a reasonable opportunity to obtain one. The Court therefore finds that the 2006 Photo ID Act does not significantly burden the right to vote. 42. Similarly, at the time of the previous hearings, the State had not publicized no-excuse absentee voting by mail as an alternative to voting in person with a Photo ID. By the time of the trial, however, the State has reached out to voters to explain the availability of that option. 43. Plaintiffs appear to argue that the requirement of obtaining a Photo ID, in and of itself, significantly burdens the right to vote. The Court finds this argument unpersuasive. Indeed, Election laws will invariably impose some burden upon individual voters. Each provision of a code, "whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects โ at least to some degree โ the individual's right to vote and his right to associate with others for political ends." Rokita, 458 F.Supp.2d at 821-22 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75, L.Ed.2d 547 (1983)). Plaintiffs simply have not presented sufficient admissible evidence to show that the Photo ID requirement severely burdens the right to vote. Indeed, as the court noted in Rokita: Despite apocalyptic assertions of wholesale voter disenfranchisement, Plaintiffs have produced not a single piece of evidence of any identifiable registered voter who would be prevented from voting pursuant to [the 2006 Photo ID Act] because of his or her inability to obtain the necessary photo identification. Similarly, Plaintiffs have failed to produce any evidence of any individual . . . who would undergo any appreciable hardship to obtain photo identification in order to be qualified to vote. Id. at 822-23. Additionally, although Plaintiffs claim to know of people who claim that they lack Photo ID, Plaintiffs have failed to identify those individuals. Id. at 823. The failure to identify those individuals "is particularly acute" in light of Plaintiffs' contention that a large number of Georgia voters lack acceptable Photo ID. Id. Further, although Plaintiffs Eugene Taylor and Bertha B. Young and Mr. Dewberry and Ms. Johnson state that they prefer to vote in person rather than voting absentee by mail, "this abrogation of their personal preferences is not a cognizable injury or hardship." Id. at 823 n. 71. As the Rokita court noted, voters who lack Photo ID undoubtedly exist somewhere, but the fact that Plaintiffs, in spite of their efforts, have failed to uncover anyone "who can attest to the fact that he/she will be prevented from voting" provides significant support for a conclusion that the Photo ID requirement does not unduly burden the right to vote. Id. at 823. Consequently, the Court declines to apply a strict scrutiny analysis to Plaintiffs' contentions. 1381 b. State Interest 44. The State and the State Defendants assert that the 2006 Photo ID Act's Photo ID requirement is designed to curb voting fraud. "`A state indisputably has a compelling interest in preserving the integrity of its election process.'" Purcell v. Gonzalez, ___U.S. ___, ___, 127 S.Ct. 5, 7, 166 L.Ed.2d 1 (2006). As the Supreme Court has noted: Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised. "[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Id. (quoting Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1972)). c. Extent to Which the State's Interest In Preventing Voter Fraud Makes It Necessary to Burden the Right to Vote 45. Finally, the Court must examine the extent to which the State's interest in preventing voter fraud makes it necessary to burden the right to vote. Plaintiffs argue that the 2006 Photo ID Act is not narrowly tailored to the State's proffered interest of preventing voter fraud because the State Defendants failed to show that any incidents of in-person voter fraud had occurred.[8] Plaintiffs also argue that the State had a number of significantly less burdensome alternatives available to prevent in-person voting fraud, such as the voter identification requirements it previously used and numerous criminal statutes penalizing voter fraud, to discourage voters from fraudulently casting ballots or impersonating other voters. Those arguments, however, presuppose that the Court will apply a strict scrutiny analysis. Because the Court has concluded that the 2006 Photo ID Act does not unduly or significantly burden the right to vote, a strict scrutiny analysis is not appropriate. 46. Rather, the appropriate inquiry is whether the Photo ID requirement is rationally related to the interest the State seeks to further โ preventing fraud in voting. The Court finds that the Photo ID requirement is rationally related to that interest.[9] Although Plaintiffs may argue that no documented cases of inperson voter fraud exist in Georgia, "the State is not required to produce such documentation prior to enactment of a law." Rokita, 458 F.Supp.2d at 826. 47. Additionally, Plaintiffs complain that any real problem with voting fraud exists in the absentee voting area, and that the State has failed to take steps to address that problem. This argument, once again, presumes that the Court will apply a strict, or heightened, scrutiny analysis. In any event, it is clear that "the legislature has wide latitude in determining the problems it wishes to address and the 1382 manner in which it desires to address them." Rokita, 458 F.Supp.2d at 829. As the Supreme Court has noted: Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislature may select one phase of one field and apply a remedy there, neglecting the others. Williamson v. Lee Optical of Okla., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955). d. Summary 48. For the reasons discussed above, the Court finds that Plaintiffs have not demonstrated that the Photo ID requirement places an undue or significant burden on the right to vote. Additionally, Plaintiffs have failed to demonstrate that the Photo ID requirement is not reasonably related to the State's interest in preventing fraud in voting. For those reasons, the Court finds that Plaintiffs have failed to succeed on the merits of their claim that the 2006 Photo ID Act violates the Equal Protection Clause because it imposes an undue burden on the right to vote. 3. Irreparable Harm For the reasons discussed supra Part III.B., Plaintiffs have failed to show that the 2006 Photo ID Act's Photo ID requirement unduly or significantly burdens the fundamental right to vote. Plaintiffs thus have failed to prove that they or ,other Georgia voters will suffer irreparable harm if the Court declines to enter a permanent injunction. C. Threatened Injury to Plaintiffs Weighed Against the Damage to the State Next, the Court must weigh the threatened injury to Plaintiffs against the damage to the State caused by, a permanent injunction. As noted above, Plaintiffs simply have failed to prove that the Photo ID requirement unduly or significantly burdens the right to vote. On the other hand, the State has a compelling interest in preventing fraud in voting, and entering a permanent injunction will greatly interfere with the State's chosen method of protecting that interest. This factor therefore counsels against entering a permanent injunction. D. Public Interest As previously noted, most courts do not consider the public interest factor in determining whether a permanent injunction should issue. Klay, 376 F.3d at 1092. In any event, a permanent injunction would not serve the public interest. For the reasons discussed above, Plaintiffs simply have failed to prove that the Photo ID requirement unduly or significantly burdens the right to vote. On the other hand, preventing voter fraud serves the public interest by ensuring that those individuals who have registered properly to vote are allowed to vote and to have their votes counted in any given election. This factor therefore counsels against granting a permanent injunction. E. Summary In sum, the factors for granting permanent injunctive relief do not weigh in favor of Plaintiffs. In particular, Plaintiffs have failed to prove actual success on the merits of their claim that the 2006 Photo ID Act's Photo ID requirement unduly burdens the right to vote. Plaintiffs also have failed to show that they will suffer irreparable 1383 harm if the Court does not grant a permanent injunction, much less that any harm to Plaintiffs outweighs the harm to Defendants that would occur if the Court granted permanent injunctive relief. Additionally, entering a permanent injunction would not serve the public interest. For those reasons, the Court declines to enter a permanent injunction, and finds in favor of the State Defendants on Plaintiffs' undue burden claim. IV. Conclusion ACCORDINGLY, the Court DISMISSES this case, and DIRECTS the Clerk to CLOSE this case. The Court DIRECTS the Clerk to enter judgment in favor of the State Defendants. NOTES [1] Plaintiff Bertha B. Young testified that she works for Attorney Edward Hine, Jr.'s family. (Aug. 22, 2007, Trial Tr. at 15.) [2] Plaintiff Eugene Taylor's grandson was a law school classmate of Jason Carter, one of Plaintiffs' attorneys. (Aug. 22, 2007, Trial Tr. at 70.) [3] Similarly, the declarations and affidavits of election officials submitted by the State Defendants in connection with the previous Motions for Preliminary Injunctions are hearsay, and the Court consequently has not considered those materials in connection with this Order. [4] Ms. Johnson apparently thought that she had done something wrong or was in trouble for signing the statements. A. Johnson Dep. at 33 ("So here I did wrong for signing this paper here? Is that what you're talking about?"), 34 ("I signed these papers wrong, is that what you mean?"), 38 ("And if I know it was wrong I never would have signed them."), 45 (expressing concern as to whether Ms. Johnson had done something wrong by signing the statements), 46 ("So I hope I didn't do wrong because I never been in trouble in my life."). [5] During closing arguments, Plaintiffs' counsel apparently contended that the 2006 Photo ID Act burdens voters' right to freedom of association. Plaintiffs, however, did not allege in their Second Amended Complaint that the 2006 Photo ID Act violated the First Amendment or otherwise violated voters' right to freedom of association. Plaintiffs consequently may not assert such a claim at this time. [6] The undersigned appeared on one of the no-match lists. (July 12, 2006, Hr'g Tr. at 78.) [7] Although Plaintiffs' counsel argued that the voter education materials provided by the State were misleading or did not provide sufficient information, the materials informed the voters of the Photo ID requirement for in-person voting, explained who was eligible for a free Voter ID card, invited voters to contact their local registrars or the Secretary of State for further information, provided a toll-free telephone number, and, in the August 8, 2007, letter, provided the address and telephone number for the voters' respective local registrar's offices. That information was sufficient to convey the necessary message to the voters. Additionally, although Dr. Gowen opined that the Flesch-Kincaid readability score for the materials provided to the voters was so high that a large percentage of Georgia voters could not understand the materials, that testimony is irrelevant. As discussed in the Court's Order granting the State Defendants' Motion to Exclude, the materials as analyzed by Dr. Gowen differed in several significant respects from the materials as actually given to the voters. [8] Although Plaintiffs contend that the State Defendants have not proffered admissible evidence as to the interest supporting the 2006 Photo ID Act, Plaintiffs actually bear the burden of proof in this case. In any event, the evidence in the record is sufficient to support a finding that the State Defendants introduced the 2006 Photo ID Act in an effort to prevent fraud in voting. [9] In a previous Order, the Court speculated that the Photo ID requirement probably was not even rationally related to the asserted justification of preventing voting fraud. That speculation, however, is not binding on the Court and, frankly, proved to be inaccurate.	{ "pile_set_name": "FreeLaw" }
180 F.3d 464, UNITED STATES of America, Appellee,v.Robert CASE, Defendant-Appellant. Docket No. 98-1735. United States Court of Appeals,Second Circuit. Argued June 9, 1999.Decided June 17, 1999. Joseph W. Ryan, Joseph W. Ryan Jr., P.C., Uniondale, NY, for Defendant-Appellant Susan Corkery, Assistant United States Attorney, Brooklyn, N.Y. (Zachary W. Carter, United States Attorney for the Eastern District of New York, Michael Cornacchia, Assistant United States Attorney, Brooklyn, NY, on the brief), for Appellee. Before: Feinberg and SACK, Circuit Judges, and SPRIZZO, District Judge.* PER CURIAM : On April 27, 1997, Robert Case, the general manager of Ebb Van Lines, Inc., pled guilty to a one-count information charging that in 1990 he received taxable income in the amount of $19,375 upon which he paid no tax. The information and plea arose out of a lengthy Internal Revenue Service investigation concerning Case's and Ebb's tax practices for the period from 1988 through 1990. The plea agreement included a provision pursuant to which Case agreed that he would, prior to his sentencing, pay to the IRS all taxes, penalties, and interest owed by him and by Ebb for the period from 1988 to 1990. Case also agreed that he would "fully cooperate" with the IRS in its efforts to ascertain the amount of unpaid taxes, penalties, and interest owed by both Case and Ebb for the period from 1988 to the date of the plea agreement. In May 1997, Case submitted to the Probation Department a sworn statement of his and Ebb's financial status that represented that Case held cash in the amount of $724,319.72, and that Ebb had a liability of $295,074.01 reflecting money owed by Ebb to its independent contractor drivers. Over the ensuing months, Case satisfied his obligation to pay his back taxes but, because the specific amount of unpaid penalties and interest remained unresolved, the court adjourned sentencing on several occasions. On December 19, the IRS appointed Officer Vincent Nardella to bring the matter to a resolution. Towards that end, Officer Nardella requested Case to prepare two IRS forms (Form 433-A, reflecting Case's current financial status, and Form 433-B, reflecting Ebb's current financial status) and to deliver these forms as well as three months' worth of bank statements and canceled checks to a meeting on January 5, 1998. Case turned to Laurie Russo, a partner of his regular accountant, for help in preparing the IRS forms. Russo, who later testified that she was not familiar with Case's finances, began work on or about Monday, December 23, discussing with Case her need to obtain information concerning his income and expenses, including any supporting bank documentation. After an initial exchange of information, Russo further explained to Case, on Friday, December 26, that she needed information on any cash held in the form of a certificate of deposit ("CD") account. Russo testified that Case responded that "he would go home and look for it over the weekend and he would get it to me for Monday morning." He did provide her with some information concerning CD accounts on Monday, and by the following day, the IRS forms were completed and delivered to Officer Nardella. The Form 433-A (reflecting Case's financial status) indicated that Case held $756,624 as cash on hand. It is undisputed that this understated Case's actual cash holdings by approximately $1.1-1.2 million, which Case held in the form of six additional CD accounts. The Form 433-B (reflecting Ebb's financial status) indicated that Ebb held $300,061 in an escrow account for the purpose of satisfying a liability to its independent contractor drivers. Eventually, Case would concede that it was inappropriate to categorize these funds in this manner. Based on the information contained in the these forms, Officer Nardella concluded that Ebb was unable to satisfy its unpaid penalties and interest (approximately $323,000). He therefore suggested that Case might personally be liable for Ebb's debt. Case countered with an offer of compromise: he would willingly pay Ebb's debt, but only in the amount of $100,000. Officer Nardella indicated that he would take the matter up with his superiors. On March 17, 1998, Case submitted to the Probation Department new sworn statements of his and Ebb's financial status, revealing that he in fact held cash on hand in the amount of $1.9 million, and that Ebb did not have a $300,061 liability reflecting money owed to its drivers. Shortly afterward and as a result, the government moved to deny Case a two-level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, and to impose a two-level enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1. The government argued that by submitting the sworn inaccurate IRS forms in December 1997, Case obstructed justice in that he both committed perjury and produced a false document during the pendency of his sentencing. The government argued also that Case had failed to accept responsibility in that he had continued to fail to disclose his true financial situation to the IRS. Case responded with a lengthy affidavit explaining that his inaccurate disclosures were merely inadvertent. He elaborated that the forms were prepared during the busy Christmas week, that he had also been compelled that week to personally drive one of Ebb's trucks on a round-trip from New York to Florida and back, that he had signed the Form 433-A before it was filled out, and that his accountant Russo was unfamiliar with his finances. Case also asserted that the government in any event was aware at all times that Case possessed the six undisclosed CD accounts. A Fatico hearing was held to resolve the issue, during which the government presented testimony from various IRS agents and Case presented testimony from Russo. Russo's account essentially confirmed that the Christmas work week was hectic, that Case was "rushed," that she had sought information about CD accounts from Case, and that she had filled the forms out based on the information he provided to her. In turn, the IRS agents denied that the IRS already was aware of the six undisclosed accounts. On September 3, 1998, the district court granted the government's motion, denying a reduction for acceptance of responsibility and granting an enhancement for obstruction of justice. The court's memorandum and order set forth the evolving nature of Case's financial disclosures, and then concluded defendant continued his pattern of wilful tax evasion after his plea of guilty and his plea agreement in which he agreed to fully cooperate with the Government. From this conduct, it is abundantly clear that the defendant was doing his best to obstruct justice and refuse to accept responsibility. Omissions in excess of over one million dollars and six different bank accounts in sworn statements to the IRS and the Probation Department, and playing a shell game with false sworn financial statements over a year's period are not evidence of mistake or innocent error as defense counsel would have us believe. They are proof positive of an unrepentant, wilful attempt to obstruct justice and further evade tax liability. It certainly should not have taken defendant ten months to prepare a truthful statement of his assets. (Emphasis added). With a resulting offense level of thirteen, and a criminal history category of I, Case's sentencing range became twelve to eighteen months. The court sentenced him at the bottom of this range (twelve months' imprisonment), to be followed by three years' supervised release, and a $50 special assessment. Case is free on bail pending the outcome of this appeal. On appeal, Case contends that the district court clearly erred in granting the government's motion to enhance for obstruction of justice and to deny him a reduction for acceptance of responsibility. Specifically, Case argues that the obstruction determination was clearly erroneous because (1) the court allegedly made no specific finding as to Case's intent; (2) the court cited no cases in its decision and failed even to mention the Fatico hearing or any of the testimony therefrom in its decision; and (3) the evidence in any event does not support a finding that Case intended to obstruct justice. Case also contends that (1) because the acceptance of responsibility issue was not discussed separate from the obstruction issue, reversal as to the latter also requires reversal as to the former; and (2) in any event, it was error not to award Case the reduction given the evidence of his acceptance of responsibility. None of these arguments has merit. A. Obstruction of Justice Sentencing Guideline § 3C1.1 provides that If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels. 1 U.S.S.G. § 3C1.1 (1997) (emphasis added).1 Application Note 3 to this section sets forth a non-exhaustive list of examples of obstructive conduct, including the following: 2 (b) committing, suborning, or attempting to suborn perjury; 3 (c) producing or attempting to produce a false, altered, or counterfeit document or record during an official investigation or judicial proceeding.... 4 U.S.S.G. § 3C1.1, comment. (n.3) (1997). Application Note 1 cautions, however, that 5 In applying this provision in respect to alleged false testimony or statements by the defendant, the court should be cognizant that inaccurate testimony or statements sometimes may result from confusion, mistake, or faulty memory and, thus, not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice. 6 U.S.S.G. § 3C1.1, comment. (n.1) (1997). 7 This Court has repeatedly emphasized that " § 3C1.1 contains a clear mens rea requirement that limits its scope to those who 'willfully' obstruct or attempt to obstruct the administration of justice." United States v. Stroud, 893 F.2d 504, 507 (2d Cir.1990). Stroud went on to explain that "we are convinced that the word 'willfully,' as used in section 3C1.1, requires that the defendant consciously act with the purpose of obstructing justice." Id.; see also United States v. Cassiliano, 137 F.3d 742, 747 (2d Cir.1998); United States v. Reed, 49 F.3d 895, 900 (2d Cir.1995). 8 This Court also has addressed the degree of specificity required when a district court rules on the question of willfulness in this context: 9 When the sentencing court resolves a disputed issue of fact, it is required to state its findings with sufficient clarity to permit appellate review. In order to impose a § 3C1.1 obstruction-of-justice enhancement on a defendant who has raised an issue as to his state of mind concerning the conduct alleged to have obstructed or impeded the administration of justice, the court must make a "specific finding of intent." 10 Reed, 49 F.3d at 900-01; see also United States v. Martin, 157 F.3d 46, 49 (2d Cir.1998); United States v. Thomas-Hamilton, 907 F.2d 282, 285 (2d Cir.1990). Because intent is a question of fact, such a finding is subject to the clear error standard. See Cassiliano, 137 F.3d at 745. 11 In this case, the district court did indeed make a specific finding that Case's conduct was willful. Moreover, the unmistakable gist of the court's memorandum and order is that the court found that Case's mistakes were not inadvertent but instead were completely intentional and designed to stave off the IRS's attempts to collect on the remainder of Ebb's tax debt. 12 The court's conclusion was not clearly erroneous. It was for the district court to decide whether to credit Case's explanation that he was extremely "busy" during the Christmas period and that he was merely negligent in failing to provide his accountant with information concerning $1.2 million in CD accounts that he owned. It was well within the district court's discretion to disbelieve the defendant, as it did. B. Acceptance of Responsibility 13 The Sentencing Guidelines provide that "[i]f the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense by 2 levels." U.S.S.G. § 3E1.1 (1997). Application Note 4 recognizes that 14 Conduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply. 15 U.S.S.G. § 3E1.1, comment. (n.4) (1997) (emphasis added). 16 "The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review." U.S.S.G. § 3E1.1, comment. (n. 5) (1997); see also United States v. Harris, 13 F.3d 555, 557 (2d Cir.1994) ("a district court's determination in this regard should not be disturbed unless it is 'without foundation.' "). 17 Case's first argument under this heading, that reversal on the question of obstruction of justice automatically requires reversal on the question of acceptance of responsibility, is of no consequence since the Court affirms the obstruction of justice enhancement. This leaves only the argument that, despite a finding of obstruction of justice, it was clear error for the court to deny Case a reduction in his offense level based on his alleged acceptance of responsibility, as this was an extraordinary case within the meaning of Application Note 4. There is, however, nothing "extraordinary" about this case in that regard, and there is no reason to conclude that the district court's decision was without foundation. 18 Accordingly, we affirm the judgment of the district court. * Hon. John E. Sprizzo, of the United States District Court for the Southern District of New York, sitting by designation 1 The 1997 version of the Guidelines is applicable because Case was sentenced in September 1998. See United States v. Broderson, 67 F.3d 452, 456 (2d Cir.1995); see also 18 U.S.C. § 3553(a)(4)(A)	{ "pile_set_name": "FreeLaw" }
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FERNANDO GARCIA, : : Plaintiff, : : v. : Civil Action No. 08-2230 (RMC) : DONALD C. WINTER, Secretary of : the Navy, : : Defendant. : MEMORANDUM OPINION Fernando Garcia, proceeding pro se and in forma pauperis, filed a Complaint for declaratory and injunctive relief under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. He seeks an order directing the Secretary of the Navy to reinstate him as a member of the United States Marine Corps and to change his discharge status from dishonorable to honorable. The Secretary has filed a motion to dismiss, and Mr. Garcia has filed a motion for summary judgment, both of which are ripe. The Complaint will be dismissed for lack of jurisdiction. I. FACTS Mr. Garcia is a former Marine now serving a 20-year criminal sentence imposed in 2004 pursuant to a plea agreement in a general court-martial. In 1997, when Mr. Garcia and his wife were under suspicion of criminal activity, Mr. Garcia, who was physically present in their home at the time, expressly refused to allow law enforcement officers to conduct a warrantless search of his home. His wife, who was not at home at the time, gave permission, and the officers executed a search based on her permission. Using evidence obtained in this search, Mr. Garcia was tried in a 1998 court-martial. He was convicted of multiple counts of attempted robbery, larceny, related conspiracies, housebreaking, and interstate transport of stolen property, and was sentenced to a dishonorable discharge, a reduction in rank, forfeiture of pay and allowances, confinement of 75 years in prison, with 35 years suspended, and a fine of $60,000. See Compl., App. 10 at 1; United States v. Garcia, No. 9901513, 2007 WL 1704946, 1 (N.M. Ct. Crim. App. Jan. 10, 2007). Mr. Garcia successfully appealed this conviction, and the “findings, sentence, and the decision” were set aside based on a finding of ineffective assistance of counsel. Compl., App. 10 at 2. He was recharged in 2004 and this time pled guilty pursuant to an agreement whereby his sentence of confinement was effectively reduced to a total of 20 years. Id.; Compl. ¶ 48; Garcia, 2007 WL 1704946 at 1 & n.1. Mr. Garcia then appealed the 2004 conviction resulting from his negotiated guilty plea to the Navy-Marine Court of Criminal Appeals. Mr. Garcia raised four alleged errors in his appeal: He first argues that his pleas were improvident because he was misinformed both by his counsel and by the military judge as to the maximum punishment authorized. Second, the appellant asserts that he was denied his right to speedy post-trial review. Third, he avers that he suffered cruel and unusual punishment under the Eighth Amendment and under Article 55, UCMJ [Uniform Code of Military Justice]. Finally, he asserts that his trial defense counsel was ineffective. Id. at 1. While this appeal was pending, the Supreme Court in March 2006 issued its decision in Georgia v. Randolph, 547 U.S. 103 (2006), holding that the Fourth Amendment’s guarantee against unreasonable searches requires a rule to the effect that “a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.” Id. at 122-23. In June 2006, Mr. Garcia executed a sworn statement -2- asserting that he had relied on his 2004 trial counsel’s incorrect advice that his Fourth Amendment challenges to the 1997 search of his home would be preserved even if he entered a negotiated guilty plea. See Compl., App. 5; Garcia, 2007 WL 1704946 at 3 & n.5. Both Mr. Garcia’s declaration and a counter-declaration from his 2004 defense counsel were submitted to the Navy-Marine Court of Criminal Appeals where the appeal was still pending. Garcia, 2007 WL 1704946 at 3 & n.6. In considering Mr. Garcia’s allegations of ineffective assistance of counsel, that court reviewed the two conflicting sworn statements in light of the record facts and, after a detailed and extensive discussion of the evidence, id. at 3-4, concluded that “the record ‘compellingly demonstrates’ the improbability of [Mr. Garcia’s] factual assertions regarding the advice provided by his trial defense counsel.” Id. at 4. The appeals court denied Mr. Garcia relief on all his claims.1 Id. at 5. It also noted that “[t]he suppression motion was waived by [Mr. Garcia’s] voluntary decision to enter pleas of guilty at his second trial.” Id. at 4 n.12 (citing Rules for Courts-Martial (“RCM”) 910(c)(4), Manual for Courts-Martial, United States (2002 ed.)). Subsequently, that same court issued an opinion on February 21, 2008, in response to Mr. Garcia’s petition under 28 U.S.C. § 1651, in which it reiterated its determination that [i]ssues arising from any rulings made during [Mr. Garcia’s] 1998 court-martial are effectively mooted by our superior court’s decision setting aside the results of that court-martial. Further, [Mr. Garcia’s] subsequent decision to enter unconditional guilty 1 The Complaint misleadingly suggests that the Navy-Marine Court of Criminal Appeals disposed of Mr. Garcia’s argument that Georgia v. Randolph, 457 U.S. 103, mandated vacature of his guilty plea by stating that the “Appellant’s remaining assignment of error is without merit.” Compl. ¶ 51 (referring to the Randolph supplemental assignment of error) & ¶ 52 (quoting Garcia, 2007 WL 17094946 at *5). There can be no mistake that the “remaining assignment of error” to which the court referred was Mr. Garcia’s claim of cruel and unusual punishment. See generally, Garcia, 2007 WL 17094946. -3- pleas at his 2004 court-martial effectively waived any evidentiary issues relating to his factual guilt. Compl., App. 10 at 2 (citing RCM 910(c)(4). Mr. Garcia has continued without success to attempt to have his negotiated guilty plea overturned by application of the Randolph decision to the 1997 search.2 In early 2008, he asked the Board for the Correction of Naval Records (“BCNR”) to alter his record and his military discharge status. In this action, he seeks a judgment declaring that the BCNR’s non- response is arbitrary and capricious, Compl. ¶ 11, and a mandatory injunction requiring the Secretary of the Navy to upgrade his dishonorable discharge to an honorable discharge, id. at 14, and to reinstate him “as a member of the United States Marine Corps with all duties, responsibilities and privileges earned . . . prior to his 2004 court[]-martial,” id. at 15. II. STANDARD OF REVIEW The APA provides for judicial review of “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. The parties agree that this Court may review decisions by the BCNR under the APA, and that to succeed, a plaintiff must show that the BCNR’s decision was “‘arbitrary, capricious or not based on substantial evidence.’” Def.’s Mot. to Dismiss at 2 (quoting Piersall v. Winter, 435 F.3d 319, 321-22 (D.C. Cir. 2006)); see also Pl.’s Mot. for Summ. J. at 2 (citing 5 U.S.C. § 706 (2)). 2 One such attempt was by petition for a writ of mandamus seeking to have this Court mandate that the United States Court of Appeals for the Armed Forces reverse the plaintiff’s conviction. The petition was dismissed for lack of jurisdiction. See slip. op., Garcia v. United States Court of Appeals for the Armed Forces, Civ. No. 08-1825 (UNA) (July 28, 2008). -4- III. ANALYSIS When Mr. Garcia submitted this Complaint for filing in early December 2008, he was under the mistaken impression that he was entitled to sue because the BCNR had not timely responded to his request, which he construed as a denial without adequate explanation. See Compl. ¶ 6 (citing 28 U.S.C. § 2675(a)). Mr. Garcia is incorrect that 28 U.S.C. § 2675(a) affords him the right to bring an action against the Secretary on the issues presented in this case, as that statute applies only to claims for damages brought under the Federal Tort Claims Act. Therefore, this Complaint for injunctive and declaratory relief under the APA was subject to dismissal as premature. Although the BCNR had not issued a decision at the time Mr. Garcia submitted this Complaint, it did so soon thereafter. In a letter dated December 23, 2008, the BCNR denied Mr. Garcia relief, stating that “[a]fter careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.” Notice of Filing, BCNR Letter Decision addressed to Fernando Garcia at Ft. Leavenworth, Kansas, Dec. 23, 2008, at 1. After reciting the procedural history of Mr. Garcia’s case and appeals, and noting that his clemency application had been denied, the letter also stated In your application you are requesting that all traces of the invalid court-martial be removed from your record and that the dishonorable discharge be upgraded to an honorable discharge. As you have been previously informed the Board is prevented by law from reviewing courts-martial and must limit its review to determining if the court-martial sentence should be reduced as a matter of clemency. Therefore, all of your arguments concerning the court-martial conviction were disregarded by the Board. -5- Given the offenses for which you were convicted the Board could not conclude that the sentence of the court was too severe. Accordingly, your application has been Id. at 2. Apparently unaware that the BCNR had issued its decision, the Secretary filed a motion to dismiss the Complaint on March 26, 2009, asserting that there was no final agency decision for this Court to review and that the Complaint was filed prematurely. See Def.’s Mot. to Dismiss at 1. Three weeks later, on April 20, 2009, the Secretary filed a notice with the Court, placing on the record the BCNR letter decision addressed to Mr. Garcia. Since learning of the BCNR decision, the Secretary has maintained the position that Mr. Garcia’s challenge to the non- decision of the BCNR is moot because the BCNR has issued its decision. See Def.’s Opp’n at 3. Neither Mr. Garcia’s opposition nor his motion for summary judgment acknowledges or addresses the BCNR decision. Rather, Mr. Garcia proceeds as if the BCNR never issued its decision.3 Mr. Garcia contends that “[b]ecause the Defendant failed to provide anything approaching a reasoned explanation for its no respond decision [sic], this Court should 3 It is certainly reasonable to conclude that Mr. Garcia received a copy of the BCNR letter decision — which was addressed directly to him — soon after it was issued on December 23, 2008. It appears that in late March 2009 the Secretary was unaware that the BCNR had issued its decision three months earlier. The Secretary had learned of the BCNR decision by April 20, 2009, when he filed it on the Court’s record and served on Mr. Garcia. At the time Mr. Garcia submitted his opposition and motion for summary judgment, he may have not known that the Secretary had learned of the BCNR decision. His certificate of service for the opposition and summary judgment motion is dated April 20, 2009, the same day that the Secretary filed the BCNR decision on the Court’s record. Given that Mr. Garcia sends and receives case-related materials by mail, he would not have received a service copy of the Secretary’s notice of the BCNR decision until after he had mailed his opposition and summary judgment motion. The BCNR decision was again served on Mr. Garcia when the Secretary filed an opposition to Mr. Garcia’s motion for summary judgment. Mr. Garcia did not file a reply in support of his summary judgment motion. In sum, nothing in Mr. Garcia’s submissions acknowledges that the BCNR had issued its decision while this action was pending. -6- hold that the agency’s no respond [sic] [was ] ‘arbitrary and capricious.[’]” Pl.’s Opp’n ¶ 11. Noting that the Secretary’s motion to dismiss does not dispute Mr. Garcia’s “position that the . . . BCNR never responded to his claim,’” he asserts that he can prevail by showing that the “‘no respond’ [sic] from the agency (BCNR) was arbitrary and capricious and an abuse of discretion.” Pl.’s Mot. for Summ. J. at 2. He maintains that “[b]ecause the BCNR failed to provide anything approaching a reasoned explanation for its no respond [sic], this Court should hold that the BCNR actions were arbitrary and capricious and an abuse of discretion.” Id. Mr. Garcia’s argument is based on a false premise. As the BCNR has issued its decision, Mr. Garcia’s argument regarding a non-response is without factual or legal merit. This Court lacks subject matter jurisdiction over issues that have become moot. IV. CONCLUSION Accordingly, Mr. Garcia’s motion for summary judgment [Dkt. # 14] will be denied and the Secretary’s motion to dismiss [Dkt. # 9] will be granted. A separate order accompanies this Memorandum Opinion. /s/ ROSEMARY M. COLLYER Date: January 13, 2010 United States District Judge -7-	{ "pile_set_name": "FreeLaw" }
476 So.2d 474 (1985) Cheryl FARRIA v. La BONNE TERREBONNE OF HOUMA, INC. No. 84-CA-1311. Court of Appeal of Louisiana, First Circuit. October 8, 1985. William T. Bringle, New Orleans, for plaintiff and appellantCheryl Farria. Michael E. Holoway, New Orleans, for defendants and appelleesLa Bonne Terrebonne of Houma, Inc. and AIU Market P. Before EDWARDS, LANIER and JOHN S. COVINGTON, JJ. EDWARDS, Judge. Plaintiff appeals the trial court's dismissal of her defamation suit on the exceptions of no cause and no right of action. We reverse and remand. "No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action." LSA-C.C.P. art. 931. Because the exception of no cause of action tests the legal sufficiency of the petition, the court must look only at the petition, not at affirmative defenses unless they are disclosed by the petition itself. Haskins v. Clary, 346 So.2d 193, 194-95 (La.1977). The hearing on an exception of no cause of action cannot be used as a substitute for trial on the merits. To state a cause of action in defamation, plaintiff must allege "(1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury." Cangelosi v. Schwegmann Brothers Giant Super Markets, 390 So.2d 196, 198 (La.1980) (citations omitted). This she has done. Her petition alleges that she was injured when defendant, her previous employer, falsely and maliciously defamed her by filing a separation notice with the State Department of Employment Security which stated: "REASON FOR LEAVING... stealing!!!" Defendant's argument rests (1) on its theory that there was no publication because Department of Employment Security records are confidential, as provided in LSA-R.S. 23:1660 C[1] and (2) on the defense of qualified privilege. *475 The publication element of defamation does not require publication to the general public; it only requires communication to a person other than the one defamed. Commercial Union Insurance Co. v. Melikyan, 424 So.2d 1114, 1115 (La.App. 1st Cir.1982). Consequently the fact that Employment Security records are confidential does not negate the publication element. Although employers are not unreasonably restricted in furnishing information to the State Department of Employment Security, neither are they automatically immune to defamation suits. An employer's immunity is based on the defense of qualified privilege, which requires that the communication be made in good faith regarding a subject in which the person communicating has an interest or in reference to which he has a duty to a person likewise having an interest or duty. Harrison v. Uniroyal, Inc., 366 So.2d 983, 985 (La.App. 1st Cir.1978). To hold that confidential comunications between an employer and the Department of Employment Security can never be defamatory would require us to disregard the case law dealing with publication. Such a holding would also negate the need for the defense of qualified privilege which was used in Harrison and in Boyd v. Community Center Credit Corp., 359 So.2d 1048 (La.App. 4th Cir.1978). The protection afforded an employer by the defense of qualified privilege may be raised in a motion for summary judgment, see, e.g., White v. Baker Manor Nursing Home, Inc., 400 So.2d 1168 (La. App. 1st Cir.), cert. denied, 403 So.2d 68 (La.1981), or by answer and then taken up on the merits, see, e.g., Harrison v. Uniroyal, Inc., 366 So.2d 983 (La.App. 1st Cir. 1978). It cannot, however, be raised on an exception of no cause of action. Gianfala v. Allemand, 444 So.2d 150, 150 (La.App. 1st Cir.1983). Plaintiff clearly has a right of action, since she is the person allegedly defamed. For the foregoing reasons the judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion. All costs of this appeal are to be borne by defendant-appellee. REVERSED AND REMANDED. LANIER, J., concurs in the result. NOTES [1] Information, statements, transcriptions of proceedings, transcriptions of recordings, electronic recordings, letters, memoranda and other documents and reports thus obtained, or obtained from any individual, claimant, employing unit or employer pursuant to the administration of this Chapter, except to the extent necessary for the proper administration and enforcement of this Chapter, shall be held confidential and shall not be subject to subpoena in any civil action or proceeding, nor shall be published or open to public inspection, other than to public employees in the performance of their public duties, in any manner revealing the individual's or employing unit's identity; but any claimant or his duly authorized representative, at a hearing before an appeal tribunal or the board of review, shall be supplied with information from such records to the extent necessary for the proper presentation of his claim. Any person who violates any provision of this Section shall be fined not less than twenty dollars nor more than two hundred dollars, or imprisoned for not less than ten days nor more than ninety days, or both. LSA-R.S. 23:1660 C.	{ "pile_set_name": "FreeLaw" }
902 F.Supp. 1095 (1995) Tung PEREIRA, Plaintiff, v. SCHLAGE ELECTRONICS, et al. Defendants. No. C-93-20513 SW. United States District Court, N.D. California. August 11, 1995. 1096 1097 1098 William Woodson, Palo Alto, CA, for plaintiff. William Harris, Oakland, CA, for defendants. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SCHLAGE'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT SPENCER WILLIAMS, District Judge. Plaintiff Tung Pereira ("Pereira") brought this action against her employer, Defendant Schlage Electronics ("Schlage"), and several of her co-workers, alleging that she was discriminated against on the basis of her sex in violation of Title VII, 42 U.S.C. § 2000e et seq. and California Gov't Code § 12940. Currently before the Court are the parties' cross-motions for summary judgment. BACKGROUND Pereira began working for Schlage in 1988 as a temporary employee in the printed circuit board "quality assurance" department. After approximately six months, she was given regular employment and transferred to the production test department. In both her 1988 and 1989 performance reviews, Pereira received a performance rating of "commendable" overall, the second highest possible rating out of five. Pereira alleges that throughout her employment at Schlage three of her co-workers, Ban "Tony" Nguyen, Dung Tran and Sum Diep, harassed her with abusive, vulgar and offensive language spoken in Vietnamese. Initially, Pereira did not complain about the language because she only had to work directly with these three individuals on sporadic occasions. However, in mid-1990, the departments in which Pereira and her alleged harassers worked were consolidated. Because Pereira could not stand the constant foul and abusive language on an everyday basis, she alleges that she complained to her supervisor, Bob Stanley, on August 28, 1990. According to Pereira, Stanley responded that unless the offensive language was spoken in English there was nothing he could do about it. The same day that Pereira complained to Stanley, he allegedly gave her a difficult job assignment that was outside of her job duties. According to Pereira, Stanley ordered her to tear open a plastic sealed sensor box with her bare hands. When she could not do it, she invited Stanley to try himself; he failed as well. Stanley denies that he ever met with Pereira during August or that he gave her an inappropriate work assignment. Two days later, on August 30, 1990, Stanley gave Pereira a verbal warning for not performing her job duties adequately. He also allegedly accused Pereira of being drunk and drugged on the job. Stanley followed up with a written warning on August 31, 1990, and then a poor performance evaluation in October of 1990 in which Pereira's performance rating dropped three levels to "satisfactory growth," the second lowest possible. From the end of August until December, Pereira made no further complaints and simply ignored her co-worker's language. However, on December 8, 1990, Pereira claims that Ban Ngyuen and Dung Tran made particularly offensive comments about shopping for prostitutes. Ban Ngyuen allegedly said that he wanted to go to San Francisco and find "a tall lady, skinny, who was no fun, and had no boobs or nothing" who he would pay to have sex with him. The following Monday, December 12, 1990, these same men referred to Pereira as "the tall lady" and the "tiny, skinny lady." Ban Ngyuen also allegedly talked about wanting to have sex with Pereira, and asked her to go to bed with him. 1099 Later that day, Pereira again complained to a supervisor, Kathy Jaramillo, about her co-workers' conduct. Jaramillo said that she would look into the problem. The next day, Pereira alleges that Tran and Ban confronted her and angrily threatened to kill her and her family if she continued to complain about their language. According to Pereira, the men said they would burn down her house and that they would kidnap her and leave her "in a Black neighborhood so people can rape and kill [her]." Tran also allegedly tried to intimidate Pereira by bragging about his previous time in jail and saying that he was not afraid to go back. Pereira immediately filed a report with the Santa Clara County Police Department regarding these threats. Pereira also wrote two memos to Schlage's head of human relations, Judy Miller, on December 14, 1990 and February 14, 1991, about the threats and continued foul language. According to Pereira, her co-workers' language did not abate. Pereira alleges that Schlage also damaged her relationships with her co-workers by falsely accusing her of stealing tools, taking work away from co-workers, and "a variety of other false and petty offenses." Schlage asserts that Pereira's problems with her co-workers resulted from her own difficult personality and her refusal to abide by company rules. In any case, when Pereira met with Kathy Jaramillo on March 11, 1991 to discuss these problems, Jaramillo allegedly told her that she was "crazy", that no one at the company believed anything she said, and that she should find work elsewhere. Pereira filed a complaint with the Office of Federal Contract Compliance Programs ("OFCCP") on March 14, 1991. That same day, Schlage placed Pereira on disciplinary probation. Thereafter, on April 11, 1991, Pereira filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). On June 21, 1991, Schlage's head of human relations, Jo Ann Balesano, called Pereira into her office and informed her that her employment was terminated for "misconduct." Pereira filed another complaint with the EEOC on July 2, 1991. Ultimately, on April 15, 1993, the EEOC found that "there is reasonable cause to infer that [Pereira] and other female employees were subjected to sexual harassment and a discriminatory work environment in violation of Title VII." The EEOC also determined that "there is reasonable cause to believe that [Pereira] and other female employees [at Schlage] who complain about sexual harassment are subjected to retaliation in violation of Title VII." Finally, the EEOC stated that "there is reasonable cause to believe that [Schlage] retaliated against [Pereira] in violation of Title VII of the Civil Rights Act of 1964 ... when it discharged [Pereira]." Pereira filed suit in this Court on July 19, 1993. She alleges sexual discrimination and retaliatory discharge under Title VII, 42 U.S.C. 2000e, et seq. and California Gov't Code § 12940. She requests a jury trial and seeks compensatory damages for emotional distress and lost wages and benefits, equitable relief in the form of reinstatement or front pay, punitive damages, and attorney's fees. LEGAL STANDARD A party moving for summary judgment bears "the initial responsibility of informing the district court of the basis for its motion ...." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The moving party must demonstrate that no genuine issue of material fact exists for trial. Id. at 322, 106 S.Ct. at 2552. However, the moving party is not required to negate those portions of the nonmoving party's claim on which the nonmoving party bears the burden of proof. Id. Once the moving party demonstrates that there is no genuine issue of material fact, the nonmoving party must designate "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. at 2553. The nonmoving party must "make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552. 1100 The adjudication of a summary judgment motion is not a "trial on affidavits." Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Credibility determinations and weighing of the evidence are solely jury functions. Id. at 255, 106 S.Ct. at 2513. Inferences drawn from underlying facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)). However, there may be no genuine issue of material fact if "the evidence is of insufficient caliber or quantity to allow a rational finder of fact" to find for the nonmoving party. Anderson, 477 U.S. at 254, 106 S.Ct. at 2513. And in some circumstances the factual context may render the nonmoving party's claim implausible, and the nonmoving party must come forward with "more persuasive evidence" to support the claim "than would otherwise be necessary." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. DISCUSSION I. PEREIRA'S TITLE VII CLAIMS A. Hostile Work Environment In Pereira's Opposition and Cross-Motion for Summary Judgment, she states that she intends to pursue her hostile working environment claim solely under California law. Therefore, the Court GRANTS Schlage's motion for summary judgment on Pereira's Title VII claim for hostile working environment. B. Retaliation To make out a prima facie case of retaliation, Pereira must establish that she acted to protect her Title VII rights, that Schlage thereafter took an employment action against her, and that a causal link exists between these two events. Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 786, 102 L.Ed.2d 778 (1989). If Pereira does so, the burden then shifts to Schlage to advance legitimate, non-retaliatory reasons for firing her. Steiner v. Showboat, 25 F.3d 1459, 1464-65 (9th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 733, 130 L.Ed.2d 636 (1995). Thereafter, Pereira can still prevail if she can demonstrate that Schlage's proffered reasons were pretexts for other motives that were discriminatory. Lowe v. City of Monrovia, 775 F.2d 998, 1007 (9th Cir.1985). The parties do not strenuously dispute the first two prongs of the foregoing legal standard: that Pereira has made out a prima facie case of discrimination or that Schlage has advanced legitimate, non-retaliatory reasons for her termination. Pereira has provided sufficient evidence that she complained repeatedly about sexual harassment, that she was thereafter fired, and that there was a nexus between her complaints and her termination. See Pereira Dec., Ex. 5, 6.5, 7, 9, 11. In response, Schlage has submitted evidence that Pereira's termination actually resulted from her inability to get along with her co-workers and from her commission of several acts of misconduct including stealing her co-worker's tools and misappropriating other employees' work. See Stanley Dec. at 3-4, 7-11; Ordonio Dec. at 2-3, Ex. A. The real issue here, therefore, is whether Pereira has submitted adequate evidence of pretext. To prevail on this prong, Pereira must demonstrate: 1) that the reasons stated by Schlage were false and; 2) that discrimination was Schlage's actual reason for terminating Pereira. St. Mary's Honor Center v. Hicks, ___ U.S. ___, ___, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993). Pereira must produce "`specific substantial evidence of pretext.'" Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir.1994) (quoting Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983)). Proof that merely refutes the employer's legitimate nondiscriminatory reason will not defeat summary judgment. See Schuler v. Chronicle Broadcasting Co., Inc., 793 F.2d 1010, 1011 (9th Cir. 1986). Here, Pereira has introduced the following evidence that Schlage's proffered reasons for firing her were false. First, Pereira asserts in her declaration that she never committed 1101 the acts of misconduct of which she was accused. Pereira Dec. at 9. Pereira supports this assertion with a memo she wrote to Judy Miller on March 13, 1991 explaining her version of what actually happened. Pereira Dec., Ex. 8. According to Pereira, she was merely following orders when she took work from another employee, and she was merely recovering her own tool when she took it from a co-worker's toolbox. Pereira Dec, Ex. 8. Second, Pereira asserts that any problems she had in getting along with her co-workers resulted from Schlage's own efforts to turn its employees against her, not from her personality or demeanor. Pereira Dec. at 9. As supporting evidence, Pereira has submitted a birthday card signed by many of her co-workers in September of 1989, prior to her complaining of sexual harassment, in which they express friendly birthday wishes. Pereira Dec., Ex. 1. To demonstrate that Schlage's motives were actually discriminatory, Pereira refers to the chronology of events that took place. According to Pereira, this chronology demonstrates that Schlage made retaliatory employment decisions on several occasions following her complaints of sexual harassment. For example, Pereira asserts that immediately after she told Bob Stanley about her co-workers' offensive language on August 28, 1990, he gave her an inappropriate work assignment and then wrote her up for failure to perform her job duties. Pereira Dec. at 3-5. Pereira also argues that her filing of OFCCP and EEOC complaints on March 14, 1991 and April 11, 1991 preceded her being placed on probation on March 14, 1991 and ultimately fired on June 21, 1991. Furthermore, as direct evidence of discriminatory motive, Pereira alleges that when she complained to Kathy Jaramillo about harassment on March 11, 1991, Jaramillo called her "crazy," told her that she should find work elsewhere, and said that "no one in the company believe[d her] about anything." Pereira Dec. at 10. This conversation suggests that Schlage's real reason for terminating Pereira was related to her repeated complaints about harassment. After reviewing the evidence, the Court finds that Pereira has created several issues of material fact as to whether Schlage's proffered reasons for firing her were pretextual. For example, what happened between Pereira and Stanley in late August is clearly still in dispute. Pereira alleges that she met with him and he ignored her complaints; Stanley denies that any meeting took place. The circumstances of Pereira's March 1991 meeting with Jaramillo are also at issue. Even more importantly, there are unresolved issues of fact as to whether Pereira committed misconduct when she took other employees' work and tools. Therefore, the Court DENIES summary judgment on Pereira's retaliation claim. II. PEREIRA'S STATE LAW CLAIMS UNDER CAL. GOV'T CODE § 12940 A. Hostile Working Environment To state a claim under California law for environmental sexual harassment based on a hostile working environment, Pereira must show: 1) that she belongs to a protected group; 2) that she was subjected to unwelcome sexual harassment; 3) that the harassment was based on sex; 4) that the harassment was sufficiently pervasive so as to alter the conditions of employment and create a hostile working environment; and 5) respondeat superior. Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590, 608, 262 Cal.Rptr. 842, 851-52 (1989). As under federal law, there are two prongs of a hostile working environment claim under Cal. Gov't Code § 12940: 1) whether a reasonable woman would find that her co-workers' conduct was sufficiently severe or pervasive enough to alter the conditions of her employment and create an abusive working environment; and 2) whether Schlage, once apprised of the harassment, failed to take adequate remedial and disciplinary action. See Ellison v. Brady, 924 F.2d 872, 879, 881-83 (9th Cir.1991); Steiner, 25 F.3d at 1462-63. 1. Severity and Pervasiveness of the Harassment Whether harassment is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. Fisher, 1102 214 Cal.App.3d at 608, 262 Cal.Rptr. at 852. The factors that may be considered in evaluating these circumstances are: "1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); 2) the frequency of the offensive encounters; 3) the total number of days over which all of the offensive conduct occurs; and 4) the context in which the sexually harassing conduct occurred." Id. To be actionable, the harassment cannot be "occasional, isolated, sporadic, or trivial." Id. Rather, the plaintiff must show a concerted pattern of harassment of a "repeated, routine or generalized nature." Id. However, harassment need not be directed specifically at the plaintiff in order for her to prevail on a claim for a hostile working environment: one who is not personally subjected to offensive remarks or touchings of a sexual nature may still recover if she establishes "that she personally witnessed the harassing conduct and that it [took place] in her immediate work environment." Id. at 611, 262 Cal.Rptr. at 853. Here, Pereira alleges in her declaration that she was subjected to foul, offensive and sexually explicit language on a daily basis for over ten months. Pereira Dec. at 3, 5-8, 11-13. Pereira's declaration is supported by her notes and the tape transcript of conversations between her co-workers in which such language is used repeatedly. Pereira Dec., Ex. 12, 13. On this tape, Pereira's co-workers engage in bizarre sexual conversations and sing lewd songs in Vietnamese. For example, at one point, one of the co-worker's says, "Mother Fucker, when it's fully aroused it looks like a boa ... a boa head ... the boa head rises fearfully ... she will cry of pleasure." Tanh Tran Dec. at 2. At another point, the same person says, "Fuck a man today, fuck another tomorrow. In the beginning, talk sweet, after the fucking, then things will be OK?" Tanh Tran Dec. at 2. Pereira also claims that on several occasions comments of a sexual nature were directed specifically at her, including remarks by her co-workers about wanting to have sex with a prostitute who looks like Pereira, and a request by one of these men that Pereira "go to bed" with him. Pereira Dec. at 5-6. Pereira further asserts that when she complained about her co-workers' harassment, she was subjected to death threats and other more subtle forms of retaliation. Pereira Dec. at 7, 9. In response, Schlage argues that Pereira was at most subjected to isolated incidents of "locker room" talk which was not directed specifically at her. To support this assertion, Schlage submits two identical boilerplate declarations from Pereira's co-workers in which they deny that they ever directed offensive language at Pereira or made death threats towards her. See Ban Ngyuen Dec. at 2; Dung Khac Tran Dec. at 2. Notably, neither co-worker denies using repeated foul and offensive language. After reviewing the supporting and opposing evidence, the Court finds that issues of material fact remain as to whether sexual harassment was directed at Pereira and whether it was sufficiently severe or pervasive to constitute a hostile working environment. If a jury were to believe Pereira's version of the facts, it could reasonably find that she was subjected to sufficiently severe and pervasive harassment to alter the conditions of her employment. Therefore, the Court cannot rule as a matter of law that Pereira's co-worker's conduct did not create a hostile working environment. 2. Remedial Measures Under California law, the employer is "strictly liable for the harassing conduct of its agents and supervisors," Fisher, 214 Cal. App.3d at 608 n. 6, 262 Cal.Rptr. at 851 n. 6 (citing DFEH v. Bee Hive Answering Serv., FEHC No. 84-16 at 18 (1984)), and is liable for co-worker harassment where it, or its agents or supervisors, "knows or should have known of this conduct and fails to take immediate and appropriate corrective action." Id. (citing DFEH v. Madera County, FEHC No. 88-11 at 22 (1988)). Once apprised of harassing conduct, an employer's remedy should be "immediate and appropriate," 29 C.F.R. § 1604.11(d), and "reasonably calculated to 1103 end the harassment." Ellison, 924 F.2d at 881-82. Obviously, not all harassment warrants dismissal of the harasser. Id. (citing Barrett v. Omaha Nat. Bank, 726 F.2d 424, 427 (8th Cir.1984)). Rather, the remedy should be "assessed proportionately to the seriousness of the offense." Id. (citing Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309 (5th Cir.1987)). In essence, the reasonableness of a remedy depends on its effectiveness in ending the harassment. Id. at 882. Here, there is no dispute that Schlage knew of the alleged harassment of Pereira through Pereira's own repeated complaints. Schlage does, however, claim that after each of Pereira's complaints it investigated and counseled and/or warned the employees alleged to have harassed Pereira. According to Schlage, Pereira's accusations were simply never substantiated by any other evidence uncovered in their investigations. In response, Pereira claims that her complaints were repeatedly ignored and/or dismissed. For example, according to Pereira, Bob Stanley said he could do nothing about her co-workers' language unless it was spoken in English. Pereira Dec. at 4. Furthermore, during one conversation, Kathy Jaramillo allegedly told Pereira that her accusations were "crazy". Pereira Dec. at 10. It is also undisputed that Schlage never attempted to institute formal disciplinary action against any of Pereira's alleged harassers or to transfer them to a different department where they would not come into contact with Pereira. Therefore, issues of genuine fact remain as to whether Schlage's investigations, counseling, and warnings were sufficient remedial actions to excuse Schlage from liability. B. Retaliation Although the language of Title VII and Cal. Gov't Code § 12940 differs slightly, their "antidiscriminatory objectives and the overriding public policy purposes are identical and [courts] refer to ... federal decisions where appropriate." County of Alameda v. Fair Employment & Housing Commission, 153 Cal.App.3d 499, 504, 200 Cal.Rptr. 381 (1984). The same issues of fact that remain on Pereira's federal claim for retaliation are applicable to her state law claim as well. Therefore summary judgment is not appropriate on this claim either. CONCLUSION Based on the foregoing, Schlage's motion for summary judgment is GRANTED on Pereira's Title VII claim for hostile working environment, and DENIED on her Title VII claim for retaliation and her state law claims for both hostile working environment and retaliation. Pereira's cross-motion for summary judgment is DENIED. Schlage has also made a motion to continue the trial date. Accordingly, the trial date is vacated and new dates will be set by the Court. IT IS SO ORDERED.	{ "pile_set_name": "FreeLaw" }
39 F.3d 1177 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Andrew Frank KARACSONYI, Plaintiff-Appellant,v.Mr. MASSENBURG, Federal Bureau of Prisons Employee, InmateCounselor, Defendant-Appellee. No. 93-7068. United States Court of Appeals, Fourth Circuit. Submitted May 17, 1994.Decided Nov. 14, 1994. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Charles K. McCotter, Jr., Magistrate Judge. (CA-93-2). Andrew Frank Karacsonyi, appellant Pro Se. Barbara Dickerson Kocher, Office of the United States Attorney, Raleigh, NC, for appellee. E.D.N.C. AFFIRMED. Before MURNAGHAN and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge. OPINION PER CURIAM: 1 Andrew F. Karacsonyi, a federal prison inmate, was confined at FCI Butner from May 29, 1991, to July 19, 1991. He had been convicted of interstate transportation of explosive materials, in violation of 18 U.S.C.A. Sec. 842 (West 1976), and was sent to Butner for a psychological exam prior to sentencing, pursuant to 18 U.S.C.A. Sec. 4244(b) (West 1985). Karacsonyi filed this Bivens1 action against C.A. Massenburg, a correctional counselor at Butner, alleging that Massenburg threatened him with continued confinement at Butner in order to force Karacsonyi to sign a paper that his grievances had been resolved. In addition, he contends that his mail was opened and delayed, and that Massenburg approached him "a couple of times" regarding something in an outgoing letter. Karacsonyi seeks $120,000 in damages and Massenburg's dismissal from federal employment. 2 The magistrate judge2 dismissed Karacsonyi's first claim on the ground that a mere threat does not state a constitutional violation. We affirm. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.1987). The magistrate judge ultimately granted summary judgment on the mail claim, holding that, while Karacsonyi was a pretrial detainee under the relevant regulations, his status was not so clearly established that a reasonable person in Massenburg's position would have known that Karacsonyi was entitled to send sealed mail as a pretrial detainee. The magistrate judge held that this ambiguity entitled Massenburg to qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 3 While we agree with the magistrate judge that Karacsonyi was a pretrial detainee under the relevant regulations, we conclude that this status was clearly set forth in the regulations. However, the magistrate judge's grant of summary judgment must be affirmed, as Karacsonyi has failed to state a cognizable claim against Massenburg. Karacsonyi filed his grievance regarding mail tampering by Boggs, a case counselor, on July 15, four days before he left Butner. Massenburg responded to the grievance, explaining that pretrial detainees must hand-deliver their outgoing mail to a member of their team, who stamps the envelope with a special notice, initials the envelope, and delivers it to the mail room.3 Karacsonyi nowhere alleges that he followed this procedure or challenges it as an unconstitutional implementation of the applicable regulations. We do not perceive it to be so, as the regulation is reasonably related to the legitimate penological goal of ensuring that only pretrial detainees may send sealed mail. See Thornburgh v. Abbott, 490 U.S. 401, 409 (1989). 4 We affirm the judgment on this ground. 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. 5 AFFIRMED. 1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) 2 Both parties consented to proceed before the magistrate judge. 28 U.S.C.A. Sec. 636(c) (West 1993) 3 This practice is set forth in Butner Program Statement 5265.8(C)	{ "pile_set_name": "FreeLaw" }
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 07a0147n.06 Filed: February 22, 2007 No. 05-3728 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE DAMON M. THOMPSON, ) SOUTHERN DISTRICT OF OHIO ) Defendant-Appellant. ) Before: SILER, MOORE, and ROGERS, Circuit Judges. ROGERS, Circuit Judge. Damon M. Thompson appeals the 192-month sentence he received following his guilty plea to the charges of conspiracy to distribute over five kilograms of cocaine and using a firearm in relation to drug trafficking. Thompson argues that this sentence is unreasonable because it is unwarrantedly disparate from the sentence of fifty-five months his co- conspirator, Ali Jefferson, received for the same conspiracy charge. Because Thompson’s sentence was within the applicable Guidelines range, his sentence is presumptively reasonable. Additionally, the disparity between the sentence Thompson received and the sentence Jefferson received is not 1 No. 05-3728 USA v. Thompson unreasonable in light of the additional charge against Thompson and Thompson’s more extensive criminal history. The sentence imposed by the district court is, therefore, affirmed. I. The charges against Thompson arise from his attempt to purchase cocaine from a distributer in Arizona in order to resell the cocaine in Ohio. In March of 2004, Thompson contacted an individual in Tucson whom Thompson believed to be a cocaine distributer. That individual was, in fact, an undercover DEA agent. Thompson traveled to Tucson twice to negotiate the purchase of fifty kilograms of cocaine, which was to be delivered to him in Columbus. On April 20, two undercover agents from Tucson met with Thompson in Columbus to finalize plans for the delivery of the cocaine. Ali Jefferson, whose involvement in the purchase was previously unknown to the agents, joined Thompson at this meeting. During that meeting it was determined that Jefferson’s Lexus SUV would be given to the undercover agents as part of the down payment for the cocaine. The agents took the SUV that evening and arranged for Thompson and Jefferson to meet them at a hotel in Columbus the next day. When Thompson and Jefferson arrived at the hotel, Jefferson remained in the lobby while Thompson went upstairs to meet one of the undercover agents. While Thompson met with the agent to complete the transaction, Jefferson was led to a disabled vehicle that supposedly contained the cocaine. Thompson was arrested as he counted out the purchase money. At the time of his arrest, Thompson had a loaded Glock 45-caliber pistol on his person. Jefferson, who was not armed, was arrested as he attempted to enter the disabled vehicle. -2- No. 05-3728 USA v. Thompson In June 2004, Jefferson waived indictment and, pursuant to a plea agreement, pled guilty to one count of conspiracy to distribute over five kilograms of cocaine in violation of 21 U.S.C. § 846 and two criminal forfeiture counts. In February 2005, United States District Judge Gregory L. Frost sentenced Jefferson to fifty-five months incarceration. Thompson was indicted by the Grand Jury on August 12, 2004. On December 17, 2004, pursuant to a plea agreement, Thompson pled guilty to one count of conspiracy to possess with intent to distribute over five kilograms of cocaine under 21 U.S.C. § 846, one count of possession of a firearm in furtherance of a drug trafficking offense under 18 U.S.C. § 924(c)(1)(A), one count of forfeiture under 21 U.S.C. § 853(a)(2), and one count of forfeiture of a firearm under 18 U.S.C. § 924(d)(1). On May 11, 2005, the Government filed a motion for downward departure for substantial assistance on behalf of Thompson. The presentence investigation report (PSIR) determined that Thompson had an adjusted offense level of thirty-three and a criminal history of IV as to Count One, the conspiracy to distribute charge, resulting in a Guidelines range of 188-235 months. Count Two, possession of a firearm in furtherance of a drug trafficking offense, required a mandatory consecutive term of not less than sixty months. On May 12, 2005, the district court held a sentencing hearing for Thompson during which the court considered a number of requests for downward departure under the Guidelines. First, Judge James L. Graham considered Thompson’s argument that Jefferson’s fifty-five month sentence and the sentences imposed in two other cases involving similar charges justified a downward departure to avoid unwarranted disparity. In rejecting Thompson’s disparity argument, the district -3- No. 05-3728 USA v. Thompson court referred to “the fact that Mr. Thompson’s criminal history is much more extensive than his codefendant in this case.” Second, the court rejected Thompson’s requests for departures because of the harshness of Thompson’s presentence confinement and physical impairment, Thompson’s family background, and his allegation of third-party coercion. Third, the court granted a downward departure because the price of the cocaine involved in this transaction was below market and granted the Government’s motion for downward departure, resulting in a final total offense level of twenty- nine. Having determined the applicable Guidelines range, the district court then heard general arguments on the appropriate sentence. In this non-Guidelines context, Thompson again asked the court to consider the avoidance of sentencing disparity and the other issues that he had raised as grounds for departure under the Guidelines. In arriving at Thompson’s sentence, the district court observed that “previous sentences have not afforded adequate deterrence for this defendant” and found that Thompson “represented a substantial risk for recidivism.” The court imposed a sentence of 132 months for Count One, which was within the applicable Guidelines range of 121-151 months. The court also imposed a consecutive sentence of sixty months for Count Two. Thompson now brings this timely appeal, in which he argues that the district court erred in not giving him a sentence that was in relative parity with the sentence Jefferson received. II. -4- No. 05-3728 USA v. Thompson Thompson’s sentence is not unreasonable because the district court properly considered the alleged disparity between his sentence and his co-defendant’s sentence in the context of a possible Guidelines departure and again when weighing the factors in 18 U.S.C. § 3553(a). “The sentence imposed by the district court is reviewed for reasonableness and must be affirmed if it is reasonable. A sentence falling within the relevant Guidelines range is entitled to a rebuttable presumption of reasonableness.” United States v. Carson, 469 F.3d 528, 530-531 (6th Cir. 2006) (citing United States v. Williams, 436 F.3d 706, 707-08 (6th Cir. 2006)). This court reviews sentences for both procedural reasonableness and substantive reasonableness. United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006). The sentence imposed by the district court is procedurally reasonable because the district court properly calculated the applicable Guidelines range and, recognizing the non-mandatory nature of the Guidelines, considered the other factors listed in 18 U.S.C. § 3553(a). See United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). While the primary thrust of Thompson’s argument on appeal involves the substantive reasonableness of the disparity between the sentence that he received and the sentence his co-conspirator received, Thompson also argues that the district court failed to consider whether a lower sentence was sufficient to satisfy the sentencing goals in 18 U.S.C. § 3553(a). Contrary to Thompson’s assertion, the district court expressly considered “the kinds of sentences that are afforded in this case,” including the possibility of a lower sentence, but found that the circumstances of this case did not justify a lower sentence. Therefore, while consideration of the -5- No. 05-3728 USA v. Thompson § 3553(a) factors “need not be evidenced explicitly,” the record here clearly reflects that the district court considered Thompson’s arguments for a lower sentence. Williams, 436 F.3d at 708. Thompson’s sentence is also substantively reasonable because the disparity between Thompson’s sentence and the sentence imposed on his co-conspirator is not unreasonable in light of the dissimilarities between the two defendants. Thompson’s relies on 18 U.S.C. § 3553(a)(6), which provides that one of the factors that a court must consider when imposing a sentence is “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” However, in a case reversing a below-Guidelines departure prior to Booker, this court reasoned that “[t]he objective of this statute is not to eliminate sentence disparities between defendants of the same case who have different criminal records; rather, the objective is to eliminate unwarranted disparities nationwide.” United States v. LaSalle, 948 F.2d 215, 218 (6th Cir. 1991) (internal quotation marks and citation omitted). This court in LaSalle observed that “to reduce a defendant’s sentence because of a perceived disparity between the sentences of one defendant and that of his co-defendant in the same case creates a new and unwarranted disparity between that first defendant’s sentence and the sentences of all the defendants nationwide who are similarly situated.” Id. See also United States v. Epley, 52 F.3d 571, 584 (6th Cir.1995) (relying on LaSalle and holding that a downward departure could not be supported solely by a disparity between the defendant’s sentence and the sentences of unindicted co-conspirators). While these cases were decided in the context of unwarranted departures prior to Booker, the fact -6- No. 05-3728 USA v. Thompson that they purported to interpret 18 U.S.C. § 3553 makes them of some relevance to the question of reasonableness in the post-Booker advisory Guidelines context. However, even if disparity between co-defendants could result in an unreasonable sentence after Booker in some cases, that would not be the case here because Thompson and Jefferson do not have similar records. There are two significant differences between Thompson and his co- conspirator that explain the disparity between their sentences. First, Jefferson was not armed during the drug purchase from which the charges in this case arise. Therefore, only Thompson was charged with possession of a firearm in furtherance of a drug trafficking offense,1 which charge resulted in a mandatory consecutive sentence of “not less than 5 years.” 18 U.S.C. § 924(c)(1)(A)(i). This additional charge accounts for nearly half of the difference between Thompson’s sentence and Jefferson’s sentence. A second difference between Thompson and Jefferson, which was recognized by the district court, is that “Thompson’s criminal history is much more extensive than his codefendant in this case.”2 It was not unreasonable for the district court to conclude that Thompson’s extensive 1 Thompson relies on United States v. Morrow, 977 F.2d 222 (6th Cir. 1992), to argue that Jefferson was “equally culpable for the use of a firearm” and the additional sixty-month sentence for Thompson was therefore unwarranted. However, in Morrow this court merely upheld the conviction of an individual charged with aiding and abetting the use of a firearm in furtherance of a trafficking offense. Id. at 230-31. Morrow did not deal with relative punishment levels for aiders versus principals. 2 While Jefferson’s criminal history is not part of the record in this case, Thompson concedes the existence of a disparity between his criminal history and Jefferson’s. Accordingly, Thompson’s reliance on United States v. Tzoc-Sierra, 387 F.3d 978 (9th Cir. 2004) is misplaced. In Tzoc-Sierra, -7- No. 05-3728 USA v. Thompson criminal history justified the additional seventy-seven months separating his sentence from Jefferson’s sentence. Because the additional charge against Thompson and Thompson’s extensive criminal history justified the larger sentence Thompson received, no unwarranted disparity resulted from the district court’s imposition of a sentence within the relevant Guidelines range. Thompson has, therefore, provided this court with no reason to hold that the sentence imposed by the district court was unreasonable. III. For the foregoing reasons, the sentence imposed by the district court is AFFIRMED. the Ninth Circuit held that a downward departure was justified by the disparity between the sentence imposed on the defendant-appellee and the sentences imposed on his co-defendants in the same case. However, the court explicitly noted that the defendant-appellee in that case had “no criminal history.” Id. at 981. The Ninth Circuit did not hold that disparate sentences for co-defendants with different criminal histories and facing different charges would warrant a departure. Id. -8- No. 05-3728 USA v. Thompson KAREN NELSON MOORE, Circuit Judge, concurring. Because Thompson had a more extensive criminal history than his co-conspirator Jefferson, it is unnecessary to determine the effect, if any, of our pre-Booker precedent cited in the majority opinion regarding the requirement in 18 U.S.C. § 3553(a)(6) that courts must consider in sentencing “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” As Thompson and Jefferson do not have “similar records,” there are no “unwarranted sentence disparities” presented by Thompson that would trigger § 3553(a)(6). In my view, § 3553(a)(6) may require comparison of sentences of co-participants in particular crimes “to avoid unwarranted sentence disparities,” but we need not, and do not, reach that issue today because of the differences between Thompson and Jefferson. With that understanding, I concur. -9-	{ "pile_set_name": "FreeLaw" }
603 F.Supp. 495 (1984) Raymond PEMPEK, et al., etc., Plaintiffs, v. Jim EDGAR, Secretary of State of Illinois, et al., Defendants. No. 83 C 7055. United States District Court, N.D. Illinois, E.D. June 6, 1984. On Motion to Dismiss December 26, 1984. 496 497 Roderick F. Mollison, Jerome J. Adams, Chicago, Ill., for plaintiffs. Roger P. Flahaven, Asst. Atty. Gen., Chicago, Ill., for Jim Edgar. Robert W. Fioretti, James D. Montgomery, Chicago, Ill., for City of Chicago. MEMORANDUM OPINION AND ORDER DECKER, Senior District Judge. Raymond Pempek (Pempek) and Gary Sternberg (Sternberg) brought this section 1983 action against the City of Chicago (the City) and Jim Edgar, the Illinois Secretary of State (Edgar or the Secretary). The complaint alleges that the City violated Pempek's constitutional rights in connection with his arrest for twenty delinquent parking tickets and that Edgar deprived him of his constitutional rights when Edgar suspended his driver's license. Sternberg charges that the suspension of his driver's license deprived him of his constitutional rights. Both the City and Edgar move to dismiss. I. Factual Background On August 26, 1983, Pempek "was arrested pursuant to [a] warrant issued by the Clerk of the Circuit Court of Cook County, Illinois, charging the Plaintiff with twenty (20) outstanding municipal automobile parking violation notices against him." Amended Complaint at ¶ 1. The same day, he paid $400.00 as a bail bond. The clerk issued a bail order demanding Pempek's appearance on October 6, 1983 at 321 North LaSalle Street, Room 103, Chicago, Illinois. On that date, Pempek "appeared before a State Court Judge ... as required by his bail bond conditions, and demanded a trial." Id. at ¶ 4. The City was not ready, and the judge granted a continuance over Pempek's objection. On October 5, 1983, Pempek received notice that Edgar had suspended his license under Ill.Rev.Stat. ch. 95½, § 6-306.1 (section 6-306.1). Edgar also suspended Sternberg's license under this provision. Section 6-306.1 requires Edgar to suspend anyone's license when Edgar receives notice that the person has an outstanding warrant against him. The suspension occurs without a hearing. Section 6-306.1(a). The Secretary cannot reinstate the license until Edgar receives notice that the licensee has satisfied the warrant. Id. Before the Secretary suspends the license, however, he must also receive notice that the court clerk mailed the licensee notice of the warrant at his last known address sixty days before the suspension. Id. The Secretary must also know the licensee's full name, date of birth, sex, and driver's license number as well as the registration number of the motor vehicle registered to the alleged violator. Id. Plaintiffs claim that these actions by Edgar and the City deprived them of due process under the fifth and fourteenth amendments to the United States Constitution and that the statute and the City's actions are a bill of attainder prohibited by article I of the Constitution. The complaint seeks injunctive and declaratory relief as well as attorneys' fees, costs, and the money "collected by the City of Chicago pursuant to the authority of Illinois." Amended Complaint at 5. Both the City and Edgar move to dismiss on various grounds. II. Discussion On a motion to dismiss, the court must "take [the plaintiffs'] allegations to be true, and view them, together with reasonable inferences to be drawn therefrom, in the light most favorable to the plaintiff." Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir.1981). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The complaint, however, must "contain either direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested or intended by the 498 pleader, or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial." Sutliff, Inc. v. Donovan Companies, 727 F.2d 648, 654 (7th Cir. 1984). A. Constitutionality of Ill.Rev.Stat. ch. 95½, § 6-306.1 Section 6-306.1 provides in relevant part: Failure to pay fines for traffic and parking violations. (a) The Secretary of State, upon receipt of a form prescribed by him that there is a warrant outstanding in any one county in Illinois for the arrest of a violator for ten or more parking violations ... shall immediately suspend the drivers license of said violator without a hearing, and shall not remove such suspension, nor issue any license or permit to said violator until notified by the Clerk of the Court in said county that the violator has appeared and satisfied the outstanding warrant against him. (b) The form prescribed by the Secretary shall be certified by the Clerk of the Court and shall contain the following information: (1) That the violator against whom the warrant is outstanding has been notified of said warrant by mailing it to his last known address at least 60 days prior to certification to the Secretary of State by the Clerk. (2) The full name, date of birth, sex, and drivers license number of the violator, and in the case of parking violations the registration number of the motor vehicle registered to the violator. Plaintiffs interpret this section to prohibit the Secretary from ever holding a hearing regarding a suspension. Edgar notes that after a suspension, a driver may apply under Ill.Rev.Stat. ch. 95½, ¶¶ 2-118(a) and 2-118(e) for an administrative hearing subject to judicial review.[1] Edgar's Memorandum Supporting Motion to Dismiss at 3. In Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977), the United States Supreme Court upheld a similar Illinois statute that gave the Secretary power to revoke a driver's license after three convictions for minor traffic offenses. The Secretary needed to hold no pre-suspension hearing. Id. at 107, 97 S.Ct. at 1724. The procedure encompassed written notification as well as a full evidentiary hearing within twenty days and "`as early as practical'" after the licensee requested such a hearing. Id. at 109-10, 97 S.Ct. at 1726 (quoting ¶ 2-118(a)). "[T]he Due Process Clause applies to the deprivation of a driver's license by the State." Dixon, 431 U.S. at 112, 97 S.Ct. at 1727. The Court therefore utilized the three part test of Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976), to determine when the licensee must receive a hearing.[2] To evaluate what 499 process was "due," the Court looked to "`first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used and probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.'" 431 U.S. at 112-113, 97 S.Ct. at 1727 (quoting Mathews, 424 U.S. at 335, 96 S.Ct. at 903). The Court concluded that the interest in a driver's license "is not so great as to require [the Court] ... `to depart from the ordinary principle' ... that something less than an evidentiary hearing is sufficient prior to adverse administrative action." 431 U.S. at 113, 97 S.Ct. at 1728 (quoting Mathews, 424 U.S. at 343, 96 S.Ct. at 907). The risk of an erroneous deprivation was "not great" since it followed three full judicial hearings. Id. The appellee never challenged the sufficiency of these hearings. Id. "Finally, the substantial public interest in administrative efficiency would be impeded by the availability of a predetermination hearing in every case." Id. 431 U.S. at 114, 97 S.Ct. at 1728. The licensees might use a hearing request to delay proceedings. Id. Therefore, a pre-suspension hearing was unnecessary. Id. The Court reaffirmed Dixon in Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979), which held that the Illinois law in Dixon was indistinguishable from the Massachusetts law requiring suspension for refusal to undergo a breathylzer examination for drunk driving. "Both cases involve[d] the constitutionality of a statutory scheme for administrative suspension of a driver's license for statutorily defined cause without a pre-suspension hearing." Id. at 11, 99 S.Ct. at 2617. This court finds that section 6-306.1 is similarly indistinguishable from the statutes in either Dixon or Mackey. The private interest is the same as in Dixon and Mackey and does not by itself necessitate a pre-suspension hearing. See 431 U.S. at 113, 97 S.Ct. at 1727. Paragraphs 6-306.1 and 2-118(a) provide numerous safeguards against erroneous deprivation both due to unfounded traffic citations and to clerical mistakes. The Secretary suspends the license only after an Illinois court issues a warrant because the licensee has at least ten outstanding parking tickets. The clerk of the issuing court must send notice of the warrant to the licensee at least sixty days before the Secretary receives any information. The forms used to notify the Secretary whose licenses should be suspended must contain detailed information about the licensee. These safeguards operate in two ways. First, they ensure that the licensee gets many chances to challenge the underlying allegations of parking violations. Ten tickets and a warrant must issue at least sixty days before the Secretary even receives the information leading to suspension. The licensee has procedures to challenge both the tickets and the warrant. Second, before the deprivation, several different state agencies and many individuals review the licensee's file. At least ten tickets issue, a court swears out a warrant, and the Secretary gets notice of both. The different procedures provide several opportunities to identify mistakes and preclude individual biases. The plaintiff argues that these protections are not enough because there is no guarantee that the licensee receives notice of the tickets and the warrant. This argument fails for two reasons. First, the Constitution 500 provides only the right to an opportunity to be heard. E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 171-72, 71 S.Ct. 624, 648-49, 95 L.Ed. 817 (1951) (Justice Frankfurter concurring). The court concludes that the many safeguards in the statute provide this opportunity. Second, even if the court assumed that the statute has an unconstitutional result when a licensee failed to receive notice of the tickets or the warrant, Pempek's complaint lacks any allegations that he was unaware of the pending tickets or the warrant. If he was aware of these charges against him, he lacks standing to raise the claim that the statute is unconstitutional because, in fact, it denies some licensees an opportunity to be heard. The added value of a pre-suspension hearing before the Secretary is minimal. Given the procedures in the statute and sixty-day waiting period, the driver already has several chances to plead his case before suspension. Adding another notice and hearing procedure would only duplicate those provided in connection with the ten parking ticket violations and the warrant. If the driver learns of his suspension, the chances are great that he knew of the warrant since the court clerk and the Secretary direct their notices to the same address. Requiring the Secretary to repeat what the clerk did sixty days previously creates needless expense. The State of Illinois (the State) has an interest in keeping drivers off the road who flout enforcement of local parking ordinances. Parking laws protect the smooth flow of traffic and allow a city to make maximum use of limited parking spaces. Those individuals who receive parking ticket after parking ticket without paying the resulting fines or challenging their validity show disrespect for parking laws. The State has an interest in responding to such disrespect. The State needs to retain some control over whom it licenses. Paragraph 6-306.1 requires the Secretary to suspend a license only when a driver refuses to respond to repeated charges that the driver interfered with the safety and efficiency of the roads. These factors all support the constitutionality of paragraph 6-306.1. Plaintiffs claim that the issuance of a warrant does not mean that the licensee will get a pre-deprivation hearing because, before the hearing, the person "must surrender to the custody of police and post a bail bond equivalent to the cash fines of all outstanding tickets." Plaintiffs' Memorandum at 2. What plaintiffs misunderstand is that the suspension of the license is the deprivation at issue in this case. If licensees fail to receive notice of the warrant or the tickets before they are arrested, the constitutional problem, if any exists at all, is with the ticket and warrant procedure, not the suspension procedure. Therefore, the court finds that paragraph 6-306.1 survives plaintiffs' constitutional challenge under the due process clause. The charge that paragraph 6-306.1 is a bill of attainder poses novel questions. Article 1, section 10, of the United States Constitution states that "[n]o State shall pass any Bill of Attainder." "A bill of attainder is a legislative act which levies punishment against specified individuals or groups of individuals without a judicial trial." E.g., Benboe v. Carroll, 494 F.Supp. 462, 465 (W.D.Ky.1977), aff'd, 625 F.2d 737 (6th Cir.1980). This court has noted before that "[a] law of general applicability is not unconstitutional merely because its enactment was inspired by a specific example of the evil which it seeks to suppress." Collin v. Smith, 447 F.Supp. 676, 682 n. 4 (N.D.Ill.) (Judge Decker), aff'd, 578 F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916, 99 S.Ct. 291, 58 L.Ed.2d 264 (1978). Pending before the United States Supreme Court is the case of Selective Service System v. Minnesota Public Interest Research Group, ___ U.S. ___, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984). In that case, the district court held that plaintiffs demonstrated a probability of success on the merits of their claim that section 1113 of the Department of Defense Authorization Act (the Act) is a bill of attainder. Doe v. 501 Selective Service System, 557 F.Supp. 937, 941-46 (D.Minn.1983). That portion of the Act requires male college students to certify they have registered for the draft before they qualify for federal financial aid. Id. The Supreme Court heard arguments on April 23, 1984. This court feels that the Supreme Court's disposition of Minnesota Public Interest Research Group will clarify whether section 6-306.1 is a bill of attainder. See 52 U.S.L.W. 3813-14 (U.S. May 15, 1984). Therefore, the court will stay further proceedings on plaintiff's bill of attainder claims against Edgar until the Supreme Court acts on Minnesota Public Interest Research Group. B. Constitutionality of Chicago's Bail Bond Policy The complaint alleges that the City's bail bond policy violates the due process clause because the policy conflicts with Illinois law regarding bail. Paragraph 7 of the amended complaint states that "[u]nder Illinois Supreme Court Rule 528, the bail for ordinance violations shall be $50.00 and Illinois Supreme Court Rule 503(a) governing multiple charges specifically provides that bail shall be set at the amount required by only one offense, that offense requiring the most bail." Rule 503(a) applies only to those cases where "the bail is established for [the] ... offense under Rule 526, 527, or 528." Ill.Sup.Ct.R. 503(a). Therefore, Pempek argues, his $400.00 bond was excessive.[3] Pempek fails to explain that the following precedes the bail schedules that he discusses: PART B. BAIL SCHEDULES NOTE: The bail provisions of Rules 526, 527, and 528 do not apply to arrests on warrant.... When the accused is actually brought before a judge, the bail amounts specified in these rules do not control. Ill.Rev.Stat. ch. 110A; see also Ill.Rev.Stat. ch. 38, 110-5 (establishing criteria for determining the amount of bail). The first paragraph of the complaint alleges that Pempek was arrested pursuant to a warrant. Therefore, Pempek's arguments about his bail being excessive under the due process clause are meritless. The bill of attainder arguments are similarly meritless. Pempek asserts in his brief that the bail bond scheme is a mere sham because the bail notice merely refers the driver to a clerk who forces the driver to sign a guilty waiver and pay his delinquent tickets. The complaint, however, alleges that, in fact, Pempek appeared before a judge who continued the trial. The court refuses to incorporate Pempek's memorandum into his complaint that contains a completely different description of the procedure. A single continuance because the City was unprepared hardly violates the bill of attainder clause. The single continuance was not a legislative act and did not deprive Pempek of a trial. The court dismisses the claims against the City. III. Conclusion For the reasons above, the court grants the City of Chicago's motion to dismiss and dismisses the claims against the City. In accordance with the above, the court stays further proceedings with respect to the claims against Edgar. ON MOTION TO DISMISS Raymond Pempek (Pempek) and Gary Sternberg (Sternberg) brought this section 1983 action against the City of Chicago (the City) and Jim Edgar, the Illinois Secretary of State (Edgar or the Secretary). Plaintiffs claim that Edgar violated their civil rights by revoking their driver's licenses under Ill.Rev.Stat. ch. 95½, ¶ 6-306.1 (1983). That statute requires the Secretary to revoke a person's license when Edgar 502 receives notice that the person has ten or more unpaid parking tickets. On June 6, 1984, the court concluded as a matter of law that the statute withstood a procedural due process challenge under the fourteenth amendment. To avoid repetition, the court incorporates the factual discussion in that opinion into this one. Decision was stayed, however, on whether the statute constituted a bill of attainder in violation of art. 1, § 10 of the United States Constitution. On July 5, 1984, the Supreme Court decided Selective Service System v. Minnesota Public Interest Research Group, ___ U.S. ___, 104 S.Ct. 3348, 3358, 82 L.Ed.2d 632 (1984) [hereinafter MPIR] and clarified what constitutes a bill of attainder. The parties briefed the applicability of that case to Pempek's complaint and defendants' motions to dismiss. I. Discussion In MPIR, plaintiffs challenged section 1113 of the Department of Defense Authorization Act of 1983 which denied male college students federal financial aid if they failed to register for the draft. The district court found that the law constituted a bill of attainder. 104 S.Ct. at 3352. The Supreme Court disagreed. Id. at 3352-58. After reviewing the history of the bill of attainder clause, the Court listed "three necessary inquiries [to determine whether a statute is a bill of attainder]: (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, `viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes'; and (3) whether the legislative record `evinces a congressional intent to punish.'" Id. at 3355-56. The statute conformed with none of the three criteria that define a bill of attainder. 104 S.Ct. at 3356-58. First, section 1113 imposed no burden historically associated with punishment because it only denied "a non-contractural governmental benefit." Id. at 3356. In addition, the denial of the benefit was only temporary, and the students could avoid the sanction by registering. Id. Second, Congress furthered the nonpunitive goal of encouraging young men to register. Id. at 3356-57. Section 1113 was a rational means of achieving this goal. Id. at 3357. The provision also facilitated fair allocation of resources by limiting aid to students willing to discharge their responsibility as citizens. Id. Finally, Congress evinced no punitive intent. Id. Comments by Congressmen demonstrated a desire to regulate all non-registrants, including those who unintentionally neglected to register. Id. As in MPIR, paragraph 6-306.1 possesses none of the three characteristics of a bill of attainder. First, Pempek and Sternberg have the power to avoid forfeiture of their licenses by "satisfying" the warrants. Ill.Rev.Stat. ch. 95½ ¶ 6-306.1. Satisfying the warrants means either paying the tickets or posting bond. The loss of the license is not a punitive or permanent confiscation that legislatures historically used to punish. See 104 S.Ct. at 3356. As with section 1113, the statute in this case punishes no one for getting too many tickets. It encourages individuals to pay their tickets and removes from the road individuals who, according to state records, have too many citations. For similar reasons, the statute furthers non-punitive goals. As discussed in the court's first opinion, paragraph 6-306.1 allows the state to retain control over whom it licenses. Memorandum Opinion and Order of June 6, 1984 at 10. The law provides a way for the Secretary to react against disrespect for traffic laws and procedures. By providing this tool to the Secretary, the legislature ensures that only qualified drivers possess driver's licenses. Paragraph 6-306.1 also provides a rational incentive to aid the Secretary in tracing delinquent drivers and resolving pending traffic tickets. Plaintiffs provide no persuasive argument that the drafters of paragraph 6-306.1 evinced a punitive intent. The legislature incorporated a simple means for the licensee to avoid the loss of his license: 503 satisfaction of the warrant. Had the legislature intended to punish ticket scofflaws, it would have precluded them from recovering their licenses. It would have confiscated licenses without a way to secure their return. The MPIR analysis clarifies that paragraph 6-306.1 fails to qualify as a bill of attainder. Based on the allegations in the complaint, the court is unable to conclude that this statute, on its face, is a bill of attainder. Because this was the only claim remaining in the complaint, its dismissal ends the case. II. Conclusion For the reasons above, the court grants the motion to dismiss. The case is dismissed. NOTES [1] See infra note 2 and accompanying text. [2] The Dixon parties agreed that the licensee eventually received all the hearings to which he was entitled under ¶ 2-118(a) and (e). 431 U.S. at 112, 97 S.Ct. at 1727. The only question was one of timing. Id. Here, the plaintiffs contend that the statute precludes all hearings. Edgar admitted that the State would give a licensee a hearing under ¶ 2-118(a) if asked. Although the statute says the suspension will occur without a hearing, this provision does not preclude a ¶ 2-118(a) hearing to determine whether the Secretary complied with paragraph 6-306.1. The complaint lacks any indication that Pempek asked the Secretary for a hearing regarding the suspension. Pempek argues that the Illinois Administrative Review Act (the Act) is inapplicable because the statute requires suspension of the license and the state agency, since it has no discretion regarding the suspension, issues no order as required by the Act. Paragraph 6-306.1 itself does not suspend the license; it requires the Secretary to suspend the license. Therefore, the suspension is an action by the Secretary reviewable under the Act. The Secretary cannot lift the suspension until the warrant is satisfied. Satisfaction of the warrant means either that the licensee pays the fines after receiving an opportunity to be heard at a hearing regarding the warrant or the licensee is vindicated at such a hearing. If, however, the Secretary suspends the license without complying with paragraph 6-306.1, an administrative review hearing provides a mechanism for the Secretary to correct his mistake. Therefore, the licensee gets a hearing both on whether the licensee committed the offense charged in the warrant and on whether the Secretary conformed with paragraph 6-306.1. With Edgar's representation, the allegations in the complaint, and the court's reading of the statute, the court need only consider whether the statute violates the Constitution because it precludes a pre-suspension hearing. See generally Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 165, 71 S.Ct. 624, 645, 95 L.Ed. 817 (1951) (Justice Frankfurter concurring) ("[S]tatutes should be interpreted, if explicit language does not preclude, so as to observe due process in its basic meaning.") (citations omitted). The only issue is one of timing. [3] Although plaintiffs' brief denies it, the amended complaint lacks any allegation tying Sternberg to the City. Therefore, the court concludes that Sternberg raises no cause of action against the City.	{ "pile_set_name": "FreeLaw" }
296 So.2d 813 (1974) Ada WARREN v. Raymond M. RICHARD. No. 54258. Supreme Court of Louisiana. June 10, 1974. Robert E. Palmer, Amite, for plaintiff-applicant. William C. Kaufman, III, Seale, Smith & Phelps, Baton Rouge, for defendant-respondent. SUMMERS, Justice. David Lee Blackburns died on August 26, 1971 after being struck by an automobile driven by Raymond M. Richard. As a result, Matelan Gray petitioned the Nineteenth Judicial District Court of East Baton Rouge Parish to be appointed as natural tutrix of her minor child, Iris Yvette Blackburns. She also sought authority to enter into an agreement on behalf of the 814 minor child with Raymond M. Richard to compromise and settle the child's claim for damages for the wrongful death of her natural father David Lee Blackburns. In these proceedings Matelan Gray alleged that, prior to the accident and death of David Lee Blackburns, she had for some years lived in a state of concubinage with him. She recounted that she resided in his house when her minor child Iris was born on June 29, 1961. It was also alleged that after the birth of the child David Lee Blackburns acknowledged the child as his own and referred to her as such in public and private conversations. In addition, he caused her to be educated as his child. On the basis of these representations, the court appointed Matelan Gray as natural tutrix of the minor and authorized her to enter into the compromise and settlement on behalf of the child. Accordingly, a compromise and settlement was entered into on the child's behalf with Raymond M. Richard and his liability insurer on October 26, 1971. Thereafter, on August 28, 1972, Ada Warren and Loucis Charles Blackburns instituted the present suit against Raymond M. Richard in the Nineteenth Judicial District Court. This suit was also for damages for the wrongful death of David Lee Blackburns. The petition alleged that Ada Warren was the mother of the deceased David Lee Blackburns, and that Loucis Charles Blackburns was his brother. It was also alleged that David Lee Blackburns and Loucis Charles Blackburns were the legitimate children of Ada Warren and Willie Blackburns, that Willie Blackburns predeceased his son David Lee and that he, David Lee, never married. The negligence of Raymond M. Richard in striking David Lee and causing his death was also alleged. Damages were claimed by petitioners Ada Warren and Loucis Charles Blackburns for the pain and suffering of David Lee and for their mental anguish and loss of love and affection because of his death. To this petition the defendant Richard filed an exception alleging no right or cause of action in Ada Warren and Loucis Charles Blackburns to recover for the alleged wrongful death of David Lee under Article 2315 of the Civil Code, for the deceased was survived by his minor child Iris, who under that article would recover to their exclusion. The exception alleged that a settlement had been approved by the court in favor of the minor Iris, releasing the defendant Richard from claims for the death of David Lee. Alternatively, based upon the same allegations, Richard prayed for a summary judgment since there were no genuine issues of fact in dispute. In the further alternative, it was prayed that the exception or summary judgment be maintained as to Loucis Charles Blackburns, brother of the deceased, for, under article 2315, the mother is entitled to recover to the exclusion of a collateral relative such as Loucis. At the hearing on the exceptions and motion for summary judgment, a machine copy of Iris' certificate of birth was filed by defendant Richard. The certificate recorded the date and place of her birth and the name of her father, "David Blackburns", as well as the name of her mother, "Matlean Blackburns". It is indicated in brief that this machine copy was introduced into the record in lieu of the original without objection, and the record does not contradict this fact. Defendant Richard also offered and filed into the record in support of his position the entire tutorship proceedings. Plaintiffs' evidence, on the other hand, consisted of separate and identical affidavits by the plaintiff Loucis Charles Blackburns and his half sister Lubertha Norman setting forth that "Matelan Gray was married to Albert Gray and as far as affiant knows was never divorced from him; she was still married to him when Iris Blackburns was born . . . ." On the basis of the record thus formed the trial judge "granted" the exception of 815 no right or cause of action and the alternative motion for summary judgment dismissing the plaintiffs' suit with prejudice. Thereafter Loucis Charles Blackburns withdrew his claim, and the mother appealed to the First Circuit where the judgment was affirmed. 283 So.2d 507. Certiorari was granted on the mother's application. Two questions are presented: 1) Were there sufficient allegations and evidence on which to adjudicate the peremptory exception of no right or cause of action or the motion for summary judgment; and, if the evidence was sufficient, 2) can an illegitimate child recover for the wrongful death of her biological father when, at the same time, she is also the legitimate child of another man under the law. We answer the first question in the affirmative. The trial judge and the Court of Appeal accepted plaintiff's affidavits in support of her contention that Matelan Gray was married to Albert Gray when Iris Blackburns was born. If these affidavits raise an issue of fact, both courts below have resolved that issue in favor of plaintiff's contention. In so doing the courts have accepted the affidavits as establishing the presumption, relied upon in support of plaintiff's contention, that the child Iris, having been born while her mother was married to Albert Gray, is the legitimate child of Albert Gray. Thus, according to plaintiff's contention, no recovery on behalf of the child can be had for the death of David Lee. Her argument is based upon the proposition that a legitimate child cannot recover both for the death of her legitimate father and for the death of her biological father, and that recovery should only be allowed for the death of the legitimate father. The argument rightly assumes that there is no question that the child may recover for the wrongful death of her legitimate father. The courts below also accepted the allegations of Matelan Gray to the effect that David Lee was the biological father of the child Iris, a fact which is confirmed by the copy of the birth certificate; a fact which would, moreover, be difficult to refute in light of the mother's sworn allegations. We hardly think there is a better witness to this fact. And we are not prepared to presume that she would make this claim at the time of registering her child's birth and again at this timeten years laterby sworn allegations in the tutorship proceedings, acknowledging the child's birth out of wedlock and casting the opprobious stigma of illegitimacy upon her offspring merely for the purpose of permitting the child to recover for David Lee's death. These facts also support plaintiff's position that because Iris is the biological child of David, and the legitimate child of Albert Gray, she can only recover for the death of one fatherthe legitimate father. If it were otherwise, that is, if the child had no legitimate father, her right to recover in preference to David Lee's mother would be free of question under the decisions of the United States Supreme Court to which reference will be made hereafter. It is the dual paternal parentage of this childone father created by nature, another created by lawwhich poses the problem we must resolve. In our view the pleadings and proceedings before us are sufficient to permit a resolution of the question. Remand would only result in unnecessary delay and expense to plaintiff. La.Code Civ.P. arts. 966-969. The second question is also answered in the affirmative by decisions of the United States Supreme Court which are controlling here. Article 2315 of the Civil Code grants the right to recover damages for wrongful death to the widow and children; and if neither survive to the father and mother of the deceased; and in the absence of these, to the surviving brothers and sisters; and if none of the foregoing survive, no action lies. This law means that recovery by a child of the decedent bars recovery by the decedent's mother. 816 Until the 1968 decision of the United States Supreme Court in Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436, it was always understood that children, as used in Article 2315, meant legitimate children. La.Civil Code arts. 203 & 2315; Thompson v. Vestal Lumber & Manufacturing Co., 208 La. 83, 22 So.2d 842 (1945); Green v. New Orleans, S. & G.I.R. Co., 141 La. 120, 74 So. 717 (1917); Landry v. American Creosote Works, 119 La. 231, 43 So. 1016 (1907); Lynch v. Knoop, 118 La. 611, 43 So. 252 (1907). Explicit terms of our Civil Code classify children as "either legitimate, illegitimate, or legitimated." La. Civil Code art. 178. Legitimate children are those born during marriage. Id. 179. Illegitimate children are those born out of marriage. Id. 180. There are two sorts of illegitimate children: those who are born of two persons, who, at the moment when such children were conceived might have legally contracted marriage with each other; and those who are born from persons to whose marriage there existed at the time some legal impediment. Id. 181. Adulterous bastards are those produced by an unlawful connection between two persons, who, at the time when the child was conceived, were, either of them or both, connected by marriage with some other person. Id. 182. (Plaintiff claims the child Iris belongs in this latter classification.) And the law considers the husband of the mother as the father of all children conceived during marriage. Id. 184. (Plaintiff also claims that because of this law the child Iris is legitimate.) In applying the Equal Protection Clause of the United States Constitution, the United States Supreme Court decided in a case where an illegitimate child was suing for damage for the wrongful death of her mother, "that it is invidious to discriminate against them (illegitimate children) when no action, conduct, or demeanor of theirs is possibly relevant to the harm that was done the mother." In this holding, striking down Louisiana's statutory scheme which had theretofore barred recovery by illegitimate children for the wrongful death of their parents, the Court has, as a constitutional proposition, apparently substituted a biological classification for the legal classification Louisiana had long observed. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). Again in Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968), handed down on the same day as the Levy Case, the United States Supreme Court decided that it would be a denial of equal protection to deny a mother the right to recover for the wrongful death of her child simply because the child was born out of wedlock. The opinion declared: "To say that the test of equal protection should be the `legal' rather than the biological relationship is to avoid the issue." Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), followed four years after. There the United States Supreme Court approved a claim for workmen's compensation benefits of a dependent, unacknowledged, illegitimate child which had been denied by the Louisiana courts. Stokes v. Aetna Casualty and Surety Co., 232 So.2d 328 (La.App.1969), aff'd 257 La. 424, 242 So. 2d 567. In an opinion authored by Mr. Justice Powell it was held that, by relegating the unacknowledged illegitimate to a lower priority in the recovery scheme, the Louisiana Workmen's Compensation Act thereby denied him equal protection of the law. The Court stated the basis for its decision thusly: "The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility 817 or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual as well as unjustway of deterring the parent. Finally in its latest decision on the subject in Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), the United States Supreme Court said: "We have held that under the Equal Protection Clause of the Fourteenth Amendment a State may not create a right of action in favor of children for the wrongful death of a parent and exclude illegitimate children from the benefit of such a right. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). Similarly, we have held that illegitimate children may be not excluded from sharing equally with other children in the recovery of workmen's compensation benefits for the death of their parent. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L. Ed.2d 768 (1972). Under these decisions, a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally." To say that the child Iris had no right to recover for her biological father's wrongful death because the law presumed her to be the legitimate child of another man would run counter to the principles established in the decisions of the United States Supreme Court referred to above and would ignore the existence of the child's biological father. For the purpose of this decision, it is not necessary that we determine to which class of illegitimate filiation this child belongs. It suffices that we simply determine that the child is in fact the biological child of the decedent David Lee. And, since we see no real dispute on this point, the case is in a posture for decision. Babineaux v. Perni-Bailey Drilling Co. et al., 261 La. 1080, 262 So.2d 328 (1972). The fact that the law considers the child to be the legitimate child of Albert Gray will not alter the result. La. Civil Code art. 184. Here the child was registered as the child of the decedent, recognized as such by him, educated in his name and sworn to be his child by the mother. The fact that the child is by Louisiana's statutory scheme made the legitimate child of Albert Gray cannot deprive her of a right which illegitimate children generally may have for the wrongful death of their biological fathers. As we understand the rationale of the decisions of the United States Supreme Court, it is the biological relationship and dependency which is determinative of the child's rights in these cases, and not the classification into which the child is placed by the statutory law of the State. The argument is made that this result will accord more rights to this child than are ordinarily accorded the legitimate child that she will be able to recover for the death of her biological father as well as for the death of Albert Gray, because the law deems her his legitimate offspring. However, this concept is not unique to our law. It is specifically provided that the adopted child, upon his adoption, is not divested of his right to inherit from his blood parents while at the same time he inherits from the adoptive parent. La. Civil Code art. 214. We are not umindful of the problems a logical extension of these holdings may create, such as a child in these circumstances recovering from both fathers for support and maintenance, or, conversely, requiring the child to support both fathers in a proper case. La. Civil Code arts. 227, 229. But we are influenced in this decision by the constitutional principles announced by the United States Supreme Court to which we must adhere. These decisions compel this court to recognize that the child Iris had a valid claim for the death of her natural father David. In doing so we affirm the contention that the compromise and settlement entered into on behalf of the child under *818 court authorization has the effect under article 2315 of the Civil Code of pre-empting the claim of the mother Ada Warren for the wrongful death of her son David Lee Blackburns. For the reasons assigned, the judgment of the Court of Appeal is affirmed.	{ "pile_set_name": "FreeLaw" }
AMENDED CLD-158 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 18-1142 ___________ IN RE: J. C., Petitioner ____________________________________ On a Petition for Writ of Mandamus from the United States District Court for the Eastern District of Pennsylvania (Related to E.D. Pa. Civ. No. 2-15-cv-04745) District Judge: Honorable C. Darnell Jones, II ____________________________________ Submitted Pursuant to Rule 21, Fed. R. App. P. March 23, 2018 Before: CHAGARES, GREENAWAY, JR. and GREENBERG, Circuit Judges (Opinion filed: April 19, 2018) _________ OPINION _________ PER CURIAM In August 2015, petitioner J.C. filed a complaint in the United States District Court for the Eastern District of Pennsylvania against numerous defendants who are employees of the Philadelphia Adult Probation and Parole Department (“PAPPD”). The * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. action was assigned to District Judge Gerald A. McHugh. In that complaint, J.C. alleged various violations of his constitutional rights by defendants beginning in 2013. J.C. averred, in particular, that defendants retaliated against him for filing a lawsuit against Probation Officer Nicholas Ford (“Ford”). J.C. sought injunctive relief, as well as compensatory and punitive damages against the defendants in their official and individual capacities. Defendants moved to have the claims asserted against them in their official capacities dismissed on grounds of, inter alia, Eleventh Amendment immunity. Having received no response from J.C., the District Court granted the motion and dismissed J.C.’s complaint with prejudice. J.C. filed an out-of-time response to the defendants’ motion and a motion for reconsideration pursuant to Fed. R. Civ. P. 59(e) and/or a motion for relief from judgment pursuant to Rule 60(b). The District Court denied J.C.’s motion, and he appealed. This Court affirmed the District Court’s judgment in part, vacated it in part, and remanded the matter for further proceedings. See C.A. No. 16-1718. In particular, we affirmed the judgment of the District Court with regards to J.C.’s claims against the defendants in their official capacity, but vacated the judgment with respect to his claims against them in their individual capacity because the defenses put forth by the defendants in their official capacity were not available to them in their individual capacity. On remand, the District Court dismissed the claims against all defendants except Ford. With respect to the remaining claims against Ford, District Judge McHugh recommended that those claims be transferred in accordance with Local Rule 40.1(c)(2) to District Judge 2 Gene E.K. Pratter, as J.C. had a case pending before her at E.D. Pa. Civ. No. 13-cv-04066 that was filed in July 2013 and involved similar allegations against Ford. Chief Judge Petrese B. Tucker entered an order on March 27, 2017, reassigning the case to District Judge Pratter. The court, through an order issued by Judge Pratter, subsequently denied J.C.’s motion for reconsideration and motion to certify the order for immediate appeal under 28 U.S.C. § 1292(b). Judge Pratter also issued an order directing the parties to show cause why the two cases should not be consolidated. Once again, J.C. sought reassignment, reconsideration, and severance of the two cases. Chief Judge Lawrence F. Stengel, on September 1, 2017, reassigned the case to District Judge C. Darnell Jones who had recently been reassigned the related case at E.D. Pa. Civ. No. 13-cv-04066. Judge Jones dismissed the motion for reassignment as moot and denied the motion seeking reconsideration in an order entered on September 12, 2017. Judge Jones entered an order on September 19, 2017, stating that, “regrettably,” the cases had to be reassigned once again because his recusal was required pursuant to 28 U.S.C. §§ 455(a), (b)(1), insofar as he knows two of the defendants, both of whom he worked with during his tenure as supervising judge of the PAPPD. However, “to keep th[e] matter on track towards a speedy recovery,” see Mem. Opin. of 9/18/17 at 1, Judge Jones issued a Memorandum and corresponding case management Order resolving the show cause order issued with respect to the consolidation question. Judge Jones concluded that “[c]onsolidation is the most appropriate next step to ensure efficient and fair management of these cases.” Id. at 6. The District Judge thus 3 ordered J.C. to submit a consolidated amended complaint in the lead case at E.D. Pa. Civ. No. 13-cv-04066 with respect to the remaining claims and directed the remaining defendants to refile the appropriate responsive pleadings or dispositive motions. J.C.’s case at E.D. Pa. Civ. No. 15-cv-04745 was to be marked closed for all purposes. J.C.’s motions for reconsideration and reassignment were denied in the last order entered by District Judge Jones on October 11, 2017. Given Judge Jones’ recusal, the civil action at E.D. Pa. Civ. No. 13-cv-04066 was reassigned to District Judge Petrese B. Tucker. It appears that J.C. has yet to file an amended complaint in that action, and has instead filed motions for partial summary judgment and judgment on the pleadings, and a motion for default judgment. Judge Tucker recently entered an order on March 20, 2018, directing J.C. to comply with the order issued by Judge Jones back in September 2017. Among other things, J.C. was directed to submit a consolidated amended complaint. The court also denied J.C.’s motions for summary judgment, judgment on the pleadings, and default judgment without prejudice as premature. In the meantime, in January 2018, J.C. filed the current petition for writ of mandamus in this Court. A supplemental mandamus petition and motion to stay the District Court proceedings were filed on April 9, 2018. The petitions are a far cry from a model of clarity. It appears, however, that J.C. seeks to challenge numerous decisions of the District Court, including the original decision to consolidate the two cases and District Judge Jones’ action in issuing the consolidation order despite his recusal, as well 4 as Judge Tucker’s recent decision once again directing J.C. to file a consolidated amended complaint. To the extent that J.C. is challenging any order other than those touching upon District Judge Jones’ consolidation determination, we do not hesitate to conclude that mandamus relief is not warranted. A writ of mandamus is a drastic remedy available only in extraordinary circumstances. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). A petitioner seeking the writ “must have no other adequate means to obtain the desired relief, and must show that the right to issuance is clear and indisputable.” Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996). Notably, mandamus is not a substitute for an appeal; if a petitioner can obtain relief by an ordinary appeal, a court will not issue the writ. See In re Briscoe, 448 F.3d 201, 212 (3d Cir. 2006); In re Ford Motor Co., 110 F.3d 954, 957 (3d Cir. 1997), abrogated on other grounds, Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009). The circumstances here are not extraordinary, and J.C. has failed to show that he has no other adequate means to challenge the District Court’s rulings. Any claims of error regarding the District Court’s decisions to date can be set forth in an appeal from the adverse rulings once a final judgment is entered. J.C. is correct in his assertion that we nonetheless have discretionary power to review certain interlocutory orders of the District Court under the All Writs Act, 28 U.S.C. § 1651. See La Buy v. Howes Leather Co., 352 U.S. 249 (1957); Texaco, Inc. v. Borda, 383 F.2d 607 (3d Cir. 1967); 9 James Wm. Moore et al., Moore’s Federal Practice ¶ 110.26 (2d ed. 1975). This supervisory 5 control, however, is limited to cases of clear abuse of the District Court’s discretion, see La Buy, 352 U.S. at 257, and is available only “when necessary to prevent grave injustice.” Bogosian v. Gulf Oil Corp., 738 F.2d 587, 591 (3d Cir. 1984). J.C. has failed to make any such showing and we perceive no “grave injustice” here. J.C.’s challenge to the consolidation order issued by District Judge Jones and the subsequent order denying reconsideration of that decision cannot be disposed of so easily, however. As noted, Judge Jones issued those orders after concluding that his recusal was warranted under 28 U.S.C. §§ 455(a), (b)(1). “Once a judge has disqualified himself, he . . . may enter no further orders in the case. His power is limited to performing ministerial duties necessary to transfer the case to another judge (including the entering of ‘housekeeping’ orders).” Moody v. Simmons, 858 F.2d 137, 143 (3d Cir. 1988) (citations omitted). It is thus necessary to determine whether the consolidation order can truly be characterized as “housekeeping” in the context in which it was entered in this case. “A ministerial act is usually defined as an act that is essentially clerical and does not involve the exercise of discretion or judgment.” United States v. O’Keefe, 128 F.3d 885, 891 (5th Cir. 1997) (citing United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 420 (1931)). Consolidating cases that “involve a common question of law or fact” is a proper exercise of the District Court’s broad discretion under Fed. R. Civ. P. 42(a)(2). See Lehman Bros. Holdings, Inc. v. Gateway Funding Diversified Mortg. Servs., L.P., 785 F.3d 96, 100 (3d Cir. 2015). Accordingly, while such an order may be a case 6 management one, we cannot conclude that it is a mere housekeeping order as contemplated by Moody. Thus, when District Judge Jones acted on the show cause order regarding consolidation and J.C.’s subsequent reconsideration motion, he performed a discretionary act. That does not mean, however, that the “wholesale vacatur” of these orders is required. See, e.g., In re Sch. Asbestos Litig., 977 F.2d 764, 787 (3d Cir. 1992). We use the “harmless error” standard to determine whether orders that a judge issues after the judge has, or should have, recused himself must be vacated. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 862 (1988). Under this test, we examine: “the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process.” Id. at 864. We cannot conclude that there exists any risk of injustice to the parties here. Judge Jones recused sua sponte as soon as he became aware that he knew certain defendants. Moreover, two disinterested judges – Judges McHugh and Pratter – had already given preliminary consideration to the relatedness of the two actions and/or the appropriateness of consolidation. Thus, J.C. has suffered no prejudice from the entry of the consolidation order by Judge Jones. We likewise fail to see how this decision, given the particulars presented here, is likely to produce injustice in other cases. Finally, we conclude that there is little to no risk of undermining the public's confidence in the judicial process. Indeed, vacating Judge Jones’ consolidation order that was initiated by the actions of two other judges would appear to be a waste of judicial resources. We thus 7 believe that Judge Jones’ error in issuing the consolidation order and denying J.C.’s effort to have that decision reconsidered was harmless. However, out of an abundance of caution and to assure public confidence with respect to the consolidation order without disrupting this litigation any more than necessary, we will authorize, but not require, District Judge Tucker to consider anew the parties’ responses to Judge Pratter’s show cause order regarding the consolidation issue upon the parties’ requests. See, e.g., In re Sch. Asbestos Litig., 977 F.2d at 787. To prevent undue delay, the parties should file, in E.D. Pa. Civ. No. 13-cv-04066, any such requests within twenty-one days of the date of this decision. We realize that, given the court’s recent entry of the order on March 20, 2018, the court might deem such action unnecessary and choose, instead, to proceed with its own scheduling order. We are confident that the parties will be advised accordingly by the District Court. For the foregoing reasons, we will deny the petitions for writ of mandamus as well as the motion to stay the District Court proceedings. 8	{ "pile_set_name": "FreeLaw" }
Case: 15-40166 Document: 00513337870 Page: 1 Date Filed: 01/11/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 15-40166 Summary Calendar United States Court of Appeals Fifth Circuit FILED January 11, 2016 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff-Appellee v. JAIME CANTU-LEAL, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:14-CR-939-1 Before WIENER, HIGGINSON, and COSTA, Circuit Judges. PER CURIAM: * The Federal Public Defender appointed to represent Jaime Cantu-Leal 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). Cantu-Leal 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 * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 15-40166 Document: 00513337870 Page: 2 Date Filed: 01/11/2016 No. 15-40166 issue for appellate review. 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	{ "pile_set_name": "FreeLaw" }
239 S.W.3d 494 (2006) Albert Kieth SMITH, Appellant, v. STATE of Arkansas, Appellee. No. CR 06-77. Supreme Court of Arkansas. September 21, 2006. Rehearing Denied November 2, 2006. 496 Joel William Price, Fort Worth, for Appellant. Mike Beebe, Att'y. Gen., David R. Raupp, Ass't Att'y. Gen., Little Rock, for appellee. BETTY C. DICKEY, Justice. Albert Kieth Smith appeals his conviction of forty years for one count of kidnapping, and life without parole for one count of capital murder, from the Benton County Circuit Court. He alleges multiple errors by the circuit court, which include: (1) failing to dismiss for want of jurisdiction or failing to submit the jurisdiction issue to the jury; (2) failing to direct a verdict in favor of Appellant based on the insufficiency of the evidence; (3) permitting the State to impermissibly shift the burden of proof to Appellant; (4) failing to properly instruct the jury with regard to the evidence that was not admitted for the truth of the matter; and, (5) permitting the State to introduce prior "bad acts." We conclude that his appeal is without merit, and affirm. Background On September 18, 1999, the body of an unidentified white man was found in McIntosh County, Oklahoma, in the right-of-way of Interstate 40. The body was positively identified on September 20, 1999, as that of David Douglas Howard. Howard had been shot in the back of the neck, and two .22 caliber bullets were recovered from his body. Howard was a fifty-six year old, single man who had lived in Bella Vista and managed the Loch Lomond Marina. Appellant's involvement with Howard is best understood by reviewing, in a chronological order, Smith's relationship with his wife, Linda, in the months preceding the crimes. Linda Smith had been married to Albert Kieth Smith for twenty-eight years, and, according to Linda, their marriage had become "platonic." She and Smith had their own computers, and Linda began looking at online websites on hers after learning about them from her daughter. In June of 1999, Smith and Linda decided 497 to separate; however, for financial reasons, they continued living in the same house in Van Buren. With the help of a co-worker and friend, William Dunn, Smith installed a program on Linda's computer that kept track of her keystrokes so that he could access the password to her AOL email account. Although they were separated, Smith was upset about Linda's communication with other men, and, at some point in the summer of 1999, he printed twenty to twenty-five emails involving communication between Linda and other men. Smith took those emails to Mikeal Bates, who was a detective in the Criminal Investigation Division at that time. Bates looked at the emails and listened as Smith told him that he had put the Stealth program on Linda's computer in order to view her computer activity. Smith asked Bates to speak with Linda and tell her to stop emailing other men, whereupon Bates suggested marriage counseling to Smith. On July 19, 1999, Smith set up an email account using the alias "jccart." Smith not only told Dunn about this account, but Dunn saw the name jccart as it appeared on several of the emails he had written Linda. Not only Linda received emails from a jccart account, but also Herbert Hawkins, one of the men with whom Linda had chatted online, received an email on July 22, 1999, from a jccart account warning him to stay away from Linda Smith. The Stealth Keyboard Interceptor Program installed on Linda's computer would, without her knowledge, send Smith's computer copies of every email that she sent or received. Smith filed for divorce on July 29, 1999. Although surprised when Smith filed for divorce, Linda accepted the situation and moved out of the house she shared with Smith on August 13, 1999. There were two other men besides Hawkins with whom Linda Smith frequently exchanged emails, Robert Glendinning of Jacksonville, Florida, and David Howard, the victim in this case. The evidence suggests that Smith was trying to gather information on these men. Linda testified that Smith had a Sam's card and would buy pre-paid phone cards. She admitted that they occasionally shared the phone cards while she lived with Smith, but testified that she did not use them after she moved out. The evidence shows that calls were placed from Smith's calling card in an attempt to track down Mr. Glendinning. A call was also placed from that calling card to the Loch Lomond Marina, where David Howard was employed. In addition, internet searches for Robert Glendinning's address were entered on Smith's computer. In an email exchange on August 10, 1999, Linda and David Howard discussed meeting one another. That same day, Linda received emails from the jccart account mentioning Howard. One email read, "How about David is he going to be more competition for me," and the other stated, "Maybe I don't have the right to be jealous, but I am anyway. I hope you don't start anything with David." Linda was still unaware that the jccart account had been registered on Smith's computer, thinking jccart was a stranger on the internet who had somehow hacked into her computer. She received another email from jccart on August 11, 1999, stating "I will try to stop monitoring your email account, although it will be hard to do knowing all of your other friends." While Smith was not a hunter and did not collect guns, his Visa was used to purchase a Marlin .22 caliber rifle, with scope and ammunition, at the Van Buren Wal-Mart on August 11, 1999. The next day, a call was placed from Smith's new cell phone to the Loch Lomond Marina, and Linda received an email from the 498 jccart account regarding Howard coming to stay with her on Sunday night and Monday. The email warned her that Howard was out every night with a different woman and that she should use a condom to be safe. On August 14, 1999, Smith's work records from his job as a mail carrier for the U.S. Postal Service revealed that he took the day off. His Visa was used on that day for purchases from the Rogers Wal-Mart, and the purchases included a pair of binoculars, black jeans, a black long-sleeve shirt, and a pair of black shoes. A call was placed that night from Smith's cell phone to Howard's home phone number in Bella Vista. On August 15, 1999, Linda and Howard met in person for the first time, and he spent that night at her apartment. Smith's work records for that day indicate that he had the day off, and his computer later revealed that he had spent time that day researching different poisons. During this time period Linda was still communicating with Robert Glendinning, the man from Florida. Smith's computer also revealed that he emailed Glendinning on August 17, 1999, stating that "there is more at stake here than you can imagine." In addition, Smith's Visa records indicate more purchases at the Van Buren Wal-Mart, including a one-half inch white nylon rope. Two days later, August 19, 1999, Smith purchased a new white van, although his truck was fairly new with low mileage. The van's license plate read 535DMK. David Howard and Linda decided that she should visit Howard at his home in Bella Vista on August 21, 1999. Smith's work records show that he again took a sick day on the same day, and his cell phone records reveal that calls were made to Howard's place of employment. The calls to the Loch Lomond Marina were connected through the nearest cell tower, indicating that the calls were placed from Bella Vista. That night, Smith's Visa revealed a purchase of a nine-and-a-half inch stainless steel knife at the Van Buren Wal-Mart, and Smith's calling card showed three calls were placed to Howard's home. On August 23 and 25, 1999, Smith again took leave from work. His Visa records indicate that he rented a car at Hertz in Fort Smith on August 23, 1999, and that he made a purchase from the Exxon in Little Rock on August 24, 1999. Later that day, the license tag on Smith's van, 535DMK, was run by law enforcement authorities in Greenville, Mississippi, and Smith's Visa records revealed a purchase at the Exxon in Loxley, Alabama. Smith went to Jacksonville, Florida, where Robert Glendinning lived. His calling card showed another call to Howard's home in Bella Vista on August 24. On August 25, Smith's Visa was used at a Chevron station in Baldwin, Florida, and his calling card was used from a pay phone at the Hardee's in Neptune Beach, Florida, to call Robert Glendinning. Smith finally reached him, but could not convince Glendinning to meet him. Linda and David Howard made plans for another date at Howard's home in Bella Vista on August 26, 1999. On August 27, Smith missed another day at work, and on that same day, rented a car from the Hertz location in Springdale. In addition, several phone calls were placed from his cell phone indicating that he was in the Rogers, Bentonville, and Bella Vista area. Two calls were made to Loch Lomond Marina, and calls were also placed to Howard's home. Smith took a sick day at work on August 30, 1999, and, that same day, he ordered the book, "How to Make a Silencer for a .22." The book was to be shipped to an Albert Smith in Van Buren. Smith ordered eight more books pertaining to 499 gun silencers on September 1, 1999. The order called for overnight delivery. On that same day, a call was again placed to Howard's home from Smith's cell phone, going through a cell tower in Bella Vista, indicating that the call originated from there. On September 2, 1999, another call from Smith's phone to Howard's home was placed, this time from the north Fort Smith area. The same day, David Howard drove to visit Linda and spent the night at her apartment. On September 3, 1999, Smith was not working and rented another car from Hertz. More calls from Smith's phone to Linda suggest that Smith was in the Bella Vista area. Three days later, on Monday, September 6, 1999, calls were placed on Smith's calling card from the All In 1 Market, located near the Sonic in Bella Vista. Smith's phone also indicated a three-minute phone call to Howard's home at 5:19 p.m. At 6:28 p.m., Howard sent Linda an email regarding their plans for the upcoming weekend. He informed her that he had "run into complications for Saturday night" and had been "offered a job opportunity" and needed to "be back in Bella Vista by 7 p.m. on Saturday night." Linda and Howard spoke about the email later and Linda testified that he was supposed to meet someone near the Sonic in Bella Vista. Howard told her that he had been contacted by a man named Billy Martin, whom he believed to be a recruiter for people who wanted Howard to build a new marina in an undisclosed location. Bill Dunn testified that he and Smith actually had worked with a postal carrier named Billy Martin, indicating that Smith knew an actual person by that name. Smith told Linda that he planned to travel on Saturday, September 11, 1999, and would not return until September 17. Smith rented another car from the Springdale Hertz location on September 10, and on September 11, he placed two calls on his calling card. One call placed him in Springdale at 6:46 p.m., and the other placed him in Seminole County, Oklahoma, at 10:51 p.m. Finally, at 1:18 a.m. on September 12, Smith again used his calling card, placing a call from Marietta, Oklahoma. Several of Howard's communications relayed that he traveled a similar route that night when he was with the recruiter, whom he knew as Billy Martin. Linda spoke with Howard on Sunday, September 12, and testified that he had been very frustrated as something had gone wrong with his trip. However, he informed Linda that he intended to get back with the recruiter at a later date. The evidence indicated that Howard had also been seeing other women and that he had shared his belief with them, as well as Linda, that building a marina was a future business opportunity for him. On September 12, 1999, Smith told Linda, his son, and his daughter-in-law that he was about to do some traveling to Mississippi with a girlfriend, Rebecca. However, nobody ever saw Rebecca or even believed that she existed. What is known is that Smith bought a new computer at Best Buy in Fort Smith and then charged a room at the Howard Johnson Motel in North Little Rock on his Visa later that same day. The next day, September 13, 1999, a Ruger .22 pistol and ammunition were purchased from Midsouth Guns and charged to Smith's Visa. Smith called his friend Bill Dunn when he had trouble getting his computer to work, and, after speaking with Dunn, he was able to get the computer hooked up to the Internet from his motel room. On September 14, 1999, searches for information on silencers and poisons were entered on this new computer. Around the same time, Howard called two people in an attempt to get information on a white van with an Arkansas 500 license plate of 535DMK. Chief Wozniak of the Bella Vista Sheriff's Office testified that Howard asked him to run the tag because he had seen a white van around the marina. However, Chief Wozniak told him that he could only run checks for law enforcement purposes. Layla Wheeler testified that Howard had also asked her to run that very same tag. Wheeler was told that Howard wanted the tags run because he was being recruited by someone to build a marina, but the individual would not give him a company name and would not reveal much about himself, except to say he was driving a company car. Howard wanted to see to whom the car was registered. Layla Wheeler finally ran the tags for him, but it was after Howard had been murdered. Smith checked out of the Little Rock Howard Johnson Motel on September 15, 1999, and saw his chiropractor in Fort Smith the same day. That afternoon, Howard left work at the Loch Lomond Marina. At 5:45 p.m., he emailed Linda Smith for the last time, informing her that he was to meet the recruiter at six o'clock at the Sonic in Bella Vista and would probably be gone for several hours. Investigators later found a notepad at Howard's house beside his computer, with a few notes jotted on it, "Billy Martin, marina, build, license number of car, AR535DMK, meet six o'clock Allen's parking lot by Sonic, one hour away 9/15/99." Days later, Howard's Blazer was towed away from where it had been parked near the Sonic. On September 16, 1999, the day after Howard was to meet the recruiter, Smith called Linda and informed her that he was back in town. Linda was worried about Howard because she had not heard from him. Smith offered to bring dinner to Linda's home. When she allowed Smith to come, he kept telling her that he was tired and had taken a sleeping pill. Smith fell asleep on the floor and Linda decided to leave him there and went to her bedroom to go to sleep. Linda's computer records indicate that at 4:22 a.m. on September 17, the Stealth program that had been monitoring her computer activity was deleted and was sent to the recycle bin of her computer. Linda awoke around 6:30 a.m., and Smith was already up and about to leave her apartment. Linda attempted to contact Howard but was unsuccessful, and, that same day, he was reported missing by a co-worker. On September 18, 1999, the body of David Howard was discovered in Oklahoma. On January 22, 2004, more than four years later, Smith was arrested and charged in Benton County, Arkansas, with the capital murder and kidnapping by deception of David Howard. Sufficiency of the Evidence Smith contends that the trial court erred by not granting his motion for a directed verdict, and challenges the sufficiency of the evidence supporting his convictions. More specifically, he alleges that the evidence was merely circumstantial and did not exclude every other hypothesis consistent with his innocence. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). We have repeatedly held that, in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. 501 Although Smith did not raise his sufficiency challenge until the second point on appeal, double jeopardy considerations require this court to consider it first. See Johnson v. State, 366 Ark. 8, 233 S.W.3d 123 (2006); Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004); Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). However, as noted by the State, Smith did not make a proper directed-verdict motion. The following motion was made to the court at the close of the State's case: We move for a directed verdict on insufficiency of the evidence. On the whole the evidence is too speculative and too conjectural to submit to the jury. As you know, a jury should decide the case only on the hard facts and all we have here is speculation masquerading us back and conjectural masquerading us back and theory masquerading us back, so we would move for a directed verdict.[1] At the close of the trial, Smith renewed his motion as follows: Our directed verdict motion we premised much upon the same thing. That is, if the court doesn't bounce this for jurisdiction, then the court should look at the state of evidence and again acknowledge that insufficient evidence was presented insofar as the kidnapping is concerned, because the evidence that the judge did admit was admitted with the admonition that it is not being offered for the truth [of] the matter. We once again have a situation where there is no affirmative evidence that the alleged kidnapping occurred. . . . I would incorporate everything said on the jurisdiction argument into our motion for directed verdict and to dismiss for insufficiency of the evidence. . . . . [T]here is no evidence of a kidnapping or murder for this jury to consider and it would be allowing the jury to speculate and base their verdict on speculation and conjecture. . . . . Judge, for the purpose of the record, we would reiterate and incorporate our previous motions word for word and line for line for everything that has been said in our written motions previously filed, as well as our motions presented at the initial end [sic] of the State's case, at the end of our case, and we would incorporate all of those, and without belaboring, I would just like to incorporate them by reference. Where a motion for directed verdict is made, Arkansas Rule of Criminal Procedure 33.1 requires that it specifically state how the evidence is deficient. See Ark. R. Crim. P. 33.1(a). Rule 33.1 further provides that the failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required by the rule will constitute a waiver of any question pertaining to sufficiency of the evidence. See Ark. R. Crim. P. 33.1(c) (emphasis added). Smith's motion was improper, in that "[a] motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense." Ark. R. Crim. P. 33.1(c). The motion must specifically advise the trial court as to how the evidence was deficient. Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (2006); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). The reason underlying this requirement that specific grounds be stated 502 and that the absent proof be pinpointed is that it allows the circuit court the option of either granting the motion, or, if justice requires, allowing the State to reopen its case to supply the missing proof. See Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997). This court has repeatedly held that it will not address the merits of an appellant's insufficiency argument where the directed-verdict motion is not specific. See Nelson, supra.; See Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997). Smith's directed-verdict motion was a surface objection insufficient to preserve the argument for appeal. Therefore, we will not address the merits of the sufficiency argument. Jurisdiction Smith contends that the trial court erred in failing to dismiss for want of jurisdiction or for failing to submit a jury instruction, proffered by Smith, that would have instructed the jury that the State bore the burden of proving jurisdiction beyond a reasonable doubt. Smith's main objection is that the evidence is insufficient to prove that the murder took place in Arkansas, especially considering that the body of David Howard was discovered in Oklahoma. In addition, Smith argues that the issue of jurisdiction should not be determined by a trial court, but that the State should have to prove jurisdiction beyond a reasonable doubt to the satisfaction of a jury. The Arkansas Criminal Code instructs that jurisdiction is one of four elements that must be proven beyond a reasonable doubt to convict someone of an offense. See Ark.Code Ann. § 5-1-111(a) (Repl.2006). However, Ark.Code Ann. § 5-1-111(b) creates a presumption in favor of jurisdiction where the charge is actually filed by the State. Ridling v. State, 360 Ark. 424, 203 S.W.3d 63 (2005). Section 5-1-111(b) states: (b) The state is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue. Before the State is required to put on evidence to prove jurisdiction, there must be positive evidence that the offense occurred outside the jurisdiction of the court. Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991). In the instant case, there was only evidence that the body was found in Oklahoma. There was no positive evidence presented that the crime actually occurred outside of Arkansas. In addition, this court has said that any state in which an essential part of the crime is committed may take jurisdiction, as it is not essential that all of the elements of the crime charged take place in Arkansas. Id. The record in this case provides ample substantial evidence that, at the very least, the premeditation and deliberation element of capital murder, see Ark.Code Ann. § 5-10-101(a)(4) (Repl.2006), or the act of kidnapping by deception, see Ark.Code Ann. § 5-11-101(3) and § 5-11-102(a)(4) (Repl. 2006), occurred in Arkansas. Therefore, we conclude that this argument has no merit. Burden of Proof Smith contends that the trial court erred by allowing un-redacted custodial statements made by Smith into evidence. He argues that in doing so, the court allowed the State to impermissibly shift the burden of proof to him. The particular statements Smith is opposing are comments that were made in response to his being asked by investigators how he could convince them that he is not guilty with the evidence they had against him. Smith contends that with those statements being admitted, the 503 State was able to shift the burden of proof to him to prove his innocence. While Smith is correct in that he may not be expected to disprove his guilt, this court does not find that the admission of Smith's custodial statements had the effect of shifting the burden of proof. In fact, the trial court correctly instructed the jury that the State had the burden of proof beyond a reasonable doubt, and that Appellant was not required to prove his innocence. While a statement made in custody is presumptively involuntary, the State must prove that it was given voluntarily and was knowingly and intelligently made in order for it to be admissible. Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005). Smith is not arguing that a waiver of his Miranda rights was by intimidation, coercion, or deception. While Smith could have remained silent, he chose to speak with the investigators and his statements were admissible, like any other evidence, as pieces of the puzzle that might help the jury determine Smith's guilt or innocence. For these reasons, we conclude that this argument is without merit. Jury Instructions Appellant contends that the trial court erred in failing to instruct the jury with regard to evidence that was not admitted for the truth of the matter asserted. Several evidentiary items were admitted in trial that were offered for reasons other than the truth of the matter asserted. A number of these exhibits required an admonishment to the jury for the evidence to be considered for purposes other than the truth of the matter asserted. Smith admitted that the court did admonish the jury at the time that the exhibits were introduced. However, he now argues on appeal that the trial court erred by not instructing the jury again at the conclusion of the evidence. First, this argument was not supported by case law in Appellant's brief. An argument unsupported by convincing argument or authority, whose merit is not apparent without further research, cannot support reversal. See Hathcock v. State, 357 Ark. 563, 182 S.W.3d 152 (2004). Secondly, as noted by the State, jurors are presumed to comprehend and follow the instructions given to them by the court. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002). Smith has not made a convincing argument that the court erred by not giving certain instructions more than once. For these reasons, this court rejects this argument. Prior Bad Acts For his last point on appeal, Smith argues that the trial court erred in permitting the State to introduce certain testimony and certain items found in his home. He contends that the evidence consisted of "prior bad acts" that should have been excluded by the court under Rule 404(b) of the Arkansas Rules of Evidence, and that the evidence possessed no similarity to the crimes for which he was convicted. The State argues that the court did not abuse its discretion by admitting evidence: that Appellant possessed a brief case that contained a map of the Southeastern United States, a rope, and a knife; that he went to Florida where one of his ex-wife's internet contacts lived; and that the contact from Jacksonville, Florida, Robert Glendinning, had received email about Linda Smith by a person with a jccart account name. The admission of evidence under Arkansas Rule of Evidence 404(b) is left to the sound discretion of the circuit court and will not be disturbed absent a manifest abuse of discretion. Armstrong v. State, 366 Ark. 105, 233 S.W.3d 627 (2006). Rule 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character *504 of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Ark. R. Evid. 404(b) (2006). Howard, the victim in the case, had been a friend of Smith's ex-wife whom she met on the internet. Evidence that Smith had contacted Glendinning, another contact of his ex-wife, to discourage a relationship with Linda, that he had traveled to Florida, and possessed rope and a knife in a brief case with a map of the Southeastern United States could be indicative of Smith's intent, motive, or planning regarding the men his ex-wife had befriended. This court has held that, when the purpose of evidence is to show motive, anything and everything that might have influenced the commission of the act may, as a rule, be shown. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). Furthermore, the State is entitled to produce evidence showing circumstances that explain the act, show a motive, or illustrate the accused's state of mind. Armstrong, supra. (citing Morgan v. State, 359 Ark. 168, 195 S.W.3d 889 (2004)). For this reason, we find that the circuit court did not abuse its discretion in admitting this evidence. Rule 4-3(h) In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Smith. No prejudicial error was found. Affirmed. NOTES [1] Appellant abstracted the three phrases "us back" to read "as fact," which makes more sense in context; however, it is not how the record reads. (R. 4533)	{ "pile_set_name": "FreeLaw" }
Board of Mgrs. of Harbor Pointe at Shorehaven Condominium III v Melendez (2017 NY Slip Op 01274) Board of Mgrs. of Harbor Pointe at Shorehaven Condominium III v Melendez 2017 NY Slip Op 01274 Decided on February 16, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on February 16, 2017 Friedman, J.P., Mazzarelli, Andrias, Feinman, Gesmer, JJ. 3115 260025/14 [*1]Board of Managers of Harbor Pointe at Shorehaven Condominium III, Plaintiff-Respondent, vJanice I. Hidalgo Melendez, Defendant-Appellant, The Secretary of Housing and Urban Development, et al., Defendants. Adam Plotch, Nonparty Respondent. Law Office of Ricardo Aguirre, Bronx (Peter Shipman of counsel), for appellant. Jay L. Yackow, Westbury, for Board of Managers of Harbor Pointe at Shorehaven Condominium III, respondent. Law Offices of Thomas J. Finn, Forest Hills (Thomas J. Finn of counsel), for Adam Plotch, respondent. Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about July 30, 2015, which, after a traverse hearing, denied defendant Janice I. Hidalgo Melendez's motion to vacate a default judgment of foreclosure and sale, unanimously affirmed, without costs. We decline to disturb the hearing court's credibility-based determination that defendant's blanket denial of receipt of every document in this action failed to rebut the affidavits of service and testimony of plaintiff's process server (see Matter of de Sanchez, 57 AD3d 452 [1st Dept 2008]). Defendant's contentions that the hearing court improperly allocated the burden of proof and improperly admitted evidence are unpreserved, and we decline to reach them. Were we to reach these contentions, we would find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: FEBRUARY 16, 2017 DEPUTY CLERK	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 01-3941 ___________ United States of America, * * Appellee, * * v. * * Humberto Santos-Garcia, * * Appellant. * ____________ Appeals from the United States District Court for the No. 02-1583 District of Nebraska ____________ United States of America, * * Appellee, * * v. * * Mario Sanchez-Nunez, * * Appellant. * ___________ Submitted: October 7, 2002 Filed: December 27, 2002 ___________ ____________ Before McMILLIAN, LAY and RILEY, Circuit Judges. ___________ McMILLIAN, Circuit Judge. Humberto Santos-Garcia (Santos) and Mario Sanchez-Nunez (Sanchez) appeal from judgments entered in the district court1 following their convictions arising from a conspiracy to distribute methamphetamine. Santos challenges the district court's denial of his suppression motion. Sanchez challenges the district court's denial of his motion to dismiss the indictment, denial of motion for judgment of acquittal or new trial, and imposition of his sentence. We affirm the judgments. BACKGROUND On September 2, 2000, Nebraska State Trooper Kenneth Ayers stopped a 1991 Dodge Dynasty with Nevada license plates for speeding. Santos was the driver of the car and Roberto Arreguin-Rivera (Arreguin) was the passenger. Ayers asked them for driver's licenses and vehicle registration. Santos produced a Nevada driver's license and registration for the car; Arreguin produced a California driver's license. Ayers, who noticed a strong unidentifiable odor coming from the car, asked Santos to step out of the Dodge and to stand at the rear of the car, which he did. Ayers asked Santos several questions, including his relationship with Arreguin and the purpose of trip. Santos said they were going to Omaha to see a friend and to stay a few days to look for work. Ayers then questioned Arreguin, who was still in the car. Arreguin said they were going to Omaha to visit a friend and thought they would stay a week. Ayers confirmed that the car belonged to Santos and that he had no criminal background and decided to issue a written warning. 1 The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska. -2- After returning Santos's license and registration and explaining the warning, Ayers asked Santos if drugs were in the car. Santos said no, and Ayers asked Santos for permission to search the car. Santos consented and signed a consent to search form. Ayers then approached Arreguin, who was seated in the Dodge, asking if he had luggage and, if he did, would he consent to a search of it. Arreguin said he had luggage, but, apparently because of poor English skills, did not understand Ayers's request to search his luggage. After Santos translated Ayers's request, Arreguin consented to a search. Ayers then asked Santos to open the trunk of the Dodge. Santos retrieved the keys and opened the trunk. Ayers discovered 19 packages of methamphetamine, weighing a total of about 22 pounds, located in rocker panels of the car. Ayers arrested Santos and Arreguin and took them to the state patrol office in Lexington, Nebraska. After obtaining a Miranda waiver, around 10 p.m., Investigator Gary Eng questioned Santos. Initially, Santos denied knowing that methamphetamine was in the car, telling Eng that he was being paid $1500 to drive the Dodge from Reno, Nevada, to Omaha, Nebraska , for an individual named Mario. Eng told Santos that his story did not make sense and asked if Santos had children. Santos, who was twenty years old, said yes. Eng told Santos that, given the amount of methamphetamine, under the federal sentencing guidelines, his sentence would be about fifteen years and that his children would be driving by the time he was released from prison. Santos then admitted he knew methamphetamine was in the car, explaining Mario had directed them to call him after they checked into a motel near a highway and he would then pick up the methamphetamine. Eng also told Santos that if he cooperated, his sentence might be reduced, but explained to cooperate meant he would have to admit his knowledge of the methamphetamine and participate in a controlled delivery of the drugs to Mario in Omaha. Santos agreed to cooperate. At the end of Eng's interrogation of Santos, Investigator Michael Dowling came into the room and confirmed that Santos had been advised of his Miranda rights. -3- Dowling then drove Santos to Grand Island, Nebraska, for a polygraph examination. At the beginning of the seventy-mile trip, Dowling reminded Santos of his Miranda rights. Santos told Dowling that he understood his rights and had waived them, again confessing to transporting the methamphetamine from Reno, Nevada, to Omaha, Nebraska, for Mario. Dowling and Santos arrived in Grand Island around 5:30 a.m. Before the polygraph examination, Investigator Vincent Hernandez advised Santos of his Miranda rights and Santos signed a waiver and a polygraph release. Santos then made incriminating statements. After the polygraph examination, Hernandez accompanied Santos to the state patrol office in Omaha to participate in the controlled delivery. Ayers drove the Dodge from the patrol office to a Motel 6 near a highway and placed a package of methamphetamine in a rocker panel of the car. Hernandez and other law enforcement officers accompanied Santos and Arreguin to the motel. At the motel, Santos placed a telephone call to a number, which had been found in Arreguin's wallet, and talked to Mario. Santos told Mario that he and Arreguin were staying at a Motel 6 near a highway. Mario wanted to talk to Arreguin, but Santos told him Arreguin would call him back. Arreguin called Mario and told him that they would put the keys to the Dodge in the visor on the driver's side. Shortly thereafter, a white Mustang pulled into the motel parking lot. Sanchez got out of the Mustang, opened the driver's side door of the Dodge, and took the keys from the visor. Sanchez then drove the Dodge to a trailer park, where he parked it. He left the Dodge and, without taking the package of methamphetamine, got into the white Mustang, which was waiting for him. As the Mustang was leaving the trailer park, officers stopped it and arrested Sanchez and two other men in the car. Santos, Arreguin, and Sanchez were charged with conspiracy to distribute methamphetamine and with possession with the intent to distribute -4- methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846.2 Santos filed a suppression motion, which the district court granted in part and denied in part. The district court denied the motion as to the methamphetamine, holding that Ayers had reasonable suspicion to search the Dodge. In the alternative, the district court held that Santos had voluntarily consented to the search of the car. The district court granted the motion as to Santos's confession to Eng, reasoning that it was involuntary because it was coerced by Eng's comment that Santos's children would be driving by the time he finished his sentence. However, the district court denied the motion as to Santos's statements to Dowling and Hernandez, holding that the subsequent statements were sufficiently attenuated from the coercive conduct of Eng. Santos then entered a guilty plea to an information charging him with misprision of a felony, in violation of 18 U.S.C. § 4, and was sentenced to time served. Santos testified for the government at Sanchez's trial. On redirect examination, Santos testified that while he was in jail, Sanchez offered to get him an attorney and help his family, if he took responsibility for the drugs. Sanchez moved for a mistrial because the government had not disclosed Santos's testimony concerning the attempted bribe. The district court granted the motion because of unfair surprise, but held that the government had not violated Fed. R. Crim. P. 16 or the Jencks Act. Sanchez then filed a motion to dismiss the indictment on double jeopardy grounds, which the district court denied. At the second trial, Santos again testified for the government, stating that Mario had paid him to transport the Dodge from Nevada to Omaha, Nebraska. Santos also repeated his testimony that Sanchez had tried to bribe him to take responsibility for the methamphetamine. The jury convicted Sanchez of possession with the intent to distribute methamphetamine and conspiracy. At sentencing, based on Santos's testimony concerning the attempted 2 Arreguin pled guilty to the conspiracy charge and was sentenced to 97 months. His conviction and sentence were upheld on appeal. United States v. Arreguin- Rivera, No. 02-1087, 2002 WL 1610887 (8th Cir. July 23, 2002) (unpublished). -5- bribe, the district court imposed an obstruction-of-justice enhancement under U.S.S.G. § 3C1.1. After refusing Sanchez's requests for a role-in-the-offense reduction under U.S.S.G. § 3B1.2 and for a downward departure under § 5K2.0, the district court sentenced him to 235 months imprisonment. DISCUSSION Santos Santos argues that the district court erred in denying his suppression motion. "We review the district court's conclusions of law regarding the denial of a motion to suppress de novo, and review its findings of fact for clear error." United States v. Booker, 269 F.3 930,931 (8th Cir. 2001). We first address Santos's arguments concerning the search of the Dodge. Santos concedes that the stop of the car for speeding was lawful, and, incident to the stop, Ayers was entitled to conduct a reasonable investigation, including asking him to step out of the car and question him and Arreguin about the purpose of the trip. See United States v. White, 81 F.3d 775, 778 (8th Cir.), cert. denied, 519 U.S. 1011 (1996). However, Santos argues that during the investigation Ayers had not developed reasonable suspicion to search the car. We need not address this argument. "Even if [Ayers] had no suspicion that [Santos] was engaged in criminal activity, if the encounter after the completion of the traffic stop was consensual, then the Fourth Amendment would not prohibit Trooper [Ayers] from asking questions unrelated to the traffic stop, [and] from seeking consent to search the [car]." United States v. Jones, 269 F.3d 919, 925 (8th Cir. 2001). Santos argues that, after the completion of the stop, his encounter with Ayers was not consensual, but was a seizure. We disagree. "Although there is no litmus test for determining" whether an encounter is consensual or constitutes a seizure, -6- "circumstances indicative of a seizure may include 'the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person . . . , or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.'" White, 81 F.3d at 779 (quoting United States v. Angell, 11 F.3d 806, 809 (8th Cir. 1993)). Contrary to his argument, Santos was "no longer seized within the meaning of the Fourth Amendment after [Ayers] returned [his] identification and issued a warning ticket." Id. Ayers did not display a weapon, and, as the district court found, "the tone of the entire exchange was cooperative." Id. "Moreover, at the time [Ayers] asked to search the vehicle [Santos] had everything he needed to lawfully proceed on his journey." Id.; see also United States v. Drayton, 122 S. Ct. 2105, 2112 (2002) (bus passengers were not seized when officers boarded bus where "[t]here was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice"). Also, contrary to Santos's argument, "[t]he fact that [Ayers] had not explicitly said they could leave does not establish that the conversation . . . was not consensual." United States v. Morgan, 270 F.3d 625, 630 (8th Cir. 2001), cert. denied, 123 S. Ct. 192 (2002). Indeed, the Supreme Court has repeatedly "rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search." Drayton, 122 S. Ct. at 2113 (citing Ohio v. Robinette, 519 U.S. 33, 39-40 (1996); Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)). In Drayton, the Court explained that "[i]n a society based on law, the concept of agreement and consent should be given a weight and dignity of its own." Id. at 2114. "Although [Ayers] did not inform [Santos] of [his] right to refuse the search, [Ayers] did request permission to search, and the totality of the circumstances indicates [Santos's] consent was voluntary, so the search[] w[as] reasonable." Id. -7- The district court also did not err in refusing to suppress Santos's statements to Dowling and Hernandez. As previously noted, the district court suppressed Santos's confession to Eng, but refused to suppress his subsequent statements, holding that they were sufficiently attenuated from the taint of Eng's coercive conduct. Santos argues that the district court erred in holding that the statements were sufficiently attenuated because there was no "break in the stream of events" from his confession to Eng to his subsequent statements. We need not address Santos's "break-in-the-stream" argument. "It is a well- settled principle that we may affirm a district court's judgment on any basis supported by the record." United States v. Pierson, 219 F.3d 803, 807 (8th Cir. 2000). The district court held that Santos's confession to Eng was involuntary because it was coerced by Eng's comment that Santos's children would be driving by the time he was released from prison. However, we believe that Eng's comment was "not so coercive as to deprive [Santos] of [his] ability to make an unconstrained decision to confess." United States v. Astello, 241 F.3d 965, 967 (8th Cir.) (internal quotation omitted), cert. denied, 533 U.S. 962 (2001). To state the obvious, "interrogation of a suspect will involve some pressure because its purpose is to elicit a confession." Id. "[T]he fact that the tactics produced the intended result . . . does not make [a] confession involuntary." Id. at 968. In other words, "there is nothing inherently wrong with efforts to create a favorable climate for confession." United States v. LeBrun, 306 F.3d 545, 555 (8th Cir. 2002)(internal quotation omitted). "'[Q]uestioning tactics such as a raised voice, deception, or a sympathetic attitude on the part of the interrogator will not render a confession involuntary unless the overall impact of the interrogation caused the defendant's will to be overborne.'" Astello, 241 F.3d at 967 (quoting Jenner v. Smith, 982 F.2d 329, 334 (8th Cir. 1993)). Nor will a promise of leniency, an "expressed disbelief in the statements of a suspect . . ., or lie[s] to the accused about the evidence against him" necessarily render a confession involuntary. Wilson v. Lawrence County, 260 F.3d 946, 953 (8th Cir. 2001) (internal citations omitted). Rather, the coercive conduct must be "such that the defendant's will was overborne -8- and his capacity for self-determination critically impaired." Astello, 241 F.3d at 967 (internal quotation omitted). To determine whether a confession is voluntary or the product of undue coercion, we look to the totality of the circumstances. Id. Here, considering all the circumstances, including that Eng advised Santos of his rights and that the interview was about twenty minutes long, Eng's statement that Santos's children would be driving by the time he would be released from prison was not unduly coercive. Rather, it was merely an "accurate representation[] of [Santos's] predicament." United States v. Gallardo-Marquez, 253 F.3d 1121, 1123 (8th Cir.) (statement that defendant could receive life sentence not unduly coercive), cert. denied, 122 S. Ct. 570 (2001). As the late Judge Henley, sitting by designation, observed, "'telling [the] defendant in a noncoercive manner of the realistically expected penalties and encouraging [him] to tell the truth is no more than affording [him] the chance to make an informed decision with respect to [his] cooperation with the government.'" United States v. Nash, 910 F.2d 749, 753 (11th Cir. 1990) (quoting United States v. Ballard, 586 .2d 1060, 1063 (5th Cir. 1978)). Even assuming that Eng's comment about Santos's children was unduly coercive, the district court did not err in rejecting Sanchez's "break-in-the stream" argument. Santos relied on the pre-Miranda case of Clewis v. Texas, 386 U.S. 707 (1967) (Clewis). His reliance on Clewis was misplaced. In Clewis, the Supreme Court held that a defendant's written confession was involuntary because there was "no break in the stream of events" from the time of an illegal arrest to a written confession nine days later. Id. at 710. In finding that the confession was involuntary, the Supreme Court noted that, although Miranda was not directly applicable, it was nonetheless relevant to a voluntariness determination. Id. at 709. The Court concluded that the subsequent confession was involuntary because, during the nine days the defendant had been held in custody, he had never been advised he could consult with an attorney, have one appointed, if necessary, and remain silent. Id. at -9- 711. The Court also had "substantial concern" whether the defendant's "faculties [had been] impaired by inadequate sleep and food, [and] sickness." Id. at 712. Those factors are not present here. To the contrary, "the law enforcement authorities displayed a painstaking regard for [Santos] rights from the time of his arrest to his confession[s]." Reese v. Delo, 94 F.3d 1177, 1184 (8th Cir.) (internal quotation omitted), cert. denied, 519 U.S. 1011 (1996). Santos had been repeatedly advised and reminded of his Miranda rights and had voluntarily waived them. Before confessing to Eng, Santos had waived his rights; Dowling confirmed that Santos had been advised of his rights and reminded Santos of his rights during the seventy-minute car trip; and Hernandez re-advised Santos of his rights, and Santos again waived them. Moreover, as the government notes, Santos slept and ate a snack during the car trip with Dowling. Sanchez Sanchez first argues that the district court erred in denying his motion to dismiss the indictment on double jeopardy grounds. Reviewing the district court's decision de novo, United States v. Beeks, 266 F.3d 880, 882 (8th Cir. 2001) (per curiam), we hold the district court did not err. When, as here, "a defendant's motion gives rise to a mistrial, reprosecution is prevented only if the prosecution's 'conduct giving rise to the successful motion for mistrial was intended to provoke the defendant into moving for a mistrial,' and thus to make an end run around the Double Jeopardy Clause." Id. (quoting Oregon v. Kennedy, 456 U.S. 667, 675-76 (1982)). Sanchez does not argue, and there is no evidence to suggest, that the government intended to provoke him into moving for a mistrial. Rather, Sanchez argues that the district court should have dismissed the indictment because of governmental misconduct in failing to disclose Santos's testimony concerning Sanchez's attempted bribe. As the government notes, the district court granted Sanchez's motion for a mistrial because of unfair surprise, not because of governmental misconduct. In any -10- event, "[a]bsent intent to provoke a mistrial, . . . even extensive [prosecutorial] misconduct do[es] not prevent reprosectuion." Id. Sanchez also argues that the district court erred in denying his motion for judgment of acquittal, asserting that there was insufficient evidence supporting the conspiracy and possession verdicts. In reviewing this claim, "we view the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict." United States v. Maggard, 156 F.3d 843, 846 (8th Cir. 1998) (internal quotation omitted), cert. denied, 525 U.S. 1170 (1999). The district court did not err. Although Sanchez argues that there was insufficient evidence because Santos's testimony was incredible, "[i]t is well-established that 'it is the sole province of the jury to weigh the credibility of a witness.''' Id. at 847 (quoting United States v. Wright, 119 F.3d 630, 634 (8th Cir. 1997)). Nor did the district court err in denying his motion for new trial based on the weight of the evidence. See United States v. Campos, 306 F.3d 577, 578 (8th Cir. 2002). Sanchez also asserts that he is entitled to a new trial, because there was a material variance between jury instruction 14 and the indictment. However, he offers no supporting argument and citation, in violation of Fed. R. App. P. 28(a)(9)(A), and thus we do not address his assertion. See United States v. Echols, 144 F.3d 584, 585 n.2 (8th Cir. 1998). Sanchez also challenges his 235-month sentence. He argues that the district court erred in imposing an obstruction-of-justice enhancement under U.S.S.G. § 3C1.1, which was based on Santos's trial testimony that Sanchez had tried to bribe him into taking responsibility for the methamphetamine. "In reviewing the enhancement for obstruction of justice, we accept as true the district court's factual findings, unless they are clearly erroneous." United States v. Armstrong, 992 F.2d 171, 174 (8th Cir. 1993). Sanchez argues that Santos's testimony concerning the attempted bribe was incredible, noting that on cross-examination, Santos admitted that a December 2000 investigative report noted that Santos had accused Arreguin, -11- not Sanchez, of attempting to bribe him into taking responsibility for the drugs. However, at trial Santos testified that the report was incorrect, explaining that he thought he had told the investigator that Arreguin had tried to bribe him while they were in Lexington, Nebraska, and that Sanchez had attempted to bribe him while they were in jail. While Santos's trial testimony was not supported by the investigative report, he was vigorously cross-examined about the matter. As the government notes, we must "give due regard to the district court's opportunity to judge the credibility of the witnesses." Id. at 174. Indeed, we have stated that a district court's credibility finding is "'virtually unreviewable on appeal.'" United States v. Womack, 191 F.3d 879, 885 (8th Cir. 1999) (quoting United States v. Candie, 974 F.2d 61, 64 (8th Cir. 1992)). Thus, we cannot say the district court erred in relying on Santos's trial testimony in finding that Sanchez has attempted to obstruct justice. Nor, as Sanchez argues, did the district court err, much less commit plain error, under Apprendi v. New Jersey, 530 U.S. 466 (2000), by failing to submit the obstruction-of-justice issue to the jury. As the government notes, a finding that Sanchez obstructed justice did not increase the statutory maximum sentence. The district court also did not err in denying Sanchez's request for a role-in-the- offense reduction under U.S.S.G. § 3B1.2. At sentencing, Sanchez argued that he was entitled to a reduction because he was a mere courier for a single transaction. However,"[a] role as a courier does not automatically entitle a defendant to a downward adjustment." United States v. Alverez, 235 F.3d 1086, 1090 (8th Cir. 2000), cert. denied, 532 U.S. 1031 (2001). In addition, as the government notes, the evidence indicates that Sanchez had organized and supervised the criminal activity. Sanchez also argues that the district court abused its discretion in refusing to grant his request for a downward departure under U.S.S.G. § 5K2.0 based on a combination of factors. However, "[t]he district court understood it had authority to depart downward and simply decided that a departure was not warranted." United States v. Larry, 126 F.3d 1077, 1079 (8th Cir. 1997) (per curiam). Thus, "the district -12- court's refusal to grant [Sanchez's] motion for downward departure is unreviewable." Id. Accordingly, we affirm the judgments of the district court. A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT -13-	{ "pile_set_name": "FreeLaw" }
168 Wis.2d 101 (1992) 483 N.W.2d 238 STATE of Wisconsin EX REL. Brandon R. SCHULTZ, Petitioner-Appellant, v. Donald A. BRUENDL, individually and in his capacity as Sheriff, County of Green Lake, Respondent-Respondent. No. 91-0863. Court of Appeals of Wisconsin. Submitted on briefs February 7, 1992. Decided March 4, 1992. 105 On behalf of the petitioner-appellant the cause was submitted on the briefs of Brandon R. Schultz, pro se. On behalf of the respondent-respondent the cause was submitted on the brief of John B. Selsing, corporation counsel. On behalf of the State of Wisconsin an amicus curiae brief was submitted by James E. Doyle, attorney general, and Laura Sutherland, assistant attorney general. On behalf of the Wisconsin Counties Association an amicus curiae brief was submitted by Robert W. Mulcahy and John J. Prentice of Michael, Best & Friedrich of Milwaukee. Before Brown, Anderson and Snyder, JJ. [1] BROWN, J. Brandon Schultz appeals from an order denying his petition for a writ of mandamus to compel the county sheriff to provide him with an inventory of his arsenal. On appeal, Schultz argues that sec. 59.14, Stats., obliges a county sheriff to provide such records and that the circuit court erred in not granting his petition for a writ of mandamus. We hold that because an arsenal record is not a paper "required to be kept," sec. 59.14 is inapplicable. Accordingly, we affirm the order of the circuit court. In September 1990, while incarcerated at the Kettle Moraine Correctional Institution, Schultz mailed to Sheriff Donald Bruendl of Green Lake county the following request written on a paper towel: 106 Yo! Sheriff, I'm a pris'ner at KMCI, ya see, and I want you to give me photocopies of your dept.'s latest armory inventory records that contain the make, model, and amount of every type of gun used by your dept. Yo! Be good to this homeboy and obey me by 9-29-90. By letter of September 28, 1990, Bruendl denied the request stating that "this information is confidential for security reasons and the protection of my officers." Schultz then filed a petition for a writ of mandamus in circuit court, which petition specified only sec. 59.14, Stats., as the source of authority for his request.[1] The circuit court, evidently without a hearing, denied the petition, finding that "the requested information is not the type intended by law to be released. The Court also finds that the Sheriff's declination to release the information was on good and clear grounds, security and protection of the officers." Schultz moved for reconsideration, arguing in his brief that the sheriff's reasons did not establish any recognized exception to the disclosure provisions of sec. 59.14, Stats. The circuit court denied the motion, again citing safety and security as good grounds and further found that "releasing the information would be of harm to the public interest and would far outweigh any benefit which would arise from granting the request." Schultz appealed. We begin our discussion by noting that this court certified this question to the Wisconsin Supreme Court on October 16, 1991; that court elected not to accept 107 certification. We then sought amicus curiae briefs from the Wisconsin attorney general's office and from the Wisconsin Counties Association. We further note that the appellate brief from the Green Lake County Corporation Counsel addressed this as a case arising out of the open records law, secs. 19.21 to 19.39, Stats. We believe that the circuit court's actions, although not so specifically denominated, also reflected a similar ch. 19, Stats., analysis. At no point, however, in the circuit court or on appeal did Schultz argue his to be a claim made pursuant to ch. 19. [2] Case law makes clear that sec. 19.35, Stats. (the access to records provision of the open records subchapter) and sec. 59.14, Stats., create different rights of inspection and have different exceptions to them. We believe it instructive to set forth this case law here. [3, 4] Section 19.35(1)(a), Stats., sets forth the general rule that "[e]xcept as otherwise provided by law, any requester has a right to inspect any record." However, as our supreme court has stated, this right is not absolute: "There may be situations where the harm done to the public interest may outweigh the right of a member of the public to have access to particular public records or documents. Thus, the one must be balanced against the other in determining whether to permit inspection." State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 681, 137 N.W.2d 470, 474 (1965). If the custodian refuses to allow inspection, the custodian must state specific policy reasons for the refusal and these reasons then provide a basis for review by a court. Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 427, 279 N.W.2d 179, 184 (1979). 108 [5] While sec. 59.14(1), Stats., specifies those public officials subject to its purview,[2] the right of inspection it creates in "those persons who properly come under its umbrella [is] `an absolute right of inspection subject only to reasonable administrative regulations . . .'." State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 553, 334 N.W.2d 252, 260 (1983) (quoting State ex rel. Journal Co. v. County Court, 43 Wis. 2d 297, 308, 168 N.W.2d 836, 841 (1969)). The supreme court has recognized that this absolute right is not without exception, however. Bilder, 112 Wis. 2d at 554, 334 N.W.2d at 260. The first exception is that documents may be closed to public examination when there is a statute authorizing the sealing of otherwise public records. Id. The second is that disclosure must yield if it infringes on a constitutional right. Id. at 555, 334 N.W.2d at 260. The third, less clearly established in that case, is that the circuit court may limit public access to judicial records when the administration of justice requires it. See id. at 556, 332 N.W.2d at 261. Schultz argues that because a sheriff's arsenal records come under none of these exceptions, the circuit court erred in not requiring the sheriff to comply with the request. We disagree. We hold that Schultz' request does not satisfy that portion of sec. 59.14(1), Stats., which requires inspection only of "all books and papers 109 required to be kept in his or her office . . . ." (Emphasis added.) The earliest case addressing this particular statutory requirement appears to be Rock County v. Weirick, 143 Wis. 500, 128 N.W. 94 (1910). There, our supreme court held that Rock county's abstract books were subject to inspection under sec. 700, Stats. (1898), a predecessor statute to sec. 59.14, Stats. Weirick, 143 Wis. at 504, 506-07, 128 N.W. at 95, 96. The county had argued that when it contracted to compile the abstract books, there was "no provision of law authorizing or requiring the county to keep any such books." Id. at 504, 128 N.W. at 95. The supreme court rejected this argument because the legislature changed the law to authorize such books a few days after the formal contract was made. See id. at 506, 128 N.W. at 96. More recent cases involving sec. 59.14, Stats., have all involved court records.[3] The earliest of these cases, 110 State ex rel. Journal Co. v. County Court, 43 Wis. 2d 297, 168 N.W.2d 836 (1969), which involved a demand to inspect a circuit court decision, predicated the application of the statute upon a determination that the document sought to be inspected is one required to be kept. Id. at 309-10, 168 N.W.2d at 841-42. The court looked to sec. 59.39(1), Stats., which requires the clerk of circuit court to "[f]ile and keep all papers properly deposited. . . in every action or proceeding . . . ." id., and concluded that a court decision is required to be filed or kept within the meaning of sec. 59.14(1). See Journal, 43 Wis. 2d at 309-10, 168 N.W.2d at 841-42. [6, 7] We conclude, then, that one who requests information under sec. 59.14, Stats., must first show that the document sought is one "required to be kept" before he or she may successfully invoke the statute. On appeal, Schultz relies upon sec. 59.23(5), Stats., which requires a sheriff to "[d]eliver on demand to his successor in office . . . all books, records . . . and other papers belonging to his office and in his possession . . .." We are unpersuaded by this argument. [8, 9] In essence, this argument would have us read the word "kept" as though it were perfectly synonymous with "retained" or "preserved." While these are common enough meanings of the word "kept," see Webster's Third New International Dictionary 1235 (1976), the particular sense of the protean concept embodied in "keep" depends upon the object it refers to"to keep time," for example, expresses a very different sense of the word "keep" than does "to keep watch," or, for that matter, "to keep company." See The Random House Dictionary of the English Language 1048 (2d ed. 1987). We believe that, in reference to books and papers, the 111 word "keep" is limited to the following definition: "to maintain a record in (as of daily occurrences or transactions) . . . to enter (as an account or record) in a book." Webster's at 1235. Nontechnical words are to be construed according to their common and ordinary usage, which may be established by the definition of a recognized dictionary. Ervin v. City of Kenosha, 159 Wis. 2d 464, 484, 464 N.W.2d 654, 662-63 (1991). [10, 11] We hold, then, that in sec. 59.14(1), Stats., "books and papers required to be kept" are not all those which the custodian is obliged merely to retain or preserve; rather, they are only those which the custodian is obliged by law to maintain or engender.[4] We further conclude that the requester has the burden of showing just what authority constrains the official to maintain or engender the record requested. Schultz argues that such a reading of the statute flies in the face of language in the Journal case, where the supreme court stated: While the above statement [discussing the filing requirement of a court decision] controls the facts in this case, it should be made clear, as we did in Youmans, that the duty of an officer to produce records is not confined only to those records that he is required 112 to keep but extends to other records in his custody that may deal with his official duties. Journal, 43 Wis. 2d at 310, 168 N.W.2d at 842. [12, 13] We believe that this statement, explicitly extending as it does beyond the facts of the case, is dicta. Language broader than necessary to determine the issue before the court is dicta. See Sunnyslope Grading, Inc. v. Miller, Bradford & Risberg, Inc., 148 Wis. 2d 910, 917, 437 N.W.2d 213, 216 (1989). Beyond this, we also conclude that this language, alluding as it does to Youmans, a ch. 19, Stats., case, was in fact making reference to inspection rights under that chapter, not under sec. 59.14, Stats. Our interpretation of sec. 59.14(1), Stats., comports with 67 Op. Att'y Gen. 12 (1978), where Attorney General La Follette opined that a sheriff's radio log and other intradepartmental documents were "public records within the meaning of sec. 19.21(1), Stats. . . . even though they are not records, `books and papers required [by law] to be kept in his office' and are not subject to the statutory right of inspection and copying by any person under the provisions of sec. 59.14(1), Stats." Id. at 12 (addition in original). [14, 15] Our limited reading of "kept" also serves common sense. Were we to adopt Schultz' rationale that a "kept" paper was any one which the present sheriff happened to inherit from his or her predecessor, then the papers subject to inspection under sec. 59.14, Stats., would undoubtedly vary wildly from one county to the next, their existence being dependent only upon what predecessors elected to retain or amass. "It is elementary that a statute should be construed so that as nearly as possible it will have a uniform application." Gleasman v. *113 Greater Rockford Airport Auth., 339 N.E.2d 318, 321 (Ill. Ct. App. 1975). [16, 17] As we noted above, the circuit court's denial of Schultz' petition is founded upon a ch. 19, Stats., balancing test analysis, which is inappropriate here because Schultz has never invoked that chapter. However, this court will not reverse a correct decision though the reason for that decision may have been erroneously expressed. See Mueller v. Mizia, 33 Wis. 2d 311, 318, 147 N.W.2d 269, 273 (1967). Moreover, the question presented here is one of statutory construction. The construction of a statute is a question of law as is the application of a statute to a particular set of facts; either allows us to review the issue independent of the circuit court's determination. See Hainz v. Shopko Stores, Inc., 121 Wis. 2d 168, 172, 359 N.W.2d 397, 400 (Ct. App. 1984).[5] By the Court.Order affirmed. NOTES [1] We note parenthetically that sec. 59.14(2), Stats., provides that "[i]f any such officer neglects or refuses to comply with any of the provisions of this section he shall forfeit five dollars for each day such noncompliance continues." [2] Every sheriff, clerk of the circuit court, register of deeds, county treasurer, register of probate, county clerk and county surveyor. . . shall open to the examination of any person all books and papers required to be kept in his or her office and permit any person so examining to take notes and copies of such books, records, papers or minutes . . .. Section 59.14(1), Stats. [3] See State ex rel. Bilder v. Delavan Township, 112 Wis. 2d 539, 334 N.W.2d 252 (1983); State ex rel. Journal Co. v. County Court, 43 Wis. 2d 297, 168 N.W.2d 836 (1969); In re Estates of Zimmer, 151 Wis. 2d 122, 442 N.W.2d 578 (Ct. App. 1989); C.L. v. Edson, 140 Wis. 2d 168, 409 N.W.2d 417 (Ct. App. 1987); and City of Madison v. Appeals Committee, 122 Wis. 2d 488, 361 N.W.2d 734 (Ct. App. 1984). We here note that the attorney general contends, on the strength of Zimmer and Edson, that the ch. 19, Stats., balancing test ought to be applied to records which could be inspected under both ch. 19 and sec. 59.14, Stats. We distinguish those cases. In Zimmer, the requester argued a right to inspect under "sec. 59.14, Stats., together with various provisions of the open records law . . .." Zimmer, 151 Wis. 2d at 127, 442 N.W.2d at 580. In Edson, the requester "commenced a mandamus action under sec. 19.37(1)(a), Stats. . . . ." Edson, 140 Wis. 2d at 174, 409 N.W.2d at 419. Here, however, as we have noted, Schultz pointedly avoided implicating the open records law under ch. 19. Zimmer and Edson are, therefore, inapposite. [4] Because we hold that the request does not satisfy the requirements of sec. 59.14(1), Stats., we need not address Schultz' arguments which speak to the various exceptions available under that statute. Similarly, because we conclude that mandamus did not lie, we need not address his contentions that the sheriff violated his due process rights "by his failure to perform his purely ministerial duties" or that the circuit court's "application of mandamus was erroneous." [5] We note in closing that in its amicus brief, the Wisconsin Counties Association urges this court to hold that the inspection right under sec. 59.14(1), Stats., does not require the custodian to photocopy the records and send them to the requester. However, the issue is moot in that, given our holding, it will not have any practical legal effect upon the existing controversy. See Ziemann v. Village of North Hudson, 102 Wis. 2d 705, 712, 307 N.W.2d 236, 240 (1981). We do not, therefore, reach this issue.	{ "pile_set_name": "FreeLaw" }
11-2310-ag Thakali v. Holder BIA Hom, IJ A089 252 847 A089 252 848 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 29th day of May, two thousand twelve. PRESENT: REENA RAGGI, GERARD E. LYNCH, CHRISTOPHER F. DRONEY, Circuit Judges. _______________________________________ PRAMALI THAKALI, SURINDER KUMAR1, Petitioners, v. 11-2310-ag NAC ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent. ______________________________________ FOR PETITIONER: Jason A. Nielson, New York, New York. 1 Pursuant to a February 2012 stipulation order, the instant petition for review has been withdrawn as to Kumar. FOR RESPONDENT: Tony West, Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Joseph A. O’Connell, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. 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. Petitioner Pramila Thakali, a native and citizen of Nepal, seeks review of a May 11, 2011, decision of the BIA affirming the April 14, 2009, decision of Immigration Judge (“IJ”) Sandy Hom, pretermitting her application for asylum and denying her claims for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Pramila Thakali, Surinder Kumar, Nos. A089 252 847/ 848 (B.I.A. May 11, 2011), aff’g Nos. A089 252 847/ 848 (Immig. Ct. N. Y. City, Apr. 14, 2009). We assume the parties’ familiarity with the underlying facts and procedural history in this case. “Because the BIA adopted and affirmed the IJ's decision, we review the two decisions in tandem.” Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). “The substantial evidence standard of review applies, and we 2 uphold the IJ's factual findings if they are supported by reasonable, substantial and probative evidence in the record.” Id. (internal quotation marks and citations omitted). See also 8 U.S.C. § 1252(b)(4)(B). I. Asylum Pretermission We lack jurisdiction to review the agency’s decision that Thakali failed to demonstrate changed or extraordinary circumstances to excuse the late filing of her asylum application See 8 U.S.C. §§ 1158(a)(2)(B), 1158(a)(2)(D). While we retain jurisdiction to review constitutional claims and questions of law, id. § 1252(a)(2)(D), Thakali’s argument challenging only the agency’s fact-finding presents no such issue. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006). II. Past Persecution Thakali argues that the extortion attempts and threats she endured at the hands of the Maoists constituted past persecution on account of her political opposition to the Maoist forces. This Court has previously described persecution as “the infliction of suffering or harm upon those who differ on the basis of a protected statutory ground.” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 3 2011)(citing Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006)). In addition, the harm must be sufficiently severe, rising above “mere harassment.” Ivanishvili, 433 F.3d at 341. Here, the BIA reasonably found that the harm Thakali alleged - unfulfilled threats - did not rise to the level of persecution. See Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002) (stating that a “threat of detention . . . itself . . . is not past persecution”); see also Gui Ci Pan v. U.S. Attorney Gen., 449 F.3d 408, 412 (2d Cir. 2006) (collecting cases that have “rejected [persecution] claims involving ‘unfulfilled’ threats”). III. Future Persecution The agency also reasonably found that Thakali failed to establish that "one central reason" for the Maoists' threats and her fear of future harm is on account of a protected ground. Thakali argues that the agency erred in finding that she was not persecuted and would not suffer future harm on account of her political opinion. Section 101(a)(3) of the REAL ID Act, codified at 8 U.S.C. § 1158(b)(1)(B)(i)– applicable here because Thakali filed her application in 2007, see REAL ID Act § 101(h)(2) – provides that an asylum applicant “must establish that [a protected ground] was or 4 will be at least one central reason for” the claimed persecution. See Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010). To the extent that Thakali argues that she was targeted on account of her involvement in a women’s group in Nepal, she has failed to exhaust that argument by failing to present it to the BIA. See 8 U.S.C. § 1158(a)(3); see also Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (requiring that petitioners raise to the BIA the specific issues they later raise in this Court). To the extent that Thakali argues that she was targeted because of her opposition to Maoist insurgents, the BIA’s rejection of that argument was not erroneous. Thakali stated that Maoists came to her hotel to extort money from her guests and she informed the police, who took the Maoists into custody. Roughly two weeks later, the Maoists returned to her hotel, stating: “You informed the Police and [] made arrest our Friends. Now our party decided to get 200,000 [rupees] As a donation.” Given that Maoist forces expressed an economic rather than a political motive as the reason for their return visit, the agency reasonably concluded that Thakali was targeted on account of her ability to provide financial resources and that as a result, she had not 5 demonstrated persecution on account of a protected ground. See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-73 (2d Cir. 2007). The agency's conclusion that Thakali failed to demonstrate a likelihood of future persecution is further supported by its reliance on Thakali's testimony that her sisters and brother remain in Nepal unharmed. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (concluding that where asylum applicant’s family members continued to live in Petitioner’s native country, claim of well-founded fear was diminished). Additionally, the agency reasonably noted that when Thakali reported the Maoists to the police, they arrested ten individuals, undermining her claim that the police are unable or unwilling to protect her, and further undermining her fear of future harm. See Matter of Acosta, 19 I.&N. Dec. 211, 222 (BIA 1985), overruled on other grounds, I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987). Accordingly, substantial evidence supports the agency's finding that Thakali failed to establish a likelihood of persecution on account of a protected ground. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (absent solid support in the record, a fear of future harm is “speculative 6 at best.”). Because Thakali's claim for CAT relief rests on the same factual predicate as her withholding claim, it necessarily fails. Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005). For the foregoing reasons, the petition for review is DENIED. Petitioner’s pending motion for a stay of removal is accordingly DISMISSED as moot. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 7	{ "pile_set_name": "FreeLaw" }
359 U.S. 552 (1959) OHIO EX REL. KLAPP, PROSECUTING ATTORNEY, v. DAYTON POWER & LIGHT CO. ET AL. No. 851. Supreme Court of United States. Decided June 1, 1959. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. Robert Houston French, Haveth E. Mau and R. K. Wilson for petitioner. Julian de Bruyn Kops for respondents. PER CURIAM. The petition for writ of certiorari is granted. The judgment of the United States Court of Appeals for the Sixth Circuit is reversed. Strawbridge v. Curtiss, 3 Cranch 267; Removal Cases, 100 U. S. 457; Indianapolis v. Chase National Bank, 314 U. S. 63.	{ "pile_set_name": "FreeLaw" }
NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted March 27, 2019* Decided April 11, 2019 Before MICHAEL S. KANNE, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge DIANE S. SYKES, Circuit Judge No. 18‐1679 DION MATHEWS, Appeal from the United States District Plaintiff‐Appellant, Court for the Western District of Wisconsin. v. No. 16‐cv‐650‐slc LEBBEUS BROWN, et al., Stephen L. Crocker, Defendants‐Appellees. Magistrate Judge. O R D E R Correctional officers at a Wisconsin prison placed inmate Dion Mathews in isolated housing for writing a “group petition,” in violation of a Department of Corrections regulation. Mathews sued several officers, asserting violations of his First and Fourteenth Amendment rights. See 42 U.S.C. § 1983. The district court entered * We have agreed to decide this case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C). No. 18‐1679 Page 2 summary judgment for the defendants. Because the correctional officers are entitled to qualified immunity, we affirm the judgment. Correctional officers suspected Mathews of gang activity and searched his cell. They found a letter with proposals “brought forth by the prisoners of WSPF”; according to Mathews, he wanted to present prison administrators with ideas for improving inmate–administration communication. The officers also found two similar letters in inmate Oscar Garner’s cell. The letters introduced suggestions with phrases like “we propose” and “we ask.” According to Officer Lebbeus Brown, a letter from anonymous inmates can lead to intimidation, coercion, and violent confrontations among prisoners. Based on these letters, Brown issued conduct reports accusing Mathews and Garner of “join[ing] in or solicit[ing] another to join [a] group petition or statement.” WIS. ADMIN. CODE DOC § 303.24(2); see also Garner v. Brown, No. 18‐1524, 2018 WL 5778386, at *2–3 (7th Cir. Nov. 2, 2018) (nonprecedential). The Department, however, permitted inmates to file “group complaints” (i.e., grievances). WIS. ADMIN. CODE DOC § 310.10(7) (2014). A complaint examiner explained that inmates must try to resolve informally “all” grievances before filing a complaint. See id. §§ 310.09(4), 310.10(1). (The prison has disciplined Mathews for circulating a letter to the warden from “A[dministrative] C[onfinement] prisoners,” but Mathews also has submitted group complaints without consequence.) Mathews insists that his letters were to be his attempts at informal resolution. Moreover, Mathews shared the letters with Garner, he says, because Garner was his jailhouse lawyer; inmates may seek legal advice from each other. See id. § 309.155(5). After the conduct report was sustained, correctional officers placed Mathews in restricted housing for 18 months: 33 days in disciplinary separation, 17 days in less‐restrictive disciplinary separation, and the remainder in administrative detention. Inmates in disciplinary separation get five to ten hours of outside‐cell activity (including two hours of outdoor recreation), three showers, and one hour of video visitation per week and one or two phone calls per month. Those in less‐restrictive separation and administrative detention face similar limits, but they may keep more personal property, including a television, and may make three phone calls per month. Mathews sued Brown and other correctional officers for punishing him under a vague regulation and in retaliation for attempting to informally resolve a grievance. A magistrate judge, presiding by consent, see 28 U.S.C. § 636(c), screened Mathews’s complaint under 18 U.S.C. § 1915A and, after reconsidering, allowed him to proceed on First Amendment retaliation and a Fourteenth Amendment due‐process claims. No. 18‐1679 Page 3 Mathews learned during discovery that a non‐defendant officer threw out his letters while cleaning the evidence room. That officer learned of this lawsuit two months later. Mathews moved for sanctions, but the court denied the motion because it concluded that the defendants had not destroyed the letters in bad faith. The magistrate judge later granted the defendants’ motion for summary judgment. On Mathews’s due process claim, he ruled that there was a factual dispute whether the defendants deprived Mathews of a liberty interest, but the regulation was not vague as applied to him. On his First Amendment claim, the judge determined that the letters were not protected speech. Alternatively, he concluded, the defendants were entitled to qualified immunity on both claims. We review the entry of summary judgment de novo, casting the record in the in the light most favorable to Mathews, the nonmovant. See Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir. 2010). We may affirm on any basis presented in the record. See Figgs v. Dawson, 829 F.3d 895, 902 (7th Cir. 2016). On appeal, Mathews first renews his argument that the regulation banning group petitions was unconstitutionally vague. He asserts that he had no notice of what distinguished a permissible, informal attempt at resolving a group grievance from a prohibited group petition. A regulation violates due process when it is so vague that it is necessarily applied arbitrarily. Rios v. Lane, 812 F.2d 1032, 1038 (7th Cir. 1987). We agree with Mathews that the Department’s since‐revised prohibition on group petitions was at least confusing when read together with its rules on group complaints. In Toston v. Thurmer, 689 F.3d 828 (7th Cir. 2012), we ruled that a prison’s ban on the possession of “gang literature” did not adequately notify prisoners that they were not permitted to copy information about gangs from available books. Id. at 831–32. Here, not only could inmates attempt to resolve their concerns informally, but they had to before filing a permissible group complaint. The regulations, however, do not articulate what an attempt at informal resolution might look like. Mathews maintains that he intended his group letter to serve as the required, informal precursor to his group complaint. He could not have known that he might be punished for following a prison policy. See Maben v. Thelen, 887 F.3d 252, 265–66 (6th Cir. 2018). Mathews also did not have notice that sharing his letters with his jailhouse lawyer, as the rules permit, could subject him to discipline. The defendants contend that the regulation was not vague as applied to Mathews because he had experience with group complaints and petitions. To be No. 18‐1679 Page 4 disciplined under a regulation, an inmate must have warning that his conduct is prohibited. See Rios, 812 F.2d at 1038. True, Mathews had been disciplined for trying to circulate a letter from an anonymous group of inmates. But that is different from drafting a letter and sharing it with only his jailhouse lawyer. And the group complaint he submitted previously did not give him notice of what conduct was prohibited. Still, Mathews cannot succeed on his due‐process claim because he has not shown that the defendants deprived him of a clearly defined liberty interest. Qualified immunity shields government officials from damages if they did not violate a clearly established, specific federal right. See City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019). The Fourteenth Amendment protects inmates’ interests in avoiding conditions which impose an “atypical and significant hardship.” Sandin v. Conner, 515 U.S. 472, 483–84 (1995). We consider the duration and conditions of the confinement. Marion v. Columbia Corr. Inst., 559 F.3d 693, 698 (7th Cir. 2009). Prisoners do not have a liberty interest in avoiding transfer from the general prison population to discretionary segregation, and even “extremely harsh prison conditions” may not be so “atypical” as to create a liberty interest. Townsend v. Fuchs, 522 F.3d 765, 771 (7th Cir. 2008) (collecting cases). In Hardaway v. Meyerhoff, 734 F.3d 740 (7th Cir. 2013), we concluded that six months and a day in a cell with a confrontational cellmate, suffering psychologically, and with only weekly access to showers and the prison yard was not clearly significant and atypical. Id. at 744–45. Mathews had a longer term in restricted housing than we considered in Hardaway, but he had greater access to the yard and showers, weekly visits, and three phone calls per month. He was not devoid indefinitely of human contact or sensory stimuli. Cf. Wilkinson v. Austin, 545 U.S. 209, 214 (2005). We cannot say on this record that Mathews had a “clearly established” right to avoid segregation. Mathews next challenges the magistrate judge’s resolution of his First Amendment retaliation claim, arguing that the defendants could not have reasonably believed that the letters, which used permissive language like “we propose” and “we ask,” were dangerous. We agree with the judge, however, that the defendants are entitled to qualified immunity on this claim, too. A restriction is valid under the First Amendment if it is reasonably related to a legitimate government interest, considering (1) its connection to the prison’s interests, (2) other available means of speech, (3) the impact of the accommodation, and (4) alternative measures to advance the interest. Turner v. Safley, 482 U.S. 78, 89–90 (1987); Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir. 2009). Here, the defendants would not have known that letters from “the prisoners” with language like “we propose” and “we ask” were protected: the phrasing shows collective action, which threatens prison security. See Van den Bosch v. Raemisch, 658 F.3d No. 18‐1679 Page 5 778, 788 (7th Cir. 2011) (“The essential question is not whether the threats were eventually carried out, but whether plaintiff has shown that it was not reasonable for defendants to perceive the [letters] as a potential threat to rehabilitation and security.”). According to the correctional officers, Mathews could have met the informal resolution requirement by signing a letter on his own behalf and, the officers submit, permitting him to write and share these letters would disrupt regular prison operations. Finally, Mathews has not shown that the officers had reasonable alternatives to confiscating them. Altogether, Mathews did not show that the defendants violated a clearly established First Amendment right. See Kemp v. Liebel, 877 F.3d 346, 354 (7th Cir. 2017). Mathews raises two more issues, but both are meritless. First, he says that the magistrate judge should have sanctioned the defendants for spoliation because the letters at issue were thrown out. But sanctions would be appropriate only if the defendants destroyed the evidence in bad faith, see United States v. Funds in the Amount of $100,120.00, 901 F.3d 758, 766 (7th Cir. 2018), and here, a non‐defendant threw out the letters by mistake. In addition, the parties agree on the letters’ contents, so Mathews has not been prejudiced by their absence. Second, Mathews incorrectly contends that the judge erroneously denied his motion for recruited counsel based on his ability to litigate with a jailhouse lawyer’s help. The judge noted that another inmate was helping, but he determined that Mathews could navigate the case’s complexity because the submissions that he authored were “clear and well‐written with citations to relevant authority,” and he successfully had moved the court to reconsider its initial screening order. The judge’s assessment was reasonable. See Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir. 2007) (en banc). The judgment is AFFIRMED.	{ "pile_set_name": "FreeLaw" }
932 F.2d 963Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.James A. BOYER, Barbara Boyer, Plaintiffs-Appellants,v.William C. HARPER, Individually and in his official capacityas a City Policeman in Ranson, West Virginia,Defendant-Appellee,andJames Flickinger, Individually and in his official capacityas a City Policeman with the City of Ranson, West Virginia,the City of Ranson, A West Virginia Municipal Corporation,Mickey Ballenger, Acting Police Chief, City of Ranson, WestVirginia, Dawn Hatzer, City Manager, City of Ranson, WestVirginia, David Hamill, Mayor, City of Ranson, WestVirginia, Ranson City Council, Charles A. Slusher, ThelmaMiller, Earnest F. Breeden, James E. (Jay) Watson, Robert L.Carey, David L. Cheshire, Defendants. No. 90-2118. United States Court of Appeals, Fourth Circuit. Argued Jan. 7, 1991.Decided May 14, 1991. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. William M. Kidd, Senior District Judge. (CA-88-12-M-K) Braun A. Hamstead, Hamstead and Associates, L.C., Charles Town, W.Va. (Argued), for appellants; Mark Jenkinson, Hamstead and Associates, L.C., Charles Town, W.Va. David P. Durbin, Jordan, Coyne, Savits & Lopata, Washington, D.C. (Argued), for appellees; Nelson W. Rupp, Jr., Jayson L. Speigel, Jordan, Coyne, Savits & Lopata, Washington, D.C., on brief. N.D.W.Va. VACATED AND REMANDED. Before WILKINSON and WILKINS, Circuit Judges, and THOMAS SELBY ELLIS, III, United States District Judge for the Eastern District of Virginia, sitting by designation. PER CURIAM: 1 Mr. and Mrs. James A. Boyer brought this action under 42 U.S.C.A. Sec. 1983 (West 1981) alleging Officer William C. Harper of the Ransom, West Virginia Police Department used excessive force in arresting Mr. Boyer ("Boyer") in violation of the fourth amendment. The district court ruled that Harper's conduct was protected by qualified immunity and granted summary judgment to Harper. On appeal the Boyers argue that the district court applied the incorrect legal standard in determining whether Harper's conduct was qualifiedly immunized and that, viewed in the light most favorable to Boyer, the evidence raises genuine issues of material fact for trial. We conclude that the record demonstrates the existence of disputed issues of material fact making the grant of summary judgment erroneous. We emphasize that the facts surrounding the arrest are highly disputed and for purposes of this appeal are presented in the light most favorable to Boyer. I. 2 On October 18, 1987, at approximately 10:30 p.m., Boyer walked across the yard of his home in Ransom, West Virginia to the home of his brother-in-law, John Miller. A dispute arose between Boyer and a passing bicyclist over Boyer's cat and the bicyclist's dog. Boyer threatened to kill the dog if the bicyclist did not keep it out of his yard. 3 Officer Harper was driving down the street when this confrontation occurred. He parked his vehicle, instructed Boyer to stop yelling and go inside, and threatened to arrest Boyer for breach of the peace if he did not comply. Harper then began issuing parking tickets for two cars parked facing the wrong direction in front of Miller's home. Miller saw Harper writing the tickets and went outside to confront him. Boyer, who had returned to his own home, overheard the disturbance and feared that Miller would be arrested. Boyer and his wife went outside and began to plead with Miller to return inside. During the encounter another officer arrived in response to a back-up call from Harper. 4 Harper approached Boyer saying that Boyer was "the one he wanted." Harper grabbed Boyer and attempted to place him under arrest. When Boyer backed away, Harper tore the sleeve of Boyer's shirt. The other officer instructed Boyer to stop resisting arrest and drop to his knees. After Boyer complied, Harper struck him on the head twice with a flashlight. Boyer began bleeding and was immediately taken to a hospital. The record does not disclose the exact severity of Boyer's injuries other than to reference that the wound to his head required stitches. II. 5 The defense of qualified immunity shields law enforcement officers from civil liability for damages when "their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638 (1987). In other words, "whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action assessed in light of the legal rules that were 'clearly established' at the time it was taken." Id. at 639 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982)) (citation omitted). An officer's "subjective beliefs ... are irrelevant." Id. at 641. Summary judgment for the officer is appropriate if he could, as a matter of law, reasonably have believed that the amount of force used was lawful in light of the clearly established principles governing arrests. See id. 6 At the time of the arrest, the clearly established legal rule in this circuit to determine whether the amount of force that an officer used to effect an arrest was excessive required the consideration of four factors: 7 (1) The need for the application [of] the force, 8 (2) The relationship between the need and the amount of the force that was used, 9 (3) The extent of the injury inflicted, and 10 (4) Whether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm. 11 Graham v. City of Charlotte, 827 F.2d 945, 948 (4th Cir.1987), rev'd sub nom. Graham v. Connor, 490 U.S. 386 (1989). After Boyer's arrest, the Supreme Court rejected the fourth factor and held that claims of excessive force during arrest should be analyzed under the objective reasonableness test of the fourth amendment. Graham v. Connor, 490 U.S. 386 (1989). This test requires that the officer's actions be objectively reasonable in light of all the surrounding facts and circumstances without regard to the officer's underlying intent. 12 The district court, analyzing Harper's motion for summary judgment, recognized that the Supreme Court rejected the subjective element, but determined that the legal standard by which claims of excessive force were judged required a finding of maliciousness for a violation to have occurred. Finding that Boyer failed to present evidence tending to show that Harper acted maliciously, the district court concluded that Harper was entitled to qualified immunity and granted Harper's motion for summary judgment. 13 Viewed in the light most favorable to Boyer, the record is sufficient to create a genuine issue as to whether Harper struck Boyer several times with a flashlight after Boyer dropped to his knees to submit to the arrest, causing injuries severe enough to require emergency medical treatment. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). An officer could not reasonably have believed such conduct was lawful under either test. While we express no opinion on the ultimate merits of the case, we conclude that the district court erred in ruling as a matter of law that the alleged conduct was immunized and remand for additional proceedings. 14 VACATED AND REMANDED.	{ "pile_set_name": "FreeLaw" }
UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LARRY BERRIOCHOA, DOCKET NUMBER Appellant, DE-0752-13-0211-I-1 v. DEPARTMENT OF HOMELAND DATE: September 19, 2014 SECURITY, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 R. Bobby Devadoss, Esquire, Dallas, Texas, for the appellant. Jaime L. Preciado, Esquire, San Francisco, California, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the agency’s indefinite suspension action. For the following reasons, we DENY the appellant’s petition for review. Except as modified by the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 constitutional due process analysis set forth below, we AFFIRM the initial decision. The agency’s indefinite suspension action is SUSTAINED. BACKGROUND ¶2 The appellant was formerly employed as a Federal Air Marshal (FAM) with the Transportation Security Administration (TSA). Initial Appeal File (IAF), Tab 1 at 1, Tab 16 at 25. As a condition of employment, a FAM is required to obtain and maintain a top secret security clearance. IAF, Tab 16 at 99. By memorandum dated January 4, 2013, the TSA’s Personnel Security Section notified the appellant that his top secret security clearance was suspended, effective immediately, pending an internal agency review. Id. at 46-47. The memorandum indicated that the clearance suspension was based on potentially disqualifying information regarding the appellant’s alcohol consumption and personal conduct. Id. at 46. ¶3 By notice dated January 24, 2013, the agency proposed to indefinitely suspend the appellant based on the suspension of his security clearance. Id. at 41-43. The proposal informed the appellant that he had 7 calendar days from his receipt of the decision to make an oral and/or written reply. Id. at 42. The appellant responded in writing to the deciding official. Id. at 33-39. By letter dated March 1, 2013, the deciding official notified the appellant that he was suspended without pay, effective that date, and that the suspension would remain in effect until the resolution of the appellant’s security clearance status. Id. at 27-31. The appellant timely filed an appeal with the Board on March 11, 2013. 2 IAF, Tab 1. ¶4 The administrative judge issued an initial decision affirming the agency’s action. IAF, Tab 22, Initial Decision (ID) at 2, 10. He found that the agency had 2 On May 15, 2013, the agency issued a decision removing the appellant from federal service on that date. See Berriochoa v. Department of Homeland Security, MSPB Docket No. DE-0752-13-0326-I-1. The appellant has filed a separate appeal of his removal. Id. 3 established the merits of its action by preponderant evidence and that it established nexus. ID at 3-4, 9-10. He further found that, in the absence of an agency regulation requiring that the agency attempt to reassign an employee who has lost his security clearance, the Board lacks the authority to review the feasibility of reassignment. ID at 9-10. ¶5 In addition, the administrative judge addressed the appellant’s assertion that the agency had denied him constitutional due process when it indefinitely suspended him. ID at 4-9. Citing to the Board’s decision in McGriff v. Department of the Navy, 118 M.S.P.R. 89, ¶¶ 24-25 (2012), the administrative judge found that the appellant was entitled to due process concerning his indefinite suspension, and that the Board had authority to review whether due process was provided. ID at 4-5. Again citing McGriff, the administrative judge further found that in determining the requirements of due process, he would apply the balancing test employed in Gilbert v. Homar, 520 U.S. 924 (1997), and consider the following factors: (1) the private interest affected by the official action; (2) the risk of erroneous deprivation of the interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest. See McGriff, 118 M.S.P.R. 89, ¶¶ 27-28; see Homar, 520 U.S. at 931-32 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). In analyzing the Homar—more accurately, the Mathews— factors the administrative judge determined that the first and third factors were not dispositive. ID at 6. Regarding the second factor, the administrative judge found that the agency had adequately informed the appellant of the reasons for the indefinite suspension. ID at 6-8. The administrative judge further found that, although the deciding official had no authority to change the decision to suspend the appellant’s security clearance, he had the authority to choose an alternative to the proposed indefinite suspension, such as placement on administrative leave. ID at 9. Hence, the administrative judge concluded, the appellant received a meaningful opportunity to respond to the proposed indefinite suspension. ID at 9. 4 ¶6 The appellant timely filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a response to the petition for review. PFR File, Tab 3. ¶7 On review, the appellant reiterates his contention that the agency failed to provide him with a meaningful opportunity to respond to the proposed indefinite suspension and thereby denied him constitutional due process in indefinitely suspending him. PFR File, Tab 1 at 6-9. First, the appellant argues that the agency denied him a meaningful opportunity to respond to the proposed indefinite suspension by failing to provide him with all of the materials relating to the suspension of his security clearance. Id. at 6-7, 9. In particular, the appellant contends the agency failed to provide him with a copy of the Incident Tracking Report. Id. at 9. Second, the appellant contends that he was denied a meaningful opportunity to persuade the deciding official to take an action other than the proposed indefinite suspension. Id. at 8-9. DISCUSSION OF ARGUMENTS ON REVIEW ¶8 In Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988), the Supreme Court held that in an appeal of an adverse action under chapter 75 based on the denial or revocation of a required security clearance, the Board may not review the merits of the underlying clearance determination, but may review, inter alia, whether the employee’s position required a security clearance, whether the security clearance was revoked, and whether the procedures set forth in 5 U.S.C. § 7513(b) were followed. The holding in Egan has since been applied to indefinite suspensions based on the suspension of a security clearance. See Cheney v. Department of Justice, 479 F.3d 1343, 1352 (Fed. Cir. 2007) (defining the Board’s scope of review in a case involving an indefinite suspension based on the suspension of the appellant’s security clearance); see also Hesse v. Department of State, 217 F.3d 1372, 1376 (Fed. Cir. 2000) (same). While Egan also controls where an adverse action is taken under the TSA 5 personnel system, the procedural requirements of section 7513 are not directly applicable in such cases. Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, ¶ 14 (2014). However, the Board has the authority under section 7701(c)(2)(A) to review the agency’s compliance with its own procedures, which include the similar provisions of TSA Management Directive (MD) 1100.75-3. 3 Id. The agency proved its charge and established nexus. ¶9 It is undisputed that the appellant’s position was subject to a top secret security clearance and the clearance was suspended. IAF, Tab 16 at 46-47, 99. Accordingly, we agree with the administrative judge’s finding that the agency proved its charge by preponderant evidence. ID at 10; see Buelna, 121 M.S.P.R. 262, ¶ 11 (sustaining an agency’s charge of suspension of the appellant’s top secret security clearance where the position required a security clearance and the clearance was suspended). ¶10 The administrative judge correctly found that an indefinite suspension based on the suspension of a required security clearance promotes the efficiency of the service. ID at 9-10; see Buelna, 121 M.S.P.R. 262, ¶ 11; see also Jones v. Department of the Navy, 978 F.2d 1223, 1226-27 (Fed. Cir. 1992). Such an action is also expressly authorized under the TSA personnel system. Buelna, 121 M.S.P.R. 262, ¶ 11; see MD 1100.75-3 Handbook, § J(1)(d) (2009). ¶11 Consideration of the Douglas factors would be inappropriate in this case, because in the absence of a statute or regulation requiring the agency to seek out alternative employment, we lack authority to review whether the lesser sanction 3 The provisions of MD 1100.75-3 and the accompanying Handbook, rather than chapter 75, govern disciplinary actions against TSA employees. Buelna, 121 M.S.P.R. 262, ¶ 5 n.2. 6 of reassignment to a position not requiring a security clearance would have been feasible. 4 Flores v. Department of Defense, 121 M.S.P.R. 287, ¶ 12 (2014). The appellant has failed to show that the agency violated his constitutional due process rights in indefinitely suspending him. ¶12 While this appeal was pending on review, the Federal Circuit issued its decision in Gargiulo v. Department of Homeland Security, 727 F.3d 1181 (2013). Following Gargiulo, the Board issued its decision in Buelna, in which it reaffirmed its authority to determine whether an agency afforded an appellant due process in taking an adverse action based on a security clearance determination but clarified its recent analysis of the Mathews factors in McGriff. See Buelna, 121 M.S.P.R. 262, ¶¶ 15, 18. The administrative judge did not have the benefit of Buelna when the initial decision was issued; accordingly, to the extent the administrative judge’s constitutional due process analysis is inconsistent with Buelna, it is hereby modified. ¶13 As noted by the administrative judge, the second Mathews factor—the risk of erroneous deprivation of the interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards—is decisive here. ID at 6; see Buelna, 121 M.S.P.R. 262, ¶¶ 16, 21. In considering this factor, the Board clarified in Buelna that, for purposes of responding to the charge, due process does not require an opportunity to contest the merits of the clearance determination. Buelna, 121 M.S.P.R. 262, ¶¶ 23-24. The Board further clarified that, as to the charge, the agency was not required as a matter of constitutional due process to notify the appellant of the specific reasons for the suspension of the security clearance. Id., ¶ 25. Rather, it is sufficient for an agency to inform the appellant that his position required a security clearance, and that he could no longer hold his position once his clearance was suspended. Id. 4 As noted by the administrative judge, the appellant does not contend that the agency has an official policy requiring reassignment following the suspension of a security clearance. ID at 9. 7 The appellant in this case received adequate notice of these essential facts with the notice of proposed suspension. Accordingly, we find that the agency provided the appellant with minimum due process of law regarding the charge. ¶14 Even if due process does not require notice of the factual basis for the underlying security clearance determination concerning the charge, the appellant was still entitled to notice of this information if the deciding official’s penalty determination was influenced by it. See id., ¶ 31. The appellant in this case has not established that the deciding official relied on any information that had not already been provided to the appellant along with the proposal notice. As noted by the administrative judge, the deciding official declared under penalty of perjury that he relied exclusively on the materials enclosed with the proposal notice and the appellant’s written response in making his decision to indefinitely suspend the appellant. ID at 7; IAF, Tab 19 at 23. Moreover, even if the deciding official did consider additional information beyond what was included in the proposal notice, the appellant has not established that the information considered was new and material. See Buelna, 121 M.S.P.R. 262, ¶ 32; see also Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1375 (Fed. Cir. 1999) (explaining factors that are relevant to determining whether an ex parte communication introduces new and material information). ¶15 The appellant’s contention that he was denied a meaningful opportunity to persuade the deciding official to take an action other than the proposed indefinite suspension is also unavailing. PFR File, Tab 1 at 8-9. To the extent there may have existed viable alternatives to suspension without pay, e.g., placement on administrative leave, the appellant had a due process right to invoke the discretion of a deciding official to select such alternatives. See Buelna, 121 M.S.P.R. 262, ¶ 28. Here, as noted by the administrative judge, the deciding official declared under penalty of perjury that he had authority to choose alternatives to the proposed indefinite suspension, including placing the appellant on administrative leave. ID at 9; IAF, Tab 19 at 23-24. The appellant 8 has not rebutted this evidence, and we conclude that he was afforded an opportunity to invoke the discretion of a deciding official with authority to change the outcome of the proposed action to the extent that may have been feasible. See Buelna, 121 M.S.P.R. 262, ¶ 28. Based on the foregoing, we conclude that the appellant has not shown that he was denied due process. The appellant did not establish harmful procedural error. ¶16 To prove harmful procedural error, an appellant must prove that the agency committed an error in the application of its procedures that is likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. See 5 C.F.R. § 1201.56(c)(3). The relevant procedures in this case are set forth in the MD 1100.75-3 Handbook, which provides, inter alia, that an employee facing an adverse action receive written notice stating the charges and specifications and a description of the evidence that supports the charge. MD 1100.75-3 Handbook, § I(2)(a)(i) (2009). The directive further provides that the employee is entitled to see the materials relied upon to support each charge and specification. Id., § I(2)(a)(x). In addition, the employee must be provided an opportunity to respond orally and in writing to a deciding official who will consider the replies and decide the outcome based on all of the evidence of record and the applicable Douglas factors. Id., § I(2)(c). ¶17 To the extent the appellant is attempting to assert that the agency failed to comply with its procedures in indefinitely suspending him, we find that any such claim lacks merit. 5 The notice suspending the appellant’s security clearance, 5 In determining whether the agency provided the appellant with requisite procedural protections, the administrative judge appears to conflate the question of whether the agency denied the appellant due process with the question of whether it committed harmful error. See ID at 4-9. In any event, any such error does did not prejudice the appellant’s substantive rights because the agency correctly provided the appellant with the procedural protections under MD 1100.75-3 in indefinitely suspending him. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory 9 coupled with the notice proposing his indefinite suspension, informed him of the basis for the suspension of his security clearance, i.e., the appellant’s alleged alcohol consumption and personal conduct. We find this was sufficient information to allow for an informed response, as required under agency procedures. See Buelna, 121 M.S.P.R. 262, ¶ 34 (finding the agency provided the appellant with sufficient information to make an informed response when it notified him that his security clearance was being suspended based on alleged fraudulent claims, then informed him he was being indefinitely suspended based on the suspension of his security clearance). ¶18 As mentioned above, the appellant has not shown by preponderant evidence that the agency failed to provide any additional evidence on which the deciding official relied. Assuming arguendo that the agency did commit procedural error in that regard, the appellant has not shown that the agency was likely to have reached a different decision in the absence of that error. Furthermore, as discussed above, the appellant was provided the opportunity to respond orally and in writing to a deciding official with authority to decide the outcome of the proposed indefinite suspension. The appellant, therefore, has failed to establish harmful error. See id., ¶ 35. Accordingly, the appellant’s indefinite suspension is SUSTAINED. NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to request the United States Court of Appeals for the Federal Circuit to review this final decision. You must submit your request to the court at the following address: error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). 10 United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, DC 20439 The court must receive your request for review no later than 60 calendar days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about your right to appeal this decision to court, you should refer to the federal law that gives you this right. It is found in Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 2012). You may read this law as well as other sections of the United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. Additional information is available at the court's website, www.cafc.uscourts.gov. Of particular relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is contained within the court's Rules of Practice, and Forms 5, 6, and 11. If you are interested in securing pro bono representation for your court appeal, you may visit our website at http://www.mspb.gov/probono for a list of attorneys who have expressed interest in providing pro bono representation for Merit Systems Protection Board appellants before the court. The Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 11 FOR THE BOARD: ______________________________ William D. Spencer Clerk of the Board Washington, D.C.	{ "pile_set_name": "FreeLaw" }
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Koenig v. Dungey, Slip Opinion No. 2015-Ohio-4538.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2015-OHIO-4538 KOENIG ET AL., APPELLEES, v. DUNGEY, DIR., ET AL., APPELLANTS. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Koenig v. Dungey, Slip Opinion No. 2015-Ohio-4538.] Medicaid—Court of appeals’ judgment reversed and cause remanded on the authority of Estate of Atkinson v. Ohio Dept. of Job & Family Servs. (No. 2015-0034—Submitted September 2, 2015—Decided November 4, 2015.) APPEAL from the Court of Appeals for Hamilton County, No. C-140111, 2014-Ohio-4646. __________________ {¶ 1} The judgment of the court of appeals is reversed, and the cause is remanded to the trial court for further proceedings in light of Estate of Atkinson v. Ohio Dept. of Job & Family Servs., Slip Opinion No. 2015-Ohio-3397. O’CONNOR, C.J., and PFEIFER, O’DONNELL, KENNEDY, and FRENCH, JJ., concur. LANZINGER and O’NEILL, JJ., dissent. _________________ SUPREME COURT OF OHIO Beckman Weil Shepardson, L.L.C., Janet E. Pequet, and Ashley Shannon Burke, for appellees. Mike DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, Stephen P. Carney, Deputy Solicitor, and Rebecca L. Thomas and Jeffery Jarosch, Assistant Attorneys General, for appellants. _________________ 2	{ "pile_set_name": "FreeLaw" }
ATTORNEY GENERAL OF TEXAS GREG ABBOTT March 282003 The Honorable Dib Waldrip Opinion No. GA-005 1 Coma1 County Criminal District Attorney 150 North Seguin, Suite 307 Re: Whether Attorney General Opinion JC-047 1 New Braunfels, Texas 78130 (2002) correctly construes section 152.013(c) of the Local Government Code (RQ-06 15-JC) Dear Mr. Waldrip: You ask whether Attorney General Opinion JC-047 1, which states that a commissioners court must notify an elected officer of the proposed salary and personal expenses budgeted for the officer “[alfter the commissioners court has adopted the budget, ‘but before filing it with the county clerk,“’ is correct.’ See Tex. Att’y Gen. Op. No. JC-0471 (2002) at 2 (quoting Tex. Att’y Gen. Op. No. DM-0405 (1996) at 4). You suggest that this statement in Opinion JC-0471 creates an impossible situation for the officers: “If notice to elected officials is given only after the budget is approved and adopted as contemplated . . . , it is impossible for an aggrieved elected official to request a hearing before the approval of the county’s annual budget.” Request Letter, supra note 1, at 2. You accordingly ask us to clarify Attorney General Opinion JC-047 1 to the extent it construes the phrase “[blefore filing the annual budget” in section 152.013(c) to mean an “approved and adopted budget.” TEX. LOC. GOV’T CODEANN. 5 152.013(c) (Vernon 1999); Request Letter, supra note 1, at 1. Chapter 111, subchapter A of the Local Government Code governs budget preparation in a county with a population of 225,000 or less, such as Coma1 County. See TEX. LOC. GOV’T CODE ANN. 5 111 .OOl (Vernon 1999) (providing that subchapter A applies to county with population of 225,000 or less if county has not adopted subchapter C); see also Bureau of the Census, U.S. Dep’t of Commerce, 2000 Census of Population, General Population, Characteristics: Texas, Coma1 County (available at http://www.quickfacts.census.gov/qf~states/48/48091 .html) (Coma1 County population: 78,021). Under subchapter A, a county judge must “prepare a budget to cover all proposed expenditures of the county government for the succeeding fiscal year.” See TEX..LOC. GOV’T CODE ANN. 9 111.003 (Vernon 1999). The judge must file the completed budget with the county clerk, after which time the commissioners court may review the county judge’s proposed ‘Letter from Honorable Dib Waldrip, Coma1 County Criminal District Attorney, to Honorable John Cornyn, Texas Attorney General, at 1 (Oct. 2, 2002) (on file with Opinion Committee) [hereinafter Request Letter]. The Honorable Dib Waldrip - Page 2 (GA-005 1) budget. See id. § 111.006(a). After a set period of time, the commissioners court as a whole must “hold a public hearing” on the proposed budget, and “[a]t the conclusion of the public hearing, the commissioners court” must act on the proposed budget. Id. 09 111.007(a)-(b), 111.008(a). When the commissioners court has finally approved the budget, it files the budget with the county clerk. See id. 5 111.009. The commissioners court “may levy taxes only in accordance with the budget” and, except in an emergency, “may spend county funds only in strict compliance with the budget.” Id. § 111.010(a)-(b). Another chapter of the Local Government Code, chapter 152, provides a procedure by which a commissioners court sets the amount of compensation, expenses, and allowances received by elected county and precinct officers. Subchapter B pertains to budgeting salaries, expenses, and other allowances for most elected officers. See generally id. ch. 152, subch. B (Vernon 1999). But see id. subch. C (Vernon 1999 & Supp. 2003) (“Amount of Compensation and Expenses of County Auditor and Assistants”); id. subch. E (Vernon 1999) (“Special Provisions Applying to Sheriffs Department”). Section 152.013 requires a commissioners court to set elected officers’ salaries, expenses, and other allowances “at a regular meeting of the court during the regular budget hearing and adoption proceedings.” Id. $ 152.013(a) (V emon 1999). Section 152.013(c) requires the commissioners court to notify the elected officers of the proposed salaries and personal expenses: “Before filing the annual budget with the county clerk, the commissioners court shall give written notice to each elected county and precinct officer of the officer’s salary and personal expenses to be included in the budget.” Id. fj 152.013(c). The written notice provided to the elected officers marks the beginning of the grievance process, through which an officer may request the county’s salary grievance committee to reconsider that officer’s proposed salary or personal expenses. In particular, section 152.016(a) permits an officer who objects to the proposed salary or expenses to ask the salary grievance committee to consider the grievance: “An elected county or precinct officer who is aggrieved by the setting of the officer’s salary or personal expenses may request a hearing before the salary grievance committee before the approval of the county’s annual budget.” Id. 8 152.016(a). The salary grievance committee then must hold a public hearing on the grievance within ten days “after the date the request is received.” Id. 9 152.016(b). If the committee votes to recommend an increase in the officer’s salary or personal expenses, the committee submits a written recommendation to the commissioners court. See id. 5 152.016(c). Depending upon the number of votes in favor of the recommendation, the commissioners court either must consider the recommendation at its next meeting or must “include the increase in the budget before the budget is filed and the increasetakes effect in the next budget year.” Id. As background to the specific issue considered by Attorney General Opinion JC-0471 -whether notice by fax satisfies the “written notice” requirement of section 152.013(+---the opinion discusses a commissioners court’s statutory duty to notify elected officers of their proposed salaries generally. See Tex. Att’y Gen. Op. No. JC-0471 (2002) at 2. According to the opinion, a court must notify the officers after it has adopted the budget: The Honorable Dib Waldrip - Page 3 (GA-005 1) After the commissioners court has adopted the budget, “but before filing it . with the county clerk,” see Tex. Att’y Gen. Op. No. DM-405 (1996) at 4, section 152.013 requires the commissioners court to notify each officer of the proposed salary and personal expenses budgeted for the officer: “Before filing the annual budget with the county clerk, the commissioners court shall give written notice to each elected county and precinct officer of the officer’s salary and personal expenses to be included in the budget.” TEX. Lot. GOV’T CODEANN. 5 152.013(c) (Vernon 1999). Tex. Att’y Gen. Op. No. JC-0471 (2002) at 2. For three reasons, Attorney General Opinion JC-0471 is incorrect to the extent it construes section 152.013(c) to require a commissioners court to notify elected officers of the “salary and personal expenses to be included in the budget” only after the court has adopted the budget. TEX. Lot. GOV’T CODEANN. 8 152.013(c) (Vernon 1999); see Tex. Att’y Gen. Op. No. JC-0471 (2002) at 2. First, as you point out, once a commissioners court has adopted the budget, an aggrieved officer may not request a hearing “before the approval of the county’s annual budget,” as section 152.016(a)requires. TEX.LOC. GOV’TCODEANN. 8 152.016(a) (Vernon 1999);seeRequest Letter, supra note 1, at 2. Further, section 152.016(c) requires the commissioners court to include any increase that results from the salary grievance process “in the budget before the budget is filed,” so that the increase “takes effect in the next budget year.” TEX. Lot. GOV’T CODEANN. 8 152.016(c) (Vernon 1999); see also id. 5 111 .Ol O(b) (p ermitting county to spend county funds only in strict compliance with budget). The legislature intends the whole of chapter 152, subchapter A to be effective. See TEX. GOV’T CODEANN. 5 3 11.02 l(2) (Vernon 1998). But the construction of section 152.013(c) adopted by Attorney General Opinion JC-0471 renders impossible the requirements of section 152.016(c) that the salary grievance committee determine the issue before the annual budget is finally approved. See TEX. LOC. GOV’T CODEANN. 9 152.016(a), (c) (Vernon 1999). Second, once the commissioners court has adopted its budget, it may expend county funds only in strict compliance with the budget, except in an emergency. See id. 8 111.010(b). Thus, unless the court were to determine in good faith that a recommended or required salary or expense increase, received after the budget was finally approved, presents an emergency, the increase could not take effect in the next year’s budget, as section 152.016(c) requires. See id. fj 152.016(c). Whether an emergency exists is generally a question of fact that cannot be determined by this office. See Tex. Att’y Gen. Op. No. GA-0003 (2002) at 1. Specifically in the county budget context, this office has stated that an emergency expenditure can be made only “to meet unusual and unforeseen conditions which could not, by reasonable diligent thought and attention, have been included in the original budget.” Tex. Att’y Gen. Op. No. O-5 184 (1943) at 6; see Goolsbee v. Tex. & New Orleans R.R. Co., 243 S.W.2d 386,388 (Tex. 1951) (defining emergency generally as “a condition arising suddenly and unexpectedly . . . which calls for immediate action”); accord Bankler v. Vale, 75 S.W.3d 29,37 (Tex. App.-San Antonio 2001, no pet.) (quoting Goolsbee ‘s characterization of term “emergency’). The Honorable Dib Waldrip - Page 4 (GA-005 1) Finally, Attorney General Opinion JC-047 1 ‘s narrow construction of the phrase “[b] efore filing the annual budget with the county clerk” is not logical. TEX. LOC. GOV’T CODE ANN. fj 152.013(c) (Vernon 1999). JC-047 1, relying on Attorney General Opinion DM-405, interpreted the phrase to mean after the budget has been approved but before the court has filed the adopted budget with the county clerk. Tex. Att’y Gen. Op. No. JC-0471 (2002) at 2 (citing Tex. Att’y Gen. Op. No. DM-405 (1996) at 4). But, in fact, the phrase should be read to mean “at any time between the time the commissioners court receives the proposed budget from the county judge and the time it finally approves the budget.” Under this broader and more logical construction, section 152.013(c) requires the commissioners court to notify elected officers of proposed salaries and expenses at a time, after the court has received the proposed budget, that will allow any aggrieved officer the opportunity to have a grievance adjudicated by the salary grievance committee before the court finally adopts the budget. We conclude that the commissioners court must notify elected officers of proposed salaries and expenses after having received the proposed budget from the county judge, but sufficiently before the court’s approval so that an aggrieved officer can receive a determination from the salary grievance committee. Consequently, we modify Attorney General Opinion JC-0471 to the extent it suggests that a commissioners court may notify elected officers under section 152.013 only after having adopted the budget. See Tex. Att’y Gen. Op. No. JC-0471 (2002) at 2. This modification does not affect the opinion’s ultimate conclusion that section 152.013 “does not as a matter of law preclude a commissioners court from faxing its written notice to an elected officer.” Id. at 4. We similarly modify Attorney General Opinion DM-405, cited in Attorney General Opinion JC-0471, to the extent it construed section 152.013 to require the commissioners court to notify elected officers of their salaries and personal expenses “after the commissioners court has adopted the budget, but before filing it with the county clerk.” Tex. Att’y Gen. Op. No. DM-405 (1996) at 4; see Tex. Att’y Gen. Op. No. JC-0471 (2002) at 2. Section 152.016(a) did not, at the time Opinion DM-405 was issued, require an aggrieved officer to request a hearing “before the approval of the county’s annual budget.” TEX. Lot. GOV’T CODE ANN. 9 152.016(a) (Vernon 1999) prior to amendment by Act ofMay 12,1997,75thLeg., R.S., ch. 326,§ 3,1997 Tex. Gen. Laws 1415’1415. Section 152.016(c) did, however, require the commissioners to include an increase recommended by the salary grievance committee “in the budget before the budget was filed.” Id. 9 152.016(c). Thus, Attorney General Opinion DM-405’s statement regarding the timing of the notice was incorrect. The Honorable Dib Waldrip - Page 5 (GA-005 1) SUMMARY Under section 152.013(c) of the Local Government Code, a commissioners court must notify elected county and precinct officers of proposed salaries and expenses after the court has received a proposed budget from the county judge, but sufficiently before the court’s approval of the budget to permit an aggrieved officer to request a hearing before the salary grievance committee and to permit the salary grievance committee to determine the grievance consistently with section 152.016. See TEX. LOC.GOV’T CODEANN. $6 152.013(c), 152.016 (Vernon 1999). To the extent Attorney General Opinion JC-0471 suggests that a commissioners court may notify officers under section 152.013 only after having adopted the budget, the opinion is modified. See Tex. Att’y Gen. Op. No. JC-0471 (2002) at 2. To the same extent, Attorney General Opinion DM-405 is modified. See Tex. Att’y Gen. Op. No. DM-405 (1996) at 4. Very truly yours, eneral of Texas BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General - General Counsel NANCY S. FULLER Chair, Opinion Committee Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee	{ "pile_set_name": "FreeLaw" }
234 F.2d 204 Gloria Mae BROWN, in person, and on behalf of her minorchildren, Joann and Velda Marie, Appellants,v.LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Appellee. No. 15933. United States Court of Appeals Fifth Circuit. May 25, 1956. John W. Read, Cicero C. Sessions, New Orleans, La., for appellants. Harry McCall, Jr., Chaffe, McCall, Phillips, Burke & Hopkins, New Orleans, La., for appellee. Before HUTCHESON, Chief Judge, and CAMERON and BROWN, Circuit Judges. CAMERON, Circuit Judge. 1 This appeal presents the question whether the Court below was clearly erroneous in its finding that the Railroad Company was not liable to plaintiffs for the death of their husband and father, killed in a crossing collision between the truck he was driving and the Railroad's passenger train. The trial Court, sitting without a jury, having heard the evidence and considered written briefs, entered its findings in the form of a written opinion1 setting forth that, although the decedent and the Railroad Company were both guilty of negligence, the decedent had the last clear chance to avoid the negligence of the Railroad Company and, therefore, his beneficiaries were not entitled to recover. 2 Plaintiffs appealed from this decision and claim here that the findings of the Court below were clearly erroneous. The Railroad Company, as appellee, claim that these findings are supported by the evidence and, further, that the evidence fails to disclose any negligence on the part of the engineer and fireman operating the train which proximately contributed to Brown's death. We agree with the contentions of the Railroad Company. The controlling facts are not in dispute, being furnished by the engineer and fireman of the train, who were the only eye witnesses. 3 The passenger train approached the crossing at a lawful rate of speed and after giving the bell and whistle signals required by law. The deceased came upon the crossing from the fireman's side and was first observed by him as the cement-mixer truck, which he was driving up a slight grade, was entering upon a 'derail' track about twenty-five feet away from the first rail of the track upon which the train was moving. The truck was moving very slowly when the fireman first saw it and could have been stopped in a few feet. The fireman did not give the alarm to the engineer until the truck had advanced closer to the track on which the train was moving and when, instead of stopping, it gave a sudden burst of speed, indicating that the driver was going to try to best the train across. Until that moment the fireman was not called upon to act because that was the first indication he had that the truck would not stop. Both his testimony and the law gave support to his assumption that the truck would be brought to a stop in a place of safety. 4 The fireman was placed on the stand by plaintiffs and subjected to prolonged and searching cross-examination, and established without controversy that he saw the truck approaching at a place of safety and watched it advance, firm in the belief that the truck would stop, and had nothing to change that conviction until, instead of stopping, the driver increased his speed just before reaching the track of the collision.2 Immediately after the fireman gave the alarm the engineer applied his brake in emergency but the braking action did not take effect until immediately before the impact. The right front corner of the engine struck the truck about at its rear tandem wheels and the train ran 526 feet before stopping. 5 Louisiana adheres to the rule of uniform application that the crewmen in charge of a train may assume that an automobile approaching its track under such circumstances will stop before reaching it. Bordenave v. Texas & New Orleans R. Co., La.App.1950, 46 So.2d 525; Leger v. Texas & P.R. Co., La.App.1953, 67 So.2d 775; Allen v. Texas & Pacific Ry. Co., D.C.W.D.La.1951, 96 F.Supp. 520, and cases cited. The Court below based its conclusion upon the finding that the decedent had the last clear chance to avoid the accident under what it aptly called the 'transitional' doctrine of last clear chance as applied in Louisiana, and as was so well delineated by the Supreme Court of that state in Bergeron v. Department of Highways, 1952, 221 La. 595, 60 So.2d 4. 6 It might, in our opinion, have rested its decision upon the finding that the evidence failed to disclose any actionable negligence on the part of the Railroad. While the fireman did not see the truck until it was entering upon the 'derail' track, it seems to be conceded that deceased would have been successful in his race with the train if the fireman had given the alarm at the moment he first saw the truck. If, therefore, his failure to see the truck earlier might be thought negligent, it is clear that this was not a proximate cause of the accident. The fireman was under no duty to act until he reasonably concluded that the truck was not going to follow the usual custom and stop short of a place of danger. That realization did not come until after the truck had traveled, at a very low rate of speed, quite a distance from the place where it was first seen. The distance of the train from the point of collision and its speed-- so long as it is not illegal-- at the various points of its approach as plaintiffs sought to develop, are not of much importance. The crucial and decisive element in the decision begins with the split second of discovery that the vehicle will not stop and involves what happens thereafter. As to those facts, there is not any dispute in the evidence. 7 The Leger case, supra (67 So.2d 776), involved facts quite similar to those of this record, and the summary of the Court's decision in the sixth syllabus is authority supporting a finding of the absence of negligence here: 'Where railroad fireman noticed approach of truck when it was approximately 125 feet from crossing and train was approximately 300 feet, fireman did not realize that truck would not stop until train was 50 feet from crossing and truck was 15.4 feet from crossing and fireman immediately warned engineer who applied brakes as quickly as possible but could not avoid striking truck, railroad was not liable under last clear chance doctrine for death of truck passenger.' 8 The facts here disclose that the fireman was alert and attentive to the actions of decedent and discovered his intention to attempt the crossing ahead of the train as soon as it became manifest. He acted immediately to warn the engineer who did everything he could to rescue decedent from his peril. There is nothing in the evidence upon which a finding of negligence on the part of the Railroad may be rested. It follows that the finding and decision of the Court below were not clearly erroneous, but were correct, and its judgment is, therefore, 9 Affirmed. 1 Brown v. Louisville & Nashville Railroad Company, D.C.1956, 135 F.Supp. 28. The facts are fully stated in this opinion and will be repeated here only as they relate to the points discussed 2 The fireman was cross-examined by plaintiff without objection evidently upon the assumption that the procedure was governed by 7 West's LSA-R.S. 13:3662 to 13:3664 (cf Rule 43(b) Fed.Rules Civ.Proc. 28 U.S.C.A. He was asked many times concerning the movement of the truck and why he did not given the alarm sooner and he gave a consistent and convincing account of what was transpiring: 'The truck was moving very slow from the derail track where I first saw it and continued to move very slow * * . All at once it just shot across the track * . I didn't holler sooner because I thought it was going to stop * . I didn't call until I seen he was making an attempt to cross ahead of the train * . He looked like he was going to stop just at any second. * * Because he was going at a very slow speed * * * I thought he was going to stop * * * like they generally do.'	{ "pile_set_name": "FreeLaw" }
817 F.2d 758 O'Connorv.U.S. 87-1752 United States Court of Appeals,Ninth Circuit. 5/8/87 1 N.D.Cal. AFFIRMED	{ "pile_set_name": "FreeLaw" }
[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 98-1703 UNITED STATES, Appellee, v. DEXTER J. ANDREWS, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Joseph L. Tauro, U.S. District Judge] Before Selya, Circuit Judge, Cyr, Senior Circuit Judge, and Lipez, Circuit Judge. Robert E. Harvey, by appointment of the Court, and Dexter J. Andrews, on brief pro se, for appellant. Jennifer Zacks, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellee. OCTOBER 14, 1999 Per Curiam. Defendant Dexter Andrews was convicted after a jury trial of possession of a firearm by a felon in violation of 18 U.S.C. 922(g)(1). He now appeals, challenging the district court's failure to: exclude a witness who had allegedly violated a sequestration order; grant a new trial due to allegedly improper comments in the prosecutor's closing argument; give a requested jury instruction; and depart downward from the sentencing guidelines. Andrews has also filed pro se briefs raising arguments concerning his sentence and the court's procedure for conducting voir dire. Finding no error, we affirm. Andrews, who had a prior criminal record including multiple Massachusetts felony convictions, was arrested after a police chase in the Mattapan section of Boston involving a car in which he was a passenger. When the car stopped, Andrews fled on foot. Three police officers testified that as Andrews exited the car two handguns fell from his waist. Andrews, however, testified that he had never touched the guns and claimed that they belonged to the driver of the car, Lumumba Roberson. The jury found Andrews guilty and he was sentenced to 210 months in prison. I. Witness Sequestration On Andrews's motion the district court entered a sequestration order barring witnesses from the courtroom during the testimony of other witnesses. At trial, Andrews testified that he had just been introduced to Roberson on the day in question and had never spoken to him before. The government called a rebuttal witness, Officer Gregory Brown, who testified that he had seen Andrews and Roberson together on two occasions. On cross- examination, Officer Brown admitted that he had previously spoken with his partner, Officer Craig Jones, about the fact that Officer Jones was to testify at Andrews's trial. Officer Brown denied that Officer Jones had asked him to testify that he had seen Andrews with Roberson. Andrews argues that Officer Brown violated the court's sequestration order and that the court committed plain error by not excluding his testimony as a sanction for that violation. We disagree. There was no violation of the sequestration order. The order requested by Andrews required only that Officer Brown not be in the courtroom to hear Officer Jones testify, see Fed. R. Evid. 615, and he was not. Andrews was free to request further restrictions covering out-of-court conversations between witnesses, but he did not do so. He cannot complain now that Officer Brown violated an order that the court never entered and he never requested. See United States v. Sepulveda, 15 F.3d 1161, 1176 (1st Cir. 1993). II. Closing Argument Andrews argues that the district court erred in denying his post-trial motion for a new trial based on allegedly improper remarks in the prosecutor's closing argument. Andrews objected to some of those remarks; the court sustained the objection, raised other objections sua sponte, and gave curative instructions. Because Andrews did not move for a mistrial or request further curative instructions in addition to those given by the court, we review only for plain error. See United States v. Grabiec, 96 F.3d 549, 550 (1st Cir. 1996). Andrews contends first that statements by the prosecutor improperly suggested that Andrews had the burden to produce witnesses to rebut the government's evidence. The prosecutor's rebuttal argument included the following passage: [PROSECUTOR:] Where is Mr. Roberson? We don't know where Mr. Roberson is, but Mr. Roberson would not be expected to testify at this MR. COOPER: Objection, your Honor. THE COURT: No, sustained. There's no evidence about that at all, that's improper argument. . . . I've got to with respect to Mr. Roberson, you're to understand, as I told you before, that the defendant had no burden of producing Mr. Roberson, even if he knew where Mr. Roberson was. The defendant has no duty to bring in any evidence. The fact that the defendant brings in one witness that happens to be himself doesn't mean he has to bring a second witness. The government, on the other hand, has the burden of convincing you beyond a reasonable doubt. And so if the government wanted to bring Mr. Roberson in here, it was the government's burden to do so, not the defendant's. We agree with Andrews, and with the district court, that the prosecutor's reference to Roberson may have improperly suggested to the jury that Andrews had the burden to produce Roberson to rebut the government's case. See United States v. Roberts, 119 F.3d 1006, 1015 (1st Cir. 1997). In deciding whether a new trial was required, we may consider, inter alia, "whether the judge gave any curative instructions and the likely effect of such instructions . . . ." United States v. Manning, 23 F.3d 570, 574 (1st Cir. 1994). Here, as the quoted portion of the transcript indicates, the court intervened promptly and forcefully, in a way that could have left no doubt in the jurors' minds that the burden of proof was solely the government's. Because the curative instruction rendered the misconduct harmless, the court's failure to grant a new trial was not plain error. Andrews complains of improper burden-shifting in other portions of the prosecutor's closing. We find none, and we note that those allegedly improper comments were also answered by strong instructions by the court that dissipated any possible prejudice. Andrews further argues that the prosecutor improperly vouched for the credibility of the government's witnesses when he said, "You had, on the other hand, three officers with absolutely no motive to come in here and tell you anything other than what they saw that night." Improper vouching consists of placing the prestige of the government behind a witness by offering personal assurances about his credibility or indicating that facts outside the knowledge of the jury support the witness's credibility. See United States v. Auch,187 F.3d 125, 130-31 (1st Cir. 1999). Here the prosecutor did neither; instead, he merely referred to the witnesses' lack of motive to lie, which "falls within the accepted bounds and was entirely proper." Id. at 131.` III. Requested Jury Instruction Andrews argues that the court erred in failing to give his requested jury instruction on constructive possession. There was no evidence, however, that generated constructive possession as an issue the government alleged actual possession, and its principal witnesses testified that they saw Andrews in actual possession of the two guns. A defendant is not entitled to an instruction that is not generated by the evidence. See United States v. Fulmer, 108 F.3d 1486, 1495 (1st Cir. 1997). IV. Downward Departure from Sentencing Guidelines Andrews argues that the district court erred in failing to depart downward from the sentencing guidelines. Claiming that the court erroneously believed it had no authority to depart downward, he invokes the exception to the general rule that failure to depart is not reviewable on appeal. See United States v. Mangos, 134 F.3d 460, 465 (1st Cir. 1998). Andrews points to the court's statement at the sentencing hearing that "what I am going to do is sentence you to the minimum under the Guidelines of 210 months. I have no authority to do anything else." Without significantly more evidence than Andrews cites, we will not find that a judge of vast experience in sentencing under the guidelines was ignorant of his authority to depart downward in an appropriate case. Reading the judge's remark in context, we conclude that he was merely expressing his view that he could not depart downward in this case because there were no facts justifying such a departure. See United States v. Morrison, 46 F.3d 127, 130 (1st Cir. 1995) (coming to same conclusion when district court stated, "if I felt I had the authority to depart, I would"). Andrews raises additional arguments relating to his sentencing in a pro se brief. Those arguments are clearly without merit and we need not discuss them. V. Defendant's Presence During Voir Dire at the Bench Andrews asserts in a pro se brief that the court committed reversible error by conducting individual voir dire of prospective jurors at the bench, with the prosecutor and defense attorney present, while Andrews remained seated at the counsel table. We assume, without deciding, that Andrews had the right to be present at such a bench conference. See Cardinal v. Gorczyk, 81 F.3d 18, 20 (2d Cir. 1996) (assuming that defendant had right to be present at bench voir dire, but finding waiver); United States v. Washington, 705 F.2d 489, 497 (D.C. Cir. 1983) (per curiam) (recognizing defendant's right to be present but finding error harmless). Andrews, however, waived that right when neither he nor his attorney asserted it after the court explained that a marshal would have to accompany Andrews to the bench and sit nearby. See United States v. Gagnon, 470 U.S. 522, 528-29 (1985) (per curiam) (defendant or counsel must affirmatively assert right to be present at conferences, and express "on the record" waiver not required); see also Washington, 705 F.2d at 497 (because right is "infrequently exercised and usually delegated to counsel, unless a specific request is made for the defendant to participate at bench examinations of prospective jurors, such right shall be deemed to have been waived."). The requirement that the marshal be present was a reasonable one and did not invalidate the waiver. See United States v. Santiago-Lugo, 167 F.3d 81, 83-84 (1st Cir. 1999) (security arrangements, including placement of marshals in courtroom, within trial court's "broad discretion"). Affirmed.	{ "pile_set_name": "FreeLaw" }
14-2370 Li v. Sessions BIA Nelson, IJ A087 640 056 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 13th day of April, two thousand eighteen. PRESENT: BARRINGTON D. PARKER, REENA RAGGI, Circuit Judges, JESSE M. FURMAN, District Judge.* ---------------------------------------------------------------------- YU JIN LI, Petitioner, v. No. 14-2370 JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. ---------------------------------------------------------------------- APPEARING FOR PETITIONER: THOMAS D. BARRA, New York, New York. *Judge Jesse M. Furman, of the United States District Court for the Southern District of New York, sitting by designation. APPEARING FOR RESPONDENT: RUSSELL J.E. VERBY, Senior Litigation Counsel (Benjamin C. Mizer, Acting Assistant Attorney General; Shelley R. Goad, Assistant Director, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, D.C. 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 GRANTED. Petitioner Yu Jin Li, a native and citizen of the People’s Republic of China, seeks review of the BIA’s affirmance of an Immigration Judge’s (“IJ’s”) denial of Li’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). See In re Yu Jin Li, No. A087 640 056 (B.I.A. June 4, 2014), aff’g No. A087 640 056 (Immig. Ct. N.Y.C. May 21, 2012). Under the circumstances of this case, we review both the IJ’s and BIA’s decisions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review the agency’s legal conclusions de novo and its factual findings for substantial evidence, see Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013), under which standard “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B). In so doing, we assume the parties’ familiarity with the underlying facts and procedural history in this case. To obtain asylum, Li was required to establish a well-founded fear of persecution by showing both that she subjectively fears persecution because of her Falun Gong practice 2 and that her fear is objectively reasonable. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). To establish a well-founded fear in the absence of past persecution, Li had to show that Chinese authorities “are either aware . . . or likely to become aware of [her Falun Gong] activities,” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008), by presenting evidence establishing (1) a reasonable possibility that “‘“she would be singled out individually for persecution”’” or (2) “‘“a pattern or practice . . . of persecution of a group of persons similarly situated to [her],”’” id. at 142 (quoting Kyaw Zwar Tun v. INS, 445 F.3d 554, 564 (2d Cir. 2006) (quoting 8 C.F.R. § 208.13(b)(2)(iii))). Substantial evidence supports the agency’s conclusion that Li did not show that the Chinese government was aware of her Falun Gong practice in the United States. However, the agency failed to analyze whether a pattern or practice of persecution of Falun Gong practitioners in China necessitated a finding that Chinese authorities would become aware of Li’s continued practice of Falun Gong if returned to China so as to support an objectively reasonable fear of persecution. Accordingly, we grant the petition and remand for the agency to address Li’s pattern-or-practice argument. 1. Awareness of Activities in United States Li’s proffered evidence does not compel the conclusion that Chinese authorities are aware or likely to become aware of her Falun Gong activities in the United States. See 8 U.S.C. § 1252(a)(4)(B). The agency reasonably gave “almost no weight” to Li’s husband’s letter stating that local police responded affirmatively when he asked whether Li would be imprisoned if she returned to China and continued practicing Falun Gong. 3 C.A.R. 48. Quite apart from the fact that the letter was unsworn and from an interested party, it was inconsistent in certain respects with Li’s own testimony. See Y.C. v. Holder, 741 F.3d at 334 (deferring to agency’s weighing of evidence). Nor did the agency err in concluding that Chinese authorities would not likely identify Li from news coverage of Falun Gong protests in the United States. See id. at 333–34, 336–37. Thus, Li failed to establish a reasonable fear of future persecution based on a possibility of individual targeting. 2. Pattern or Practice of Persecution An asylum applicant need not establish that she will be individually targeted for persecution if she “establishes that there is a pattern or practice in [her] country of nationality . . . of persecution of a group of persons similarly situated to [her]” and “establishes [her] own inclusion in, and identification with, such group.” 8 C.F.R. § 1208.13(b)(2)(iii). A pattern or practice claim thus has two components: (1) a showing of a pattern or practice of persecution of a group of people, and (2) a showing that the petitioner is similarly situated to those who are persecuted. See id. As to the first component, Li submitted evidence of widespread mistreatment of Falun Gong practitioners in China, including reports of arrests, detentions, and torture. As to the second component, Li testified that she practices Falun Gong in the United States, and would continue to do so if returned to China. The agency credited Li’s testimony as to her Falun Gong practice in the United States, but made no assessment as to the likelihood of her future practice in China. Cf. Yulan Liu v. Holder, 461 F. App’x 70, 72 (2d Cir. 4 2012) (recognizing no credible fear of future persecution where asylum applicant “did not credibly establish that she would continue pro-democracy activities in China”). Nor did the agency discuss Li’s country conditions evidence, or determine whether it manifested a pattern or practice of persecution against Falun Gong practitioners in China. Whether Li has shown such a pattern or practice of persecution, and whether she is similarly situated to persecuted practitioners of Falun Gong in China are factual questions for the agency to address in the first instance. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid support in the record,” asylum applicant’s fear of persecution is “speculative at best.”); cf. Weinong Lin v. Holder, 763 F.3d 244, 250 (2d Cir. 2014) (recognizing claims of “newfound religious conscience” or “political awakening” after arrival in United States “can be easy to manufacture” (internal quotation marks omitted)). Thus, remand is warranted for the agency to address Li’s country conditions evidence; to assess whether it shows a pattern or practice of persecution against Falun Gong practitioners; and, if it does, to determine whether Li, if returned to China, would be sufficiently similarly situated to such persecuted Falun Gong practitioners to have an objectively reasonable fear of persecution. See generally Poradisova v. Gonzales, 420 F.3d 70, 77, 81 (2d Cir. 2005) (holding that “we require a certain minimum level of analysis . . . if judicial review is to be meaningful” and that agency must “explicitly consider” material country conditions evidence). Because the agency concluded that Li’s failure to show a well-founded fear of persecution was dispositive of each of her claims for asylum, withholding of removal, and 5 CAT relief, we vacate the agency’s decision as to all three claims. For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED for further proceedings consistent with this order. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 6	{ "pile_set_name": "FreeLaw" }
333 F.Supp. 357 (1971) UNITED STATES of America, Libelant, v. An ARTICLE OR DEVICE . . . "HUBBARD ELECTROMETER" or "Hubbard E-Meter," etc., Founding Church of Scientology et al., Claimants. No. D.C. 1-63. United States District Court, District of Columbia. July 30, 1971. 358 John Joseph Matonis, Washington, D. C., for Founding Church of Scientology. Nathan Dodell, Asst. U. S. Atty., Washington, D. C., for the United States. GESELL, District Judge. MEMORANDUM OPINION This is an action by the United States seeking nationwide condemnation of a gadget known as an E-meter and related writings, by libel of information under the Food, Drug & Cosmetic Act, 21 U.S.C. § 301 et seq. The E-meter is claimed to be a device within the meaning of the 359 Act. Misbranding and lack of adequate directions for use are alleged. Claimants are the Founding Church of Scientology and various individuals. This suit was originally tried to a jury before another Judge of this Court and the conviction there obtained was reversed on appeal after a long trial because of certain First Amendment problems suggested by the instructions and evidentiary rulings. Founding Church of Scientology v. United States, 133 U.S.App.D.C. 229, 409 F.2d 1146 (1969). The present trial was conducted to the Court without a jury after a series of pretrials which narrowed the issues. The record consists of the transcript and exhibits taken at the prior trial with some additions and deletions, plus the testimony of one additional witness who testified further on religious aspects of the case. Many of the background facts are set forth in the opinion of the Court of Appeals and since they were in the main not contested at the second trial they need not all be repeated here. The E-meter is essentially a simple galvanometer using two tin cans as electrodes. It is crude, battery-powered, and designed to measure electrical skin resistance. It is completely harmless and ineffective in itself. A person using the meter for treatment holds the tin cans in his hands during an interview with the operator who is known as an auditor and who purports to read indicators from the galvanometer needle as it notes reactions to questions. Scientology is a so-called exact science which promotes auditing. When practiced by trained or untrained persons, Scientology auditing is claimed to improve the health, intelligence, ability, behavior, skill and appearance of the individual treated. L. Ron Hubbard, writing in a science fiction magazine in the 1940's, first advanced the extravagant false claims that various physical and mental illnesses could be cured by auditing. He played a major part in developing Scientology. Thereafter, commencing in the early 1950's numerous Scientology books and pamphlets were written explaining how various illnesses can be and had been cured through auditing. These materials were widely distributed. Hubbard, who wrote much of the material, is a facile, prolific author and his quackery flourished throughout the United States and in various parts of the world. He was supported by other pamphleteers and adherents who also promoted the practice of Scientology and touted its alleged benefits. Hubbard and his fellow Scientologists developed the notion of using an E-meter to aid auditing. Substantial fees were charged for the meter and for auditing sessions using the meter. They repeatedly and explicitly represented that such auditing effectuated cures of many physical and mental illnesses. An individual processed with the aid of the E-meter was said to reach the intended goal of "clear" and was led to believe there was reliable scientific proof that once cleared many, indeed most illnesses would automatically be cured. Auditing was guaranteed to be successful. All this was and is falsein short, a fraud. Contrary to representations made, there is absolutely no scientific or medical basis in fact for the claimed cures attributed to E-meter auditing. Unfortunately the Government did not move to stop the practice of Scientology and a related "science" known as Dianetics when these activities first appeared and were gaining public acceptance. Had it done so, this tedious litigation would not have been necessary. The Government did not sue to condemn the E-meter until the early 1960's, by which time a religious cult known as the Founding Church of Scientology had appeared. This religion, formally organized in 1955, existed side-by-side with the secular practice of Scientology. Its adherents embrace many of Hubbard's teachings and widely disseminate his writings. The Church purports to believe that many illnesses may be cured through E-meter auditing by its trained ministers through an appeal to the spirit or soul of a man. As a matter of formal doctrine, the Church professes to have 360 abandoned any contention that there is a scientific basis for claiming cures resulting from E-meter use. The Church, however, continued widely to circulate Scientology literature such as Government's exhibits 16 and 31, which hold out false scientific and medical promises of certain cure for many types of illnesses.[1] In 1962, when the Government seized the E-meters involved in the present controversy, it took them from the premises of the Church, confiscating some E-meters which were actually then being used primarily by ministers of the Church to audit adherents or to train auditors for subsequent church activity. Thus the Government put itself in the delicate position of moving against not only secular uses of the E-meter but other uses purporting to be religious, and the Court accordingly confronts the necessity of reconciling the requirements of the Food, Drug & Cosmetic Act prohibiting misbranding and the requirements of the First Amendment protecting religious institutions and religious beliefs from governmental interference under the First Amendment. The Court of Appeals has ruled that the evidence at the prior trial and reintroduced at this trial established prima facie that the Founding Church of Scientology, the principal claimant here, is a bona fide religion and that the auditing practice of Scientology and accounts of it are religious doctrine. No evidence to the contrary was offered by the Government on the second trial. Accordingly, for purposes of this particular case only, claimant must be deemed to have met its burden of establishing First Amendment standing for whatever significance the religious practice of Scientology may have on the outcome of this particular litigation. The Government considers the First Amendment issue wholly irrelevant and extraneous. Claimant, on the other hand, relies heavily on the religious claim. The positions of the parties are so completely different that neither even deigns to recognize any merit in the other. The briefs and findings proposed by each side pass like two ships at night with not even a port or starboard light showing. Yet the truth is not as absolute as either party contends. Religious aspects of this controversy, once tactically conceded, cannot be ignored. On the other hand, it is a gross exaggeration to insist that the energetic, persistent solicitation of E-meter-audited cures for a fee has all occurred in a spiritual setting without use of secular appeals and false scientific promises made in a wholly non-religious context. Turning to the precise issues presented, it must first be determined whether the E-meter is a device within the meaning of the Act (21 U.S.C. § 321 (h)). It obviously meets the statutory definition of an apparatus or contrivance intended for use in the diagnosis, cure, mitigation or treatment of disease. Moreover, it is held out as such in the constant promotion of E-meter auditing, a process designed to effectuate cures of mental and physical illnesses. Claimants contend that the E-meter is harmless in itself, cures nothing by itself, and therefore cannot be a device since those who use it appreciate its ineffectiveness and cannot therefore have the requisite intent. This begs the question. The device plays a key part in both the secular and religious auditing process which is used and intended to be used in the cure, mitigation or treatment of disease. It need not be the only agent in an allegedly curative process to be a device within the definition. The E-meter is a device within the meaning of the Act. Over 100 E-meters were seized. At the same time the Government seized some 200 separate pieces of literature containing approximately 20,000 pages, much of which it now contends demonstrates misbranding of the device by misrepresentation 361 and lack of adequate directions for use under 21 U.S.C. §§ 334 and 352. The writings seized were located in a bookstore, or "Distribution Center," separately incorporated but owned by the Church, with offices in the basement of the Church premises.[2] The Center advertised and sold for profit a long list of Scientology, Dianetics and other writings concerned with auditing in book, pamphlet, newsletter and other forms. A few of these writings are primarily religious in nature. Others contain medical or scientific claims in a partially religious context. Most of the material, however, explains aspects of Scientology and Dianetics in purely matter-of-fact medical and scientific terms without any apparent religious reference. While the Court of Appeals concluded that literature setting forth the theory of auditing, including the claims for curative efficacy contained therein, is religious doctrine and hence as a matter of law not labeling, it recognized this was so only if the person charged with misrepresentation explicitly held himself out as making religious as opposed to medical, scientific or otherwise secular claims. The bulk of the material is replete with false medical and scientific claims devoid of any religious overlay or reference. Two books which the Church especially recommended to interested participants, "Scientology: The Fundamentals of Thought" (Government Ex. 31), and "The Problems of Work" (Government Ex. 103), are typical examples of books containing false scientific non-religious claims. Examples of such claims found in these and a few other representative documents used in various direct and indirect ways to promote E-meter auditing are listed in Appendix A. Thus the literature has all the necessary elements of labeling specified in 21 U.S.C. § 321 (m) since it "accompanied" the device within the meaning of the Act. See Kordel v. United States, 335 U.S. 345, 351, 69 S.Ct. 106, 93 L.Ed. 52 (1948). Having in mind a jury trial, the Court of Appeals contemplated an item-by-item analysis of the writings alleged to be labeling in order to remove from jury inspection purely religious appeals, reserving a presentation of the other literature for determination under instructions differentiating the secular from the religious. This exercise is, of course, unnecessary on a trial to the Court. A single false scientific non-religious label claim is sufficient to support condemnation, and in fact there are many. Moreover, differentiation of individual documents as a practical matter is of little value when it comes to an overall resolution of the controversy. Realistically, the writings cannot only be viewed separately. They are available and distributed in infinite combinations. Whole books are involved which often ramble, contradict and are constructed to make diversified appeals that are basically secular and directed to varying temperaments, ages and attitudes of potential readers. Much of the material is skillful propaganda designed to make Scientology and E-meter auditing attractive in many varied, often inconsistent wrappings. The Food and Drug laws are designed to protect the public. The literature disseminated by various Scientology groups is written for popular lay consumption. The words and thrust of the writings must accordingly be so considered. Claims as to the efficacy of the E-meter must be read to mean what they clearly purport to say to ordinary lay readers. The Court notes that the task of determining whether a claim or representation is religious or non-religious, or whether a religious claim is genuine or merely "tacked on" to basically pseudoscientific claims, is hardly less troublesome 362 than the task of determining whether a religious claim is true or false. The Court has attempted to resolve the difficulty thus presented by the Court of Appeals by refusing to consider the truth or falsity of any claim which, in the understanding of the average reader, could be construed as resting on religious faith. All doubts on this issue have been resolved in favor of the Claimants. But the overall effect of the many separate writings and the writings as a whole cannot be seriously questioned. Whether the documents are viewed singly or as a whole, the proof showed that many false scientific claims permeate the writings and that these are not even inferentially held out as religious, either in their sponsorship or context. It should be kept in mind at all times that the Church is but one of several groups engaged in the promotion of Scientology; others include the Hubbard Guidance Center, that offers non-religious processing and auditing to the public for a fee; Hubbard Association of Scientologists International (HASI), a world-wide organization promoting Scientology among members of the organization who receive a monthly magazine ("Ability") and other benefits; and the Distribution Center, Inc., already mentioned. The combined effort of all these activities is to persuade the public to come forward for auditing with an E-meter for a fee, and while some may be motivated or attracted by religious considerations, others who audit or are audited are not.[3] An individual was not required to be either a Church member or a Scientologist to be audited at cost of $500 for 25 hours, with state of "clear" guaranteed for $5,000. The E-meter was available for sale to the public for a fee of $125. The benefits of auditing were extravagantly advertised. At the time this action was commenced, E-meters perhaps as many as one-third the total supplywere being used by members of the public without any religious control or supervision.[4] The writings were distributed to accompany the E-meter and intended to promote its use by members of the public; they were used by laymen for secular purposes; individually a great many contain false unqualified scientific claims without even a religious overlay or suggestion. Viewed as a whole the thrust of the writings is secular, not religious. The writings are labeling within the meaning of the Act. Thus, the E-meter is misbranded and its secular use must be condemned along with secular use of the offensive literature as labeling. The misbranding results not only from misrepresentation by reason of 21 U.S.C. § 352(a) but because the labeling failed to bear adequate directions for use required by 21 U.S.C. § 352(f) (1).[5] 363 On the basis of these findings, the Government is entitled to some relief. It is only when the Court confronts the question of appropriate remedy that serious difficulties arise. An initial issue presented is whether the normal Food and Drug remedies, 21 U.S.C. § 334, may under any circumstances be applied to the device when used by some as an "artifact" of a church. A law designed to afford protection to the public against genuine evils may be used to regulate the activities of religion only if the regulation involved is the narrowest possible remedy to achieve the legitimate non-religious end, which in this case is only to protect the public against misrepresentation since the E-meter is harmless in itself. See Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Barnett v. Rodgers, 133 U.S.App.D.C. 296, 410 F.2d 995 (1969). The Government argues that once a violation of the Act is established, the devices seized may be treated the same as any other misbranded device. Since the bona fides of the religion remains unquestioned on this record, the Government's position is an oversimplification. Here is a pseudo-science that has been adopted and adapted for religious purposes. The literature held to make false representations, while in itself non-religious, nevertheless comprises for some, part of the writings, teachings, and history of a religion. Those who belong to the Church and accept its beliefs assert that many illnesses may be alleviated by religious counseling designed to free the spirit of encumbrances. They find in the rationale and procedures of Scientology satisfactory early explanations and techniques to implement what is essentially faith healing by use of the E-meter. Thus they purport to read the purely secular writings of Scientology with semantic interpretations fostered by their evolving religious doctrine. Purely scientific statements are given a theological slant by the initiated and the occasional theological indications in the writings are given enthusiastic exaggeration. What the layman reads as straight science fiction becomes to the believer a bit of early imperfect scripture. The result of all this is that what may appear to the layman as a factual scientific representation (clearly false) is not necessarily this at all when read by one who has embraced the doctrine of the Church. Accordingly, the Government's protestations that it is not interfering with religious practice when it seeks to condemn the E-meter and related literature must be qualified. The Church is a religious institution protected by the First Amendment. The E-meter is used by its ministers as part of the ritual and practice of the Church. Serious interference indeed results if the Church is entirely prohibited from using the E-meter by condemnation or if the Court orders the Food and Drug Administration to oversee a general rewriting of all the writings the Church purveys. Where there is a belief in a scientific fraud there is nonetheless an interference with the religion that entertains that belief if its writings are censored or suppressed. Similarly, if a church uses a machine harmless in itself to aid its ministers in communicating with adherents, the destruction of that machine intrudes on religion. The dilemma cannot be resolved by attempting to isolate purely false scientific claims from claims that have sufficient religious content to be outside the Food and Drug laws. There is a religious substance to everything when seen with the eyes of the believer. For these reasons, the Church may not be wholly prevented from practicing its faith or from seeking new adherents. A decree of condemnation which ordered destruction of the device, with its necessary res judicata effect as to all E-meters in the country, would achieve this effect. On the other hand, a condemnation decree which allowed the FDA to reform the writings as is done in the usual commercial drug misbranding case would give a Government agency excessive 364 power to interfere with the exercise of religion, fostering that Government "entanglement" with religion which has been recently condemned by the Supreme Court. See, e. g., Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Neither of these possible remedies is acceptable to the Court. Had the Government proceeded in equity to enjoin specific non-religious practices or representations which it believed to violate the Act, the Court could have curtailed the purely commercial use of the E-meter while leaving the Church free to practice its belief under limited circumstances. An action in rem, however, acts only upon the device, and the Court cannot fashion a remedy in libel which distinguishes with particularity between religious and non-religious uses. An equity proceeding is clearly the most satisfactory remedy in this and any similar future cases, and may in some instances be the only remedy which the Government may seek consistent with the First Amendment. Dismissal of this libel after eight years of legal proceedings is not justified on the grounds that the Government has not used the most appropriate remedy. A decree of condemnation will therefore be entered, but the Church and others who base their use upon religious belief will be allowed to continue auditing practices upon specified conditions which allow the Food and Drug Administration as little discretion as possible to interfere in future activities of the religion. Pursuant to 21 U.S.C. § 334 (d), upon the findings and conclusions contained in this Memorandum Opinion, relief in the following form shall be set out in an implementing order: All E-meters are condemned together with all writings seized. The Government shall have its costs. The device and writings condemned shall be returned to the owners, upon execution of an appropriate bond, to be destroyed or brought into compliance with the Food, Drug & Cosmetic Act. An E-meter shall be deemed to comply with the Act if and only if it is used, sold or distributed upon specified conditions. The device may be used or sold or distributed only for use in bona fide religious counseling. No user, purchaser or distributee (other than the Founding Church of Scientology or an ordained practicing minister of the Church) shall be considered engaged in bona fide religious counseling unless and until such user, purchaser or distributee has filed an affidavit with the Secretary of the Food and Drug Administration stating the basis on which a claim of bona fide religious counseling is made, together with an undertaking to comply with all conditions of the judgment so long as the E-meter is used. The device should bear a prominent, clearly visible notice warning that any person using it for auditing or counseling of any kind is forbidden by law to represent that there is any medical or scientific basis for believing or asserting that the device is useful in the diagnosis, treatment or prevention of any disease. It should be noted in the warning that the device has been condemned by a United States District Court for misrepresentation and misbranding under the Food and Drug laws, that use is permitted only as part of religious activity, and that the E-meter is not medically or scientifically capable of improving the health or bodily functions of anyone. Each user, purchaser, and distributee of the E-meter shall sign a written statement that he has read such warning and understands its contents and such statements shall be preserved. Any and all literature which refers to the E-meter or to auditing, including advertisements, distributed directly or indirectly by the seller or distributor of the E-meter or by anyone utilizing or promoting the use of the E-meter, should bear a prominent notice printed in or permanently affixed to each item or such literature, stating that the device known as a Hubbard Electrometer, or E-meter, used in auditing, has been condemned by 365 a United States District Court on the grounds that the literature of Dianetics and Scientology contains false and misleading claims of a medical or scientific nature and that the E-meter has no proven usefulness in the diagnosis, treatment or prevention of any disease, nor is it medically or scientifically capable of improving any bodily function. Where the notice is printed in or affixed to literature, it should appear either on the outside front cover or on the title page in letters no smaller than 11-point type. The E-meter should not be sold to any person or used in any counseling of any person except pursuant to a written contract, signed by the purchaser or counselee, which includes, among other things, a prominent notification as specified immediately above. The effect of this judgment will be to eliminate the E-meter as far as further secular use by Scientologists or others is concerned. E-meter auditing will be permitted only in a religious setting subject to placing explicit warning disclaimers on the meter itself and on all labeling. The Government has requested an opportunity to show that complete forfeiture and destruction of the E-meter is required, but the Court has concluded that however desirable this may be in the public interest, the Court is without power to so order in view of the protections afforded claimant and others similarly situated under the First Amendment. The foregoing shall constitute the Court's findings of fact and conclusions of law. The parties are directed to submit an appropriate form of order providing the relief indicated on or before September 1, 1971. APPENDIX A Representative Documents Found to be Non-Religious, and Samples of False or Misleading Claims Found Therein 1. Eight-page pamphlet, entitled "What is Scientology?" (Government Exhibit No. 16) "Scientology is today the only successfully validated psychotherapy in the world. Tens of thousands of completely documented cases exist in the files of the Hubbard Association of Scientologists International. "The first science to put the cost of psycho-therapy within the range of any person's pocketbook. A complete Freudian analysis costs $8000 to $15,000. Better results can be achieved in Scientology for $25 and, on a group basis for a few dollars." "The first science to make whole classes of backward children averagely bright using only drills the teacher can do a few minutes each day. "The first science to determine the basic cause of disease. "The first science to contain exact technology to routinely alleviate physical illnesses with complete predictable success. "The first science of mind to prove conclusively that physical illness can stem from mental disturbance, a fact which Freud held only as a theory, and only seldom demonstrated. 2. Twenty-four page pamphlet, entitled "Ability Issue 71: Being Clear and How to Get There," by L. Ron Hubbard (Government Exhibit No. 9BA) "Scientologically, the optimum individual is called the clear. One will hear much of that word, both as a noun and a verb, so it is well to spend time here at the outset setting forth exactly what can be called a clear, the goal of Scientology processing. "A clear can be tested for any and all psychoses, neuroses, compulsions and repressions (all aberrations) and can be examined for any autogenic (self-generated) diseases referred to as psychosomatic ills. These tests confirm the clear to be entirely without such ills or aberrations. Additional tests of his intelligence indicate it to be high above the current norm. Observation of 366 his activity demonstrates that he pursues existence with vigor and satisfaction. "Further, these results can be obtained on a comparative basis. A neurotic individual, possessed also of psychosomatic ills, can be tested for those aberrations and illnesses demonstrating that they exist. He can then be given Scientology processing to the end of clearing these neuroses and ills. Finally, he can be examined, with the above results. This, in passing, is an experiment which has been performed many times with invariable results. It is a matter of laboratory test that all individuals who have organically complete nervous systems respond in this fashion to Scientology clearing." (3) Hard back book, 452 pages, entitled "Dianetics: The Modern Science of Mental Health," by L. Ron Hubbard. "Simple though it is, dianetics does and is these things: 1. It is an organized science of thought built on definite axioms: statements of natural laws on the order of those of the physical sciences. 2. It contains a therapeutic technique with which can be treated all inorganic mental ills and all organic psycho-so-matic ills, with assurance of complete cure in unselected cases. 3. It produces a condition of ability and rationality for Man well in advance of the current norm, enhancing rather than destroying his vigor and personality. 4. Dianetics gives a complete insight into the full potentialities of the mind, discovering them to be well in excess of past supposition. 5. The basic nature of man is discovered in dianetics rather than hazarded or postulated, since that basic nature can be brought into action in any individual completely. And that basic nature is discovered to be good. 6. The single source of mental derangement is discovered and demonstrated, on a clinical or laboratory basis, by dianetics. 7. The extent, storage capacity and recallability of the human memory is finally established by dianetics. 8. The full recording abilities of the mind are discovered by dianetics with the conclusion that they are quite dissimilar to former suppositions. 9. Dianetics brings forth the non-germ theory of disease, complementing bio-chemistry and Pasteur's work on the germ theory to embrace the field. 10. With dianetics ends the "necessity" of destroying the brain by shock or surgery to effect "tractability" in mental patients and "adjust" them. 11. A workable explanation of the physiological effects of drugs and endocrine substances exists in dianetics and many problems posed by endocrinology are answered." "Chapter V PSYCHO-SOMATIC ILLNESS" "Psycho-somatic illnesses are those which have a mental origin but which are nevertheless organic. Despite the fact that there existed no precise scientific proof of this before dianetics, an opinion as to their existence has been strong since the days of Greece, and in recent times various drug preparations have been concocted and sold which were supposed to overcome these sicknesses. Some success was experienced, sufficient to warrant a great deal of work on the part of researchers. Peptic ulcers, for instance, have yielded to persuasion and environmental change. A recent drug called ACTH has had astonishing but wildly unpredictable results. Allergies have been found to yield more or less to things which depressed histamine in the body. "The problem of psycho-somatic illness is entirely embraced by dianetics, and by dianetic technique such illness has been eradicated entirely in every case." "On the physical therapy level any thing as violent as surgery or exodor tistry in the psycho-somatic plane is utter barbarism in the light of dianetics "Toothache" is normally psycho-somatic 367 Organic illnesses enough to fill several catalogues are psycho-somatic. No recourse to surgery of any kind should be had until it is certain that the ailment is not psycho-somatic or that the illness will not diminish by itself if the potency of the reactive mind is reduced. * " (4) Twelve-page pamphlet, entitled "Ability Issue 72" (Government Exhibit No. 114) 368 (5) Sixty-four page booklet, entitled "Scientology: The Fundamentals of Thought," by L. Ron Hubbard. Subtitle: "The Basic Book of the Theory & Practice of Scientology for Beginners" (Government Exhibit No. 31) Scientology is that branch of psychology which treats of (embraces) human ability. It is an extension of DIANETICS * * * Scientology is actually a new but very basic psychology in the most exact meaning of the word. It can and does change behaviour and intelligence and it can and does assist people to study life. Scientology, used by the trained and untrained person improves the health, intelligence, ability, behaviour, skill and appearance of people. It is a precise and exact science, designed for an age of exact sciences. Scientology is employed by an Auditor (one who listens and commands) as a set of drills (exercises, processes) upon the individual, and small or large groups. It is also employed as an educational (teaching) subject. It has been found that persons can be processed (drilled) in Scientology with Scientology exercises and can be made well of many, many illnesses and can become brighter, more alert and more competent. BUT if they are only processed they have a tendency to be overwhelmed or startled and although they may be brighter and more competent they are still held down by an ignorance of life. Therefore it is far better to teach AND process (audit, drill) a person than only to process him. In other words the best use of Scientology is through processing and education in Scientology. In this way there is no imbalance. It is interesting that people only need to study Scientology to have some small rise in their own intelligence, behaviour and competence. The study itself is therapeutic (good medicine) by actual testing. Tens of thousands of case histories (reports on patients, individual records) all sworn to (attested before public officials) are in the possession of the organizations of Scientology. No other subject on earth except physics and chemistry has had such grueling testing (proofs, exact findings). Scientology in the hands of an expert (Auditor) can cure some 70% of Man's illnesses (sicknesses). Scientology is used by some of the largest companies (business organizations) on Earth. It is valid. It has been tested. It is the only thoroughly tested system of improving human relations, intelligence and character and is the only one which does. (6) Seventy-one page booklet, entitled "The Problems of Work," by L. Ron Hubbard. (Government Exhibit No. 103) "Scientology is the first American science of Man. It is the technical know-how of the American applied to himself. In contrast to the metaphysical thinking of Europe that has formed the basis of our concepts of ourselves, Scientology is a technology as factual and as exact as the technologies that base the development of the atom bomb . . . and it has a like sourcethe first class in nuclear physics, taught at George Washington University. "Scientology can and does change human behavior for the better. It puts the individual under the control of himself where he belongs. Scientology can and does increase human intelligence. By the most exact tests known it has been proven that Scientology can greatly increase intelligence in an individual. And Scientology can do other things. It can reduce reaction time and it can pull the years off one's appearance. But there 369 is no intention here to give a list of all it can do. It is a science of life and it works. It adequately handles the basic rules of life and it brings order into chaos. "The mysteries of life are not today, with Scientology, very mysterious. Mystery is not a needful ingredient. Only the very aberrated man desires to have vast secrets held away from him. Scientology has slashed through many of the complexities which have been erected for men and has bared the core of these problems. Scientology for the first time in man's history can predictably raise intelligence, increase ability, bring about a return of the ability to play a game, and permits man to escape from the dwindling spiral of his own disabilities. Therefore work itself can become a game, a pleasant and happy thing.: (7) Hard cover book, 112 pages, entitled "All About Radiation, by a Nuclear Physicist and a Medical Doctor" (Government Exhibit No. 116) We care very little about whether there is radiation in the atmosphere because a person who is in excellent physical condition does not particularly suffer mentally and thus physically from the effects of radiation. When a person is at a level where his general physical health is good, then this worry is not capable of depressing him into ill-health. Radiation is more of a mental than a physical problem and Scientology handles that." "The reaction to radiation in persons who have been given Scientology processing is by actual tests much lower than those who have not received it. We have conducted many experiments in that direction. But even we would find it very difficult and even antipathetic to get everybody together and give them the amount of group processing needed as safeguard against radiation." NOTES [1] The issues have been tried as of January, 1963, the date of the libel. Thus the findings as to Scientology literature and positions of the claimants do not necessarily reflect current conditions. [2] Claimants urge that this search and seizure was overly broad and contravenes the Fourth Amendment but this issue was resolved against this position by the Court of Appeals and need not be again considered. [3] Ability, issue 14 (Ex. 9L, p. 14) states: Scientology is going all out as a religion. The religious aspect is highly functional, very true and is verymuch more successful * * The public expects to have ministers around. That's us folks. * * * * * * * * If you don't like religion for heaven's sakes call yourself a Dianeticist. [4] At the time of this action at least half the E-meters in use in the United States were being used by non-ordained lay personnel. Operators franchised by the Church who may or may not subscribe to its doctrines, provide secular auditing, retaining for themselves ninety percent of the fees collected and purport to send only ten percent to the Church. Claimants were unable to show that these franchised services were in any real sense religious missionary work in the sense that auditing was done by members of this group on a religious basis. [5] Accompanying labeling must specify the conditions for which the device is intended and sufficient information under which the device can be used safely and effectively for the purposes for which it is intended to be used. United States v. Shock, 379 F.2d 29 (8th Cir. 1967). Adequate directions are literally lacking here. It is impossible to write adequate directions for use of the E-meter by laymen. Cf. United States v. Ellis Research Laboratories, 300 F.2d 550 (7th Cir. 1962). The Church of Scientology of California v. Richardson, 437 F.2d 214 (9th Cir. 1971).	{ "pile_set_name": "FreeLaw" }
548 So.2d 1097 (1989) Joseph BEDFORD v. STATE. 7 Div. 174. Court of Criminal Appeals of Alabama. June 30, 1989. 1098 Erskine R. Funderburg of Church, Trussel & Robinson, Pell City, for appellant. Don Siegelman, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee. TYSON, Judge. The appellant, Joseph Bedford, was indicted for engaging in sexual intercourse with a female by forcible compulsion in violation of § 13A-6-61, Code of Alabama 1975, and for engaging in deviate sexual intercourse by forcible compulsion in violation of § 13A-6-63, Code of Alabama 1975. The appellant was found guilty of both counts as charged in the indictment and sentenced to 25 years in prison. The appellant raises two issues on appeal. I The appellant contends that the State violated the principles set forth in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), because the prosecutor struck four of the five black jurors on the venire. The State had a total of 16 strikes. The prosecutor stated the following reasons for striking the black jurors: (1) prosecutor had written juror's husband several letters threatening to sue him for collection of a bill when prosecutor was in private practice; (2) juror was related to a man whom prosecutor had previously prosecuted and such man had also been represented by the law firm representing the appellant; (3) juror was single and unemployed; and (4) juror was single. The prosecutor also stated that seven other jurors were also struck because they were single. He further stated that the appellant was single and it was the State's policy to "strike single people on a case like this." (R. 4). The black juror who served on the panel was a married female. "Any inferences arising from the use of peremptory strikes to remove blacks should be viewed together `with other relevant circumstances' to determine whether purposeful discrimination has occurred." Currin v. State, 535 So.2d 221, 224 (Ala.Crim.App.), cert. denied, 535 So.2d 225 (Ala.1988) (citing Batson, 476 U.S. at 106, 106 S.Ct. at 1723). The record reveals that two of the black jurors were struck because of prior contacts between a juror's relative and the prosecutor. Such contact is an "other relevant circumstance" that can rebut the inference of purposeful discrimination. As to the jurors who were struck for being single and unemployed, the record also indicates that the State struck non-black jurors for substantially the same reason. Such evidence of neutrality may overcome the presumption of discrimination. Ex parte Branch, 526 So.2d 609 (1987); Pollard v. State, 549 So.2d 593 (Ala.Crim.App.1989). See also Oliver v. State, 526 So.2d 892 (Ala.Crim.App.1987) (no Batson violation when State struck 1099 black and white jurors under 35 years of age when defendant was 29 years of age). The trial court's findings are to be given great deference on appeal. Batson, 476 U.S. at 98, 106 S.Ct. at 1724. We find that, based on the particular facts and circumstances of this case, the court properly found that the State's peremptory strikes were based on considerations other than race. II The appellant next contends that the State further violated Batson and Branch by striking single people from the jury. Both Batson and Branch concern the use of peremptory challenges in a racially discriminatory manner. The appellant has not provided this court with any relevant authority, nor is this court aware of any relevant authority, for the proposition that the use of peremptory strikes to remove single people from the jury venire is a violation of the appellant's Constitutional rights. In view of the above discussion, this cause is due to be and is, hereby, affirmed. AFFIRMED. All the Judges concur.	{ "pile_set_name": "FreeLaw" }
58 So.2d 698 (1952) GEFFREY v. LANGSTON CONST. CO. Supreme Court of Florida, Special Division A. March 11, 1952. Rehearing Denied May 28, 1952. T. Paine Kelly, Jr., and Macfarlane, Ferguson, Allison & Kelly, all of Tampa, for appellant. M.W. Wells and Maguire, Voorhis & Wells, all of Orlando, for appellee. TERRELL, Justice. This was an action for personal injuries brought by appellant as plaintiff against appellee as defendant. The declaration alleged that the plaintiff was engaged in the business of selling plate glass, that about the first of March, 1949, it hired a crane and operator from defendant to unload a quantity of plate glass from a gondola 699 freight car, that the crane was defective, that James L. Poole, Jr., an employee of the plaintiff, did not know of its defective condition and while in the process of lifting one of the crates of plate glass from the gondola car the crane failed because of its defective condition, causing the crate to fall on James S. Poole, Jr., inflicting mortal injuries from which he died. There was a plea of not guilty and a spate of special pleas which denied every material allegation of the declaration. The special pleas also charged Poole with contributory negligence in operating the crane and alleged that it was a simple mechanism free from patent defects. On these issues a trial resulted in a verdict for the plaintiff. A motion for new trial was granted. This appeal is from the order granting the motion for new trial wherein the court points out that "having determined that the motion for new trial should be granted, it is not deemed proper that any final judgment be entered in favor of plaintiff." In this aspect the order granting the motion for new trial was in effect a final judgment. The point for determination is whether or not the trial court committed error in granting the motion for new trial. The answer to this question requires a critical examination of the evidence. In granting the motion for new trial, the court found in substance: (1) There is insufficient proof that the machine was defective when delivered to plaintiff. (2) The verdict was contrary to the law and the evidence. (3) Plaintiff did not prove by a preponderance of the evidence that defendant knew or by the exercise of reasonable care could have known of the defect in the machine. (4) Plaintiff did not prove by a preponderance of the evidence that the crane failed by reason of its defects. It is quite true that as to bailed instrumentalities some courts approve a rule to the effect that a bailor may not generally be held liable for injuries suffered by the bailee or a third party on account of defects in the bailed instrument, if not in its nature dangerous, or if the defect arises after the delivery of the instrument to the bailee, or if the defect could not have been discovered by the bailor in the exercise of due care at the time the instrument was delivered. See 12 A.L.R. 774, and 131 A.L.R., page 846 for annotation and citation of authorities supporting this rule. There are no doubt factual considerations that would compel the application of this rule but there is no basis for its application in the case at bar. In the first place, this court is committed to the doctrine that a crane in operation is inherently dangerous and may lead to mischief. Putman Lumber Company v. Berry, 146 Fla. 595, 2 So.2d 133. In the second place, by holding as he did, the trial court bypassed all reasonable deductions that may be drawn from the evidence which are particularly applicable in cases of this kind and which if not invoked would often defeat a meritorious recovery for personal injuries. This court is committed to the rule announced in Seaver v. Stratton, 133 Fla. 183, 183 So. 335; Edwards v. Miami Shores Village, Fla., 40 So.2d 360, and similar cases to the effect that the granting of a motion for new trial is addressed to the sound judicial discretion of the trial court and will not be disturbed on appeal unless a clear abuse of discretion is shown. It is also the rule that a trial court should not set aside a verdict and grant a new trial where the only issue involved is the sufficiency and probative value of the evidence, when there is substantial, competent evidence in the record to support the verdict and the only thing that will be accomplished by a new trial will be to have another jury try the case. Carefully inspected it will be noted that the sole ground for the order granting the new trial was the insufficiency of the evidence to support the verdict. Since this is the case we are confronted with the factual inquiry into what factors caused the crate of plate glass to fall and crush the deceased. Plaintiff contends that it fell because of defects in the crane which were known or in the exercise of reasonable care could have been known to defendant. Defendant contends on the other hand that the crate fell because of defects in the crane which it was not charged with notice of and that the evidence failed to reveal any negligence on its part. 700 The evidence shows that the crane was mounted on a truck and that it was handled by an agent of defendant. It consisted of a boom and drums equipped with manually operated handles and winches to hold the load when raised from its resting place. There was a lifting cable anchored to the drum which ran to the sheave at the end of the hook, thence to the pulley or block to which the hook was attached. The cable continued through the pulley and back to the sheave and down to the anchor on the pulley where it was held in place by one or more U bolts or cable clamps. If the cable broke while the load was in the air or if the cable clamps gave way or the cable slipped through them, the load would fall to the floor instantly. The gondola freight car in which the plate glass was loaded was placed on the siding opposite the plant of appellant. The plate glass was packed in crates that weighed about 3000 pounds each. On the morning of March 1, 1949, the agent of defendant arrived with the crane to unload the plate glass and reported to Mr. Poole who with a crew of four directed the unloading. The truck was placed at the side of the freight car with the boom over the crate of glass to be unloaded. A chain would then be placed around the crate and attached to the hook by which the crate was raised above the level of the car and placed on the ground. Six crates were unloaded without accident. When the seventh crate was from one to two feet high it suddenly dropped to the floor, careened to the side of the car, caught Mr. Poole against it and crushed him to death. Two witnesses testified that the crate fell when the end of the cable broke loose from the anchor, slipped through the pulley, whipped through the sheave on the boom and hit the wall of the building beside the truck. Other witnesses testified as to what happened to the block and pulley, the cable and the cable clamp, but there is little difference in their conclusions. It was shown conclusively that the chain was still fastened around the crate in the manner that it was placed prior to the accident. Expert witnesses testified that cable clamps in heavy machinery would work loose and cause the cable to slip if they were not looked after and tightened properly. The testimony also shows that the original clamps put on the crane at the time it was constructed were in use when the accident occurred. The same witness testified that he had no idea when those on the crane were last inspected but that it was his practice to test them at periodic intervals. There was no showing that the crane was inspected prior to renting it to appellant, though it was known that it was to be used for heavy lifting and that heavy machinery would work loose and cause cable to slip if not looked after and tightened properly. There is some conflict in the evidence. One witness testified that when the crate was lifted it tended to fall away from the end of the boom, thus creating a slack in the cable making the crate keel over on Mr. Poole. The same witness also testified that the cable did not slip through the clamps, but viewed from the standpoint of the whole picture, there was ample reason for the jury to reject this evidence since it was contrary to human experience and contrary to the physical facts as revealed by the preponderance of the evidence. Such in summary was the evidence presented to the jury. It is perfectly evident that the crate dropped because the cable gave way. Whether it broke or the clamp bolts worked loose and let it slip through is not disclosed but all these physical facts were before the jury and from them it was their province to determine the cause of the accident. That Poole was dead and was crushed to death between the crate of glass and the side of the box car is certain. It is also certain that his death resulted from the fall of the crate and that it fell because the cable either broke or slipped through the clamps. It is shown that the crane had been used a long time without inspection. From this and other factors present it was for the jury to determine whether the cable was worn and broke from long use or whether it slipped past the clamp because the bolts were loose, and whose negligence was responsible for this. In such cases it is often impossible to produce oral evidence that an instrumentality *701 like that used here was in safe condition when it lifted the first or second crate but was not so when it lifted the others. In other words the minute proof of unsafe condition is not required. For this reason the jury is permitted to draw reasonable deductions from the physical facts presented and from them determine whose negligence was responsible for the death. There must of course be ample physical and other facts proven to show that the death or injury was negligent. We think that such facts were present in this case and that the trial court committed error in granting the motion for new trial. His judgment is accordingly reversed with directions to enter final judgment on the verdict. Reversed. SEBRING, C.J., MATHEWS, J., and MURPHREE, Associate Justice, concur.	{ "pile_set_name": "FreeLaw" }
89 B.R. 2 (1988) In re ADCOM, INC., Debtor. COMMISSIONER OF REVENUE, COMMONWEALTH OF MASSACHUSETTS, Appellant, v. ADCOM, INC., Appellee. Civ. A. No. 87-2087-MC. United States District Court, D. Massachusetts. June 21, 1988. Arnold S. Goldstein, Meyers, Goldstein, Chyten & Kosberg, Chestnut Hill, Mass., for Adcom, Inc. Jeffrey S. Ogilvie, Leonard M. Goldberg, Counsel, Legal Bureau, Cambridge, Mass., for Ira A. Jackson, Com'r of Revenue. Virginia Greiman, Boston, Mass., U.S. Trustee. MEMORANDUM AND ORDER McNAUGHT, District Judge. This is an appeal by the Commissioner of Revenue for the Commonwealth of Massachusetts from an order of the Bankruptcy Court denying the Commissioner's claim for interest on the state's pre-petition tax claims against the Debtor at the rate set by state law (G.L. c. 62C, § 32) during the post-petition period between the date the Chapter 11 petition was filed on October 15, 1985 and the date the Debtor's Plan of Reorganization was confirmed on October 1, 1987, 74 B.R. 673. The Bankruptcy Court specifically found that the value of the Debtor's estate was approximately $230,000 and was six times greater than the sum of all claims against the estate. The Bankruptcy Court also ruled that, under the "best interest of creditor's" test (11 U.S.C. § 1129(a)(7)), payment of interest on the tax claim during the post-petition period was allowable under 11 U.S.C. § 726(a)(5). However, the Bankruptcy Court refused to adopt the rate of interest on unpaid state taxes set by state law, setting instead a lower rate. This Court is of the opinion that, in the context of this particular case, the phrase "interest at the legal rate" in section 726(a)(5) refers directly to the rate of interest set by state law, namely G.L. c. 62C, § 32. See In Re Shaffer Furniture Co., 68 B.R. 827 (Bankr.E.D.Pa.1987). The order of the Bankruptcy Court is therefore modified to read as follows: It is hereby ordered that the Commissioner of Revenue, Commonwealth of Massachusetts, is entitled to post-petition interest at the rate provided by G.L. c. 62C, § 32 with respect to the unsecured priority tax claim against the Debtor's estate.	{ "pile_set_name": "FreeLaw" }
338 B.R. 330 (2006) In re Larry E. EZELL, Regina A. Ezell, Debtors. No. 05-38219. United States Bankruptcy Court, E.D. Tennessee. March 13, 2006. 331 332 Richard M. Mayer, Esq., Knoxville, TN, for Debtors. Husch & Eppenberger, LLC, Holly N. Knight, Esq., Christopher M. Kerney, Esq., Nashville, TN, for JPMorgan Chase Bank, N.A. Gwendolyn M. Kerney, Esq., Knoxville, TN, Chapter 13 Trustee. Hodges, Doughty & Carson, Thomas H. Dickenson, Esq., Knoxville, TN, for Amicus Curiae Intervenors, Knoxville TVA Employees Credit Union, Y-12 Federal Credit Union, Tennessee Members 1st Federal Credit Union, Holston Methodist Federal Credit Union, Citizens National Bank, Bank of Tennessee, ORNL Federal Credit Union, and TNBank. National Association of Consumer, Bankruptcy Attorneys, Tara Twomey, Esq., Washington, DC, Bond, Botes & Lawson, P.C., Cynthia T. Lawson, Esq., Knoxville, TN, Principal Attorneys for Amicus Curiae Intervenors, National Association of Consumer Bankruptcy Attorneys. MEMORANDUM ON OBJECTION TO CONFIRMATION FILED BY JP MORGAN CHASE BANK, N.A. RICHARD STAIR, JR., Bankruptcy Judge. This contested matter is before the court on the Objection to Confirmation of Plan and Plan Terms Filed by JPMorgan Chase Bank, N.A. (Objection to Confirmation) filed on December 2, 2005, by JPMorgan Chase Bank, N.A. (Chase), a secured creditor, objecting to confirmation of the Debtors' Chapter 13 Plan. A preliminary hearing on the Objection to Confirmation was held on January 4, 2006, at which time the parties agreed that an evidentiary hearing would not be required and that all issues could be resolved on stipulations and briefs. Pursuant to an Order entered on January 6, 2006, the sole issue before the court is "whether 11 U.S.C. § 1325(a)(5), as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, effective on October 17, 2005, allows the Debtors to surrender JPMorgan Chase Bank's collateral in full satisfaction of its claim." This is a core proceeding. 28 U.S.C.A. § 157(b)(2)(L) (West 1993). I The Debtors filed the Voluntary Petition commencing their joint Chapter 13 bankruptcy case on November 8, 2005. Chase is a creditor of Mrs. Ezell, holding a $24,942.07 claim secured by her 2003 Nissan Xterra (Xterra). Mrs. Ezell purchased the Xterra for the personal use of the Debtors from East Tennessee Nissan on December 26, 2003. Under the terms of the Debtors' Chapter 13 Plan (Plan), the Xterra is to be surrendered "in full satisfaction of debt owing." The record before the court consists of the following: (1) the Joint Stipulations of Facts Filed by JPMorgan Chase Bank, N.A. filed by the parties on January 25, 2006, along with the following stipulated documents: (a) a Retail Installment Contract and Security Agreement (Contract) for the purchase of the Xterra executed by 333 the Debtor, Regina A. Ezell, on December 26, 2003; (b) a Tennessee Certificate of Title issued on February 4, 2004;[1] and (c) the Proof of Claim filed by JPMorgan Chase Bank, N.A. as secured in the amount of $24,942.07 on December 5, 2005; (2) the Supplemental Joint Stipulation of Facts Filed by JPMorgan Chase Bank, N.A. filed by the parties on February 17, 2006; (3) the Debtors' Brief filed on January 13, 2006; and (4) the Memorandum of Facts and Law in Support of Objection to Confirmation by JPMorgan Chase Bank, N.A. filed by Chase on February 8, 2006. Also filed were the Amicus Curiae Brief of Intervenors, filed on February 10, 2006, by Knoxville TVA Employees Credit Union, Y-12 Federal Credit Union, Tennessee Members 1st Federal Credit Union, Holston Methodist Federal Credit Union, Citizens National Bank, Bank of Tennessee, ORNL Federal Credit Union, and TNBank (collectively, Bank Intervenors)[2] and the Brief of Amicus Curiae National Association of Consumer Bankruptcy Attorneys in Opposition to the Objection to Confirmation filed by JPMorgan Chase Bank, N.A., filed on February 24, 2006, by the National Association of Consumer Bankruptcy Attorneys (collectively, NABA Intervenors).[3] On February 24, 2006, Chase filed a Motion to Set Aside Order Allowing NACBA to Intervene for Purposes of Filing an Amicus Curiae Brief (Motion to Set Aside), arguing that the NACBA Intervenors failed to state sufficient cause in support of their motion to intervene, that allowing NACBA to intervene would cause undue and prejudicial delay, and that Chase was not given an opportunity to be heard on the NACBA Intervenors' motion.[4] For reasons hereinafter discussed in Section IV of this Memorandum, Chase's Motion to Set Aside will be denied. II As a preliminary matter, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 will hereinafter be referred to as "BAPCPA," references to specific sections of the Bankruptcy Code as amended by BAPCPA will be to 11 U.S.C. § ___ (2005) or to "Revised § ___," references to the Bankruptcy Reform Act of 1978, as amended, in effect prior to October 17, 2005, will be to 11 U.S.C. § ____ (2004) or to "Pre-BAPCPA § ___," and the concluding alphanumeric paragraph in Revised § 1325(a), the interpretation of which is the subject of this contested matter, will be referred to as the "Anti-Cramdown Paragraph."[5] 334 III Following years of debate, BAPCPA became effective on October 17, 2005, for all cases filed on and after that date.[6] One section receiving revision was 11 U.S.C. § 1325 (2004), dealing with the requirements for confirmation of a Chapter 13 plan. As it relates to this contested matter, Revised § 1325(a) now provides: (a) Except as provided in subsection (b), the court shall confirm a plan if (5) with respect to each allowed secured claim provided for by the plan (A) the holder of such claim has accepted the plan; (B)(i) the plan provides that (I) the holder of such claim retain the lien securing such claim until the earlier of (aa) the payment of the underlying debt determined under nonbankruptcy law; or (bb) discharge under section 1328; and (II) if the case under this chapter is dismissed or converted without completion of the plan, such lien shall also be retained by such holder to the extent recognized by applicable nonbankruptcy law; (ii) the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim; and (iii) if (I) property to be distributed pursuant to this subsection is in the form of periodic payments, such payments shall be in equal monthly amounts; and (II) the holder of the claim is secured by personal property, the amount of such payments shall not be less than an amount sufficient to provide to the holder of such claim adequate protection during the period of the plan; or (C) the debtor surrenders the property securing such claim to such holder; . . . . For purposes of paragraph (5), section 506 shall not apply to a claim described in that paragraph if the creditor has a purchase money security interest securing the debt that is the subject of the claim, the debt was incurred within the 910-day [period[7]] preceding the date of the filing of the petition, and the collateral for that debt consists of a motor vehicle (as defined in section 30102 of title 49) acquired for the personal use of the debtor, or if collateral for that debt consists of any other thing of value, if the debt was incurred during the 1-year period preceding that filing[.] 11 U.S.C. § 1325(a) (2005) (emphasis added). Revised § 1325(a)(5) differs from Pre-BAPCPA § 1325(a)(5) with respect to the treatment of secured claims under subsection (B), which allowed a debtor, pre-BAPCPA, to cramdown secured claims to the value of the collateral securing the claim. Under Revised § 1325(a)(5)(B), the 335 cramdown provision is eliminated as to claims secured by "a motor vehicle" and "any other thing of value" falling within the criteria encompassed within the provisions of the Anti-Cramdown Paragraph. Under Revised § 1325(a)(5), the allowed secured claim of the class of creditors defined in the Anti-Cramdown Paragraph is fixed at the amount of the creditor's claim, without resorting to the secured/unsecured bifurcation procedure mandated by 11 U.S.C. § 506 (2005). The focus of this contested matter centers around Revised § 1325(a)(5) and application of the Anti-Cramdown Paragraph to the "surrender[]" language of Revised § 1325(a)(5)(C). The Debtors and Chase have stipulated that all elements of the Anti-Cramdown Paragraph have been satisfied. Mrs. Ezell acquired the Xterra for her personal use on December 26, 2003, 684 days before the filing of the Debtors' bankruptcy petition on November 8, 2005, and granted Chase a purchase money security interest in the motor vehicle to secure the unpaid portion of the purchase price which presently amounts to $24,942.07. The parties do not dispute that, were the Debtors to keep the Xterra and provide for its payment through the Plan under Revised § 1325(a)(5)(B), the Anti-Cramdown Paragraph would provide Chase with an allowed secured claim of $24,942.07. The Debtors contend, however, that the Anti-Cramdown Paragraph also affords them the right to provide for the surrender of the Xterra through the Plan pursuant to Revised § 1325(a)(5)(C) in full satisfaction of Chase's $24,942.07 allowed secured claim because the Anti-Cramdown Paragraph eliminates Revised § 506 from any application to Revised § 1325(a)(5). Therefore, according to the Debtors, there can no longer be a deficiency claim following surrender of the collateral because Chase's claim is fully secured, notwithstanding any lesser amount that Chase might. in fact, realize upon its liquidation of the Xterra following surrender. Conversely, Chase contends that because the Anti-Cramdown Paragraph expressly provides that Revised § 506 does not apply to Revised § 1325(a)(5), its claim remains fully secured by the Xterra following its surrender, with the result being that any deficiency balance up to the amount of its $24,942.07 claim remains secured and must be treated as such in the Debtors' Plan. Neither of the Intervenors has expressly argued the same points as the Debtors and Chase. The Bank Intervenors contend that the inapplicability of Revised § 506 under the Anti-Cramdown Paragraph is irrelevant, as that statute never applied in cases involving surrender under Pre-BAPCPA § 1325(a)(5)(C). According to this argument, the Anti-Cramdown Paragraph changes nothing, and secured creditors to whom property is surrendered under Revised § 1325(a)(5)(C) are still entitled to an unsecured deficiency claim following disposition of their collateral. Finally, the NACBA Intervenors endorse the Debtors' argument that since the Anti-Cramdown Paragraph serves to fix a claim as fully secured under Revised § 1325(a)(5), then surrender under Revised § 1325(a)(5)(C) fully satisfies the claim. Alternatively, the NACBA Intervenors argue that the Anti-Cramdown Paragraph effectively eliminates the application of Revised § 1325(a)(5) from any secured claim satisfying the Anti-Cramdown Paragraph's criteria since those creditors no longer possess allowed secured claims under Revised § 506. According to this argument, a secured creditor's claim may, however, still be modified pursuant to Re 336 vised § 1322(b)(2).[8] A Revised § 1325, entitled "Confirmation of plan," provides that if certain requirements are met, the court "shall" confirm a Chapter 13 plan. See 11 U.S.C. § 1325(a) (2005). The confirmation requirements of Revised § 1325(a)(5) offer debtors three options for dealing with allowed secured claims if the plan is to be confirmed: (1) obtain the creditor's acceptance of the plan (Revised § 1325(a)(5)(A)); (2) provide for the cramdown of the creditor's allowed secured claim (Revised § 1325(a)(5)(B)), subject to the class of secured creditors depicted in the Anti-Cramdown Paragraph;[9] or (3) surrender of the collateral to the secured creditor (Revised § 1325(a)(5)(C)). Under Pre-BAPCPA § 1325(a)(5), [a] debtor has three options regarding secured debt. 11 U.S.C. § 1325(a)(5). First, the debtor and creditor may agree on terms. 11 U.S.C. § 1325(a)(5)(A). Second, the debtor may surrender the collateral to the creditor. 11 U.S.C. § 1325(a)(5)(C). The creditor will then sell the collateral, by definition receiving the foreclosure value. The cash realized will be subtracted from the debt and the difference allowed as an unsecured claim in the debtor's chapter 13 plan. Third, . . . the debtor may retain the collateral. His chapter 13 plan will include a secured claim for the value of the collateral as of the date of filing and an unsecured claim for any difference between the amount owed the creditor and the allowed secured claim. 11 U.S.C. § 506(a), § 1325(a)(5)(B). The secured claim is for the replacement value of the collateral. Rash, 117 S.Ct. at 1886. Replacement value, not foreclosure value, is used because, "if a debtor keeps the property and continues to use it, the 337 creditor obtains at once neither the property nor its value and is exposed to double risks: The debtor may again default and the property may deteriorate from extended use." Id. at 1885. Davis-McGraw, Inc. v. Johnson (In re Johnson), 247 B.R. 904, 906 (Bankr. S.D.Ga.1999) (footnotes omitted). In order to proceed to the issue before the court, it is first necessary to determine whether Pre-BAPCPA § 506(a) was called into play in scenarios where a debtor surrendered collateral pursuant to Pre-BAPCPA § 1325(a)(5)(C), or was applicable only in situations involving cramdown under Pre-BAPCPA § 1325(a)(5)(B). See Gen. Motors Acceptance Corp. v. Valenti (In re Valenti), 105 F.3d 55, 59 (2d Cir. 1997) ("To determine the value of the creditor's allowed secured claim [under Pre-BAPCPA § 1325(a)(5)], we turn to 11 U.S.C. § 506(a) [(2004)]."). B. Revised § 1325(a)'s Anti-Cramdovm Paragraph provides that Revised § 506 "shall not apply to a claim described in [Revised § 1325(a)(5)]" if the creditor has a purchase money security interest in a "motor vehicle" purchased for the debtor's use within 910 days preceding the bankruptcy or in "any other thing of value" purchased within the 1-year period preceding the bankruptcy filing. Clearly, the Debtors must provide, for the treatment of Chase's allowed secured claim within the framework mandated by Revised § 1325(a)(5). The Anti-Cramdown Paragraph eliminates the application of Revised § 506 to a "motor vehicle" and "any other thing of value" falling within its terms to Revised § 1325(a)(5). Revised § 506, entitled "Determination of Secured Status,"provides as follows: (a)(1) An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor's interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor's interest. (2) If the debtor is an individual in a case under chapter 7 or 13, such value with respect to personal property securing an allowed claim shall be determined based on the replacement value of such property as of the date of the filing of the petition without deduction for costs of sale or marketing. With respect to property acquired for personal, family, or household purposes, replacement value shall mean the price a retail merchant would charge for property of that kind considering the age and condition of the property at the time value is determined. (b) To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement or State statute under which such claim arose. c) The trustee may recover from property securing an allowed secured claim he reasonable, necessary costs and ex 338 penses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim, including the payment of all ad valorem property taxes with respect to the property. (d) To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void, unless (1) such claim was disallowed only under section 502(b)(5) or 502(e) of this title; or (2) such claim is not an allowed secured claim due only to the failure of any entity to file a proof of such claim under section 501 of this title 11 U.S.C. § 506 (2005)[10] Under Pre-BAPCPA law, Section 506 is to be applied by bankruptcy courts when a party in interest objects, pursuant to § 502, to the value of a proof of secured claim filed by a creditor in the bankruptcy proceedings. . . . It is clear then that § 506 is designed to determine the value and amount of a creditor's secured claim when the creditor's claim is undersecured in relation to the property securing the debt. In order to achieve its given purpose, § 506(a) divides or bifurcates allowed claims into two parts: (1) a secured claim to the extent of the value of [the collateral]; and (2) an unsecured claim to the extent the value of [the collateral] is less than the amount of such allowed claim. Bank One, NA v. Flowers, 183 B.R. 509, 514-15 (N.D.Ill.1995). Pre-BAPCPA § 1325(a)(5), as does Revised § 1325(a)(5), dictated the treatment to be accorded an allowed secured claim if the debtor was to obtain confirmation of the Chapter 13 plan. Although Pre-BAPCPA § 1325(a)(5)(B) and Pre-BAPPA § 1325(a)(5)(C) provided different remedies and were mutually exclusive, see In re Covington, 176 B.R. 152, 155 (Bankr. E.D.Tenn.1994), both relied upon PreBAPCPA § 506(a)[11] to bifurcate a creditor's claim into its allowed secured and allowed unsecured components. Subsection (C) is clear. If the debtor surrenders his interest in the property securing the claim, the court can find that the requirements of § 1325(a)(5) have been met. The creditor may then foreclose his lien and file an unsecured claim for his actual or expected deficiency. It would be possible for the court to confirm the debtor's plan even though there was a disagreement concerning the value of the property and therefor a disagreement over the amount in which the unsecured claim for deficiency should be allowed. In most cases it would not be necessary for the court to determine the amount of the allowed 339 unsecured claim until the creditor had completed foreclosure of the lien. If the debtor wishes to retain the property, subsection (C) would have no application. Instead, the debtor would utilize subsection (B). Generally this would be done by providing in the plan a string of payments which would have a present value equivalent to the amount of the allowed secured claim. If the debtor and the creditor were unable to agree upon the value of the collateral, it would be necessary for the court to determine such value in order to determine whether the present value of the string of payments was at least equal to amount of the allowed secured claim. Unlike the situation provided by subsection (C), it would be necessary for the court to determine value prior to confirmation. Also, valuation could not be determined by the amount received by the creditor upon foreclosure since foreclosure would not yet have been accomplished. In re Stockwell, 33 B.R. 303, 305 (Bankr. D.Or.1983); see also First Union Mortgage Corp. v. Eubanks (In re Eubanks), 219 B.R. 468, 473 (6th Cir. BAP 1998) ("[Pre-BAPCPA §] 1325(a)(5)(C) permits a Chapter 13 debtor to satisfy an `allowed secured claim' by surrendering the property securing the claim. After disposition of the surrendered collateral, an undersecured creditor may only assert the deficiency as a general unsecured claim."): In re White, 169 B.R. 526, 529 (Bankr. W.D.N.Y.1994) ("The debtor could alternatively surrender the collateral to the secured creditor in full satisfaction of the creditor's `secured' claim, relegating the creditor only to `unsecured' status as to any deficiency."). Although these cases were decided under Pre-BAPCPA § 1325(a)(5), they all apply Pre-BAPCPA § 506(a), if not by direct reference then indirectly, to the bifurcation of the creditor's claim into its secured and unsecured components upon surrender of the collateral pursuant to Pre-BAPCPA § 1325(a)(5)(C). The analysis remains the same under Revised § 1325(a)(5) except for the elimination of Revised § 506 from the equation when the allowed secured claim is determined under the provisions of the Anti-Cramdown Paragraph. Under Pre-BAPCPA § 1325(a)(5), it was only when valuation of a claim was called into question that the valuation procedure dictated by Pre-BAPCPA § 506(a) was triggered to determine the amount of the creditor's allowed secured claim. And, in the context of Pre-BAPCPA § 1325(a)(5)(B) and (C), as well as under Revised § 1325(a)(5)(B) and (C), valuation is an issue. Clearly, Pre-BAPCPA 506(a) was utilized to determine the amount of a creditor's allowed secured claim when the debtor utilized the cramdown provisions of Pre-BAPCPA § 1325(a)(5)(B). As discussed, Pre-BAPCPA § 506(a) also came into play when the debtor, in compliance with Pre-BAPCPA § 1325(a)(5)(C), surrendered the collateral. The creditor then liquidated its collateral which fixed the amount of its allowed secured claim at the liquidation value, and its allowed unsecured claim at the deficiency balance. The argument that Pre-BAPCPA § 506(a) had no application to surrender under Pre-BAPCPA § 1325(a)(5)(C) is misplaced. Valuation of a creditor's allowed secured claim under Pre-BAPCPA § 506(a) was "determined in light of the purpose of the valuation and of the proposed disposition or use of such property. . . ." 11 U.S.C. § 506(a) (2004).[12] Upon surrender under Pre-BAPCPA 1325(a)(5)(C), liquidation value was 340 clearly the yardstick by which the allowed secured claim was determined, while, for cramdown purposes under Pre-BAPCPA § 1325(a)(5)(B), replacement value was the criteria. See Assoc. Commercial Corp. v. Rash, 520 U.S. 953, 117 S.Ct. 1879, 1885, 138 L.Ed.2d 148 (1997). C The Anti-Cramdown Paragraph serves to eliminate Revised § 506 from the allowed secured/unsecured claim bifurcation treatment otherwise mandated by Revised § 506 with regard to those claims secured by "a motor vehicle" and "any other thing of value" falling within its provisions. In other words, when the creditor files its claim as secured, the Anti-Cramdown Paragraph precludes the use of Revised § 506(a) to reduce or bifurcate that claim into secured and unsecured components. Unless the amount of the claim is subject to reduction for reasons other than collateral value, the creditor's allowed secured claim is fixed at the amount at which the claim is filed. Accordingly, under Revised § 1325(a)(5), a creditor holding a secured claim falling within the scope of the Anti-Cramdown Paragraph is fully secured for the amount of its claim, which is, in actuality, the debt owed. If the property is to be retained pursuant to Revised § 1325(a)(5)(B), the debtor must treat the entire claim as secured, and unless the creditor agrees to other treatment, must propose a plan that will pay the full amount of the claim as secured over the life of the plan. It only stands to reason that the same analysis is true when applied to surrender under Revised § 1325(a)(5)(C) the creditor is fully secured, and surrender therefore satisfies the creditor's allowed secured claim in full. Although the statutory language itself is not particularly ambiguous, there is no question that, because of its construction, Revised § 1325(a) is, at best, confusing. See Henry E. Hildebrand, III, Impact of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 on Chapter 13 Trustees, 79 Are. BANKR. L.J. 373, 386 n. 65 (Spring 2005) ("Though it appears that the intent of the hanging paragraph is to preclude the claim splitting or `cramdown' that is embodied in 506(a), the means by which such restriction was drafted is confusing, at best."). A review of the legislative history for guidance does not provide any particular insight that is helpful to the court; however, it also does not provide any evidence that the court's determination does not comport with Congressional intent when including the Anti-Cramdown Paragraph in Revised § 1325(a). In the House of Representatives' Judiciary Committee Report dated April 8, 2005, the "Section-by-Section Analysis and Discussion" breaks down BAPCPA, as proposed in Senate bill 256. Section 306, concerning § 1325(a)(5) is found in the section entitled "Title III: Discouraging Bankruptcy Abuse," and the synopsis states the following: Sec. 306. Giving Secured Creditors Fair Treatment in Chapter 13. Subsection (a) of section 306 of the Act amends Bankruptcy Code section 1325(a)(5)(B)(i) to require as a condition of confirmation that a chapter 13 plan provide that a secured creditor retain its lien until the earlier of when the underlying debt is paid or the debtor receives a discharge. If the case is dismissed or converted prior to completion of the plan, the secured creditor is entitled to retain its lien to the extent recognized under applicable nonbankruptcy law. Section 306(b) adds a new paragraph to section 1325(a) of the Bankruptcy Code specifying that Bankruptcy Code section 341 506 does not apply to a debt incurred within the two and one-half year period preceding the filing of the bankruptcy case if the debt is secured by a purchase money security interest in a motor vehicle acquired for the personal use of the debtor within 910 days preceding the filing of the petition. Where the collateral consists of any other type of property having value, section 306(b) provides that section 506 of the Bankruptcy Code does not apply if the debt was incurred during the one-year period preceding the filing of the bankruptcy case. H.R. REP. 109-31, Pt. 1, at 71-72, 109th Cong., 1st Sess. (2005), U.S.Code Cong. & Admin.News 2005, pp. 88, 140. Similarly, under the section entitled "Highlights of Bankruptcy Reforms" concerning "Consumer Creditor Bankruptcy Protections," the above revisions were stated as follows: Protections for Secured Creditors. S. 256's protections for secured creditors include a prohibition against bifurcating a secured debt incurred within the 910 day period preceding the filing of a bankruptcy case if the debt is secured by a purchase money security interest in a motor vehicle acquired for the debtor's personal use. Where the collateral consists of any other type of property having value, S. 256 prohibits bifurcation of specified secured debts if incurred during the one-year period preceding the filing of the bankruptcy case. The bill clarifies current law to specify that the value of a claim secured by personal property is the replacement value of such property without deduction for the secured creditor's costs of sale or marketing. H.R. REP. 109-31, Pt. 1, at 17, 109th Cong., 1st Sess. (2005), U.S.Code Cong. & Admin.News 2005, pp. 88, 103. As these sections evidence, Congress intended to prevent bifurcation under Revised § 1325(a)(5) of the class of secured claims falling within the scope of the Anti-Cramdown Paragraph. Beyond these statements of Congressional intent, which basically mirror the statutory language, there is no further clarification. The court has no choice but to interpret the Anti-Cramdown Paragraph as written, i.e., that it applies to both Revised § 1325(a)(5)(B) and (C). See United States v. Ron Pair Eaters., 489 U.S. 235, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) (holding that if the language of a statute is plain and unambiguous, "the sole function of the courts is to enforce it according to its terms."). To apply the Anti-Cramdown Paragraph only to Revised § 1325(a)(5)(B), but not to Revised § 1325(a)(5)(C), would allow a secured creditor, upon surrender of its collateral, to bifurcate its claim into different secured and unsecured components, contrary to its unambiguous mandate that Revised § 506 "shall not apply to a claim described in [Revised § 1325(a)(5)]." 11 1".S.C. § 1325(a) (2005). Furthermore, were the court to find that a secured creditor whose collateral has been surrendered under Revised § 1325(a)(5)(C) is entitled to file either a secured or unsecured deficiency claim, the method of determining the amount of the allowed deficiency claim would be demonstrably at odds with Revised § 506(a), which, as applied to Chapter 13 consumer debtors, directs that for purposes of valuing personal property securing an allowed claim, the value "shall be determined based on the replacement value of such property as of the date of the filing of the petition without deduction for costs of sale or marketing" and, to the extent the property was "acquired for personal, family, or household purposes, replacement value shall mean the price a retail merchant would charge for property of that kind considering the age and condition of the 342 property at the time value is determined." 11 U.S.C. § 506(b) (2005). This method for valuing a creditor's allowed secured claim where the collateral is personal property acquired for "personal, family, or household purposes," cannot apply if the property is surrendered under Revised § 1325(a)(5)(C) and thereafter liquidated by the creditor in accordance with applicable state law.[13] D In summary, the court finds that the Anti-Cramdown Paragraph, as mandated by its terms, applies equally to both Revised § 1325(a)(5)(B) and Revised § 1325(a)(5)(C). Therefore, a creditor whose claim falls within the scope of the Anti-Cramdown Paragraph is fully secured under Revised § 1325(a)(5)(C), regardless of the amount it might realize from the liquidation of its collateral upon surrender. Because application of § 506(a) is entirely removed from the picture, there can be no deficiency balance, either secured or unsecured, and surrender satisfies an allowed secured claim in full. The court finds this result fair and in harmony with the language of the Anti-Cramdown Paragraph. A creditor whose allowed secured claim falls within the terms of the Anti-Cramdown Paragraph is no more or less disadvantaged by the debtor's surrender of its collateral under Revised § 1325(a)(5)(C) than is the debtor who, if he or she chooses to retain the collateral, must, in compliance with Revised § 1325(a)(5)(B), pay the full amount of the debt in satisfaction of the creditor's allowed secured claim. To the extent an actual disparity might exist between the value of the collateral and the amount of the creditor's allowed secured claim, perhaps negotiation between the debtor and creditor would allow the "holder of such claim" to accept a treatment under the plan pursuant to Revised § 1325(a)(5)(A) that is more akin to the traditional cramdown permitted under Revised § 1325(a)(5)(B) for secured creditors whose claims do not fall within the ambit of the Anti-Cramdown Paragraph. This approach appears to the court as one that could prove advantageous to both debtors and creditors. In accordance with the above, Chase's Objection to Confirmation will be denied, and the Debtors' Chapter 13 Plan will be confirmed. IV As previously stated, Chase's Motion to Set Aside shall be denied. Pursuant to Rule 2018(a) of the Federal Rules of Bankruptcy Procedure, "[i]n a case under the Code, after hearing on such notice as the court directs and for cause shown, the court may permit any interested entity to intervene generally or with respect to any specified matter." FED. R. BANKR. P. 2018(a). This rule "provides a formal mechanism that expands the right to be heard to a wider class than those who qualify under the `person aggrieved' standard." Int'l Trade Admin. v. Rensselaer Polytechnic Inst., 936 F.2d 744, 747 (2d Cir.1991). "A party seeking intervention 343 must show `cause,' such as an economic interest in the case or a concern with the precedential ramifications of a ruling[;]" however, the decision to allow intervention is within the court's discretion, although intervention "should not be permitted if the intervenor's rights are already adequately represented or intervention would result in delay or prejudice." In re Dorango Ga. Paper Co., 336 B.R. 594, 596 (Bankr.S.D.Ga.2005); see also In re First Interregional Equity Corp., 218 B.R. 731, 736 (Bankr.D.N.J.1997); In re City of Bridgeport, 128 B.R. 686, 687 (Bankr. D.Conn.1991) ("As unlimited intervention in contested matters could cause unwarranted and prejudicial delays in the resolution of what are essentially disputes between two parties, `Rule 2018 gives courts the discretion to balance the needs of a potential intervenor against any delay or prejudice which would result from intervention.'") (quoting Metro N. State Bank v. Barrick Group, Inc. (In re Barrick Group, Inc.), 98 B.R. 133, 135 (Bankr. D.Conn.1989)). This narrow question before the court raises an issue of first impression with precedential ramifications, relating to Chapter 13 cases filed in this court. Since the implementation of BAPCPA, bankruptcy courts have been faced with complex issues of interpretation. The issue here presents itself solely in the context of BAPCPA and, therefore, it is not surprising that outside parties, such as the Bank Intervenors and the NACBA Intervenors, would be interested in presenting their arguments in favor of their opposing viewpoints. Also relevant is the fact that the Intervenors' arguments are different from those expressed by the Debtors and Chase, again supporting the court's decision to allow intervention in this case.[14] Moreover, neither the Debtors nor Chase has been subjected to undue or prejudicial delay by allowing the NACBA to intervene. Its motion was filed on February 10, 2006, with the court fixing a deadline of February 24, 2006, for the filing of an amicus curiae brief. The NACBA complied with the court's Order and timely filed its brief. The court's determination is now being handed down within a short time, which, clearly, cannot be deemed an undue or prejudicial delay. With respect to Chase's contention that it was not afforded an opportunity to be heard, the court refers Chase to the Rules of Construction for the Bankruptcy Code, which state the following: In this title (1) "after notice and a hearing", or a similar phrase (A) means after such notice as is appropriate in the particular circumstances, and such opportunity for a hearing as is appropriate in the particular circumstances; but (B) authorizes an act without an actual hearing if such notice is given properly and if (i) such hearing is not requested timely by a party in interest; or (ii) there is insufficient time for a hearing to be commenced before such act must be done and the court authorizes such act[.] 11 U.S.C. § 102(1) (2005). The NACBA Intervenors' motion was filed on February 10, 2006, and was granted on February 14, 2006, giving it until February 24, 2006, a period of ten days, to file an amicus curiae brief. Faced with the concern for undue and prejudicial delay, coupled with the fact that a hearing on the motion was not requested by any party in interest, including Chase, and, in fact, was not necessary, 344 the court granted the motion without a hearing. Furthermore, Chase was served with the Motion to Intervene via ECF on February 10, 2006, and it was served with the court's February 14, 2006 Order via U.S. Mail on February 16, 2006. Yet, at no point prior to February 24, 2006, the date upon which the NACBA Intervenors' amicus curiae brief was due, did Chase request a hearing on the Motion to Intervene. Chase now requests a hearing on its Motion to Set Aside, which it scheduled for March 29, 2006; however, the court finds that it would be an undue and prejudicial delay to postpone a decision on this issue for another two weeks, particularly in light of the court's discretion in allowing intervention in the first place. Accordingly, and for the foregoing reasons, the Motion to Set Aside filed by Chase shall be denied. An order consistent with this Memorandum will be entered. NOTES [1] The Contract was assigned by the seller to Bank One, NA, and the Tennessee Certificate of Title lists Bank One, NA, as the first lienholder on the Xterra. Chase's status as the holder of the claim secured by the Xterra is not explained, nor is it questioned by the Debtors. The court notes, however, that in a Motion for Entry of Agreed Order filed by Chase on March 2, 2006, it explains this omission by identifying itself as the "successor by merger to Bank One, N.A." [2] On January 23, 2006, the Bank Intervenors filed a Motion for Permission to Intervene for Purposes of Filing an Amicus Curiae Brief, which was granted by an Order entered on January 24, 2006. [3] On February 10, 2006, the NACBA Intervenors filed a Motion for Permission to Intervene for Purposes of Filing an Amicus Curiae Brief, which was granted by an Order entered on February 14, 2006. [4] On February 28, 2006, the NACBA Intervenors filed a Response to Motion to Set Aside Order Allowing NACBA to Intervene for Purposes of Filing an Amicus Curiae Brief, along with a Memorandum of Law in support thereof. [5] The drafters of Revised § 1325 did not provide the Anti-Cramdown Paragraph with an alphanumeric designation. They merely isolated the paragraph at the end of Revised 1325(a), making it difficult to cite. The Anti-Cramdown Paragraph is quoted in italics infra at page 7 within the text of the quoted provisions of Revised § 1325(a). [6] Certain of BAPCPA's provisions became effective on April 20, 2005, the date of enactment, but these provisions are not germane to the issue presently before the court. [7] The court supplies this word which was presumably inadvertently omitted by the drafters of the statute. [8] A Chapter 13 plan "may . . . modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor's principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims[.]" 11 U.S.C. § 1322(b)(2) (2005). This argument by the NACBA Intervenors is identical to the analysis by COLLIER ON BANKRUPTCY, as reflected in the following excerpt: Language added at the end of section 1325(a) by the 2005 amendments to the Bankruptcy Code removes certain claims from the protections of section 1325(a)(5). This new language states that for purposes of section 1325(a)(5), section 506 shall not apply to certain claims. Such claims, therefore, cannot be determined to be allowed secured claims under section 506(a) and are not within the ambit of section 1325(a)(5). Such claims may still be modified under section 1322(b)(2), which allows modification of the rights of holders of secured claims, with certain exceptions, but the restrictions on modification that apply to allowed secured claims under section 1325(a)(5) do not apply. A debtor is presumably bound only by the dictates of good faith and the other provisions of the Code in determining how such claims may be modified. Some courts, understandably, may look to prior law for guidance regarding what modifications are equitable. 8 COLLIER ON BANKRUPTCY ¶ 1325.06[1][a] (15th ed. rev.2005). Because an application of Revised § 1325(a)(5) in this manner is inconsistent with the purpose of the statute as a whole and the Anti-Cramdown Paragraph in particular, and because it does not take into account the entire claims allowance and disallowance process set forth in 11 U.S.C. §§ 501 (West 2005) and 502 (West 2005), the court does not find this argument persuasive and rejects the same. See 11 U.S.C. § 502(a) ("A claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest . . . objects."). [9] For secured creditors not within the scope of the Anti-Cramdown Paragraph, Revised § 1325(a)(5)(B) allows for cramdown in substantially the same manner as under Pre-BAPCPA § 1325(a)(5)(B). See In re Horn, B.R. (Bankr.M.D.Ala.2006). [10] Pre-BAPCPA § 506 did not contain subsection (a)(2), which was added to codify the Supreme Court's holding in Assocs. Commercial Corp. v. Rash, 520 U.S. 953, 117 S.Ct. 1879, 1885, 138 L.Ed.2d 148 (1997), in which the Court held that valuation of a secured claim under § 506(a) should be based upon replacement value. [11] Pre-BAPCPA § 506, entitled "Determination of Secured Status," provides in material part: (a) An allowed claim of a creditor secured by a lien on property in which the estate has an interest . . . is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property . . . and is an unsecured claim to the extent that the value of such creditor's interest . . . is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor's interest. 11 U.S.C. § 506 (2004). [12] See supra n. 11. [13] Under Tennessee law, a secured creditor "may sell, lease, license, or otherwise dispose of any or all of the collateral in its present condition or following any commercially reasonable preparation or processing[,]" TENN. CODE ANN. of § 47-9-610 (2001), arid following disposition, "the obligor is liable for any deficiency[,]" TENN. CODE ANN. § 47-9-615(d)(2) (2001), which includes costs of disposition and attorneys' fees associated therewith. TENN. CODE ANN. § 47-9-616(c)(5) (2001); see also Nationsbank v. Clegg, No. 01-A-01-9510-CH-00469, 1996 Tenn.App. LEIS 214, at 4-5, 1996 WL 165513, at 2 (Tenn.Ct.App. Apr.10, 1996) (discussing consequences of voluntary surrender of collateral). [14] Curiously, Chase did not file a motion to set aside the court's Order entered on January 24, 2006, allowing the Bank Intervenors to file an amicus curiae brief, perhaps believing that this group better supported Chase's position than did the NACBA Intervenors.	{ "pile_set_name": "FreeLaw" }
6 So.3d 614 (2009) LANG v. STATE. No. 2D08-3161. District Court of Appeal of Florida, Second District. March 5, 2009. Decision without published opinion. App.dismissed.	{ "pile_set_name": "FreeLaw" }
47 F.3d 433 U.S.v.McLellan (Louis Curt); U.S. v. Bozza (John Francis); U.S. v.Roark (Charles); U.S. v. Tullos (Ingrid); U.S. v.Ansong (Kwaku); U.S. v. Millwood (Harold Jackson) NOS. 93-8177, 93-8476 United States Court of Appeals,Eleventh Circuit. Jan 23, 1995 N.D.Ga., 28 F.3d 111 1 DENIALS OF REHEARING EN BANC.	{ "pile_set_name": "FreeLaw" }
IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT SEAN R. WEAVER, : No. 885 MAL 2015 : Petitioner : : Petition for Allowance of Appeal from : the Order of the Commonwealth Court v. : : : STATE EMPLOYEES' RETIREMENT : BOARD, : : Respondent : ORDER PER CURIAM AND NOW, this 17th day of May, 2016, the Petition for Allowance of Appeal is DENIED.	{ "pile_set_name": "FreeLaw" }
39 So.3d 588 (2010) STATE ex rel. Devin HARRY v. STATE of Louisiana. No. 2010-KH-1403. Supreme Court of Louisiana. July 7, 2010. *589 Denied.	{ "pile_set_name": "FreeLaw" }
535 U.S. 1108 MORENOv.UNITED STATES. No. 01-7790. Supreme Court of the United States. May 28, 2002. 1 534 U. S. 1168. Petitions for rehearing denied.	{ "pile_set_name": "FreeLaw" }
118 Cal.App.3d 265 (1981) 173 Cal. Rptr. 349 LIBERTY MUTUAL INSURANCE COMPANY et al., Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and JERRY J. VOLOMINO, Respondents. Docket Nos. 61101, 61110. Court of Appeals of California, Second District, Division Two. April 22, 1981. 268 COUNSEL Kendig, Stockwell & Gleason, William H. Anderson, Bralley, Bentley & Dickinson, Bralley & Bentley and Charles M. Bentley for Petitioners. Mallery & Stern, Richard C. Mallery and Lawrence I. Stern for Respondents. OPINION ROTH, P.J. Petitioner Liberty Mutual Insurance Company (Liberty) and petitioner Industrial Indemnity Company (Industrial Indemnity) both contend that respondent Workers' Compensation Appeals Board (WCAB) has erred in finding that respondent Jerry J. Volomino (hereinafter applicant) is (1) entitled to combined permanent disability award for all three of his industrial injuries and (2) permanently totally disabled as a result of such injuries. Industrial Indemnity raises the additional contention that the evidence does not support the WCAB's finding that applicant sustained a specific industrial back injury[1] on 269 April 9, 1975. We hold that the WCAB has indeed erred in awarding applicant a combined permanent disability award for all three of his industrial injuries. Petitioners' other contentions, however, are without merit. SUMMARY OF WCAB PROCEEDINGS The matter herein concerns three industrial back injuries sustained by applicant while employed as a route salesman by Stokely-Van Camp and its successor in interest, Bro-Mar, Inc. Liberty insured the employer for purposes of workers' compensation through January 31, 1972; thereafter and through April 9, 1975, Industrial Indemnity was the workers' compensation insurer for the employer. Applicant sustained his first industrial back injury while employed at Stokely-Van Camp on October 18, 1963. As a consequence of the 1963 industrial back injury, applicant had two surgeries. In 1964 he had a laminectomy and fusion of the L5-S1 interspace with screws inserted. Following the first surgery, applicant had continuing pain, requiring medical treatment, therapy and a low back support. In July 1967 the second surgery was performed; the screws were removed and additional bone was added in an attempt to fuse the spine. (1) (See fn. 2.) In April 1969 applicant's back condition from the 1963 injury was found to be permanent and stationary[2] and ready for permanent disability rating. Applicant was at that time found to be limited to light work; when adjusted for applicant's age and occupation at the time of injury, this resulted in a 52 percent permanent disability rating. As applied to the 1963 injury, pursuant to Labor Code section 4658, each percentage of permanent disability entitled applicant to four weeks of disability payments at the maximum weekly rate of $52.50. (Stats. 1949, ch. 1583, § 1, p. 2833; Rumbaugh v. Workers' Comp. Appeals Bd. (1978) 87 Cal. App.3d 907, 912, fn. 8 [151 Cal. Rptr. 563].) At that time for disabilities of 70 percent or more a life pension was also provided (Stats. 1949, ch. 1583, §§ 1, 2, p. 2833; Stats. 1959, ch. 1189, 270 §§ 13, 14, p. 3280.) Accordingly, the 52 percent permanent disability rating provided applicant with 208 weekly payments of $52.50 each in the total amount of $10,920. Applicant returned to work for Stokely-Van Camp and its successor Bro-Mar, Inc. and was assigned to lighter duties. Nonetheless, applicant sustained a cumulative injury (ante, fn. 1) to his back during his employment from April 1970 to and including April 9, 1975. Applicant also sustained another specific industrial back injury on April 9, 1975. As applied to the cumulative injury and the 1975 specific injury, a different permanent disability payment computation applies. For disabilities of less than 100 percent, instead of 4 weeks of payments for each percentage of disability, Labor Code section 4658 provides that the number of permanent disability payments are determined on a graduated scale whereunder the number of weekly payments increases in proportion to the percentage of permanent disability. (Stats. 1971, ch. 1750, § 5, p. 3776, operative Apr. 1, 1972; Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1, 4 [128 Cal. Rptr. 673, 547 P.2d 449]; Aten v. Workers' Comp. Appeals Bd. (1977) 75 Cal. App.3d 113, 117 [142 Cal. Rptr. 42]; Rumbaugh v. Workers' Comp. Appeals Bd., supra, 87 Cal. App.3d at p. 910.) Further, pursuant to Labor Code sections 4453 and 4658, for the cumulative injury and the 1975 specific injury the maximum weekly permanent disability payment (based upon earnings) for disabilities of less than 100 percent is $70 per week. (Stats. 1973, ch. 1023, §§ 2, 6, pp. 2028-2029, operative Apr. 1, 1974.) Also as applied to the latest two injuries, for disabilities over 70 percent but less than 100 percent, a life pension is provided once the specified number of weekly payments have been made. (Lab. Code, § 4659.) In cases of permanent total disability (100 percent disability), however, for an injury occurring in 1975 the injured worker is entitled to weekly payments for life of up to a $119 per week. (Stats. 1973, ch. 1023, §§ 2, 6, 7, pp. 2028-2030, operative Apr. 1, 1974.)[3] Herein, the WCAB has found that as a result of his three industrial injuries applicant is permanently totally disabled and that he is entitled to a consolidated permanent disability award for all three injuries of $119 a week for life. 271 DISCUSSION 1. The Consolidated Permanent Disability Award for All Three Industrial Injuries Is in Error. 272 (2) "Where ... successive injuries to the same part of the body become permanent and stationary at the same time, the worker is entitled to a permanent disability award based upon his combined disability at the permanent disability rates applicable at the time the last injury of the successive injuries giving rise to such benefits occurred. (Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 491 [138 Cal. Rptr. 696, 564 P.2d 848]; Harold v. Workers' Comp. Appeals Bd. (1980) 100 Cal. App.3d 772 [161 Cal. Rptr. 508]; Fullmer v. Workers' Comp. Appeals Bd. (1979) 96 Cal. App.3d 164 [157 Cal. Rptr. 735]; Taylor v. Workers' Comp. Appeals Bd. (1979) 95 Cal. App.3d 139 [156 Cal. Rptr. 906]; Nuelle v. Workers' Comp. Appeals Bd. (1979) 92 Cal. App.3d 239 [154 Cal. Rptr. 707]; Rumbaugh v. Workers' Comp. Appeals Bd. (1978) 87 Cal. App.3d 907 [151 Cal. Rptr. 563]; Aten v. Workers' Comp. Appeals Bd. (1977) 75 Cal. App.3d 113 [142 Cal. Rptr. 42]; Bauer v. County of Los Angeles (WCAB en banc opn., 1969) 34 Cal.Comp. Cases 594.) This principle is often called the `Wilkinson rule' after the Supreme Court opinion." (Norton v. Workers' Comp. Appeals Bd. (1980) 111 Cal. App.3d 618, 625 [169 Cal. Rptr. 33]; fns. omitted.) Thus, for example, under the Wilkinson rule where one back injury occurred when the permanent disability rate was only $52.50 per week and the second back injury occurred when the permanent disability rate was $70 per week, the injured worker is entitled to a consolidated permanent disability award for the total percentage of permanent disability award for the total percentage of permanent disability from both injuries at the $70 per week rate if the two injuries became permanent and stationary at the same time. (Harold v. Workers' Comp. Appeals Bd. (1980) 100 Cal. App.3d 772, 781-782 [161 Cal. Rptr. 508]; Fullmer v. Workers' Comp. Appeals Bd. (1979) 96 Cal. App.3d 164 [157 Cal. Rptr. 735]; Taylor v. Workers' Comp. Appeals Bd. (1979) 95 Cal. App.3d 139 [156 Cal. Rptr. 906]; Nuelle v. Workers' Comp. Appeals Bd. (1979) 92 Cal. App.3d 239 [154 Cal. Rptr. 707].) This rule applies even where one of the injuries was previously rated for permanent disability if such injury actually was getting progressively worse until the time of all the injuries became permanent and stationary. (Nuelle, supra, 92 Cal. App.3d at p. 246; Harold, supra, 100 Cal. App.3d at p. 786.) Relying on this line of cases and medical evidence that the 1963 injury, the 1975 specific injury, and the cumulative trauma injury all 273 became permanent and stationary at the same time, the WCAB has awarded applicant a 100 percent permanent disability at the rates applicable for the 1975 injuries which results in $119 per week for life, with credit for the original award for the 1963 injury issued in 1969. (3) Petitioners object to this consolidated award on the basis that the WCAB lost jurisdiction to, in any way, modify the 1963 award. As petitioners correctly point out, the WCAB has continuing jurisdiction to "rescind, alter, or amend" any of its awards only if steps are taken to reopen the award within a period of five years from the date of injury. (Lab. Code, §§ 5410, 5803-5805.) Here, the award in the 1963 injury case became final in 1969, when the original award in that case issued. The WCAB relies for its actions upon Harold v. Workers' Comp. Appeals Bd., supra, 100 Cal. App.3d 772. There the injured worker, Harold, sustained industrial injuries in 1971 (at which time the permanent disability benefit schedule was the same as in 1963) and 1973 (when the maximum permanent disability rate was $70 per week and the graduated schedule was in existence). The employee had been awarded 4 percent permanent disability for the 1971 injury per award issued in 1972; per the permanent disability rate of $52.50 then in effect, applicant was awarded $840. After the employee sustained the second industrial injury in 1973, she not only filed a claim for that injury but in 1974 timely petitioned to reopen the award for the 1971 injury. In 1975 Harold was found to be 33 percent disabled as a result of the 1973 injury and thus entitled to permanent disability benefits of $9,712.50, payable at $70 per week. As to the 1971 injury, Harold' petition to reopen was granted and she was awarded 32 1/2 percent permanent disability; for the rates applicable for the 1971 injury this resulted in a permanent disability award of only $6,825 payable at $52.50 per week. At that time it was also found that both injuries became permanent and stationary at the same time on January 7, 1975. "After the [1977 Supreme Court] decision in Wilkinson, Harold filed a petition to reopen the 1973 injury on October 5, 1977, arguing a change of law, pointing to Wilkinson. No petition to reopen was filed with respect to the 1971 injury; as more than five years had elapsed since the injury the [WCAB] no longer had jurisdiction to reopen the case. (Lab. Code, §§ 5410, 5803, 5804.)" (Harold, supra, 100 Cal. App.3d at p. 783.) 274 The court in Harold first recognized that the Supreme Court decision in Wilkinson established "good cause" to reopen the prior award for the 1973 injury. (Harold, supra, 100 Cal. App.3d at p. 775; see also, Knowles v. Workmen's Comp. App. Bd. (1970) 10 Cal. App.3d 1027, 1030 [89 Cal. Rptr. 356].) The court in Harold found that there existed all the elements for application of Wilkinson and the cases following it. The difficulty for the court was that the 1971 injury was not before the court as "When in 1977 Harold sought to reopen the 1973 injury award, the [WCAB's] continuing jurisdiction under Labor Code sections 5803-5805 to reopen the 1971 injury for `good cause' upon a petition filed within five years of the date of injury had already expired. Thus, the [WCAB's] and this court's jurisdiction is limited to the 1973 injury." (Id. at p. 786.) The court observed that "As neither the [WCAB] nor the court has jurisdiction over the 1971 injury, the award therein is final and must be given res judicata effect. [Citation.] To now award Harold 65 1/2 percent permanent disability (the total permanent disability for both injuries) based upon the rates in effect at the time of the 1973 injury would be to ignore the finality of the 1971 injury award (ibid.). However, that the 1971 injury award may not now be altered does not prevent the court from applying Wilkinson, [and its progeny] Nuelle, Taylor and Fullmer to the 1973 injury award to the extent possible." (Harold, supra, 100 Cal. App.3d at pp. 786-787.) The court in Harold therefor applied Wilkinson as follows: "As Harold has met all the factual prerequisites for the application of the rule of Wilkinson and Nuelle she is entitled to 349.5 weekly payments of permanent disability as is provided for a post-April 1, 1972 award of 65 1/2 percent permanent disability. While an award of 32 1/2 percent permanent disability for the 1971 injury is only 130 weeks of payments, the additional 219.5 weekly payments are not for the 1971 injury but for the increased permanent disability as a result of the 1973 injury. Thus, we are not altering the 1971 award in this respect. However, as the 1971 injury award may not be modified the amount of the weekly payments thereunder cannot be adjusted. Accordingly, the first 130 weekly payments may only be $52.50 and the balance of the 219.5 weekly payments are to be $70 per week." (Harold, supra, 100 Cal. App.3d at pp. 787-788.) There is, however, an important fact that distinguishes Harold from the present matter. In Harold the injured worker within five years of the date of the 1971 injury had filed a petition to reopen the award for such injury. Thus, when the WCAB in Harold found that Harold's 275 1971 injury and 1973 injury became permanent and stationary at the same time the WCAB was still properly exercising its continuing jurisdiction over the 1971 injury. Here, applicant's 1963 injury award became final in 1969, and has never been reopened. Thus, at the time of the filing of the claims for the 1975 specific injury and the cumulative trauma injury, the award for the 1963 injury had long since become final. It was improper for the WCAB to alter the permanent and stationary date for the 1963 injury to bring it up to when the current injuries became permanent and stationary so as to apply the doctrine in Wilkinson. Nothing in Harold permits the modification of the permanent and stationary date after the WCAB has lost jurisdiction; to the contrary Harold demonstrates that the WCAB has exceeded its jurisdiction and failed to give res judicata effect to the now final 1963 injury award. Accordingly, applicant is not entitled to a consolidated permanent disability award of $119 a week for life as found by the WCAB. Applicant for the 1963 injury may still only receive a permanent disability rating of 52 percent payable at $52.50 for 208 weeks for a total of $10,920. However, as to the 1975 specific injury and the cumulative injury, they may be combined for permanent disability rating purposes pursuant to Wilkinson as these two back injuries became permanent and stationary at the same time. 2. Substantial Evidence Supports the Finding of Permanent Total Disability. (4a) Petitioners contend that substantial evidence does not support the WCAB's finding that applicant is now permanently totally disabled. (5) "[J]udicial review of decisions of the WCAB on factual matters is limited to determining whether the decision, based on the entire record, is supported by substantial evidence. ([Lab. Code,] § 5952, subd. (d); LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627 [83 Cal. Rptr. 208, 463 P.2d 432])." (Southern California Rapid Transit Dist., Inc. v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 158, 162 [151 Cal. Rptr. 666, 588 P.2d 806].) "In this regard it is well established that the relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence." (Market Basket v. Workers' Comp. Appeals Bd. (1978) 86 Cal. App.3d 137, 144 [149 Cal. Rptr. 872].) 276 (4b) The agreed medical examiner, Marvin Meyers, M.D., has opined that applicant is limited to sedentary work. However, Mickey R. Shintaku, M.D., who was reporting on behalf of petitioner Liberty, opined that applicant was "permanent and stationary and totally medically disabled." Accordingly, based upon the opinion of Dr. Shintaku, the finding of permanent total disability is supported by substantial evidence. 3. The Finding of a Specific Injury on April 9, 1975, Was Proper. (6) Finally, Industrial Indemnity contends that substantial evidence does not support the finding of a specific injury on April 9, 1975, but rather any industrial injury on that date was merely part of the cumulative trauma injury during applicant's employment period from April 1970, through and including April 9, 1975. Industrial Indemnity, of course, insured the employer from January 1, 1972, through April 9, 1975. In denying reconsideration on this point, the WCAB stated: "Although petitioners Bor-Mar, Inc. and Industrial Indemnity now contend that the evidence does not support a finding of specific injury on April 9, 1975, they stipulated to that injury at the hearing on May 19, 1976, and the stipulation was never rescinded. Moreover, Industrial Indemnity will be allowed ample opportunity, if necessary, to litigate the question of the amount of its contribution in supplemental proceedings for that purpose under Labor Code Section 5500.5 [and at that time the respective liability of Liberty and Industrial Indemnity can be resolved]." As the WCAB stated in its opinion, Industrial Indemnity stipulated to a specific industrial injury having occurred on April 9, 1975, and it has not shown any good cause for it to be released from said stipulation. (Lab. Code, § 5702; Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal. App.3d 856, 865-866 [157 Cal. Rptr. 355].) Accordingly, we will not set aside the WCAB's finding of a specific injury on April 9, 1975. SUMMARY AND DISPOSITION The WCAB's decision is in error only insofar as it combines the permanent disability award for the 1963 industrial back injury with the cumulative back injury and the 1975 specific injury. The Wilkinson rule may here not be applied to consolidate the permanent disability 277 award for the 1963 injury and the later two injuries as the WCAB has long since lost any jurisidiction over the 1963 injury. The WCAB, however, may properly apply the Wilkinson rule to issue a consolidated permanent disability award for the cumulative injury and the 1975 specific injury as both such back injuries became permanent and stationary at the same time. The WCAB's decision is annulled and the matter remanded to the WCAB with directions to redetermine the permanent disability award in accord with our decision and the established principles of permanent disability apportionment. Fleming, and Beach, J., concurred. The petition of respondent Volomino for a hearing by the Supreme Court was denied June 24, 1981. NOTES [1] "An injury may be either: (a) `specific,' occurring as the result of one incident or exposure which causes disability or need for medical treatment; or (b) `cumulative,' occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment...." (Lab. Code, § 3208.1.) [2] "A disability is considered permanent after the employee has reached maximum improvement, or his condition has been stationary for a reasonable period of time, as may be determined by the Appeals Board or a [workers' compensation judge]," (WCAB Rules Prac. & Proc. (Cal. Admin. Code, tit. 8, ch. 4.5, subch. 2) § 10900; see also Bstandig v. Workers' Comp. Appeals Bd. (1977) 68 Cal. App.3d 988, 995-996 [137 Cal. Rptr. 713].) [3] As applied to the 1975 specific injury and the cumulative trauma injury ending in 1975, Labor Code section 4658 provides: "If the injury causes permanent disability, the percentage of disability to total disability shall be determined, and the disability payment computed and allowed according to subdivision (a). However, in no event shall the disability payment allowed be less than the disability payment computed according to subdivision (b). "(a) Column 2 Number of weeks for which two-thirds of average weekly earnings allowed for Column 1 Range of percentage each 1 percent of permanent of permanent disability disability within percentage incurred: range: Under 10 ................................................................. 3 10-19.75 ................................................................. 4 20-29.75 ................................................................. 5 30-49.75 ................................................................. 6 50-69.75 ................................................................. 7 70-99.75 ................................................................. 8 "The number of weeks for which payments shall be allowed set forth in column 2 above based upon the percentage of permanent disability set forth in column 1 above shall be cumulative, and the number of benefit weeks shall increase with the severity of the disability. The following schedule is illustrative of the computation of the number of benefit weeks: Column 1 Percentage of permanent Column 2 Cumulative number disability incurred: of benefit weeks: 5 ................................................................... 15.00 10 .................................................................. 30.25 15 .................................................................. 50.25 20 .................................................................. 70.50 25 .................................................................. 95.50 30 .................................................................. 120.75 35 .................................................................. 150.75 40 .................................................................. 180.75 45 .................................................................. 210.75 50 .................................................................. 241.00 55 .................................................................. 276.00 60 .................................................................. 311.00 65 .................................................................. 346.00 70 .................................................................. 381.25 75 .................................................................. 421.25 80 .................................................................. 461.25 85 .................................................................. 501.25 90 .................................................................. 541.25 95 .................................................................. 581.25 100 ............................................................... for life "(b) Two-thirds of the average weekly earnings for four weeks for each 1 percent of disability, where, for the purposes of this subdivision, the average weekly earnings shall be taken at not more than seventy-eight dollars and seventy-five cents ($78.75)." Labor Code section 4659 provides as applied to the 1975 specific injury and the cumulative injury: "(a) If the permanent disability is at least 70 percent but less than 100 percent, 1.5 percent of the average weekly earnings for each 1 percent of disability in excess of 60 percent is to be paid during the remainder of life, after payment for the maximum number of weeks specified in Section 4658 has been made. For the purposes of this subdivision only, average weekly earnings shall be taken at not more than one hundred seven dollars and sixty-nine cents ($107.69). "(b) If the permanent disability is total, the indemnity based upon the average weekly earnings determined under Section 4453 shall be paid during the remainder of life."	{ "pile_set_name": "FreeLaw" }
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0548n.06 No. 16-2414 UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Oct 03, 2017 DEBORAH S. HUNT, Clerk DAVID HYLKO, JR., ) ) Plaintiff-Appellant, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT JOHN HEMPHILL and U.S. STEEL ) COURT FOR THE EASTERN CORPORATION, ) DISTRICT OF MICHIGAN ) Defendants-Appellees. ) ) Before: GUY, ROGERS, and KETHLEDGE, Circuit Judges. KETHLEDGE, Circuit Judge. David Hylko, Jr. and John Hemphill worked at a U.S. Steel plant in Ecorse, Michigan. Hemphill made sexual comments towards Hylko and touched him in a sexual manner. Hylko sued Hemphill and U.S. Steel for sexual harassment. The district court granted summary judgment to the defendants. We affirm. Hylko, a shift-manager, and Hemphill, the process coordinator, worked closely together; Hemphill trained Hylko and assigned his duties. Both reported to the Area Manager Mark Jobin, who reported to the Division Manager Tom Gunnell, Jr. According to Hylko, Hemphill began harassing him as soon as they started working together. Hemphill regularly asked Hylko about his sex life. These conversations made Hylko uncomfortable, but he went along because he believed that his “employment hinged on [Hemphill’s] approval[.]” No. 16-2414 Hylko v. Hemphill, et al. The harassment was also physical. Hemphill twice grabbed Hylko’s buttocks, saying that Hylko had a “nice firm ass.” Another time, Hemphill grabbed Hylko’s penis in the elevator. When they walked out, Hemphill allegedly did it again and said, “[l]ook, he doesn’t even flinch.” Hylko said that Hemphill grabbed him so hard that it hurt. Yet another time, Hemphill put a banana in the zipper of his pants and poked Hylko’s office mate with it. Hylko eventually told Gunnell, Jobin, and two human-resource managers about the harassment. They offered to transfer him to a different area of the plant so that he would no longer work directly with Hemphill. Hylko accepted. The four managers then met with Hemphill, who admitted to grabbing Hylko’s behind and the banana incident (they did not ask him about the elevator incident). They gave Hemphill a verbal warning and a one-week suspension, demoted him to shift manager, and made him take a leadership class. Thereafter Hemphill did not harass Hylko again, though the two did still interact occasionally. Hylko resigned a few months later. Hylko later filed this lawsuit against Hemphill and U.S. Steel asserting claims for sexual harassment in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e., and under the Michigan Elliot-Larsen Civil Rights Act, M.C.L. 37.2101. The district court granted summary judgment to Hylko and U.S. Steel. Hylko now appeals. We review the district court’s decision de novo. Livingston Christian Schools v. Genoa Charter Twp., 858 F.3d 996, 1000 (6th Cir. 2017). To establish a violation of Title VII (and the Michigan Civil Rights Act) based on sexual harassment, the employee must show that (i) the sexual harassment was based on his sex; (ii) the harassment created a hostile work environment; and (iii) the employer is vicariously liable for the conduct at issue. See Clark v. United Parcel Serv., 400 F.3d 341, 347 (6th Cir. 2005); Wasek v. Arrow Energy Services, Inc., 682 F.3d 463, 468 (6th Cir. 2012). -2- No. 16-2414 Hylko v. Hemphill, et al. We cut to the question of vicarious liability. An employer is vicariously liable for the harasser’s conduct if he is the employee’s supervisor. See Vance v. Ball State University, 133 S. Ct. 2434, 2439 (2013). And an employee is a “supervisor” under Title VII only if he is “empowered by the employer to take tangible employment actions against the victim.” Id. at 2454. A tangible employment action is one that effects “a significant change in [the victim’s] employment status[.]” Id. at 2443. Here, Hemphill had the authority to assign Hylko his daily duties, but not the authority to promote, to demote, or to fire him. And though Hemphill could recommend disciplinary action against Hylko, other U.S. Steel managers could do what they liked with those recommendations. Thus, Hemphill was not authorized to effect a significant change in Hylko’s employment status. See id. Hylko contends that Hemphill was his supervisor because U.S. Steel and Hemphill both referred to him as such. But colloquial uses of “supervisor” do not control the question of whether an employee is one. See id. at 2444. “Supervisor” has various meanings in business settings, but has a specific meaning for the purposes of Title VII. See id. And Hemphill does not meet the legal definition of “supervisor.” Hylko argues alternatively that he reasonably believed Hemphill was his supervisor and hence that we should treat Hemphill as one here. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759 (1998). Hylko did not make this argument in the district court, however, so it is waived. See Hayward v. Cleveland Clinic Found., 759 F.3d 601, 614-15 (6th Cir. 2014). Finally Hylko argues that, even if Hemphill was only a co-worker, U.S. Steel is still liable for his conduct because it responded unreasonably to Hylko’s complaint. See Waldo v. Consumers Energy Co., 726 F.3d 802, 813-14 & n.2 (6th Cir. 2013). Specifically, Hylko says that U.S. Steel treated men who harassed women more harshly than it treated Hemphill here. -3- No. 16-2414 Hylko v. Hemphill, et al. Yet there is no requirement that an employer treat every harassment complaint the same. Rather, “a response is adequate if it is reasonably calculated to end the harassment.” Id. at 814. Here, U.S. Steel transferred Hylko and disciplined Hemphill in response to Hylko’s complaint. And Hylko concedes that these actions ended the harassment. We see no basis to reverse the district court on this ground. U.S. Steel, therefore, is not vicariously liable for Hemphill’s actions. Hence Hylko’s claims fail. The district court’s judgment is affirmed. -4-	{ "pile_set_name": "FreeLaw" }
THE THIRTEENTH COURT OF APPEALS 13-17-00295-CV EX PARTE MARCO MARTINEZ On Appeal from the 148th District Court of Nueces County, Texas Trial Cause No. 2016DCV-0201-E JUDGMENT THE THIRTEENTH COURT OF APPEALS, having considered this cause on appeal, concludes the judgment of the trial court should be reversed and the cause remanded to the trial court. The Court orders the judgment of the trial court REVERSED and REMANDED for further proceedings consistent with its opinion. Costs of the appeal are adjudged against appellee. We further order this decision certified below for observance. May 31, 2018	{ "pile_set_name": "FreeLaw" }
394 A.2d 779 (1978) STATE of Maine v. William Robert CLARK. Supreme Judicial Court of Maine. November 27, 1978. 780 Henry N. Berry, III, Dist. Atty., Peter G. Ballou, Deputy Dist. Atty., Portland, Constance P. O'Neil (orally), Law Student, for plaintiff. Bornstein & Campbell by Remington O. Schmidt, Portland (orally), for defendant. Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ. WERNICK, Justice. By indictment returned December 14, 1976 in the Superior Court (Cumberland County) defendant William Clark was charged with having committed, on November 8, 1976, the crime of Burglary of a dwelling place, a Class B crime, in violation of 17-A M.R.S.A. § 401. Tried before a jury at the end of November, 1977, defendant was found guilty as charged. He has appealed from the judgment of conviction. Among the several grounds claimed by defendant as reversible error, we find one dispositive: that the presiding Justice erroneously excluded evidence critically important to the defense against the charge. We sustain the appeal on that ground without reaching the other issues raised. 781 At approximately 10:00 p. m. on November 8, 1976, neighbors observed flickering lights in a garage attached to John Malconian's home on George Street in Portland. Upon investigation the neighbors discovered defendant Clark hiding in the garage. A number of matches were found on the garage floor. Subsequently inspecting the garage, the owner observed that a rotisserie, a gas can, and an antique cash register were not as they were when he had last seen them; they had been moved or upset. The one door leading from the garage into the Malconian home showed no signs of any attempted entry. Both at the time of his arrest and at trial, defendant maintained that he entered the garage to escape from assailants who were pursuing him. His story, in more detail, was as follows. On the night in question he was driving his car along Baxter Boulevard. Noticing that a car was tailing him, he tried to lose it by making a series of turns in and out of various streets unfamiliar to him. Ultimately, he stopped his car and jumped out to confront his followers. Two passengers, their identity unknown to defendant, began to beat him. In an effort to escape, defendant sought refuge in a nearby garage he happened to notice. Over objection by the prosecution, defendant was permitted to testify about being assaulted on three prior occasions.[1] Once, two unknown persons had kicked in defendant's apartment door and beat him for half an hour. At another time five people had entered defendant's apartment, and in the presence of his friend, David Coffey, threatened to kill him. On a third occasion, a pair of assailants attacked defendant in his girlfriend's apartment. It was against this background of previous assaults on him that defendant testified about being frightened because men in a car were tailing him. Explaining why he ran from the occupants of the car, defendant said: "My life is in jeopardy. My life has been in jeopardy several times and if I didn't, I'd of been dead now. I mean, I'd run into a place for a baseball bat or something I can defend myself with." Defendant also testified that to assist him in looking for a weapon to use to protect himself, he lit several matches while he was in the garage. The only other defense witness, defendant's friend David Coffey, testified that on November 8th defendant telephoned him from the County jail, told him that he had been arrested and asked Coffey to find his car and move it. Defendant added that he "wasn't quite sure which street it was on." Coffey testified that he found defendant's car out in the middle of a street, six to eight feet from the curb. When defense counsel undertook to question Coffey about his knowledge of the second of the prior assaults to which defendant had testified, the prosecution objected. The objection was sustained and the evidence was excluded.[2] *782 We agree with defendant's claim that the exclusion of Coffey's testimony on this point was reversible error. The only issue in the trial concerned defendant's reason for entering the garage. Did he intend to steal something, or, as he maintained, did he intend merely to escape from unknown assailants? Precisely because the story told by defendant was so unusual as not to command ready belief, basic fairness required that there be special concern to ensure that the jury have the benefit of all relevant circumstances reasonably tending to corroborate defendant's testimony and thus assist defendant in his effort to establish that in his case the truth was truly "stranger than fiction." Trial courts have generally been admonished to grant defendants wide latitude in admitting evidence of other events and circumstances which circumstantially shed light on the intent of defendants discovered on the premises of other persons.[3] In cases like the one now before us, where the defendant's intent was the only contested issue, to refuse to admit evidence which could have important bearing in revealing defendant's state of mind is tantamount to depriving the defendant of an opportunity to make any defense at all. Here, the exclusion of such corroborating circumstantial evidence seriously impaired defendant in his attempt to convince the jury that he should be acquitted of burglary because he entered another person's garage with the lawful intention of escaping from assailants he believed were threatening his life, and not for the purpose of committing a crime therein. The entry is: Appeal sustained; judgment of conviction set aside. NICHOLS, J., did not sit. NOTES [1] In response to the State's objection the presiding Justice ruled: ". . . I am going to admit it not necessarily as proof of the truth of the statement, but as to establish the state of mind as far as the . . . [defendant is] concerned." He instructed the jury that the defendant's testimony should not be considered as evidence of "the truth of what the witness is about to testify, but merely as it bears upon his state of mind." Had there been an indication that the defense was seeking to introduce hearsay through the mouth of the defendant, this ruling would have been proper. Here, however, defendant was seeking to testify to events he personally witnessed, and there was no indication that hearsay evidence was forthcoming. The presiding Justice's instruction was thus misleading. Defense counsel's purpose was to establish both the truth of the defendant's testimony regarding the alleged prior assaults and the defendant's resulting state of mind on the night of November 8th. By instructing the jury not to consider the truth of defendant's testimony but only defendant's state of mind, the presiding Justice created a risk that the jurors might infer that they were to consider whether defendant was mentally deranged and had hallucinated a series of imaginary assaults which later led him to run from non-existent assailants into Malconian's garage. This would have led the jury to believe that defendant's story was even weirder than the one he was trying to tell. [2] The State contends that since defense counsel failed to make a proper offer of proof which would have alerted the presiding Justice to the nature of the testimony sought to be introduced, defendant is precluded from raising the issue of the presiding Justice's ruling on appeal. The record indicates plainly that no offer of proof was necessary. It is not tenable to assert, as the State does, that the presiding Justice was unaware of the substance of Coffey's testimony. Defendant had already testified concerning the prior assaults, and had stated that a friend was present during the second incident. The question propounded to Coffey was: "Were you ever present in his [defendant's] apartment when there was an altercation between him and some other people?" The wording of the question itself informed the Court of the substance of the anticipated answer. [3] Some cases in other jurisdictions concern burglary defendants who maintained that their intent was to have consensual sexual intercourse with a woman on the premises. In these situations, appellate courts have held that the failure to admit evidence or romantic liaisons between the defendant and the woman in question is prejudicial error. Hawkins v. State, 247 Ala. 576, 25 So.2d 441, 442 (1946); Robinson v. State, 53 Md. 151, 153, 154 (1879).	{ "pile_set_name": "FreeLaw" }
142 Cal.App.3d 294 (1983) 190 Cal. Rptr. 757 THE PEOPLE, Plaintiff and Respondent, v. JOHN RONALD DE LARCO, JR., Defendant and Appellant. Docket No. 41413. Court of Appeals of California, Second District, Division One. March 30, 1983. 297 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Cheryl Lutz, Deputy State Public Defender, for Defendant and Appellant. George Deukmejian and John K. Van de Kamp, Attorneys General, Robert H. Philibosian, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Edward T. Fogel, Jr., Gary R. Hahn and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent. OPINION HANSON (Thaxton), J. PROCEDURAL HISTORY By amended information, defendant was charged with burglary, a violation of Penal Code section 459. Defendant entered a plea of not guilty. Trial was by jury. During cross-examination of the first prosecution witness, the court expressed concern about the accuracy of a preliminary hearing transcript. Defense counsel's use of this transcript for impeachment purposes was complicated by the fact that the witness was Spanish-speaking and he required an interpreter in order to testify. After holding an in camera hearing, the court found the transcript was unreliable and sustained its own objection to its further use to 298 impeach this witness. The court then instructed the jury to disregard all references to the preliminary transcript. The court subsequently denied defendant's motion for mistrial and motion to strike all of the testimony of the witness. The jury found that the defendant was guilty of burglary in the second degree. Probation was denied and appellant was sentenced to state prison for the upper term of three years, with thirty days' credit. Defendant has appealed from the judgment of conviction. FACTUAL BACKGROUND On May 30, 1981, at about 3 p.m., Jose Ramirez and Victor Borja locked up and left Borja Automotive Shop (Shop) at 319 West First Street in Claremont. Ramirez worked at the shop as a mechanic, as well as a night watchman, for which he received free room, where he lived, upstairs from the shop in a partially open loft space. Ramirez returned home to the shop at about 2:40 a.m. Sunday morning and he noticed a hoodless car parked in a parking place belonging to the shop, located in an alley behind the shop. The car had not been parked there earlier when he left the shop. Ramirez did not recognize the car; he became suspicious and he blocked the car with his own car. He proceeded to open the shop and as he inserted the key he heard the sound of glass falling. As he hurriedly entered the dark shop he saw a tool box with all its drawers scattered and the money box in the office was open. Then he saw some legs in the shop's interior moving toward the outside. He turned on the light and for about 30 seconds looked at the face of the man whose legs he had seen earlier, as he was climbing out the window to the outside.[1] Ramirez also saw a second person already outside whose face he could not see. At trial, Ramirez positively identified appellant as the person whose face he had seen.[2] Ramirez first telephoned his employer Borja to call the police because he spoke very little English. Borja arrived with his wife about 20 minutes later. 299 Mrs. Borja served as interpreter when the police interviewed Ramirez.[3] Ramirez showed the police the disorderly shop, where all the tools were moved from the tool boxes to cardboard boxes, lined up next to the broken window. The tools had been in tool boxes, where they were ordinarily kept, when Ramirez and Borja had closed the shop earlier. A chrome flashlight, colored white, unlike the plastic ones used at the shop, was found near the broken window.[4] Also, $400 was missing from a cash box. Ramirez did not give anyone permission to enter the shop that night. During cross-examination, Ramirez described the intruder he saw as being 5 feet 5 inches to 5 feet 7 inches, 120 to 135 pounds, with blue eyes and lightbrown shoulder-length hair. He described the two intruders as being from 18 to 20 years old. Officer McMahan testified that Ramirez described the intruders as being aged 18 to 20 and both looked alike, one was 5 feet 7 inches and 170 pounds with shoulder-length blonde or light brown hair.[5] After interviewing Ramirez, the police conducted a surveillance of the car, a 1967 Pontiac GTO, which Ramirez had blocked off earlier. At about 5:30 a.m., defendant drove off in the GTO. Police in several marked cars followed defendant one car immediately turned on the rotating light bars atop it and later swerved into a driving lane in front of the GTO. The GTO swerved to avoid the police cars, crossed four lanes to make a left turn and then speeded up. The second police car turned on its siren and gave chase. The GTO could not negotiate a turn, slid across the street, jumped a curb, and came to rest in a parking lot some 20 to 25 feet from the sidewalk. Defendant then left the car and began to run but was apprehended after a foot chase. DEFENDANT'S CASE After defendant was arrested, he was given his constitutional rights which he waived. Defendant told the police that he had not been inside the shop and there was no reason for his fingerprints to be on anything inside the shop. Nevertheless, defendant's fingerprint matched a latent print found on the chrome flashlight. Defendant testified at trial that a few days before the burglary, he visited his friend John Weeden, who worked at the shop. He talked to Weeden for several hours, while Weeden worked on a car, during which time he handed Weeden a few tools. 300 His friend told him to bring his car in over the weekend and he would do some needed repairs on it. On the morning of the burglary at about 2 a.m. defendant dropped off his car at the shop and walked over to a nearby friend's house to get a ride home.[6] His friend, Mark Pearson, who used to work at the shop, was not at home, but he waited for him for three hours, dozing off at times, before leaving to go home. He went back to the shop, got into his car and drove off. He accelerated when he saw the police cars following him because he was frightened. He had no license, the car was unregistered and he thought there was a warrant out for his arrest from a ticket he had received for drinking beer in a friend's backyard. He said he had never seen the metal flashlight, nor had he committed the burglary. He also said his eyes were brown. He had 97 cents on him at the time of his arrest. ISSUES Defendant contends that: (1) the trial court committed reversible error by refusing to allow impeachment of Ramirez, the chief prosecution witness, with a preliminary hearing transcript, and (2) the trial court committed reversible error in instructing the jury pursuant to CALJIC No. 2.62 that they could draw adverse inferences from the defendant's failure to explain or deny the existence of his fingerprint on the chrome flashlight. I (1a) Defendant argues that the trial court's refusal to allow him the right to impeach the chief prosecution witness constituted a denial of confrontation guaranteed by the Sixth Amendment and article I section 15 of the California Constitution. Ramirez testified through an interpreter at the preliminary hearing as well as at trial. Defense counsel, Joan Garrott, sought to impeach him by use of prior inconsistent statements made at the preliminary hearing and statements made on direct examination at trial. Counsel asked defendant if he made certain statements from the preliminary hearing that the man he saw was outside the building.[7] The record shows the interpreter expressed difficulty hearing the entire 301 question. After the question was repeated, the witness answered in contradiction to the preliminary testimony that he saw the person outside. An unrecorded bench conference was held. The question was read back and Ramirez again denied testifying to that effect: "Q. Mr. Ramirez, did you ever testify at the preliminary hearing that you turned on the light and saw the man standing outside the place? "A. No. "Q. You never testified to that effect? "A. If I could explain about this? "THE COURT: Well, sir, the district attorney will be able to ask you other questions which will probably bring out your explanation, but she is entitled to ask the questions she wants to. "BY MS. GARROTT: Q. Was that answer no, sir? "A. No. "Q. And did you ever testify at the preliminary hearing that you looked in the office, saw that the money was gone, and that was when you saw this gentleman outside the window in the hallway of the "A. I don't understand it. "Q. Did you ever testify "THE COURT: I've got an idea that may help in this area a whole lot. Approach the bench for a second and see if you like my idea." (A conference was held at the bench which was not reported.) 302 After the bench conference, the trial judge directed counsel, the witness and interpreter to briefly confer in the jury room. When the trial resumed, both counsel stipulated that the reporter's transcript of the preliminary hearing was an accurate transcription of the proceedings. Mrs. Garrott resumed her cross-examination on whether Ramirez testified that the person he saw at the scene of the crime was standing outside: "MS. GARROTT: Counsel, I am referring to page 12, line 8. "Q. Mr. Ramirez, did you ever testify that the person that you saw was outside the place? "A. As I said before "MS. GARROTT: And, counsel, I am referring to lines 9 through 14. "Q. Did you ever testify after the Court asked you whether you saw Mr. De Larco inside the building, that you said, `No, no, when I turned he was outside. When I turned on the light he was already outside?' "A. Yes. "Q. And when the Court asked you, `Did you see him inside the building at all?' you said, `No.' "MR. GAROFALO: What is counsel reading? "MS. GARROTT: Lines 13 and 14. "THE WITNESS: As I explained to you "MS. GARROTT: I would move to strike as not responsive. "THE COURT: Okay, ask the question again. "BY MS. GARROTT: Q. Mr. Ramirez, did you ever testify at the preliminary hearing in response to a question that was asked by the Court, `Did you see him inside the building at all?' that your response was, `No'? "A. I answered no because I didn't see his face. "MS. GARROTT: I would move to strike as nonresponsive, your Honor. I think it calls for a yes or no answer. 303 "THE WITNESS: But I saw his body. "THE COURT: I believe the answer to the question is, Yes, I answered no. I will strike the balance. That seems to be the essence of his answer. "MS. GARROTT: Thank you, your Honor. "Counsel, I am referring to page 13, lines 2, 5 and 6. "Q. Mr. Ramirez, at the preliminary hearing did you testify that you saw the person's face outside the building the same place where there was a broken window? "A. Yes. "MS. GARROTT: And, counsel, I am referring to lines 7 through 9 on page 13. "Q. Did you say that Mr. De Larco was about one foot, more or less, away from the broken window? "A. Yes. "MS. GARROTT: And, counsel, I am referring to page 14 and 15 of the preliminary hearing transcript. "Q. Mr. Ramirez, in response to a question, `When you first came back to Borja Automotive that early morning, did you block the car off at that time, or did you go into the automotive place first?' did you say, `I went into the automotive place first, I did not block it first'? "A. I blocked the car. I blocked the car. I entered and "MS. GARROTT: I would move to strike as nonresponsive. "Would you like me to approach the witness and have the interpreter read each question and answer to him and ask him if he testified to that event? "THE COURT: Let's do that. "Mr. Ramirez, at this time the defense attorney is just asking you if you have previously made some statements. I think the easiest thing to do will be if she comes up and shows the interpreter the statement she is asking about and the interpreter 304 will ask you about it. Really the only question right now is did you previously make that statement. "Let's try it that way. "Ms. GARROTT: Thank you. May I approach the bench? "THE COURT: Yes. "BY MS. GARROTT: Q. Okay, in the preliminary hearing transcript at page 14 and 15 was a question asked of you, `When you first came back to Borja Automotive that early morning ' "A. No, I arrived and then I blocked the car. "MS. GARROTT: I would move to strike as nonresponsive your Honor. "THE COURT: Let's do this: Let's recess for just a moment. Let me see counsel in chambers briefly...." An in camera hearing was held pursuant to Evidence Code sections 402 and 403, on the court's own motion. At the outset the judge said that there was an inability due to the witness's Cuban background to accurately interpret the witness's testimony. Further, that Ms. Garrott's past half hour of attempted impeachment was not producing evidence of probative value: "I find based upon observations of the witness's demeanor and his apparent inability to answer questions responsibly that the witness is simply being further confused by the references to the preliminary hearing transcript, the accuracy of which I am simply not able to form a conclusion on in the context of this case. "Accordingly, pursuant to Evidence Code section 352 it is my intention to strike all references to the preliminary hearing transcript and to direct the jurors to disregard that, to simply invite counsel to cross-examine and, in turn, redirectly examine the witness on the events that occurred and simply to conclude with some regret that the preliminary hearing transcript has no evidentiary value either as direct evidence or as an impeachment document. I am simply not satisfied that the witness gave the responses attributed to him or that he understands what is being asked of him." The interpreter at the preliminary hearing, Richard Nance, testified on behalf of defendant that he accurately translated. He said that when he did have difficulty on several occasions, he stopped the proceeding for clarification and that 305 Ramirez appeared to understand counsel's questions. Thereafter, the court denied any further use of the preliminary to impeach Ramirez on the basis of Evidence Code section 352, and the jury was instructed to disregard all references to the preliminary transcript. DISCUSSION (2) The right of an accused in a criminal case to confront the witnesses against him is a fundamental right secured by the Sixth and Fourteenth Amendments and article I, section 14 of the California Constitution. (Pointer v. Texas (1964) 380 U.S. 400, 403 [13 L.Ed.2d 923, 926, 85 S.Ct. 1065]; Davis v. Alaska (1974) 415 U.S. 308, 315 [39 L.Ed.2d 347, 353, 94 S.Ct. 1105].) Writing for the majority in Davis, Chief Justice Warren Burger said, "[C]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." (Davis v. Alaska, id., at p. 316 [39 L.Ed.2d at p. 353].) (3) A trial court has broad discretion to exclude evidence pursuant to Evidence Code section 352 if "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Jennings v. Superior Court (1967) 66 Cal.2d 867, 877 [59 Cal. Rptr. 440, 428 P.2d 304].) Character evidence may be properly excluded under this section. (People v. Shoemaker (1982) 135 Cal. App.3d 442, 448 [185 Cal. Rptr. 370], citing People v. Covino (1980) 100 Cal. App.3d 660, 666 [161 Cal. Rptr. 155].) An appellate court will not disturb a lower court's exercise of discretion under Evidence Code section 352, absent a clear showing of abuse of discretion. (People v. Barrow (1976) 60 Cal. App.3d 984, 995 [131 Cal. Rptr. 913], disapproved on other grounds in People v. Jimenez (1978) 21 Cal.2d 595, 608 [147 Cal. Rptr. 172, 580 P.2d 672].) However, evidence that is relevant to showing a defendant's innocence is admissible. (People v. Reeder (1978) 82 Cal. App.3d 543, 553 [147 Cal. Rptr. 275], citing People v. Whitney (1978) 76 Cal. App.3d 863, 869 [143 Cal. Rptr. 301].) As was stated by Justice Jefferson in Reeder, "Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense." (Id., at p. 553.) Still, the proffered evidence must be "competent, substantial and significant." (People v. Northrop (1982) 132 Cal. App.3d 1027, 1041 [182 Cal. Rptr. 197]; People v. Reeder (1978) 82 Cal. App.3d 543, 553 [147 Cal. Rptr. 275].) (4) Inclusion of relevant evidence is tantamount to a fair trial. Similarly, exclusion of prejudicial evidence can safeguard the defendant's rights as much as 306 that of the prosecution. (People v. Shoemaker (1982) 135 Cal. App.3d 442, 448 [185 Cal. Rptr. 370].) Indeed, discretion should favor the defendant in cases of doubt because in comparing prejudicial impact with probative value the balance "is particularly delicate and critical where what is at stake is a criminal defendant's liberty." (People v. Lavergne (1971) 4 Cal.3d 735, 744 [94 Cal. Rptr. 405, 484 P.2d 77]; People v. Murphy (1963) 59 Cal.2d 818, 829 [31 Cal. Rptr. 306, 382 P.2d 346].) (1b) The question of the propriety of excluding the use of a preliminary hearing for impeachment purposes, on the basis that the interpretation is not accurate, appears to be one of first impression. There are many potential problems when one person interprets the words of another. The problem of accuracy was raised in People v. Keller (1927) 83 Cal. App. 190, 195 [256 P. 829]. The defendant in that case objected to the reading of a transcript to the jury on the basis that the official stenographer, who took the testimony at the first trial of the then unavailable witness, had not compared the entire transcript with his shorthand notes. On appeal the court presumed the official duty had been performed. Pursuant to Evidence Code section 752, an interpreter will be sworn to testify when a witness cannot adequately and verbally communicate in English. Moreover, Evidence Code section 750 states that "A person who serves as an interpreter or translator in any action is subject to all the rules of law relating to witnesses." People v. Johnson (1975) 46 Cal. App.3d 701 [120 Cal. Rptr. 372], held that it was prejudicial error to deny use of evidence that defendant offered to show that there were significant errors in translation between what a witness testified to at the preliminary hearing and what was translated as that being that witness's testimony. It was observed that "One subsidiary holding in this case that is of significance is that an interpreter in an action is a witness and is, therefore, subject to all of the rules of law relating to witnesses generally." (1 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 8.2, p. 299.) The appellate court also did not view the contention as controlling that the competency of an interpreter was limited to attack at trial because there was no opportunity to do so at trial. This may be the situation even though challenge to the adequacy of interpretation would obviously be raised at trial. (People v. Chi Ko Wong (1976) 18 Cal.3d. 698, 725 [135 Cal. Rptr. 392, 557 P.2d 976]; People v. McNeal (1954) 123 Cal. App.2d 222 [266 P.2d 529].) Further, it is within the trial court's discretion to determine whether a challenge to an interpreter's competency at trial is justified. (See People v. Mendes (1950) 35 Cal.2d 537, 543 [219 P.2d 1].)[8] 307 The trial court's ruling was based on a finding that the use of the preliminary transcript to impeach Ramirez would result in prejudice that outweighed its probative value. The trial judge expressed concern that Ramirez was being questioned regarding statements made at a preliminary hearing that he said were inaccurate because Ramirez may not have made them. He expressed further concern after the in camera hearing that there was insufficient evidence to show that the use of the preliminary hearing was more probative than prejudicial. There is no evidence in the record to support a finding that the interpretation of the preliminary hearing was inaccurate. Therefore, it was speculative for the trial court to conclude that prejudice outweighed probative value in defense counsel's use of the preliminary hearing transcript to impeach Ramirez. In two instances the interpreter apparently interrupted the preliminary hearing because of the witness's Cuban accent and because of the witness's quickness of speech: "THE INTERPRETER: And then a few words I didn't understand. ".... .... .... .... .... .... "THE INTERPRETER: Would you repeat? "I'm sorry, I'm having a hard time keeping up because I'm not used to his Cuban manner of speaking and accent. ".... .... .... .... .... ... "THE INTERPRETER: Okay, I'm having a little trouble with the witness because he just goes on and on and on and I can't keep up with all of it." During the in camera hearing, the interpreter acknowledged under oath that he had some trouble interpreting what Ramirez said but during those instances he informed the court of the difficulty and the proceedings were then stopped. Nance also said he accurately interpreted what the witness said and that the witness did not express difficulty understanding the questions. (5) An interpreter's problems in translating are not in themselves sufficient to rebut a presumption that his "official duty" was regularly performed pursuant to 308 Evidence Code section 664. (People v. Keller (1927) 83 Cal. App. 190, 195 [226 P. 829].) (1c) A review of the record further reveals that Ramirez was a challenging witness to interview on both direct and cross-examination, for he did not always respond to the questions he was asked and he would try to explain his answers both characteristics an English-speaking witness might display. The difficulty that defense counsel encountered in questioning Ramirez may have been time consuming and at times confusing. Yet, these reasons are insufficient justifications for restricting confrontation of Ramirez, particularly in view of the discrepancies between his testimony at the preliminary hearing and trial. For example, there was a conflict in his testimony as to whether he blocked defendant's car before or after he entered the shop; whether he identified appellant as inside or outside the shop, since Ramirez said he saw two persons at the scene of the robbery, only one of whom he could identify. The prosecutor questioned the interpreter about some of these conflicting statements and the interpreter recollected that his translations were accurate. The exclusion of the evidence was prejudicial to the defendant in that it prevented him the benefit of vigorous and full cross-examination, in contravention with his fundamental right to a fair trial as guaranteed by the Sixth Amendment. As was stated in Davis v. Alaska (1974) 415 U.S. 308, 317 [39 L.Ed.2d 347, 354, 94 S.Ct. 1105], "We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so they could make an informed judgment...." In addition, the trial court's admonition to the jury may have amounted to more prejudice than would the delay in time caused by allowing a full cross-examination. II (6) Appellant argues that the court incorrectly instructed the jury pursuant to CALJIC No. 2.62.[9] *309 At issue was defendant's "failure" to explain the appearance of his fingerprints on a flashlight allegedly not present on the premises prior to the robbery. Though appellant explained that he had been in the shop a few days earlier and had handed tools to his friend with whom he was visiting, he failed to recall having touched the flashlight. The prosecution deemed this "gap" in defendant's case as warranting application of CALJIC No. 2.62 in that defendant did not explain why his fingerprints appeared on the flashlight. Of primary importance to the application of CALJIC No. 2.62 is whether the facts or evidence that defendant allegedly fails to explain or deny are within defendant's knowledge. (People v. Saddler (1979) 24 Cal.3d 671, 682-683 [156 Cal. Rptr. 871, 597 P.2d 130]; People v. Peters (1982) 128 Cal. App.3d 75, 85 [180 Cal. Rptr. 76].) Obviously, if defendant admitted having touched tools in the shop days prior but could not specifically remember the flashlight, and in addition denied having been in the shop that evening, he could not disclose any further facts that would shed light on his innocence. We conclude, therefore, that there was no support in the record for the giving of the instruction. While the court erred in giving CALJIC No. 2.62, such error alone does not mandate reversal. Only if a reviewing court, after examining all the evidence, determines that it is reasonably probable that the trial court would have found in favor of the appealing party but for the error, should the judgment be reversed. (People v. Peters (1982) 128 Cal. App.3d 75, 86 [180 Cal. Rptr. 76].) Given that appellant's first contention warrants a reversal of the judgment, this court need not make such a determination. DISPOSITION The judgment is reversed. Spencer P.J., and Lillie, J., concurred. Respondent's petition for a hearing by the Supreme Court was denied May 25, 1983. Richardson, J., was of the opinion that the petition should be granted. NOTES [1] On cross-examination, the witness said he had seen the face for only two to three seconds. [2] During cross-examination, the witness testified that the front door was about 20 feet from the light switch, which was located at the shop's office. The distance between the front door and the window was about 70 feet. The office was situated some 35 to 38 feet from the window. Ramirez was standing near the window about 35 to 38 feet from the face he identified as the defendant's, when he turned on the light switch. The window, which measured 10 3/4 inches x 12 inches, where the witness saw the man, was about 7 feet high. Furthermore, Ramirez said he had 20/20 vision and that there was a street light located outside about 20 feet from the window. [3] Mr. Borja may have also served as an interpreter during the hour-long interview. Ramirez, who was of Cuban descent, stated on cross-examination that he did understand some English but he was embarrassed to speak it. [4] Defendant's case sought to rebut this with testimony that metal as well as plastic flashlights were used at the shop, which typically had tools scattered about in disarray, without being put away at night. [5] The officer testified defendant was 5 feet 9 inches, weighing 140 pounds. [6] This was rebutted with testimony that defendant told police following his arrest that Jack Weeden dropped his car off at the shop. [7] The reporter's transcript of the preliminary hearing contained in the clerk's transcript, the testimony of Ramirez in part reads as follows: "Q. What did you do when you heard this noise? "A. I I turned on the light and I saw that gentleman over there standing outside of the place. "Q. When you say `that gentleman' are you referring to someone who is in this courtroom today? "A. Yes. "Q. Would you point to that person today and tell me where that person is seated? "A. There. "THE COURT: He's pointed to the defendant DeLarco. "Q. BY MR. YATES: Where was this man when you turned on the lights and saw him? "A. When I turned on the light with very carefully, because I didn't know what was going on. When I turned on the when I turned on the light, I see the boxes of tools of mine empty, and than I I thought this is strange. I think it's a robbery, then there's a strange car there. I looked in the office and the money container was gone, then then is when I see this gentleman outside of our windows in the hallway of the Dance or something restaurant." [8] In discussing the necessity of interpretation, the following was recounted in 3 Wigmore on Evidence (3d ed. 1970) section 811, page 277, footnote 1: "The following anecdote illustrates the need of caution: O'Regan's Memoirs of John Philpott Curran, 29: `An Irish witness, Mr. Curran said, was called on the table to give evidence, and having a preference for his own language (first, as that in which he could best express himself, next, as being a poor Celt he loved it for its antiquity, but above all other reasons, that he could better escape cross-examination by it), and wishing to appear mean and poor and therefore a mere "Irish," he was observed on coming into court to take the buckles [tongue] cunningly out of his shoes. The reason of this was asked by counsel, and one of the country people, his opponent in the suit, cried out, "The reason, my lord, is that the fellow does not like to appear to be master of two tongues.'"'" [9] "In this case defendant has testified to certain matters. "If you find that he failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable. "In this connection, however, it should be noted that if a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain such evidence. "The failure of a defendant to deny or explain evidence against him does not create a presumption of guilt or by itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt."	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-07-179-CV COREY TAYLOR BEASLEY APPELLANT V. FORT WORTH POLICE OFFICERS APPELLEES MR. TIGNETTE AND R.D. GLIFOUR ------------ FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY ------------ MEMORANDUM OPINION (footnote: 1) ------------ On June 4, 2007, we notified Appellant that we were concerned this court may not have jurisdiction over this appeal because it appeared that the notice of appeal was not timely filed. We stated that the appeal might be dismissed for want of jurisdiction unless Appellant or any party desiring to continue the appeal filed with the court a response showing grounds for continuing the appeal. See Tex. R. App. P. 42.3(a), 44.3. Although Appellant filed a response, it does not show grounds for continuing the appeal. On October 5, 2006, the trial court dismissed the underlying case pursuant to Texas Rule of Civil Procedure 165a. See Tex. R. Civ. P. 165a. No post-judgment motion was filed to extend the appellate deadline; therefore, Appellant’s notice of appeal was due December 4, 2006. See Tex. R. App. P. 26.1 (a)(1). However, Appellant did not file his notice of appeal until May 30, 2007. The time for filing a notice of appeal is jurisdictional in this court, and absent a timely-filed notice of appeal or extension request, we must dismiss the appeal. See Tex. R. App. P. 2, 25.1(b), 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (holding that once extension period has passed, a party can no longer invoke an appellate court’s jurisdiction). Accordingly, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f). PER CURIAM PANEL D: HOLMAN, GARDNER, and WALKER, JJ. DELIVERED: July 26, 2007 FOOTNOTES 1:See Tex. R. App. P. 47.4.	{ "pile_set_name": "FreeLaw" }
708 F.Supp. 1183 (1989) Eileen M. THOURNIR, Plaintiff, v. Natalie MEYER, Secretary of State for the State of Colorado; State of Colorado, Defendants. No. 82-C-1716. United States District Court, D. Colorado. March 8, 1989. 1184 David H. Miller, A.C.L.U., Denver, Colo., for plaintiff. Maurice Knaizer, First Asst. Atty. Gen., Denver, Colo., for defendants. ORDER CARRIGAN, District Judge. In 1982, the plaintiff commenced this action under 42 U.S.C. § 1983 challenging the constitutionality of Colo.Rev.Stat. § 1-4-801(1)(i). That statute requires a person seeking to run for public office as an unaffiliated candidate to be registered in Colorado as an unaffiliated voter for at least one year prior to filing a nominating petition. Plaintiff sued the Colorado Secretary of State and the State of Colorado as defendants, seeking injunctive and declaratory relief, and damages. Plaintiff moved to Colorado in February 1981. She registered as an unaffiliated voter on July 14, 1982. On August 19, 1982, she filed nominating petitions as an unaffiliated candidate for Congress, in the First Congressional District, with the Colorado Secretary of State. Although it initially appeared that the plaintiff's petitions complied with the applicable statutory requirements, it was subsequently determined that the plaintiff did not meet the one-year registration requirement. The Colorado Secretary of State sued in state court, pursuant to Colo.Rev.Stat. § 1-1-112, to have the plaintiff declared ineligible as a candidate. The state court judge upheld the constitutionality of § 1-4-801(1)(i) and ordered the secretary of state not to certify the plaintiff's name to the ballot. On October 1, 1982, the Colorado Supreme Court refused to review that decision. In October 1982, the plaintiff sued in federal court and sought a preliminary injunction to have her name placed on the ballot for the November 1982 general election. I denied the plaintiff's motion, and the Court of Appeals for the Tenth Circuit denied her request for immediate relief from that order. The Tenth Circuit later dismissed her appeal as moot. Thournir v. Buchanan, 710 F.2d 1461 (10th Cir.1983). Both parties then moved for summary judgment. I dismissed the plaintiff's lawsuit on the ground that the prior state court judgment precluded her constitutional challenge to the Colorado statute. The Tenth Circuit Court of Appeals reversed, Thournir v. Meyer, 803 F.2d 1093 (10th Cir.1986), and the matter is again before me on the parties' cross motions for summary judgment. 1185 The parties have supplemented their original briefs with additional case authority, and have indicated that this action can be decided on the pleadings. Defendants also have moved to dismiss this action as moot on the strength of Meyer v. Grant, ___ U.S. ___, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988), and to strike the plaintiff's third supplemental notice of authorities. Plaintiff's action is not moot, since the issues raised are capable of repetition, yet evading review. Defendants' motions to dismiss and to strike are denied. With respect to the parties' dispositive motions, all issues have been fully briefed and oral argument would not materially assist my decision. Jurisdiction is predicated on 28 U.S.C. §§ 1331 and 1343. The above statement of facts appears to be undisputed. In addition, the plaintiff is and has been a member of the Socialist Workers Party ("SWP"), having joined that party in 1976 when she lived in California. She asserts that she has been affiliated with the SWP continuously to the exclusion of all other political parties and organizations. Regardless of her SWP membership, the plaintiff was required to register as "unaffiliated" in July 1982 pursuant to a then-existing Colorado statute that permitted a voter to register only as a Democrat, a Republican or Unaffiliated. Plaintiff has stated in an affidavit that she did not register earlier because she was unaware of § 1-4-801(1)(i)'s time requirements, and because she did not decide to run for public office until February 7, 1982. Initially I conclude that the State of Colorado and the Secretary of State are immune from liability for damages. The State is shielded by the Eleventh Amendment to the United States Constitution. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The defendant Secretary has been sued in her official capacity, and all actions taken by her were performed pursuant to her official duties. Id. at 101-02, 104 S.Ct. at 908-09. In addition, Colorado is not a "person" within the meaning of 42 U.S.C. § 1983 and may not be sued under that statute. Quern v. Jordan, 440 U.S. 332, 343, 99 S.Ct. 1139, 1146, 59 L.Ed.2d 358 (1979); Holladay v. State of Montana, 506 F.Supp. 1317, 1321 (D.Mont. 1981). Defendants' motion for summary judgment is granted as to the defendant Secretary of State with respect to the plaintiff's claim for damages. Defendants' motion likewise is granted as to the defendant State of Colorado, but as to all claims, and the complaint and action against the defendant state are dismissed with prejudice. Section 1-4-801(1)(i) provides in pertinent part as follows: "No person shall be placed in nomination by petition unless the person is a registered elector of the political subdivision or district in which the officer is to be elected and unless he was registered as unaffiliated, as shown on the books of the county clerk and recorder, for at least twelve months prior to the date of filing of the petition; except that, if such nomination is for a nonpartisan election, such person shall be a registered elector of such political subdivision or district and be a registered elector, as shown on the books of the county clerk and recorder, on the date of the earliest signature on the petition." (Emphasis added.) In assessing the constitutional validity of this statute, the plaintiff urges that I apply the "strict scrutiny" standard of review. Under this standard, ballot access restrictions can be sustained only if they further a vital or compelling governmental interest that can be achieved without unfairly or unnecessarily burdening either a minority party's or an individual candidate's equally important interests in the continued availability of political opportunity. Buckley v. Valeo, 424 U.S. 1, 93-94, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). The Court of Appeals for the Tenth Circuit recently noted that the United States Supreme Court has not always been consistent in articulating the standard that courts should apply when considering the constitutionality of statutes pertaining to ballot access. Rainbow Coalition of Oklahoma 1186 v. Oklahoma State Election Bd., 844 F.2d 740 (10th Cir.1988). In Rainbow Coalition, the Court of Appeals, citing Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), applied the following analytical process in evaluating an Oklahoma statute that pertained to minority party ballot access, stating that the court: "must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional." Id., 844 F.2d at 743, citing Anderson, 460 U.S. at 789, 103 S.Ct. at 1570. The test set forth in Rainbow Coalition applies to the constitutional issues asserted by the plaintiff in the instant lawsuit. As the Tenth Circuit noted in Rainbow Coalition, state statutes that restrict a political party's access to the ballot infringe upon the rights of persons to associate for political purposes, as well as upon the rights of qualified voters to vote effectively. Id., 844 F.2d at 743, citing Munro v. Socialist Workers Party, 479 U.S. 189, 107 S.Ct. 533, 536, 93 L.Ed.2d 499 (1986). However, these rights are subject to state limitation. Id. And, as has been noted with respect to constitutional challenges aimed at statutes that regulate political candidates' durational residency requirements, the law is unsettled whether the right to hold public office is a fundamental constitutional right. Hankins v. State of Hawaii, 639 F.Supp. 1552, 1555 (D.Haw.1986). In a somewhat analogous case, Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), the United States Supreme Court considered a California statute that forbade ballot position to an independent candidate seeking elective office if that candidate, inter alia, had a registered affiliation with a qualified political party at any time within one year prior to the immediately preceding primary election. In sustaining the constitutionality of that state provision, the Supreme Court acknowledged that a state must not overburden the rights to associate and to vote effectively, and thus must provide feasible means for minority parties and candidates to have ballot access. However, against these rights must be weighed the State's interests in insuring political stability, avoiding voter confusion, preventing the clogging of election machinery, and protecting the integrity of its political processes from frivolous or fraudulent candidates. The Supreme Court stated in pertinent part as follows: "The requirement that the independent candidate not have been affiliated with a political party for a year before the primary is expressive of a general state policy aimed at maintaining the integrity of various routes to the ballot. It involves no discrimination against independents." * * * * * "The general election ballot is reserved for major struggles; it is not a forum for continuing intraparty feuds. The provision against defeated primary candidates running as independents effectuates this aim, the visible result being to prevent the losers from continuing the struggle and to limit the names on the ballot to those who have won the primaries and those independents who have properly qualified. The people, it is hoped, are presented with understandable choices and the winner in the general election with sufficient support to govern effectively." "[The California statute] protects the direct primary process by refusing to recognize independent candidates who do not make early plans to leave a party and take the alternative course to the ballot. It works against independent candidacies 1187 prompted by short-range political goals, pique, or personal quarrel. It is also a substantial barrier to a party fielding an `independent' candidate to capture and bleed off votes in the general election that might well go to another party." Id. at 733, 735, 94 S.Ct. at 1280, 1281. I recognize that the facts in the instant case are quite different from those considered in Storer v. Brown, supra. The instant plaintiff moved to Colorado from California in February 1981. She registered as an "unaffiliated" voter on July 14, 1982 and sought Congressional candidacy in the November 1982 general election. Had the plaintiff registered as "unaffiliated" within thirty days of moving to Colorado, she would have been eligible to run for Congress in the November 1982 election, assuming arguendo, that she had satisfied all other requirements. However, I conclude that the situation here presented falls within the general circumstances addressed by the Supreme Court in Storer v. Brown, supra. Colorado's statute, like the California statute, does not discriminate unfairly against independent candidates. Rather, the statute works against would be independent candidates prompted by short-range political or personal motives, or who seek to bleed off votes in the general election that otherwise might go to a particular major party candidate. Colorado has an interest in insuring that voters are not presented with a "laundry list" of candidates who have decided on the eve of a major election to seek public office. I thus disagree with the plaintiff's contention that the Storer reasoning does not apply to the instant case. Plaintiff's argument that she had at all times been a member of the SWP does not help her situation. No Colorado statute permits party affiliation to be transferred from one state to another. Moreover, each state may legitimately set its own general requirements regarding voter registration and political party status. Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971). In her third supplemental notice of authorities, the plaintiff cites the unpublished decision of Colorado Democratic Party and Seawell v. Meyer, No. 88CV7646 (District Court for the City and County of Denver, State of Colorado, May 2, 1988). That decision held unconstitutional Colo. Rev.Stat. § 1-4-601(4) and § 1-4-101(3). Section 1-4-601(4) provided that no person shall be eligible for designation by assembly as a primary election candidate unless that person has been affiliated with the political party holding the assembly for at least twelve months preceding the assembly date. Section 1-4-101(3) provided that a candidate shall not be placed on the general election ballot unless nominated in accordance with law, and affiliated with the designated political party for at least twelve months. In Seawell, the State Democratic Party had amended its rules to permit a person seeking eligibility for assembly designation as a primary election candidate if that person had been a registered Democrat for at least twelve months prior to the general election. Chief Judge Flowers of the state district court determined that the state statutes conflicted with the Democratic Party's right to determine who may be a candidate under its party banner. I note that the Democratic Party rules in Seawell imposed a twelve month affiliation requirement. Thus, I do not find the Seawell decision dispositive of the issues here presented by the plaintiff. Moreover, this unpublished state district court decision, while persuasive, is not binding authority. It appears that the plaintiff's ineligibility has resulted, at least in part, from her own failure to become familiar with Colorado's election laws. After weighing the State's interests against the plaintiff's asserted rights, I find and conclude that, on the facts presented, Colorado's one year requirement of registration as "unaffiliated" as a prerequisite for running for public office, under these circumstances, is not unconstitutional. Based on the undisputed facts as I have found them, the defendant Secretary is entitled to summary judgment in her favor. 1188 Rule 56(c), Fed.R.Civ.P. Plaintiff's summary judgment motion is denied. Accordingly, it is ORDERED that: (1) Defendants' motions to dismiss this action as moot, and to strike the plaintiff's third supplemental notice of authorities, are denied; (2) Plaintiff's motion for summary judgment is denied; (3) Defendants' motion to dismiss or for summary judgment is denied in part and granted in part; (4) Plaintiff's claim for damages against the defendant Secretary is dismissed; (5) Plaintiff's complaint and action against the defendant State of Colorado are dismissed as to all claims; and (6) Defendant's Meyer's motion for summary judgment is granted. Plaintiff's complaint and action are dismissed with prejudice. Each party shall bear its or her own costs.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1147 RODNEY L. BURR, Plaintiff – Appellant, v. DOUGLAS F. GANSLER; MARCUS L. BROWN, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:12-cv-03736-CCB) Submitted: May 16, 2013 Decided: May 30, 2013 Before SHEDD, DAVIS, and WYNN, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Rodney L. Burr, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Rodney L. Burr appeals the district court’s order remanding the State’s prosecution of Burr for a traffic violation to state court and dismissing Burr’s federal complaint alleging that the state regulation requiring that he wear a seat belt while driving violates the Constitution. As this court may not ordinarily review a district court’s remand order by reason of 28 U.S.C. § 1447(d) (2006), and we reject Burr’s argument that there was supplemental jurisdiction over the state prosecution by virtue of his complaint, we dismiss Burr’s appeal to the extent he seeks review of that portion of the order. See Borneman v. United States, 213 F.3d 819, 824 (4th Cir. 2000); see also Franchise Tax Bd. of Cal. v. Constr. Laborer Vacation Trust for S. Cal., 463 U.S. 1, 10 (1983) (“[A] federal court does not have original jurisdiction over a case in which the complaint presents a state-law cause of action, but also asserts that federal law deprives the defendant of a defense he may raise . . . or that a federal defense the defendant may raise is not sufficient to defeat the claim.”) (citation omitted). With respect to Burr’s complaint, we agree with the district court that it is without merit and therefore affirm the portion of the court’s order dismissing the complaint. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials 2 before this court and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 3	{ "pile_set_name": "FreeLaw" }
992 So.2d 268 (2008) O'BERRY v. STATE. No. 4D08-1513. District Court of Appeal of Florida, Fourth District. October 22, 2008. Decision without published opinion. Affirmed.	{ "pile_set_name": "FreeLaw" }
585 F.Supp. 593 (1984) Diana T. TELLSCHOW, Plaintiff, v. AETNA CASUALTY & SURETY CO., etc., et al., Defendants. No. 84-8084-CIV-JAG. United States District Court, S.D. Florida, N.D. May 24, 1984. Michael D. Eriksen, Cone, Wagner, Nugent, Johnson, Hazouri & Roth, Hamilton, James Merkle & Young, West Palm Beach, Fla., for plaintiff. A. Blackwell Stieglitz, Fowler, White, Burnett, Hurley, Banick & Strickroot, Miami, Fla., for defendants. ORDER GONZALEZ, District Judge. THIS CAUSE has come before the Court for review upon the Defendants', Aetna Casualty & Surety Co., and A.H. Robins Company, Motion to Dismiss. The court has considered the record, and is duly advised. The defendants' have moved to dismiss the complaint on grounds that this court lacks in personam jurisdiction over the non-resident defendants Aetna Casualty & Surety Co. and A.H. Robins Company. The complaint alleges insertion of the Dalkon Shield in California, use of the product in California, removal in California, and illness in California. Plaintiff alleges that at the time of the injury, Robins was selling the Dalkon Shield intrauterine contraceptive device in every state of the union, including Florida. Plaintiff further alleges that although the Dalkon Shield was sold and inserted in California, plaintiff's cause of action arose from exactly the type of business Robins conducted in Florida at the same time. Personal jurisdiction in a federal diversity action is governed by the state law standard of the state in which the federal court sits. Gordon v. John Deere Company, 466 F.2d 1200 (5th Cir.1972); Woodham v. Northwestern Steel and Wire Company, 390 F.2d 27 (5th Cir.1968); Time, Inc. v. Manning, 366 F.2d 690 (5th Cir.1966); Stanga v. McCormick Shipping Corporation, 268 F.2d 544 (5th Cir.1959); Bloom v. A.H. Pond, 519 F.Supp. 1162 (S.D.Fla.1981). In Bloom v. A.H. Pond, supra, the district court held that personal jurisdiction over non-resident defendants in Florida is limited to situations where the cause of action arises from the doing of business in Florida, or the cause of action has some other connection to a specified act committed in Florida. This has been described as the "connexity" requirement that must be met before jurisdiction over a non-resident 594 can be sustained. The Court further noted that doing business in this state is not a sufficient basis, standing alone, upon which to predicate long-arm jurisdiction. There must be some nexus or connection between the business that is conducted in Florida and the cause of action alleged. Id. at 1168. Plaintiff asserts that the complaint alleges the requisite facts to establish personal jurisdiction over these non-resident defendants by stating that although the plaintiff's Dalkon Shield was sold and inserted in California, plaintiff's cause of action arose from exactly the type of business defendant Robins was conducting in Florida at the same time. This court finds that plaintiff's complaint fails to allege sufficient contacts to establish in personam jurisdiction. The alleged insertion and alleged onset of physical injuries took place outside Florida hence the required nexus or connection between defendant Robins' presence in the state of Florida and the plaintiff's cause of action is missing. In International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny, McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); and World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), the Supreme Court proscribed the standards by which a state could assert personal jurisdiction over a non-resident defendant. Personal jurisdiction over such defendant could be obtained provided the defendant had "certain minimum contacts with [the state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." International Shoe, supra, 326 U.S. at 316, 66 S.Ct. at 158. Subsequently, in World Wide Volkswagen Corp. v. Woodson, supra, the Court held that "the foreseeability that is critical to due process analysis is ... that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." Id. 444 U.S. at 297, 100 S.Ct. at 567. Plaintiff cites two cases in support of her argument that in order to establish in personam jurisdiction over the non-resident defendant in this cause, she need only show that defendant Robins was selling Dalkon Shields in the State of Florida at the same time that it sold the injuring Shield in California. This Court finds that neither Shoei Safety Helmet Corp. v. Conley, 409 So.2d 39 (Fla. 4th DCA, 1981), nor Kravitz v. Pletscher, 442 So.2d 985 (3rd DCA, 1983) may be read that broadly. Neither decision holds that a corporation is amenable to suit in any state where it promotes the sale of a particular product, regardless of where the injury occurred. The facts in Kravitz and Shoei are clearly distinguishable from the circumstances in this case. In Shoei, the Florida plaintiff purchased the foreign corporation's product in Florida. In Kravitz, the foreign corporation was selling the offending product in Florida at the time the plaintiff purchased the article, and at the time the plaintiff was injured by the offending product in Florida. In the instant case, plaintiff states that she was at no material time a citizen of the State of Florida. The device was purchased and inserted in California. The plaintiff experienced problems while using the device in California. The device was removed in California. The complaint does not allege where the plaintiff's surgery occured. The complaint alleges that the basis of jurisdiction is that Robins was selling the same type product in Florida at the same time the product was sold to the plaintiff. Based upon the foregoing, this Court finds that the plaintiff has failed to allege sufficient contacts to establish personal jurisdiction over the non-resident defendants Aetna Casualty & Surety Co. and A.H. Robins Company. The alleged insertion of 595 the Dalkon Shield and the alleged onset of physical injuries took place outside Florida. Plaintiff has, therefore, failed to allege the facts necessary to establish the required "connexity" between defendant Robins' et al.,'s presence in the state of Florida and plaintiff's cause of action. Accordingly, it is ORDERED AND ADJUDGED that the defendants Aetna Casualty & Surety Co. and A.H. Robins Company Motion to Dismiss be, and the same is hereby DENIED; however, this cause is hereby transferred to the United States District Court for the Central District of California pursuant to 28 U.S.C. § 1631. The Clerk is hereby directed to forward all necessary documents in this cause to the United States District Court for the Central District of California.	{ "pile_set_name": "FreeLaw" }
542 F.Supp.2d 467 (2008) In re: GRAND JURY INVESTIGATION JOHN DOE. No. 1:07dm584. United States District Court, E.D. Virginia, Alexandria Division. March 28, 2008. ORDER T.S. ELLIS, III, District Judge. The matter came before the Court for a hearing on January 3, 2008, based on John Doe's refusal to testify before the grand jury despite being granted use immunity by Order dated December 19, 2007. See In re: Grand Jury Investigation John Doe, 1:07dm584 (E.D.Va. Dec. 19, 2007) (Order) (Brinkema, J.). In the course of the hearing, Doe was advised, inter alia, that he did not have a Fifth Amendment right to refuse to testify before the grand jury in light of the fact that he had been granted use immunity. Doe was also warned that in the event he persisted in his refusal to testify, he could be held in civil contempt and incarcerated for the entire term of the grand jury, including any extensions thereto, or 18 months. See 28 U.S.C. § 1826(a). Despite these warnings, Doe persisted in his refusal to testify before the grand jury and subsequent hearings were therefore held on January 11 and February 8, 2008, at the conclusion of which the issue was taken under advisement. The matter has now been fully briefed and is ripe for disposition. I. A brief factual summary is necessary to put the contempt issue in context. Doe, a foreign national from Country A, originally came to the attention of the grand jury as a result of his arrest and prosecution for cocaine distribution in 2007 in the United States District Court for the District of Maryland. Specifically, on February 13, 2007, Maryland State Police conducted a traffic stop of a rental vehicle driven by Doe. After a positive alert by a narcotics detection canine, the officers conducted a search of the vehicle and recovered approximately 70 kilograms of cocaine in three large duffel bags located in the trunk of the vehicle. Both Doe and his passenger identified as Doe's uncle were arrested at the conclusion of the traffic stop. The following day, February 14, 2007, Doe, after being advised of his Miranda rights,[1] waived those rights and discussed 468 with the agents some of the details of his involvement and knowledge of the events leading up to his arrest on February 13, 2007. For example, Doe disclosed that he had transported and distributed multi-kilogram quantities of cocaine over the previous six months for Person A, a foreign national located in City A, Country A. Doe further disclosed that he and his uncle had distributed quantities of cocaine in Maryland on three additional occasions in the previous three months. Doe provided details of various aspects of his cocaine distribution business, including specifically his interactions with his employer, Person A, as well as the brother of his employer, Person B. He revealed the names of several of his drug distribution associates from California, including Person C and Person D, and stated that they, too, worked for Person A. Doe also disclosed the name of Person E, describing that individual as someone to whom he had delivered multiple kilograms of cocaine on three occasions. In all, Doe provided the agents significant details of the overall operation and practices of the drug distribution business in which he was involved, as well as more specific details about the various quantities of cocaine and currency exchanged in specific drug transactions. Several months after his arrest, Doe was brought before the grand jury in this District to testify regarding his involvement in, and knowledge of, the aforementioned drug transactions. Yet, despite being granted use immunity,[2] he has continuously refused to testify as to these matters. In essence, Doe's persistent refusal to testify before the grand jury is based on his apparent fear of retaliation against himself and his family members, many of whom, like Person A, reside in City A, Country A. In this regard, Doe concedes that no specific threats have been made against either him or any of his family members. Despite the absence of any specific threats, Doe was nonetheless offered assistance by the government in the form of investigative measures and/or placement in the Witness Protection Program but, to date, Doe has refused any such assistance from the government. At this juncture, therefore, the government seeks to have Doe held in civil contempt as a means to coerce him to testify before the grand jury, arguing, inter alia, that such a finding is warranted notwithstanding Doe's stated fear of retaliation against himself and his family. II. As a starting point in the analysis, it is well-settled that grand jury subpoenas are appropriately enforced through the inherent civil and criminal contempt powers of district courts. See Finn v. Schiller, 72 F.3d 1182, 1190-91 (4th Cir.1996) (discussing district court's inherent supervisory power over grand jury proceedings and civil and criminal contempt proceedings). These are distinct powers with distinct purposes. Civil contempt, on the one hand, involves an effort to coerce a witness to comply with a properly issued subpoena, whereas criminal contempt is used to punish a witness for having refused to comply with such a subpoena. See United States v. Pratt, 351 F.3d 131, 140 (4th Cir.2003) (recognizing that "[a] civil contempt sentence aims to `coerce the defendant to do the thing required,' whereas a sentence for criminal contempt `operates ... solely as punishment for the completed act of disobedience' ") (citations omitted). Thus, unlike civil contempt proceedings, compliance with the subpoena is no longer the primary goal in criminal contempt proceedings; 469 instead the goal in the criminal context is punishment for the non-compliance. And, because the line between coercion and punishment is often indistinct, courts must take care to ensure that this line is not impermissibly crossed in the course of civil contempt proceedings. Given these principles, it is clear that when the government seeks to coerce a witness to comply with a grand jury subpoena, as here, it invokes the district court's inherent civil contempt power, as supplemented by the "recalcitrant witness" statute, 28 U.S.C. § 1826.[3] Under that statute, a grand jury witness is appropriately held in civil contempt if he or she "refuses without just cause shown to comply with an order of the court to testify or provide other information...." 28 U.S.C, § 1826(a). Here, the essential question presented is whether Doe has established "just cause" for his persistent refusal to testify before the grand jury. Id. Notwithstanding Doe's stated fear of retaliation against himself and his family, the answer to that question is unmistakably "no" in the circumstances presented here. Specifically, once a witness has been granted use immunity, as occurred here, that witness ordinarily may not refuse to testify before the grand jury and may be held in contempt if he persists in his recalcitrance. See, e.g., In re Grand Jury Proceedings, 914 F.2d 248 (Table), 1990 WL 133109, 1 (4th Cir.1990). Importantly, this result is appropriate despite any potential adverse consequences arising out of, or resulting from, compliance with the subpoena. For example, it is clear that an immunized witness may not refuse to testify even if doing so would subject that individual to adverse civil consequences. See, e.g., United States v. Apfelbaum, 445 U.S. 115, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980); Ullmann v. United States, 350 U.S. 422, 430-31, 76 S.Ct. 497, 100 L.Ed. 511 (1956). Nor may an immunized witness refuse to testify on the ground that his testimony could ultimately result in his deportation. See I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038-1039, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984). The Fourth Circuit has also held that a witness is required to testify under a grant of immunity in the United States even if that witness's testimony would result in a possible criminal conviction in a foreign country. See United States v. Balsys, 524 U.S. 666, 698-99, 118 S.Ct. 2218, 141 L.Ed.2d 575 (1998); In re Grand Jury Proceedings, John Doe # 700, 817 F.2d 1108, 1112 (4th Cir.1987); United States v. Under Seal, 807 F.2d 374 (4th Cir.1986) (noting that an exception might be made if the United States inspired, instigated or controls the foreign prosecution or if the grant of immunity was given for no apparent United States purpose). Given these settled principles, it is not surprising that courts in this circuit and elsewhere have concluded that an immunized witness is not excused from testifying before the grand jury where, as here, he or she fears for his or her own safety or the safety of others. Indeed, the Supreme Court in Piemonte v. United States, 367 U.S. 556, 81 S.Ct. 1720, 6 L.Ed.2d 1028 (1961) was presented with facts similar to those at bar. There, a convicted narcotics trafficker was summoned to testify before a federal grand jury to explain where he had received the drugs that were the basis of his conviction. Like Doe, Piemonte was granted immunity from further prosecution based on any grand jury testimony he 470 might provide. Also like Doe, Piemonte refused to testify, advising the court, "Well, I am doing time in the penitentiary, I fear for my life. I fear for the life of my wife, my two stepchildren, and my family. I can't do something like that. I want to live, too." Id. at 559, 81 S.Ct. 1720. And, while the Supreme Court was only presented with alleged procedural defects raised in the Piemonte case, Justice Frankfurter nonetheless noted the following in a footnote: Neither before the Court of Appeals nor here was fear for himself or his family urged by Piemonte as a valid excuse from testifying. Nor would this be a legal excuse. Every citizen of course owes to his society the duty of giving testimony to aid in the enforcement of the law.... If two persons witness an offense one being an innocent bystander and the other an accomplice who is thereafter imprisoned for his participation the latter has no more right to keep silent than the former. The Government of course has an obligation to protect its citizens from harm. But fear of reprisal offers an immunized prisoner no more dispensation from testifying than it does any innocent bystander without a record. Id. at 559, n. 2, 81 S.Ct. 1720. Although Justice Frankfurter's remarks in Piemonte were dicta, courts in this circuit and elsewhere have since followed the Justice's sound reasoning in rejecting claims similar to those presented by Doe here. The Fourth Circuit, in particular, has held that an immunized witness's "unwillingness to implicate other persons and fear for his own safely" does not provide a legal basis for his refusal to testify before the grand jury to avoid a finding of civil contempt. In re Kilgo, 484 F.2d 1215, 1221 (4th Cir.1973).[4] This sensible conclusion is supported by the basic principle, recognized by the Supreme Court in Piemonte, that every citizen has an obligation to share with the grand jury any evidence that he or she may have of a crime having been committed. See Piemonte, 367 U.S. at 559, n. 2, 81 S.Ct. 1720. In an attempt to exempt himself from this general rule, Doe, relying on a Seventh Circuit case, argues that the violence and lawlessness inherent in the drug trade in Country A gives rise to a "palpable imminent danger" sufficient to constitute a defense to a finding of civil contempt in 471 this case. In the Matter of Grand Jury Proceedings Empanelled May 1988, 894 F.2d 881 (7th Cir.1990) (recognizing that duress demonstrated by a palpable imminent danger may serve as a defense to civil contempt). Simply put, Doe's argument that he has demonstrated the presence of a palpable imminent danger is unpersuasive given that no actual or specific threats of violence or otherwise have been made against either himself or any members of his family. A palpable imminent danger sufficient to constitute a defense to civil contempt requires more than mere reference to a country or city's level of drug trafficking and violence. It is also noteworthy that Doe declined the government's offer to participate in the Witness Protection Program in this instance, thus casting doubt on the severity of Doe's stated fear or retaliation. Moreover, to countenance Doe's argument would effectively confer on narco-terrorists in Country A and numerous other countries the power to intimidate and silence witnesses in this country who might otherwise provide information critical to the effective functioning of the grand jury. It would likewise confer on Doe the power to remain silent despite the absence of any specific threats having been made against either himself or his family. Such a result is clearly improper and in the end, a finding of civil contempt, together with the imposition of coercive rather than punitive measures, is warranted. III. Accordingly, for the foregoing reasons, and for good cause, It is hereby ORDERED that Doe is HELD in civil contempt based on his persistent refusal to testify before the grand jury. It is further ORDERED that Doe is committed to the custody of the Bureau of Prisons until completion of the current grand jury term, including any extensions thereto, or until he agrees to testify before the grand jury, whichever occurs first. It is further ORDERED that any time served by Doe on this civil contempt matter shall not be credited toward the sentence he is currently serving in the United States District Court for the District of Maryland. It is further ORDERED that the matter will be re-evaluated upon the completion of the current grand jury term, unless Doe agrees to testify prior to such time. The Clerk is directed to send a copy of this under seal Order to the Marshal's Service, the Bureau of Prisons and all counsel of record. NOTES [1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [2] The federal immunity statute, set forth at 18 U.S.C. §§ 6001-05, grants use and derivative use immunity to witnesses who are compelled to testify over a Fifth Amendment claim of self-incrimination. [3] According to its legislative history, that statute was "intended to codify [then-]present civil contempt practice with respect to recalcitrant witnesses in federal grand jury ... proceedings." H.R.Rep. No. 91-1549, 91st Cong., 2nd Sess. (Sept. 30, 1970), reprinted at 1970 U.S.C.C.A.N. 4007, 4008. [4] See also In re Grand Jury Proceedings of Special April 2002 Grand Jury, 347 F.3d 197, 208 (7th Cir.2003) (stating, inter alia, that "fear for one's own safety and the safety of one's family is not itself just cause' for refusing to testify, and thus will not provide a defense to civil contempt in a grand jury proceeding"); United States v. Winter, 70 F.3d 655, 665 (1st Cir. 1995) (recognizing that "it has been widely held that a witness fear of reprisal against himself or his family does not constitute just cause for refusing to testify") (citations omitted); In re Grand Jury Proceedings, 943 F.2d 132, 135 (1st Cir.1991) (recognizing that "[o]ne of appellant's stated reasons, that he feared for himself and for his family, is not just cause for refusing to testify"); In the Matter of Grand Jury Investigation (Detroit Police Department Special Cash Fund), 922 F.2d 1266, 1272 (6th Cir.1991) (recognizing in a contempt action that "despite evidence of reprisals, `fear for the safety of one's self or others is not a ground for refusing to testify'") (citation omitted); United States v. Gomez, 553 F.2d 958, 959 (5th Cir. 1977) (stating that "fear for personal and family safety ... is no defense to the crime of refusing to testify"); In the Matter of a Witness Before the Grand Jury, 518 F.2d 1295, 1295 (9th Cir. 1975) (recognizing that "[n]o federal court in a reported decision has held that fear of retaliation is sufficient reason to refuse to testify[;] ... [t]o do so ... would mean that virtually every prisoner in the United States, and many millions of people at large, would be freed of the duty to appear and testify before a grand jury").	{ "pile_set_name": "FreeLaw" }
Order Michigan Supreme Court Lansing, Michigan December 9, 2015 Robert P. Young, Jr., Chief Justice Stephen J. Markman Brian K. Zahra 151315 & (84) Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen, PEOPLE OF THE STATE OF MICHIGAN, Justices Plaintiff-Appellee, v SC: 151315 COA: 316835 Cass CC: 12-010105-FH SCOTT REED BLAISDELL, Defendant-Appellant. _________________________________________/ On order of the Court, the application for leave to appeal the February 5, 2015 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motion to remand is DENIED. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. December 9, 2015 a1202 Clerk	{ "pile_set_name": "FreeLaw" }
877 F.2d 970 In re Martinez (Leonard)* NO. 89-1247 United States Court of Appeals,Fifth Circuit. JUN 13, 1989 1 Appeal From: W.D.Tex. 2 DISMISSED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	{ "pile_set_name": "FreeLaw" }
11 F.3d 1073 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.Douglas G. WEST, Petitioner,v.MERIT SYSTEMS PROTECTION BOARD, Respondent. No. 93-3305. United States Court of Appeals, Federal Circuit. Nov. 10, 1993. Before MAYER and LOURIE, Circuit Judges, and LAY, Senior Circuit Judge. DECISION PER CURIAM. 1 Douglas G. West seeks review of the final decision of the Merit Systems Protection Board, Docket No. CH315H920703I1, dismissing for lack of jurisdiction his appeal of his termination from the position of Voucher Examiner. We affirm. DISCUSSION 2 Effective August 21, 1992, the Department of Veterans Affairs (agency) terminated West's position as a Voucher Examiner, GS 540-5, for unsatisfactory performance. At the time of his termination, West had served two months of a one-year probationary period. West appealed his termination to the Board and, on September 15, 1992, the Board ordered West to file evidence and argument to prove that his appeal was within the Board's jurisdiction. On December 8, 1992, the Administrative Judge issued an initial decision holding that the Board did not have jurisdiction over West's appeal because, inter alia, West was terminated for post-appointment failure to meet the requirements of his position. On March 19, 1993, the initial decision became the final decision of the Board when it denied review. See 5 C.F.R. Sec. 1201.113(b) (1993). 3 Decisions of the Board must be affirmed unless they are found by this court to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; procedurally deficient; or unsupported by substantial evidence. 5 U.S.C. Sec. 7703(c) (1988). An employee bears the burden of proof by a preponderance of the evidence to establish the Board's jurisdiction over an employee's appeal. Stern v. Department of Army, 699 F.2d 1312, 1314 (Fed.Cir.), cert. denied, 462 U.S. 1122 (1983). Also, it is an employee's burden to prove the existence of any administrative deficiencies concerning his termination. Cheeseman v. Office of Personnel Mgmt., 791 F.2d 138, 140 (Fed.Cir.1986), cert. denied, 479 U.S. 1037 (1987). 4 The Veterans' Benefits Improvement Act of 1984, Pub.L. 98-543, extends the rights of appeal available under 5 C.F.R. Sec. 315.805 (1993) to employees hired under the Veterans Readjustment Act who are terminated during their first year of employment. See 38 U.S.C. Sec. 4214. Section 315.805 provides certain procedural protections if the termination of a probationary employee is for conditions arising before appointment. See 5 C.F.R. Sec. 315.805. 5 West argues here that he was entitled to and did not receive the procedural protections of 5 C.F.R. Sec. 315.805. West claims that his work was satisfactory and asserts that he was discharged for "pre-appointment reasons" because his productivity was measured by standards established prior to his appointment that were impossible to meet and were inaccurate measures of his actual productivity. Despite West's contentions, the Board found that West's termination was based on post-appointment reasons. Specifically, the Board relied upon evidence that two of West's supervisors were dissatisfied with his productivity on the job. This constitutes substantial evidence. Since West was removed for performance deficiencies, he was removed for a post-appointment reason. 6 Upon review, we do not find that the Board's decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; procedurally deficient; or unsupported by substantial evidence. The reason for West's termination being his post-appointment performance shortcomings, the Board lacks jurisdiction over West's appeal. Honorable Donald P. Lay, Senior Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION MAY 31 2016 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 15-10420 Plaintiff - Appellee, D.C. No. 2:00-cr-00076-LDG v. MEMORANDUM* LEROY ROOSEVELT MACK, Defendant - Appellant. Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding Submitted May 24, 2016** Before: REINHARDT, W. FLETCHER, and OWENS, Circuit Judges. Leroy Roosevelt Mack appeals from the district court’s judgment and challenges the revocation of supervised release and 14-month sentence imposed upon revocation. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. * 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). Mack contends that the district court abused its discretion by revoking his supervised release because he was not provided with adequate written notice of his alleged violations and because there was insufficient evidence to establish the violations by a preponderance of the evidence. These claims fail. The petition for summons notified Mack of the conditions that he allegedly violated, along with the dates and details of the alleged violations. This is sufficient to satisfy due process and Federal Rule of Criminal Procedure 32.1. See United States v. Tham, 884 F.2d 1262, 1265 (9th Cir. 1989). Moreover, viewed in the light most favorable to the government, the evidence was sufficient to support the district court’s finding that Mack violated the terms of his supervised release. See United States v. King, 608 F.3d 1122, 1129 (9th Cir. 2010). Accordingly, the district court did not abuse its discretion by revoking Mack’s supervised release. See United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008). Mack also contends that the district court procedurally erred by failing to explain the sentence adequately and by failing to consider the policy statements contained in Chapter 7 of the Sentencing Guidelines. We review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. The record reflects that the district court adequately explained the 2 15-10420 within-Guidelines sentence and considered the applicable sentencing factors. See United States v. Carty, 520 F.3d 984, 991-92 (9th Cir. 2008) (en banc). AFFIRMED. 3 15-10420	{ "pile_set_name": "FreeLaw" }
96 F.2d 734 (1938) BOGY v. UNITED STATES. SPAULDING v. SAME. Nos. 7616, 7649. Circuit Court of Appeals, Sixth Circuit. May 9, 1938. 735 Charles M. Bryan and Thomas L. Robinson, both of Memphis, Tenn. (Chas. M. Bryan and Blan R. Maxwell, both of Memphis, Tenn., on the brief for Bogy; Thomas L. Robinson and John E. Robinson, 736 both of Memphis, Tenn., on the brief for Spaulding), for appellants. R. G. Draper, of Memphis, Tenn. (William McClanahan, C. P. J. Mooney, and R. G. Draper, all of Memphis, Tenn., on the brief), for appellee. Before HICKS and ALLEN, Circuit Judges, and DRUFFEL, District Judge. ALLEN, Circuit Judge. The appellants were found guilty under six counts of an indictment, the first five counts of which charged them jointly with one Joseph R. DeLatte with violating the mail fraud statute, title 18, section 338, U. S.C. 18 U.S.C.A. § 338. The sixth count charged them with conspiracy to violate the mail fraud statute and section 77q, title 15, U.S.C. 15 U.S.C.A. § 77q. The District Court sentenced the appellants under each count. The first count of the indictment, which by reference is incorporated into the other counts, in substance charges appellants, together with Joseph R. DeLatte (who pleaded guilty), with devising a scheme, in violation of the above statutes, to defraud customers of the Colonial Investment Syndicate, Inc., of which Bogy is president and sole owner, of bonds which they had theretofore purchased from Bogy. It also charges appellants with using the mails for the purpose of fraudulently releasing Bogy from liability for bonds purchased by his customers but not yet delivered to them by Bogy. The first two counts of the indictment are based upon letters mailed by Bogy to two of his customers, and the third, fourth and fifth counts are based upon letters mailed by three of Bogy's customers to Bogy, all charged to have been mailed for the purpose of executing the fraudulent scheme. The sixth count describes the alleged conspiracy and lists among other overt acts the mailing and receiving of the five letters embodied in the other counts, and the unlawful use of the mails in the sale of securities. It is impossible properly to summarize the allegations in this involved and detailed indictment. For the purposes of this opinion it is sufficient to say that the gist of the fraudulent scheme set forth was as follows: Bogy, a resident of Memphis, Tennessee, had built up a business in selling and exchanging securities. In his manipulations he was often unable to make prompt deliveries, and therefore owed bonds to certain customers. Having secured the necessary information from Bogy, Spaulding would acquire from Bogy's customers the bonds in their possession, would induce them to execute papers releasing Bogy from liability for the securities still owed (some of which papers were mailed), and would appropriate the bonds secured. The appellants attack the sixth count of the indictment, both by demurrer and by assignment of error, upon the following grounds: (1) That the facts set forth were insufficient to charge an offense. (2) That section 77q, title 15, U.S.C., 15 U.S.C.A. § 77q, imposes punishment for fraudulent "sales" by use of the mails or instruments of interstate commerce, and that the indictment does not charge that a sale was actually made by such means. (3) That section 77q, title 15, U.S.C., 15 U.S.C.A. § 77q, is unconstitutional. We think the District Court correctly overruled the demurrers. As to the sufficiency of the indictment, we note that no motion was filed to make the indictment more definite and certain. The true test of the sufficiency of the indictment is "whether it contains the elements of the offense intended to be charged, `and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.' Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 39 L.Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 480, 40 L.Ed. 606." Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861. Applying this test, the sixth count sufficiently charges conspiracy under title 18, section 88, U.S.C., 18 U.S. C.A. § 88. The second contention likewise is untenable. A "sale," under title 15, section 77b (3), 15 U.S.C.A. § 77b (3) includes "every contract of sale or disposition of, attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security, for value * * ." In the transactions described in the indictment, securities were disposed of, or their disposition was contracted for, and hence they are covered by the broad definition of the statute. 737 The attack upon the constitutionality of section 77q, title 15, U.S.C., 15 U. S.C.A. § 77q, must also fail. The section reads as follows: "(a) It shall be unlawful for any person in the sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly "(1) to employ any device, scheme, or artifice to defraud, or "(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or "(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser. * * " The principal contention is that securities do not fall within the class of articles of interstate commerce which Congress has power to regulate, and that the prohibition of the use of the mails in fraudulent sales of securities is therefore unauthorized. A similar contention was raised as to the validity of the mail fraud statute, title 18, section 338, U.S.C., 18 U.S.C.A. § 338, in Badders v. United States, 240 U.S. 391, 36 S.Ct. 367, 60 L.Ed. 706. The court held that Congress may forbid the use of the mails in furtherance of a scheme that it regards as contrary to public policy, whether it can forbid the scheme or not. Cf. Public Clearing House v. Coyne, 194 U.S. 497, 24 S.Ct. 789, 48 L.Ed. 1092; In re Rapier, 143 U.S. 110, 12 S.Ct. 374, 36 L. Ed. 93; Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877. We think these holdings by analogy support the validity of section 77q, title 15, U.S.C., 15 U.S.C.A. § 77q, Congress, under its power to establish post offices and post roads, Article 1, § 8, United States Constitution, has full control of the mails and may forbid their use in the execution of schemes to defraud. Under this section Congress has a similar power over the instrumentalities of interstate commerce. This power is complete in itself, and subject to no limitations except those found in the Constitution. Hipolite Egg Co. v. United States, 220 U.S. 45, 57, 31 S.Ct. 364, 55 L.Ed. 364. Section 77q is no more far-reaching than other statutes lawfully enacted to close the channels of interstate commerce to uses antagonistic to the public health and safety, such as the transportation of impure food (Hipolite Egg Co. v. United States, supra), the white slave traffic (Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523, 43 L.R.A.,N.S., 906, Ann.Cas.1913E, 905), and traffic in stolen automobiles (Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 69 L.Ed. 699, 37 A.L.R. 1407). Congressional control of the mails logically includes the power to exclude therefrom not only articles physically dangerous to the public health, safety or welfare, such as narcotics, but also to forbid the use of the mails for deceptive transactions which are detrimental to the financial well-being of the nation. As said in Brooks v. United States, supra (page 346), "Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other states from the state of origin." The particular statute here considered was held valid in Securities and Exchange Commission v. Torr, 15 F.Supp. 315, D.C.N.Y.; Jones v. Securities and Exchange Commission, 2 Cir., 79 F.2d 617.[1] Title 15, section 77q, U.S.C., 15 U.S.C.A. § 77q, is a valid exercise of the congressional power over the mails and interstate commerce. Appellants also contend that the court should have directed a verdict for appellants, that the charge was prejudicially erroneous, and that misconduct of Government counsel prevented a fair trial. Decision as to the court's denial of a directed verdict requires some statement of the evidence. Bogy admitted buying the powers of attorney and sending the letters described above, but claimed that he had no connection with Spaulding. Spaulding admitted negotiating the deals, but said that the frauds were the conception of and were executed by Joseph R. DeLatte, co-defendant. In the conduct of his business Bogy had acquired the confidence of the customers named in the indictment, Enochs, Miss Johnson, and Mrs. Kelly. He traded their securities and for that purpose retained them in his possession from time to time. 738 Bogy had contracted to sell and during the early part of 1935 owed to Enochs, Mrs. Kelly and Miss Johnson some forty-seven bonds of the par value of $1,000 each, which were worth about twenty cents on the dollar, or about $9,000 in the aggregate, at the then market price. The fact that these bonds were selling so far below par had not been revealed to Mrs. Kelly or Miss Johnson by Bogy.[2] In December, 1934, Bogy was pressed for funds. The bank account of his company ran as low as $24 in this month, and at no time during this period was adequate to pay for all of the bonds which Bogy owed. He kept no private bank account, having been through bankruptcy in 1930. Bogy considered that he had the right to sell certain bonds left in his possession "and put the money in the business," and it is plain that he had been operating to some extent on the proceeds of his customers' securities which had been left in his hands. In each of the individual deals the same methods were employed. Spaulding called upon the customer, using a false name, either Deering or Moody, presented fictitious addresses and forged references, and induced the customer to "trade" the bonds he had and also to give to Spaulding a power of attorney or an assignment of the bonds due the customer from Bogy. In each case Spaulding dictated a letter which the customer signed and Spaulding mailed to Bogy, instructing Bogy to deliver to Spaulding the bonds still owed the customer.[3] The three letters of this description form the basis of the third, fourth and fifth counts of the indictment. Spaulding then sent the assignment or power of attorney to Bogy by messenger, either R. A. DeLatte, Joseph R. DeLatte's brother, or S. P. Cummings, who also used fictitious names. Bogy delivered no bonds, but paid cash and received the power of attorney and assignment. Spaulding delivered none of the bonds contracted to be exchanged for those handed over by the customers. The powers of attorney called for the delivery of securities valued roughly at about three times as much as the amounts Bogy paid. When the transactions were completed Bogy was released of all liability for the bonds owing to his customers, and Spaulding profited to the extent of Bogy's payment and whatever he retained from the sale of the converted securities acquired directly from the customers. In the same general way Spaulding acquired a substantial number of securities from other customers of Bogy and appropriated them. In response to inquiries from Mrs. Kelly as to the reliability of Moody (one of the names assumed by Spaulding), Bogy answered that he knew nothing about him, although the address given was only one block distant from Bogy's office, and he could easily have made a personal investigation. Letters were written by Bogy to Miss Johnson and Mrs. Kelly, telling of his delivery of the bonds to Spaulding.[4] These statements in the letters were false, as no such bonds were then in Bogy's possession. The facts which afford ample support for the jury's verdict are as follows: As to Spaulding: This appellant twice 739 made extensive written confessions admitting his guilt. He repudiated these confessions when he testified at the trial, denied that he knew of the fraud until toward the close of the transactions, and claimed that Joseph R. DeLatte had induced him to enter the deal, had made all plans, and had received all profits except small commissions paid to himself. Spaulding is clearly contradicted not only by his two confessions, but also by his admitted conduct during this period. He used five assumed names. He caused Enochs to sign papers, including the letter to Bogy, and dictated similar letters and papers for Miss Johnson and Mrs. Kelly to sign. All of the letters he mailed to Bogy. Spaulding's claim that he was simply a messenger for Joseph R. DeLatte is contradicted by Dych, who sold the bonds Spaulding appropriated. Dych, who had no knowledge of or connection with the fraud, states that on his arrival in Chattanooga with Joseph DeLatte, Spaulding had in his possession the bag of securities. Later Spaulding told Dych "I have just made $1,000.00." This statement was made after the Kelly deal, in which $1,000 was the amount paid by Bogy to Spaulding's agent. The truth of Spaulding's confessions was strongly corroborated, and his motion for directed verdict was rightly denied. As to Bogy: Each customer defrauded was a client of Bogy. While Spaulding denies that Bogy received any profit, Bogy owed bonds to these three customers, and was released from liability thereunder by these transactions. In each case the deal was not closed until Bogy was released. The letters mailed to Bogy authorizing Bogy to deliver the bonds to Spaulding were unnecessary from Spaulding's standpoint, since he had the power of attorney, but they were clearly calculated completely to disassociate Bogy from the conspiracy. Other customers of Bogy were defrauded of numerous valuable bonds by Spaulding. Also Bogy sent word to Spaulding by R. A. DeLatte that Bogy wanted to send Spaulding "Some more some names." A list of Bogy's customers was sent to Spaulding from Bogy's office. Bogy denies this, but R. A. DeLatte is corroborated in this by Spaulding and Joseph DeLatte. The list is in evidence, and reads as follows: "J. W. Blair Huntingdon 26M 8M due D. S. Parker Jackson 2M Metropolitans 12M other kinds Mrs. G. E. Mayfield Medina 2M Mets and quantity others H. W. Key Spring Creek, Tenn. 4M 2M due" The list, written on Bogy's typewriter, so far as it went was correct. Blair and Key, for example, had bought from Bogy and had in their possession the number of bonds stated and the number given as owing from Bogy was then owing to Blair and Key respectively. The list when originally delivered had contained other names, and as each customer was approached and the transaction was made, that customer's name was torn from the series. The fact that the list contained data as to bonds owed by Bogy and not yet delivered demonstrates that the information came through Bogy, as the number of bonds undelivered could only have been figured in Bogy's office. When Mrs. Kelly sought Bogy's advice as to the trade offered her by Spaulding, Bogy told her that the bonds offered by Spaulding were all good bonds, although he claimed not to know who Spaulding was, and doubted whether such a trade could be made. Mrs. Kelly says that Bogy said "If I could make such a trade as that I would make it without any hesitation whatsoever." Bogy paid Spaulding $1,000 in the Enochs deal, $1,000 in the Kelly deal, and $750 in the Johnson deal; that is, he paid $2,750 for powers of attorney to release himself from liability for more than $9,000 worth of bonds at the then market price. Considered as settlement for the bonds or as a purchase of the powers of attorney, the price paid by Bogy was not commensurate with the value received. It was far more consistent with the existence of an agreement on his part to share the profits with Spaulding. Bogy's statement as to the Enochs bonds is that he delivered seven of them to R. A. DeLatte for Spaulding, and bought seven himself, giving $1,000 and 400 shares of Television stock in payment. He is corroborated by no witness and by no record of any Television stock transaction. R. A. DeLatte says Bogy gave him $1,000 at this time, and denies receiving anything else. 740 A company check for $1,000 executed by Bogy on this day, endorsed by R. A. DeLatte under his assumed name, is in evidence. As to the Kelly bonds, Bogy states that he put $3,700 cash into an envelope and gave it to Cummings (whom he had never seen before). He drew a company check for $1,000 on this day. This is the transaction in which Spaulding told Dych that he had just made $1,000. Bogy explains the $1,000 check as being a payment to a Mr. Johnson, who was not produced as a witness. For the Johnson bonds, Bogy states that he paid $2,100 cash, but R. A. DeLatte says he received $750. A company check for $750 was drawn by Bogy on this day, and is explained by Bogy as having been paid to another purchaser who was not called to testify. The admitted falsity of the letters written by Bogy to Mrs. Kelly and Miss Johnson, saying that he had delivered their bonds, does not serve to strengthen his uncorroborated assertions. Also the conduct of Bogy's business during this period was unsystematic, and he was unable to substantiate many of his material statements as to these transactions by orderly books or records. In fact Bogy said that only a pencil memorandum was kept of the bonds involved in the Enochs, Kelly and Johnson transactions, and that that "would not be absolutely accurate." Bearing in mind the rule that on motion for directed verdict the evidence must be considered in the light most favorable to the party against whom it is urged (Nieman v. Aetna Life Ins. Co., 6 Cir., 83 F.2d 753), and that if substantial evidence be introduced sufficient to take the case to the jury no amount of contradictory evidence will authorize the trial court to direct a verdict (Great Atlantic & Pacific Tea Co. v. Chapman, 6 Cir., 72 F.2d 112), we conclude that the District Court correctly overruled the motion for directed verdict on behalf of Bogy. The principal assignment of error to the charge arises out of the fact that the letters forming the basis of the first five counts were sent after the bonds in the possession of each customer and the power of attorney had been delivered to Spaulding. Appellants contend that each individual fraud was then complete, and that the sending of these letters had no connection with the scheme alleged in the indictment, and that the court should therefore have charged the jury that appellants were not guilty of using the mails to defraud or of conspiracy as charged. But the record clearly discloses that part of the fraudulent scheme was that Bogy should be released from liability for the bonds owed to these customers. This is the explanation for the letters which Spaulding caused Enochs, Mrs. Kelly and Miss Johnson to mail to Bogy, authorizing the delivery of the bonds. The powers of attorney given to Spaulding were sufficient for Spaulding's purpose, but not for Bogy's purpose, which was not only to profit by, but also to be exonerated from, any part in the scheme. Each individual transaction was completed only when Bogy received the letter and took up the power of attorney or assignment. Hence each letter sent by the customer was mailed in furtherance of a plan not yet consummated. The letters from Bogy were calculated to aid in the retention of the fruits of the fraud, to lull the victims into a false sense of security, to postpone their taking action with respect to their loss, and to delay discovery. Cf. Preeman v. United States, 7 Cir., 244 F. 1. The fact that letters were sent by Bogy after he took up each power of attorney does not exonerate him, because the mails were used for the purpose of assuring the victim that he had not been defrauded, and attempting to lull him into inaction. Preeman v. United States, supra; Lewis v. United States, 9 Cir., 38 F.2d 406; Newingham v. United States, 3 Cir., 4 F.2d 490, 491. The enterprise was in the course of execution, both before and after the mails were used, and the letters tended to contribute to subsequent frauds which were incidents in the general scheme. Preeman v. United States, supra. The numerous requests to charge which fall within this group were rightly refused. Other assignments to the charge may be dealt with summarily. It is not necessary that the scheme to defraud was intended to be executed by the use of the mails nor that any of the defendants at the time that they entered the common scheme so intended. If in the execution of the scheme the mails are in fact used, the statute is violated. Preeman v. United States, supra. The mere incidental and unpremeditated use of the mails in an attempt to defraud may give the federal courts jurisdiction. Hendrey v. United States, 6 Cir., 233 F. 5; Silkworth v. United *741 States, 2 Cir., 10 F.2d 711; United States v. Young, 232 U.S. 155, 161, 34 S.Ct. 303, 58 L.Ed. 548. The contention that Bogy, if he entered the scheme, entered it after the mailing of the letters from the customers, and that the District Court therefore should have charged that Bogy was not guilty, has no merit. It need hardly be repeated that all who with criminal intent join themselves even slightly to the principal scheme, are subject to the statute, although they were not parties to the scheme at its inception (Kaplan v. United States, 2 Cir., 18 F.2d 939), the acts of one in furtherance of a common criminal enterprise being in law the acts of all. Sasser v. United States, 5 Cir., 29 F.2d 76; Belt v. United States, 5 Cir., 73 F.2d 888. No reversible error appears in the charge, and we next consider the alleged misconduct of counsel. Appellant Bogy claims that counsel for the Government attempted to create class prejudice by holding Bogy up as a representative of city clubmen before a rural jury, and to foster sympathy by emphasizing the age of the persons victimized and the extent and nature of their loss. These contentions have no weight. Bogy himself testified as to his high social position, and many questions asked by the Government on this point were called forth by Bogy's testimony. Enochs was 82, Miss Johnson was 75, and Mrs. Kelly was of middle age. Evidence as to their age and condition was relevant. While counsel for the Government was at times over-zealous in his emphasis, he was in every such instance rebuked at the time by the trial judge. The test laid down by this court is that the inquiry as to misconduct of counsel "must always be as to whether in view of the whole record the impression conveyed to the minds of the jurors by irrelevant and prejudicial matter is such that the court may fairly say that it has not been successfully eradicated by the rulings of the trial judge, his admonition to counsel, and his instruction to the jurors to disregard it." Pierce v. United States, 6 Cir., 86 F.2d 949, 952; Volkmor v. United States, 6 Cir., 13 F.2d 594. Applying this rule, we find that the rights of the appellants were protected and the trial was fair. Appellants also attack the severity of the sentences imposed. The sentences are within the statutory limit, and hence we do not review the discretion vested in and exercised by the trial court in imposing them. Beckett v. United States, 6 Cir., 84 F.2d 731, 733. The judgments are affirmed. NOTES [1] This case was reversed on other grounds, 298 U.S. 1, 56 S.Ct. 654, 80 L. Ed. 1015. [2] Enochs had died before the trial, and while the fraudulent appropriation of his bonds was shown, the surrounding circumstances could not be fully developed. [3] A sample of this letter is the following: "Dear Mr. Bogy: "Will you please deliver to Mr. Walter A. Moody the eighteen Consolidated Gas and Electric Bonds (6% Gold Notes) you owe me. I have sold same to Mr. Moody, and received compensation therefor and this is your authority to deliver them to him. "Yours very sincerely, "[Signed.] Mrs. R. Ellis Kelly." [4] The letter to Miss Johnson follows: "Dear Miss Johnson: "In accordance with your letter of March 26th, we made delivery yesterday to Walter A. Moody of the ten Consolidated Electric and Gas Company Bonds which we were holding for your account and received from him the Power of Attorney signed by you, and also his receipt for the Bonds. "This, as stated before, completes all contracts with you, with the exception of one, only, Rocky Mountain Fuel Company Bond in the principal sum of $500.00, which will go forward to you within the next day or so. "We trust that you have made a satisfactory and profitable trade for your Consolidated Bonds, and if we can serve you at any time, do not hesitate to let us know. "With best wishes, we are, "Yours very truly, "Colonial Investment Syndicate, Inc., "[Signed] B. A. Bogy, "By B. A. Bogy, President."	{ "pile_set_name": "FreeLaw" }
245 Minn. 346 (1955) WESTERN AUTO SUPPLY COMPANY v. COMMISSIONER OF TAXATION.[1] No. 36,340. Supreme Court of Minnesota. August 5, 1955. 347 J. Neil Morton, B.C. Hart, and Briggs, Gilbert, Morton, Kyle & Macartney, for relator. Miles Lord, Attorney General, and Joseph S. Abdnor and George R. Johnson, Assistant Attorneys General, for respondent. NELSON, JUSTICE. The relator and taxpayer filed its income and franchise tax return for the year 1947 according to a separate accounting system previously used by it. The commissioner of taxation for the state of 348 Minnesota issued a deficiency letter on August 3, 1951, and an order on August 31, 1951, in which he disallowed the taxpayer's accounting method and assessed a deficiency for 1947. An appeal was taken from this order to the state board of tax appeals, which affirmed the commissioner's decision to disallow the taxpayer's separate accounting system and to assess the tax on the basis of the three-factor formula provided for in M.S.A. 1945, § 290.19, subd. 1(2) (b).[2] A writ of certiorari was issued to review the decision. 349 The taxpayer is a Missouri corporation engaged in the retail and wholesale merchandising of automotive parts and accessories and other merchandise on a nationwide basis. During the calendar year 1947, taxpayer operated 257 retail stores in 30 states and the District of Columbia. This included eight such stores in the state of Minnesota. It also served 1,904 dealer stores of which five to seven were located in Minnesota. All general, executive, and management functions of the taxpayer are performed at its home office in Kansas City, Missouri, with the exception of certain management functions which are performed at 16 different division warehouse offices, none of which were located in Minnesota. The centralized purchasing is done by expertly trained personnel whose department is located in Kansas City, Missouri. All the merchandise sold by it is purchased from manufacturers and jobbers by the company's central purchasing department and initially shipped from the manufacturers and jobbers to the warehouses of the taxpayer and from there to the company stores or sold and delivered to the dealer stores. No segregation of the merchandise between company stores and dealer stores is made either in the purchasing or the storing in the warehouses. It so operated in 1947. The Minnesota dealer stores and retail stores were serviced mainly by the Dubuque, Iowa, warehouse, but in ordering merchandise they would either send their orders to the home office in Kansas City, Missouri, or to the warehouse in Dubuque, Iowa. From time to time schools are set up by the company for the purpose of instructing the personnel of the company's retail stores and the dealer stores in the principles of merchandising and selling. Its 350 representatives are sent to contact and interview persons interested in establishing dealer stores. Such representatives survey the trade territory, and when a dealer store is set up they help the dealer by advising him how to get started. These stores are strategically located so as to serve the customer and capture the market. Thereafter a representative calls on the dealer from time to time to see if the merchandise sold to the dealer is satisfactory and he also makes his service available in their merchandising problems. He makes it his business to show them good merchandising procedures. The merchandise furnished to both the company retail stores and the dealer stores is the same, and the stores on the whole are more or less uniform in each state. Any person who sees the sign on a dealer store knows that it is a store where the Western Auto Supply Company's line of merchandise can be purchased. Prices as to articles sold are set and the policies determined by the home office. Certain articles carry the Western Auto brand name. For instance, the Wizard batteries are made by the manufacturer under the Western Auto label and according to Western Auto specifications, and they are sold at all retail and most dealer stores. This battery is guaranteed, and it may be taken into any Western Auto store anywhere for adjustment. The same is true as to Davis tires. Other items carrying brand names are Truetone radios and certain oils and greases. All directive activities point to the reasonable conclusion that the wholesale side of the business helped the retail side of the business and vice versa and that both the wholesale side and the retail side contributed to the existence and the operational success of the entire organization as a centralized business operation. The taxpayer, in filing its 1947 Minnesota corporation income tax return, apportioned to Minnesota on the basis of separate accounting a net taxable income of $22,518.20, which amounted to approximately.812 percent of total taxable income.[3] 351 The commissioner, upon auditing said return for 1947, apportioned taxpayer's income upon the statutory three-factor formula of property, payroll, and sales. In arriving at the sales factor of the formula, the commissioner included in the denominator (the bottom figure of the fraction) all sales by the taxpayer to dealer stores and sales by its retail stores, but in the numerator (the top figure of the fraction) included only sales made by its Minnesota retail stores and did not include sales to Minnesota dealer stores.[4] The figure used, namely $2,056,949.94, over $121,395,031.32 resulted in a ratio of 1.69443 percent. The other factors in the formula used by the commissioner were Minnesota tangible property ($794,635.46) as compared to total tangible property ($46,199,120.22) and Minnesota payroll ($289,316.44) as compared to total payroll ($14,528,029.18). This resulted in a property factor of 1.72002 percent and a payroll factor of 1.99144 percent. The arithmetical average of the three factors produced a percentage of 1.80196 percent which, when applied to the total taxable net income of taxpayer ($2,772,700.72) resulted 352 in apportioning to Minnesota after certain allowances and credits a taxable net income of $47,836.48. The board of tax appeals stated in part in its findings that the commissioner and the taxpayer each conceded that the sales formula alone does not result in a proper reflection of Minnesota taxable net income. The record indicates that the state and the taxpayer agree that the sales formula, § 290.19, subd. 1(2) (a), prescribed as the primary or specific method, does not properly reflect taxable income assignable to Minnesota and that it was therefore rejected by both sides. This agreement, even though seemingly harmonious, proceeds from different premises and somewhat opposite conclusions. The taxpayer contends that it was rejected because the sales formula alone allocated too much income to Minnesota. That contention of the taxpayer is not admitted by the state. The commissioner contends that the tax as assessed by the three-factor formula employed by the state is higher than that allocated by the use of the sales formula alone; that it is the practicable one here and the one which will properly and fairly reflect Minnesota income as required by the statute; and that the sales or single-factor formula does not here properly reflect taxable net income assignable to the state. Other contentions of the taxpayer are that its business does not constitute a sufficiently homogeneous unit to be considered a unitary business and therefore the unit rule of taxation is not applicable; that there is no reasonable correspondence between the unit of measure and the subject to be measured; that the sales formula allocates to Minnesota income which, as a matter of economic demonstration, is earned elsewhere; that Minnesota income is properly identified by the taxpayer's separate accounting; and that any attribution of additional income to Minnesota under the auspices of apportionment, whether by the single sales formula or the three-factor formula, if applied, fails to "properly and fairly reflect" Minnesota income within the meaning of § 290.19, subd. 1(2) (b). Further, taxpayer contends that the commissioner's constitutional duty is to avoid the taxation of extraterritorial income or illegal exactions upon interstate commerce; that it is his statutory duty (which is more exacting) to make a determination which "will 353 properly and fairly reflect" income assignable to Minnesota; that the use of the multiple formula (or any unit formula) is not practicable in the instant case within the meaning of § 290.19; and that its use in the premises is unreasonable because the subject matter is not suitable for unit-rule apportionment. Also, that the multiple formula (or the sales formula if used) reaches income not derived from business within Minnesota and therefore is inapplicable in either case and that its separate or segregated accounting methods correctly reflect Minnesota taxable income, whereas the application of the multiple formula does not. The taxpayer, by an analysis of what it claims are the pertinent facts, discusses the factors governing choice between the multiple factor and the separate or segregated accounting method and again urges that, under the multiple formula, there is no sufficient correspondence between subject and measure and hence that the multiple formula used by the commissioner has no tendency to effect a segregation of the net income from its wholesale division sales, no part of which, it claims, is taxable in Minnesota. It thus contends that the application of the three-factor formula has no tendency to reflect a proper segregation of net income within the retail division; and that the multiple formula siphons extraterritorial "buying profit" and "administrative profit" into Minnesota, and in so doing violates the rule of Hans Rees' Sons v. North Carolina, 283 U.S. 123, 51 S. Ct. 385, 75 L. ed. 879, and ignores the rule laid down by the state board of tax appeals in some of its own decisions, citing Allied Building Credits, Inc., Docket No. 254, and Crane Company of Minnesota, Docket No. 320, stultifying consistent administrative practice of many years' standing. In the Hans Rees case the United States Supreme Court ruled that the application by North Carolina of a single-property-factor formula to the unitary net income of a company, whose manufacturing was done in North Carolina but most of whose selling activity was done outside the state, allocated to North Carolina income which was earned elsewhere and was therefore, in its application to that business, an unconstitutional method of apportionment. The defect pointed out by the court in that case was not in the use of the unit-formula method but in the use of the wrong formula. The record in 354 the instant case does not offer any proof in fact establishing that the three-factor formula used allocates to Minnesota any more than its proper share of the taxpayer's net income. Another case cited by the taxpayer as controlling in its favor is Montgomery Ward & Co. v. State Tax Comm. 151 Kan. 159, 98 P. (2d) 143. That case did not involve the validity of the application of a formula method of apportionment. It merely involved the validity of one of the steps in Montgomery Ward & Company's separate accounting method, the state of Kansas having taxed the net income of the Kansas stores of this company as it had been determined by the company's accounting method. The court in that case did not say that the business was not a unitary business nor did it say that a formula method of apportionment would not be valid. We are unable to find where the holding in that case sufficiently supports the taxpayer's position. We are inclined to the view that the dictum in that opinion supports the commissioner and the board in the case at bar. Cases representative of the action of the court on issues similar to those before us in the instant case are: S.S. Kresge Co. v. Bennett (S.D.N.Y.) 51 F. (2d) 353; Butler Bros. v. McColgan, 315 U.S. 501, 62 S. Ct. 701, 86 L. ed. 991; North American Cement Corp. v. Graves, 243 App. Div. 834, 278 N.Y.S. 920; Id. 269 N.Y. 507, 199 N.E. 510; Id. 299 U.S. 517, 57 S. Ct. 311, 81 L. ed. 381 (facts found at 17 Cal. [2d] 673, 111 P. [2d] 339); Edison California Stores v. McColgan, 30 Cal. (2d) 472, 183 P. (2d) 16. Finally, the taxpayer sums up its position as follows: That the multiple or three-factor formula is not "practicable" within the meaning of § 290.19 upon the ground that it is unreasonable in terms of constitutional doctrine, the commissioner having a constitutional duty to avoid taxation of interstate commerce in violation of the commerce clause, citing McLeod v. Dilworth Co. 322 U.S. 327, 64 S. Ct. 1023, 88 L. ed. 1304, and is not a proper and fair reflection of Minnesota income as required by § 290.19, since any action of the commissioner resulting in a tax on any part of the income of the wholesale division is also a violation of U.S. Const. Amend. XIV 355 because of extraterritoriality; that every circumstance which required the commissioner in the first instance to review the sales formula requires, a fortiori, the rejection of a multiple formula, again urging that the taxpayer's separate accounting method reflects Minnesota taxable income and that the taxpayer's system of separate accounting is to be preferred to the multiple formula; and that, although the commissioner's determination has in the first instance prima facie validity, the aforesaid reasons advanced by the taxpayer establish that it is no longer entitled to recognition. The taxpayer's contention when reduced to simple terms is that the use of the three-factor formula in this instance by the commissioner and affirmed by the board of tax appeals allocates to Minnesota income which was earned elsewhere, namely, the income from its wholesale business, none of which is conducted in Minnesota, and some income from its retail business not attributable to the Minnesota retail stores. The taxpayer admits the validity of the use of the three-factor formula in the case of a homogeneous business unit but contends that its business as operated by it is not sufficiently homogeneous to justify applying the multiple formula. It bases its claim of the lack of homogeneity on the premise that no part of its wholesale business is conducted in Minnesota and on the further fact that there is no uniformity of operating experience in its retail stores; therefore, that § 290.19, which requires that the method of allocating income to Minnesota as adopted by the commissioner must properly reflect income earned in Minnesota, does not justify the use of the multiple formula. The taxpayer's contention, however, that none of its wholesale business is conducted in Minnesota, even if this were the fact and it were also the fact that the operating experience of the retail store is not identical or the same everywhere, becomes irrelevant as far as the question of homogeneity or unitary character of the taxpayer's business is concerned. A multistate business is a unitary business when the operations conducted in one state benefit and are in turn benefited by the operations conducted in another state or states. The test to be applied in determining whether a business 356 is a unitary one is based upon the following inquiry: Is the operation of the business within the state "dependent upon or contributory to the operation of the business outside the state"? See, Altman & Keesling, Allocation of Income in State Taxation, p. 101. It is not required, as the taxpayer contends, that the taxpayer have a portion or all parts of its business in the taxing state before the state may apply the formula method of apportionment. Various parts of its business may be carried on exclusively in different states without destroying its unitary nature if these parts are of mutual benefit to one another. Cases so holding are very numerous. The leading ones are: Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 41 S. Ct. 45, 65 L. ed. 165; Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm. 266 U.S. 271, 45 S. Ct. 82, 69 L. ed. 282; Butler Bros. v. McColgan, 315 U.S. 501, 62 S. Ct. 701, 86 L. ed. 991. The commissioner, applying the multiple formula and acting in accordance with § 290.19, subd. 1(4), did not include the company's wholesale sales to the Minnesota dealer-owned stores in the numerator of the sales factor of the formula, so the question of whether it would be constitutional to do so is not at issue in this case. The McLeod case does not hold that it would be unconstitutional to do so. Even if the actual sales did not take place in Minnesota so that this state could not constitutionally impose a sales tax on wholesale sales, Minnesota nevertheless would still be justified in including those sales in the numerator of the sales factor in the formula for apportioning the net income of the taxpayer, if conducting a unitary business, because the effect of so doing is not to tax a sale but simply to cause to be reflected in the formula applied certain selling activity of the taxpayer in Minnesota in connection with its dealer-owned stores which contributed to the earnings of the taxpayer's total unitary net income. This is indicated by the activity set forth in the statement of facts. The sales factor is used in the formula applied in order to give weight to the activity of the taxpayer in obtaining customers, and, even though the activity of the taxpayer in Minnesota would not be sufficient ground for the imposition of a sales tax on these wholesale sales, that would not mean that the activity in laying the foundation for and promoting those 357 sales could not be found to justify their inclusion in the numerator of the sales factor in the formula used in apportioning the taxpayer's unitary net income. Compare the statement in Maxwell v. Kent-Coffey Mfg. Co. 204 N.C. 365, 370, 168 S.E. 397, 400, 90 A.L.R. 476, 480, affirmed, 291 U.S. 642, 54 S. Ct. 437, 78 L. ed. 1040: " * * The bare fact of sale produces no income. It is merely the act by which the income is captured; the capital, the organization or efforts which produce the sale, are the things to be considered in ascertaining the amount of income to be credited to the sale." The test of whether a business is unitary is whether its various parts are interdependent and of mutual benefit so as to form one business unit rather than separate business entities and not whether the operating experience of the parts is the same in all places. If the taxpayer's objection to the method of apportionment used, based on the fact that the operating experience of its retail units is not uniform throughout the nation, were valid, then no business could be found to be unitary and the formula method applied would always be invalid. Furthermore, the three-factor method of apportionment reflects these variables and compensates for them.[5] The constitutional questions raised by the taxpayer find no support in the record. 358 The taxpayer, in its analysis of the sources of its profit, treats its business as if it were made up of independent, separate business units. The fact remains that the buying profit and the administrative profit which its business reflects were not created solely by activities in the state of the taxpayer's home office or in states where its warehouses are located. It was created by the operation of the entire business unit, through the co-ordinated and standardized activity of numerous stores throughout the country which made possible the central purchasing, the central management, the warehousing as carried on, and the advertising methods adopted. The stores in Minnesota contributed in part to make all this possible, and the multiple-formula method simply allocates a fair share of the profit to Minnesota, a share corresponding to the contribution of the taxpayer's Minnesota operation (measured by its Minnesota property, payroll, and sales activity) to the existence and operation of the taxpayer's entire business unit. Applying this test, any argument that the taxpayer's business is not a unitary one lacks persuasion. A cursory review of the facts of the case indicates quite conclusively that the taxpayer's retail sales and wholesale sales stand in the relationship of reflected dependency, mutual contribution, and mutual benefit. Our statute leaves the use or rejection of the separate accounting method to the discretion of the commissioner initially, subject to the requirement that the method he adopts will properly and fairly reflect taxable net income assignable to Minnesota. It cannot be questioned that the proposition that multiple-formula method of apportionment adopted by the commissioner in the instant case does properly and fairly reflect the taxable net income earned in a given state by a unitary business finds support in the cases and among the leading authorities of accounting and allocation of income in state taxation. This is even conceded by the taxpayer in its argument. Taxpayer's argument, however, is that its business is not unitary and hence not a proper subject for the application of the formula method of apportionment which the commissioner applied here. This contention of the taxpayer, however, is not sufficiently borne out by its activities as shown by the record upon which the 359 commissioner acted in rejecting the separate accounting method nor by the evidence upon which the board of tax appeals affirmed the commissioner's action taken therein. The authorities, we believe, preponderate in holding that the separate accounting method is inherently incapable of accurately apportioning the income of a unitary business. See analysis in Altman & Keesling, Allocation of Income in State Taxation, pp. 89 to 97. This, a recognized authority, after a discussion of the principles of allocation of business income, sums the situation up as follows on p. 97: "For the above reasons it is an inescapable conclusion that the separate accounting method is wholly unsuited to the proper apportionment of the income of a unitary business. It is believed that the only proper method for making the apportionment is to employ a formula which gives weight to the various factors responsible for the earning of income, such as property, which reflects either the capital investment or the general size and importance of the business, payroll, which indicates the value to the taxpayer of the services of its employees, and sales, which give weight to the activity of the taxpayer in obtaining customers without which, of course, the business would not function."[6] While the taxpayer's separate accounting method may be quite suitable for taxpayer's business purposes, it nevertheless seems definitely inadequate for the purpose of attributing to Minnesota with a fair degree of accuracy that portion of the taxpayer's income which was earned by its Minnesota operations for the reason that it rests in part on estimates and resorts to arbitrary allocation formulae. The commissioner makes no claim of impropriety with respect to the taxpayer's separate accounting system. It must be recognized that even the so-called separate accounting system cannot be kept with exactness. In actuality no time records were kept, according to the evidence, and mental records were often relied upon. The taxpayer's system of separate accounting divided its total business 360 into wholesale and retail divisions and, wherever possible, items were credited to the division to which they applied. The taxpayer's separate accounting showed a $35,501,155.81 gross profit after deducting cost of goods sold from total corporate sales. It then showed $19,363,753.59 in direct charges against either the wholesale or the retail division as the particular item required. This resulted in what is referred to as a direct operating profit of $16,137,402.22. It showed an ultimate net income per federal return of $7,237,058.12. The difference between the direct operating profit and the net income per federal return is $8,900,344.10. This amount could not be charged directly to either the wholesale or the retail divisions and was therefore allocated by the taxpayer between the two on the basis of actual operating experience. From mental records made and estimates applied, salaries were apportioned 60 percent to retail and 40 percent to wholesale. The chairman of the board, while presiding at meetings, had his salary allocated between retail and wholesale sales. While the assistant treasurer of the company was in Minnesota in connection with the taxpayer's business, his salary was apportioned 60 percent to retail and 40 percent to wholesale operations. In 1947, 60 percent of administrative salaries was allocated to retail sales and 40 percent to wholesale sales. These allocations suggest a recognition on the part of taxpayer's management that the business overall was a unitary business. Approximately 57 percent of the total corporate sales for 1947 was made through the company's 257 retail stores, of which eight were in Minnesota. These stores produced about 72 percent of the gross profit for 1947. The division referred to as wholesale sold to dealer stores as opposed to company-owned and operated units. Sales to the 1,904 (five to seven operating in Minnesota) dealer stores represented about 43 percent of the total corporate sales for 1947 and produced about 28 percent of the gross business. Both total expenses itemized and direct expenses shown reveal a substantial amount of indirect expenses allocated. There appear the following allocations: over $1,000,000 in advertising, over $325,000 in travel expense, over $350,000 in rent, over $664,000 in profit-sharing 361 and retirement contributions, and over $337,000 in miscellaneous expenses. These substantial items are allocated by the use of some sort of apportionment formula. While the record does not disclose all of the various formulae used, in addition to salaries of officers, depreciation on tools and other items were allocated 60 percent to retail and 40 percent to wholesale; legal expense was assigned two-thirds to retail and one-third to wholesale; tabulating department expense was assigned fifty-fifty; general catalog expense was assigned one-third to retail and two-thirds to wholesale; while profit sharing, interest expense, stationery, and supplies for accounting were divided 75 percent to retail and 25 percent to wholesale. Other factors were used for warehouse operations, indicating that taxpayer treated seven wholesale outlets as the equivalent to one retail outlet. When the taxpayer comes to determining net income considered assignable to Minnesota stores, it is compelled to again resort to the use of allocation formula because of the unitary nature of its business. These matters are of course fully covered in the record, and no further listing of the same will be made here. Suffice it to say that the taxpayer's allocation formula must of necessity become somewhat arbitrary at points and relatively inflexible because so often based upon mental records and estimates, hardly to be avoided even in separate accounting when a business becomes as definitely unitary as this one has. While many of these may have been close estimates, nevertheless they remain mere estimates. Under all of these circumstances there would appear to be ample evidence to support the board's finding that the wholesale part of the taxpayer's business was part of one unitary operation and that the wholesale gross sales should be included with the retail sales in the total sum to be allocated by the multiple formula as a part of its unitary income. Cases holding that the wholesale sales of a company conducting both wholesale and retail merchandising operations under conditions similar to those in the instant case are part of the company's unitary income, though involving a different point of law, are: State v. Gamble-Skogmo, Inc. 63 Idaho 265, 120 P. (2d) 630; Bedford v. Gamble-Skogmo, Inc. 104 Colo. 424, 91 P. (2d) 475. 362 The law applicable on this appeal is M.S.A. 1945, § 290.19, dealing with net income to be allocated. Subd. 1 deals with the question of apportionment where, as here, a business is conducted partly within and partly without the state. Subd. 1(1) deals with a business consisting "of the manufacture in Minnesota or within and without Minnesota." It is not applicable here since the taxpayer is not a manufacturer. In determining taxable income assignable to Minnesota of a nonmanufacturing business carried on partly within and partly without the state, § 290.19, subd. 1(2) (a, b), are the controlling provisions of the statute. The single-factor formula is prescribed by this section as the primary one, and it must be given first consideration and applied unless as a method it does not properly and fairly reflect taxable income assignable to Minnesota. Stronge & Lightner Co. v. Commr. of Taxation, 228 Minn. 182, 36 N.W. (2d) 800. Under § 290.20 it is provided that the commissioner is to prescribe the methods, subject to the right of the taxpayer to apply for the application of some other method under the statute by taking the appropriate procedure therein provided. It was held in the Stronge & Lightner Co. case that, if an appeal is taken by a corporate taxpayer carrying on a nonmanufacturing business partly within and partly without the state to the board of tax appeals from a decision of the commissioner of taxation that the single-factor formula adopted by a taxpayer did not properly reflect income assignable to Minnesota for the purpose of computing the tax and that the three-factor formula should have been applied, the taxpayer had the burden of proving that the formula adopted by it properly reflected income assignable to Minnesota but that the taxpayer should not on such appeal be required to shoulder the additonal burden of showing that the alternative method adopted by the commissioner did not fairly reflect income assignable to Minnesota. In this connection it should be noted, although heretofore mentioned, that in the sales factor used by the state in the three-factor formula the numerator (the top figure) in the fraction does not include sales to the Minnesota dealer stores (five to seven in 1947). However, in the denominator (the figure below the line) the total 363 sales are included; namely, those made at retail as well as those made to the dealer stores. The obvious effect of this procedure is to reduce the percentage of income allocable to Minnesota. This is made necessary by the holding in The Maytag Co. v. Commr. of Taxation, 218 Minn. 460, 17 N.W. (2d) 37, since the sales made to dealer stores were made by, through, and from an office outside the state, and under our law these are not construed as Minnesota sales. Under the application of the three-factor formula, Minnesota sales of $2,056,949.94 are 1.69443 percent of the total sales of $121,395,031.32. This is true despite the exclusion from Minnesota sales figure as stated above of all sales made to the five to seven Minnesota dealer stores. The state contends that this sales percentage of 1.69443 does not differ from the 1.80196 percent used by the state to such degree that it can be said to produce an unfair or improper allocation and that in the light of these figures there is nothing arbitrary or capricious in the use of the three-factor formula. There must of necessity be some approximation and estimate, some margin of error, in any system used to allocate income among several states, including any system of separate accounting, even that used by the taxpayer herein. Taxpayer's income arrived at by separate accounting equals .812 percent of the total apportionable income of $2,772,700.72. Since the facts point to the taxpayer's business as a unitary one, it is fair to assume that the commissioner selected the three-factor formula as practicable and the applicable one for the reason that the figure arrived at by the taxpayer by separate accounting was disproportionately small in relation to the percentage of sales made in Minnesota as compared to total sales made everywhere, and since the taxpayer's business is clearly a unitary one, under leading authorities, the multiple formula does, when applied, properly and fairly reflect taxable net income assignable to the state. In this connection it must not be overlooked that the sales percentage is the primary statutory formula prescribed in this state for allocating income from a multistate, nonmanufacturing business, but it is not made mandatory.[7]364 While this significance is not completely nullified by the fact that here sales concededly do not properly reflect assignable income, neverthless, it is the commissioner's prerogative and duty to select the applicable formula as it appears to him in the first instance. When this is done, the order of the tax commissioner comes to the board of tax appeals clothed with prima facie validity deriving from specific statutes.[8] The taxpayer takes the position that the commissioner's obligation is to choose "the method which constitutes the better `reflection' of Minnesota income." The taxpayer also states in speaking of the three-factor formula that the question is "more simply, whether it is better suited to reach a fair and proper result than separate 365 accounting." This, however, is not a correct statement of the law which governs this case. The commissioner here has used one of the two methods which the law says he "shall use" if the sales factor will not properly reflect taxable income. Having done so, the commissioner's order comes to the board of tax appeals with the benefit of prima facie validity, which simply means that the burden is on the taxpayer to show not, as contended, that its method of separate accounting is a "better reflection" but that the commissioner's three-factor formula does not "properly reflect" an equitable allocation of income. The two are not the same. The fact is that, while an allocation of income arrived at by the three-factor formula might not meet the "better reflection" criteria, which taxpayer erroneously assumes is the test, it might well be adequate under the "properly and fairly reflect" criteria established by statute and applied by the commissioner. Mathematical certainty is simply not possible in this difficult field. Any method of apportionment, separate accounting as well as every possible formula, contains estimates, and, in varying degrees, there is applied the exercise of human judgment in the allocation of costs and charges. It is obvious that absolute accuracy is not possible by any method which may be used in allocating to Minnesota its proper share of total corporate income derived from a multistate activity with integrated buying, selling, credit, advertising, and general management policies. Therefore, in such a case all that is required is that the end result assign "to Minnesota a fair, honest, and equitable part of total corporate income measured in terms of corporate activity within Minnesota." The commissioner of taxation must of course guard against being arbitrary or capricious. When the provisions of the statute are clear, he must follow the statute. Having followed and complied with the statute, his determination must stand, under the prima facie validity rule, even though his method may not have produced the most equitable or the most accurate reflection of apportionable 366 income, unless the taxpayer has sustained the burden of showing either the incorrectness or the invalidity of the tax.[9] Reasonable approximation, not meticulous precision, if arrived at will measure the fairness of any formula to allocate income from a multistate activity "within the limits of fair human judgment." The case of Stronge & Lightner Co. v. Commr. of Taxation, 228 Minn. 182, 36 N.W. (2d) 800, came before this court upon relation of the commissioner of taxation to review a decision of the board of tax appeals. The court on review emphasized and followed the general rule stated in State ex rel. Inter-State Iron Co. v. Armson, 166 Minn. 230, 232, 207 N.W. 727, 728, to the effect that it is well settled that, in reviewing an order or determination of an administrative board, this court will go no further than to determine: (1) Whether the board kept within its jurisdiction; (2) whether it proceeded on a correct theory of the law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question. Stronge & Lightner Co. was a Minnesota corporation which had its home office in St. Paul. It owned and operated a chain of 48 retail stores which sold women's apparel. Twenty-two of the stores were located in Minnesota, the remainder in nine other states. The merchandise which it sold was largely purchased by it in the east and shipped to St. Paul, where, through the home office, it was processed and stored in a warehouse until shipped to the retail stores. From the beginning of the business in 1936 until 1943, the company had used the single-sales-factor formula in apportioning its total net income to Minnesota for tax purposes. In 1943, the commissioner determined that the single sales factor did not properly reflect the income earned by the home-office activities and applied the three-factor formula instead. The three-factor formula ascribed 46.588 percent of the company's net income to Minnesota; the single-sales factor, 37.3738 percent; and a separate accounting method maintained by the company, 25.054 percent. The application of the three-factor 367 formula by the commissioner added only an additional tax of $268.05. On appeal to the state board of tax appeals and a consideration of the matter de novo, the commissioner was reversed. The board determined that the application of the single-sales-factor formula fairly reflected the income earned in Minnesota. In its memorandum accompanying its decision, the board stated that its duty was "to determine whether under the Sales formula as applied to this Taxpayer there results in assigning to Minnesota a fair, honest, and equitable part of total corporate income measured in terms of corporate activity within Minnesota." The board stated its duty and its conclusion, but it offered little, if anything, upon the facts to support its conclusion. Regarding the fact that the single-sales-factor-formula method resulted in assigning to Minnesota in that case approximately 50 percent more taxable income than the separate accounting method did, the board stated that "Due to the difficulty of evaluating the importance of the numerous elements in the income-producing chain and of determining the proper reflection of each in the various formulas, we are unable to state with any degree of accuracy that this increase is or is not due to a reflection of home office activity or some other element." It said further that "The requirements of this decision, however, do not demand such an evaluation. All that is required is that the result show a proper reflection of Minnesota taxable net income." On the appeal by the commissioner from the decision of the board, this court said that the question before it was in the main whether the decision of the board was supported by the evidence, and this court held that it was. In evaluating the weight of that decision as regards the scope to be given to the primary method of apportionment, it must not be overlooked that this court was under the impression that the board had determined that the difference in the result of the two accounting methods did reflect the activities of the taxpayer's home office and warehouse. However, in the last sentence of the board's memorandum it refers to the difference in result in the two accounting methods as if it were in fact basing its finding 368 on it. This court said, in approaching its conclusion in that decision (228 Minn. 189, 36 N.W. [2d] 804): "All questions of law and fact are to be viewed by us in the light of the rule that a decision of the board of tax appeals will not be disturbed if it has any reasonable basis in law." This court then said (228 Minn. 196, 36 N.W. [2d] 808): "When we come to a nonmanufacturing business, the legislature, by § 290.19, subd. 1(2)(a), has first prescribed the single-factor formula. If the statute had gone no further than this paragraph, it also would be mandatory. However, the legislature thereafter added paragraph (2) (b), which provides that if paragraph (2) (a) does not properly reflect taxable net income assignable to the state there shall be used, if practicable and if such use will properly and fairly reflect such income, the three-factor formula or the separate or segregated accounting method." Recognizing the rule that a decision of the board of tax appeals will not be disturbed if it has any reasonable basis in law, this court nevertheless made this observation (228 Minn. 200, 36 N.W. [2d] 809): "Obviously, it is impossible to lay down any definite rule that will apply to all cases. The facts in each case must determine, within the limits of fair human judgment, which formula should be applied." Had this court been charged with finding the facts in that case in the first instance, there is no certainty that it would have found upon the facts as the board did. If the specific formula set forth in § 290.19, subd. 1(2) (a), does not properly reflect the income assignable to Minnesota in a given case, then it seems clear and obvious that the legislature intended that the commissioner should then be vested with the discretion initially of using the multiple formula or the separate-accounting method under subd. 1(2) (b). The application made of the single-factor formula or the three-factor formula or the separate accounting method must be made, as the various provisions of § 290.19 provide, according to the facts 369 of each particular case, and its application is not necessarily limited to what might be termed exceptional cases, as we inadvertently said in the Stronge & Lightner Co. case, there being no such designation of cases in the provisions of the statute. The problem of allocation, however, is always one of securing for the state a fair, honest, and equitable part of the total corporate income measured in terms of corporate activity within the state. If, as in this case, it becomes upon the facts a question as to whether the three-factor formula or the separate accounting method is to be used, there must first be determined when may that portion of a business operated within the state be considered separate and under what condition does it become a portion of a unitary business conducted within and without the state. No one in the instant case has contended for the application of the single-factor formula. The dispute in this case arises over the application of the three-factor formula and the separate or segregated accounting method. The commissioner applied the three-factor formula. The state board of tax appeals, upon a de novo consideration of the facts submitted, affirmed the commissioner's use of the three-factor formula. The sole question of serious consequence here is whether the order and decision of the board is justified by the evidence upon which it made its findings. We are dealing here with apportionment of income which we conclude is income derived by a unitary business operated both within and without the state. The record in this case as a whole justifies us in the belief that the formula adopted by the commissioner and approved de novo by the state board of tax appeals does in some reasonable measure and in fact give weight to the different factors responsible for the earnings of the income of the taxpayer and, therefore, that the multiple formula applied does properly and fairly reflect the taxpayer's income from its entire business among the various states in which it is conducted, including Minnesota. The taxpayer has the burden of overcoming the presumption that the commissioner's order, which the board affirmed, is based on a formula which is practicable and which properly and fairly reflects income assignable to Minnesota. The taxpayer's burden, which he must assume in 370 order to show that the commissioner's order and the board's affirmance thereof was not justified by the evidence, is not satisfied by a mere showing that separate accounting allocated less income to Minnesota and therefore produced a lower tax. Of course, this position is but the converse of the principle of the Stronge & Lightner Co. case that (228 Minn. 197, 36 N.W. [2d] 808) "The test is not which method will produce the greatest revenue for the state of Minnesota." Under the circumstances here, even though the primary formula was not applied or contended for by the taxpayer, the commissioner applying the three-factor formula, rejecting the taxpayer's separate accounting method, we conclude that the board's determination in affirming the commissioner in the application of the multiple formula as properly and fairly reflecting the net income of the taxpayer assignable to Minnesota is justified by the evidence and must be affirmed. Affirmed. NOTES [1] Reported in 71 N.W. (2d) 797. [2] "Subdivision 1. The taxable net income from a trade or business carried on partly within and partly without this state shall be computed by deducting from the gross income of such business, wherever derived, deduction of the kind permitted by section 290.09 so far as connected with or allocable against the production or receipt of such income. The remaining net income shall be apportioned to Minnesota as follows: "(1) If the business consists of the manufacture in Minnesota or within and without Minnesota of personal property and the sale of said property within and without the state, the remainder shall be apportioned to Minnesota on the basis of the percentage obtained by taking the arithmetical average of the following three percentages: "(a) The percentage which the sales made within this state and through, from or by offices, agencies, branches or stores within this state is of the total sales wherever made; "(b) The percentage which the total tangible property, real, personal, and mixed, owned or used by the taxpayer in this state in connection with such trade or business is of the total tangible property real, personal, or mixed, wherever located, owned, or used by the taxpayer in connection with such trade or business; and, "(c) The percentage which the taxpayer's total pay-rolls paid or incurred in this state or paid in respect to labor performed in this state in connection with such trade or business is of the taxpayer's total pay-rolls paid or incurred in connection with such entire trade or business; "(d) The percentage of such remainder to be assigned to this state shall not be in excess of the sum of the following percentages: 70 per cent of the percentage determined under clause (1) (a), 15 per cent of the percentage determined under clause (1) (b), and 15 per cent of the percentage determined under clause (1) (c); "(2) (a) In all other cases the proportion of such remainder to be assigned to this state shall be that which the sales, gross earnings, or receipts from business operations, in whole or in part, within this state bear to the total sales, gross earnings, or receipts from business operations wherever conducted; "(b) If the methods prescribed under clause (2) (a) will not properly reflect taxable net income assignable to the state, there shall be used, if practicable and if such use will properly and fairly reflect such income, the arithmetical average of the three percentages set forth in clause (1) (a), (1) (b), and (1) (c), of this section, or the separate or segregated accounting method." [3] The results which would be reached under the sales formula, the multiple factor, and separate accounting, respectively, are as follows: The sales formula, if applied, would have attributed $46,981.47 of income to Minnesota (1.69443% of $2,772,700.72) and would have resulted in Minnesota taxable income as follows: 1.69443% of $2,772,700.72 $46,981.47 Less: Minnesota contributions and specific credit 2,126.48 __________ Minnesota taxable income $44,854.99 The three-factor formula, used by the Commissioner, attributed $49,962.96 of income to Minnesota (1.80196% of $2,772,700.72) and resulted in Minnesota taxable income as follows: 1.80196% of $2,772,700.72 $49,962.96 Less: Minnesota contributions and specific credit 2,126.48 __________ Minnesota taxable income $47,836.48 The taxpayer's separate accounting disclosed $22,518.20 of Minnesota income (equivalent to .812% of $2,772,700.72) and resulted in Minnesota taxable income as follows: Minnesota income per separate accounting, $22,518.20 Less: Minnesota contributions and specific credit 1,521.63 __________ Minnesota taxable income $20,996.57 [4] See, § 290.19, subd. 1(4). [5] See statement in Altman & Keesling, Allocation of Income in State Taxation, p. 100: " * * it is clear that, although the separate accounting method may properly be employed to determine the amount of income earned in a particular state where the business conducted there is separate and distinct from business conducted in other states, it should not be used to apportion the income of a unitary business. Instead, some formula which gives weight to the different factors responsible for earning the income should be used so as to apportion the income from the entire business among the various states in which conducted. "* * * The essential test is whether or not the operation of the portion of the business within the state is dependent upon or contributory to the operation of the business outside the state. If there is such a relationship, the business is unitary. If there is no such relationship, then the business in the state may be considered separate and the income therefrom may be determined without reference to the success or failure of the taxpayer's activities in other states." [6] See, John Deere Plow Co. v. Franchise Tax Board, 38 Cal. (2d) 214, 238 P. (2d) 569. [7] See, Altman & Keesling, Allocation of Income in State Taxation, Formulae in Practice in Minnesota, p. 141, wherein it is said in part: "The law contains the usual provisions respecting segregation and specific allocation of income. The remaining income in the case of companies engaged in the manufacture and sale of personal property within and without Minnesota is apportioned by means of the three-factor formula of property, payroll, and sales. In all other cases, the remaining income is apportioned by the single factor of sales, except that if the sales method does not properly reflect the income assignable to the state, then the three-factor formula or the separate accounting method shall be employed." [8] M.S.A. 1945, § 271.11: "In all cases determinable by order of the commissioner of taxation, the order of the commissioner, or in case of appeal therefrom, the order of the board of tax appeals or the decision of the supreme court, as the case may be, shall be prima facie evidence of all facts therein stated and shall be prima facie evidence that all precedent requirements of the law were complied with, and shall be prima facie valid, and such order or decision shall be conclusive as to all matters therein determined upon every appellant or petitioner for review and upon all parties to the proceedings who shall have so agreed, in writing, as herein provided." M.S.A. 1945, § 290.48, subd. 8. "The tax, as assessed by the commissioner, with any penalties included therein, shall be presumed to be valid and correctly determined and assessed, and the burden shall be upon the taxpayer to show its incorrectness or invalidity. The statement filed by the commissioner with the clerk of court, as provided herein, or any other certificate by the commissioner of the amount of the tax and penalties as determined or assessed by him, shall be admissible in evidence and shall establish prima facie the facts set forth therein." [9] See, People ex rel. Studebaker Corp. v. Gilchrist, 244 N.Y. 114, 155 N.E. 68; Gould v. Gould, 245 U.S. 151, 38 S. Ct. 53, 62 L. ed. 211.	{ "pile_set_name": "FreeLaw" }
16-2563 Pineda v. Sessions UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of February, two thousand eighteen. PRESENT: GUIDO CALABRESI, JOSÉ A. CABRANES, RAYMOND J. LOHIER, JR., Circuit Judges DANILO A. PINEDA, A/K/A PINEDA DANILO, A/K/A DANILO PINEIDA, A/K/A JOHN DOE, Petitioner, 16-2563 v. JEFFERSON B. SESSIONS III UNITED STATES ATTORNEY GENERAL, Respondent. 1 FOR PETITIONER: Stacy Taeuber, Maria Navarro, for Seymour James, Attorney-in-Chief, The Legal Aid Society, New York, New York. FOR RESPONDENT: Rachel L. Browning, Keith I. McManus, for Chad A. Readler, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C. UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review of the July 13, 2016 decision issued by the Board of Immigration Appeals be and hereby is DISMISSED as moot. Petitioner Danilo Pineda (“petitioner” or “Pineda”) seeks review of a decision of the Board of Immigration Appeals (“BIA”) in which the Board dismissed his appeal from an Immigration Judge’s denial of his request for a continuance of removal proceedings to await the adjudication of his U visa application by U.S. Citizenship and Immigration Services (“USCIS”). We assume the parties’ familiarity with the facts, the underlying procedural history, and the issues presented on appeal. We have jurisdiction to review decisions by the BIA to grant or deny continuances. Sanusi v. Gonzales, 445 F.3d 193, 198–99 (2d Cir. 2006) (per curiam). We review the BIA’s decision to deny a continuance for abuse of discretion. Id. at 199. USCIS, which possesses sole authority to review U visa applications, denied Pineda’s applications for a U visa and a concurrent waiver of inadmissibility1 on January 30, 2017. Pineda argues that this decision does not render his petition moot because his motion to reopen his U visa application remains pending with the Administrative Appeals Office. However, because Pineda has effectively been granted the relief he sought (namely, a six-month delay in removal proceedings), his petition is moot. See Kamagate v. Ashcroft, 385 F.3d 144, 150 (2d Cir. 2004) (“A case becomes moot, if, at any stage of the proceedings, it fails to satisfy the case-or-controversy requirement of Article III, Section 2, of the Constitution.”). 1 Pineda applied for a waiver of inadmissibility alongside his U visa application. Such a waiver was required in order for USCIS to consider his U visa application, as a U visa applicant must be admissible to the United States or otherwise seek a waiver of inadmissibility from USCIS. See 8 C.F.R. §§ 212.17(a), 214.1(a)(3)(f), 214.14(b) & (c)(2)(iv). 2 We hereby DISMISS as moot Pineda’s petition for review of the BIA’s order of July 13, 2016. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 3	{ "pile_set_name": "FreeLaw" }
836 So.2d 42 (2003) STATE of Louisiana v. Edward ANDERSON. No. 2002-KO-0569. Supreme Court of Louisiana. January 24, 2003. Denied.	{ "pile_set_name": "FreeLaw" }
IN THE SUPREME COURT OF MISSISSIPPI NO. 2004-CA-01415-SCT BAYVIEW LAND, LTD., A NEVADA CORPORATION, AND IMPERIAL PALACE OF MISSISSIPPI, INC., A NEVADA CORPORATION; TREASURE BAY LLC, JUNE S. MLADINICH AND MLADINICH FAMILY LIMITED PARTNERSHIP v. STATE OF MISSISSIPPI BY AND THROUGH ERIC CLARK IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE AS TRUSTEE OF PUBLIC TIDELANDS TRUST; TAL FLURRY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS TAX ASSESSOR OF HARRISON COUNTY, MISSISSIPPI; DAVID V. LAROSA, SR., IN HIS OFFICIAL CAPACITY AS TAX COLLECTOR OF HARRISON COUNTY, MISSISSIPPI; THE BOARD OF SUPERVISORS OF HARRISON COUNTY, MISSISSIPPI IN THEIR OFFICIAL CAPACITY; CITY OF BILOXI, MISSISSIPPI, AND THE BILOXI MUNICIPAL SEPARATE SCHOOL DISTRICT DATE OF JUDGMENT: 06/22/2004 TRIAL JUDGE: HON. DONALD B. PATTERSON COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANTS: BRITT R. SINGLETARY TINA ROSE SINGLETARY SAMUEL L. BEGLEY DEAN HOLLEMAN MICHAEL B. HOLLEMAN W. JOEL BLASS ATTORNEYS FOR APPELLEES: JAMES LAWTON ROBERTSON OFFICE OF THE ATTORNEY GENERAL BY: NANCY MORSE PARKES KAREN J. YOUNG JOSEPH R. MEADOWS GINA BARDWELL TOMPKINS RONALD G. PERESICH NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: REVERSED AND REMANDED - 10/12/2006 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. CARLSON, JUSTICE, FOR THE COURT: ¶1. This case is best described as a land ownership and boundary dispute between the State of Mississippi and Bayview Land, Ltd., and Imperial Palace of Mississippi, Inc., concerning land upon which the Imperial Palace casino had built a parking garage and a hotel, although tax questions between the State of Mississippi and all of the Appellants are also at issue. The casino had obtained various federal, state, county and city permits to build the hotel and garage before this dispute arose. The case centers around questions of ownership of the land on which the hotel and garage are located. The land, which borders Biloxi Back Bay near the Mississippi Gulf Coast, and which the State asserts is a part of the public trust tidelands, had been extended seaward over many years, undisputedly changing the shoreline. The portion of additional land consists of 3.05 acres of what are known as artificial accretions extending into the water it borders. Artificial accretions occur in various ways, such as from an accumulation of oyster shells, or “wharfing out.” Bayview and Imperial Palace argue that such accreted land vests in 2 the State only if the State meets its statutory burden to prove (1) the accretions were not made as statutorily permitted consistent with the Mississippi Constitution and (2) for a higher public purpose – a burden the appellants argue the State did not meet. The State argues that the land had been extended seaward by these accretions (the shoreline has undisputedly changed over many years) and that the portion of the land created by artificial accretions, as well as the accompanying littoral rights, should be vested in the State. After a lengthy trial, the chancellor agreed with the State. For the reasons stated, we reverse the final judgment entered by the Chancery Court for the Second Judicial District of Harrison County, and remand this case to the chancellor with directions to enter an appropriate judgment after conducting further proceedings consistent with this opinion. FACTS AND PROCEEDINGS IN THE TRIAL COURT ¶2. The land in question borders the Back Bay of Biloxi, a body of water connected to the Gulf of Mexico. The Mississippi Sound is directly below Mississippi’s southern boundary of beaches and shoreline, and includes filled tidelands or fastlands, being the part of the land that is covered with water and uncovered daily as it lies between high and low tides. Black’s Law Dictionary 1482 (6th ed. 1990). This is to be distinguished from what are known as submerged lands, which remain under water. The portion of the Imperial Palace of Mississippi (IPM) parcel in question bordering the water on the Biloxi Back Bay is approximately 3.05 acres of land created by artificial accretions which comprise the extension of land into the water. The term accretion is “usually applied to the gradual and imperceptible accumulation of land by natural causes, as out of the sea or a river.” Id. at 20. The high tide mark can be changed 3 naturally through accretions or through reliction, when the land is uncovered through a gradual subsidence of water. However, accretions can also be artificial or man- made, for example, through the accumulation of oyster shells over time, or what is known as “wharfing out” into the water, which is establishing or affixing to the land a permanent structure to some point within a navigable body of water. Id. at 1595. IPM facilities on the disputed property include a 32-story hotel and a 12-story, 1300- car parking garage. The disputed land is bordered on the south by Bayview Avenue (which runs in a generally east and west direction), and on the west by Caillavet Street (which runs in a generally north and south direction). Interstate 110 (which connects Interstate I-10, running generally in an east-west direction, with U. S. Highway 90, also running generally in an east-west direction) is located just west of (and parallel with) Caillavet Street. The land is bound on the north and east by a steel bulkhead on the Back Bay. This appeal comes to the Court after the consolidation of three chancery court actions with separate cause numbers, all of which had been filed in the Chancery Court for the Second Judicial District of Harrison County. Bayview Land, Ltd. (Bayview), and Imperial Palace of Mississippi, Inc. (IPM),1 filed suit in cause number C2402-98-00389 on April 3, 1998, naming as the defendant the State of Mississippi via Secretary of State Eric Clark in his official capacity. Bayview owns land in fee simple in Harrison County and, through a lease agreement, IPM operates a casino and hotel on that property. These two Nevada corporations brought suit 1 Bayview and Imperial Palace will sometimes be referred to collectively as “IPM.” Likewise, we will on occasion use the term “IPM” to refer collectively to all appellants in these consolidated causes. 4 to resolve the dispute of the location of the boundary on the Bayview land and for declaratory, injunctive, and equitable relief. The State filed its answer and counterclaim, stating that pursuant to the Public Trust Tidelands Act, Miss. Code Ann. §§ 29-15-1, et seq. (Rev. 2005), the accreted land in question belonged to the State of Mississippi and was held in trust, with the Secretary of State as the trustee. The owner of the 3.05-acre accreted land would of course also be the owner of the littoral rights of the land.2 ¶3. IPM filed suit in another case under cause number C2402-01-00251 on March 21, 2001, naming as defendants Tal Flurry, Harrison County Tax Assessor, David V. Larosa, Sr., Harrison County Tax Collector; and the Harrison County Board of Supervisors. IPM claimed that it had paid, or caused to be paid through its lessor, Bayview, taxes levied on its land. The crux of the complaint was that IPM had been subject to double taxation and questionable tax valuation methods and that therefore IPM’s constitutional rights were violated, grounding its cause of action in violations of due process, equal protection of the laws, and civil rights. The answer filed denied any of these claims and asserted a counter-complaint that the State owned the lands because of the Public Trust Tidelands Act. On June 4, 2001, Treasure Bay, LLC3 2 Littoral rights are those rights concerning property which abuts an ocean, sea or lake. Columbia Land Dev., LLC v. Sec’y of State, 868 So.2d 1006, 1012 (Miss. 2004) (citing Watts v. Lawrence, 703 So.2d 236, 238 (Miss. 1997) (quoting Black’s Law Dictionary 934)). 3 While this matter has been pending before us on appeal, this Court entered an order granting the joint motion of Treasure Bay Corp. and the Mladinich Family Limited Partnership to have Treasure Bay LLC substituted and designated as the real party in interest, with the Mladinich Family Limited Partnership likewise remaining a party to this appeal. For the sake of clarity, we will refer to Treasure Bay LLC simply as “Treasure Bay.” Treasure Bay Casino is located on Highway 90, overlooking the Mississippi Sound and the Gulf of Mexico. 5 filed suit in cause number C2401- 01- 00522, naming as defendants Flurry and Larosa, in their official capacities as Harrison County Tax Assessor and Tax Collector, respectively, and the Harrison County Board of Supervisors. Treasure Bay’s complaint prayed for injunctive and other relief due to taxes assessed to Treasure Bay as the lessee of a parcel of land. Treasure Bay’s complaint was almost identical to IPM’s complaint filed in cause number C2402-01- 00251, and stated that Treasure Bay had paid taxes, or caused the taxes to be paid, on its land through its lessor, June S. Mladinich. ¶4. On a joint motion of the parties in the two tax cases, the trial court entered an agreed order on August 1, 2001, consolidating the two cases. On August 14, 2001, the Secretary of State filed a motion for leave to intervene as a party in the IPM tax case under Miss. R. Civ. P. 24, and that motion was granted. The Secretary of State then filed its Answer and Complaint in Intervention on September 4, 2001. After holding a hearing, the trial court granted the motion on September 10, 2001, and ordered that all three cases be consolidated. That same day, the City of Biloxi also filed its answer to the complaint in intervention. The City of Biloxi and the Biloxi Public School District joined in the State’s Expert Witness Disclosure on October 1, 2001, as parties in interest in support of the Secretary of State as plaintiff in intervention. On November 14, 2001, Mladinich filed her answer to the Secretary of State’s Complaint in Intervention and cross-claim against Treasure Bay, her lessee, praying for indemnification from any taxes assessed against Treasure Bay.4 On December 3, 2001, this 4 Treasure Bay would later answer the cross-claim on May 3, 2002. 6 Court appointed Judge Donald Patterson to be the Special Judge to preside over the case. On December 31, 2001, Chancellor Patterson ordered that the trial be bifurcated. ¶5. On April 22, 2002, the chancellor entered a very thorough ten-page opinion (“Decision of the Court”), in which the chancellor acknowledged that the ultimate issue at trial would be “the location on the ground of the boundary line between land belonging to IPM (Uplands) and lands held by the State as part of the Public Tidelands Trust (Tidelands),” and that this issue could not be litigated and determined “until the court resolve[d] the threshold controversy of the significance, if any, of the location of the boundary of the Public Trust, as shown on the Secretary’s final certified map.” In the end, the trial court concluded that at the trial, the Secretary of State would have the burden of proving by a preponderance of the evidence “(1) the exact location on the ground of the boundary line delineated on the final certified map and (2) that some exact portion of [IPM’s] property violates the public trust.” En route to this decision, the chancellor meticulously analyzed Miss. Code Ann. §§ 29-15-1, et seq. (more specifically, section 29-15-7), and this Court’s decision in Secretary of State v. Wiesenberg, 633 So.2d 983 (Miss. 1994). On May 6, 2002, the Secretary of State, via a motion to reconsider, requested the trial court to revisit its decision in light of this Court’s decision in Stewart v. Hoover, 815 So.2d 1157 (Miss. 2002) (decided, April 18, 2002), which was handed down after the parties had completed their briefing and “only two business days prior to entry” of the opinion. The chancellor eventually granted the Secretary’s motion for rehearing and 7 withdrew its opinion of April 22, 2002.5 In Stewart, one party argued his property was not subject to the trust because the final certified map did not contain the property at issue; however, we held that “the Legislature’s goal of establishing certain and stable land titles does not contemplate a loss of public trust lands because of an oversight in the mapping process.” Id. at 1162. In the case sub judice, in disposing of the motion to reconsider, the trial court allowed the Secretary of State to proceed with additional proof, notwithstanding the 1994 final certified map, and allowed Bayview and IPM to present rebuttal evidence. The trial court further passed on the remaining issues contained in the motion, for a subsequent ruling after the trial of this case. ¶6. The twenty-five day trial began August 20, 2002, and concluded on November 18, 2002 (with obvious extended recesses).6 The trial court heard testimony from twenty-one witnesses and received more than four hundred exhibits. At the conclusion of this lengthy trial, the chancellor understandably took this matter under advisement, and on April 9, 2004, the chancellor entered his Findings of Fact and Conclusions of Law. On June 22, 2004, the trial court entered its final judgment consistent with its findings of fact and conclusions of law, denying along the way, motions to reconsider. The practical effect of this judgment was that 5 In its findings of fact and conclusions of law entered on April 9, 2004, subsequent to the trial of this cause, the chancellor conceded what he perceived to be error in light of Stewart and withdrew his opinion of April 22, 2002. 6 The trial covered a span of ninety days, which obviously means that the trial was not conducted over a period of twenty-five consecutive business days. 8 the State was vested with title to the disputed land. On July 9, 2004, the chancellor entered an amendment to the judgment to correct a clerical error. This appeal ensued. DISCUSSION ¶7. Mladinich, the Mladinich Limited Family Partnership, Bayview, IPM, and Treasure Bay, all timely appealed from the final judgment entered by the chancellor. Bayview and IPM appeal the trial court’s findings that title to the accretions and littoral rights were confirmed as belonging to the State, and that the 3.05 acres of the artificial accretion land cut off all littoral rights to Bayview and IPM, whose property originally bordered the Back Bay of Biloxi. Bayview and IPM argue that the State failed in meeting its burden of proving that any accretions were not already vested in the uplands owner by common or statutory law of the public trust. The State argues that the findings of the chancery court are well-supported by substantial credible evidence and that the chancery court correctly found that the fastlands are held by the State as part of the Public Trust Tidelands. Flurry, Larosa, the Board of Supervisors of Harrison County, the City of Biloxi, and the Biloxi Municipal Separate School District all joined the Secretary of State’s appellate brief which was submitted to this Court. The issues raised today include constitutional questions of takings of the littoral rights, tax questions, and interpretation of the 1989 Public Trust Tidelands Act. The State argues no questions of first impression exist, but the various appellants argue that the questions of first impression include what constitutes reasonable use of riparian/littoral rights, how those rights are cut off by accretions, and how the 1989 Public Trust Tidelands Act should be construed with regard to 9 a tidelands boundary dispute in developed areas under the Act. We will restate and reorder these various issues in today’s discussion. ¶8. When we are called upon to review a chancellor’s opinion after a plenary trial on the merits of a case, our standard of review is well established. This Court will not reverse the chancellor’s findings of fact “unless they are manifestly wrong, not supported by substantial credible evidence, or an erroneous legal standard was applied.” Columbia Land Dev., LLC v. Sec’y of State, 868 So.2d 1006, 1011 (Miss. 2004) (citing Vaughn v. Vaughn, 798 So.2d 431, 433 (Miss. 2001); Tucker v. Prisock, 791 So.2d 190, 192 (Miss. 2001)). On the other hand, when we review questions of law, a de novo standard of review is applied. Tucker, 791 So.2d at 192 (citing In re Carney, 758 So.2d 1017, 1019 (Miss. 2000)). I. WHETHER ARTIFICIAL ACCRETIONS RESULTING FROM CERTAIN SPECIFIC CAUSES ARE VESTED IN THE UPLANDS OWNER ¶9. Bayview and IPM assert that the State failed to meet its burden of proving by a preponderance of the evidence that any accretions were not already vested in the uplands owner by common or statutory law. The State, as appellee, asserts that: (1) the findings of the chancery court are well-supported by substantial credible evidence; and, (2) the chancery court correctly found that the fastlands are held by the State as part of the Public Trust Tidelands. A. The origin of Mississippi’s tidelands in trust ¶10. Before beginning our analysis, we provide an overview of the history of this body of law. Before Mississippi entered statehood in 1817, title to the tidelands and navigable waters 10 within its boundaries had been held by the United States. Wiesenberg, 633 So.2d at 987. Upon Mississippi’s entering the Union in 1817, title to those tidelands and navigable waters “was conveyed to Mississippi in trust and became immediately vested, subject to that trust.” Id. (citations omitted). This principle has been recognized by the United States Supreme Court. “[W]e reaffirm our longstanding precedents which hold that the States, upon entry into the Union, received ownership of all lands under waters subject to the ebb and flow of the tide.” Phillips Petroleum Co. v. Miss., 484 U.S. 469, 476, 108 S. Ct. 791, 795, 98 L. Ed. 2d 877, 886 (1988). “[T]he individual States have the authority to define the limits of the lands held in public trust and to recognize private rights in such lands as they see fit.” Id. at 475. ¶11. Actually, two great public trusts were created and conveyed to each new state, sixteenth section school lands and “the tidelands and navigable waters of the state together with the beds and lands underneath same.” Cinque Bambini P’ship v. State, 491 So. 2d 508, 511 (Miss. 1986). We are concerned today with the latter of these “two great public trusts,”which we have described as those lands, “including their mineral and other subsurface resources, subject to the ebb and flow of the tide below the [1817] mean high water level – regardless of whether the water courses were commercially navigable at the time of Mississippi’s admission into the Union, regardless of how insignificant the tidal influence, or how shallow the water, regardless of how far inland and remote from the sea. Similarly granted were the beds and streams of all non-tidal waters which were navigable in fact in 1817.” Id. at 516-17. It is also clear in our case law that since the time Mississippi entered the Union and received both these tidelands 11 and these submerged lands in trust,7 “the common law of this State has adhered to the doctrine of public trust, applying it in both sixteenth section lands as well as tidelands.” Wiesenberg, 633 So.2d at 987 (citations omitted). “The only way public trust lands can be disposed of is if it is done pursuant to ‘a higher public purpose,’ while at the same time not being detrimental to the general public. Once land is held by the state in trust, properties are committed to the public (purpose) trust and may be alienated from the State only upon the authority of legislative enactment and then only consistent with the public purposes of the trust.” Id. (citations omitted). Additionally, we have interpreted Miss. Const. art.4, § 104 (1890)8 to hold that the State’s title to these public tidelands “may not be lost via adverse possession, limitations or laches.” Cinque Bambini, 491 So.2d at 521. ¶12. Naturally, and as has been recognized by this Court, the line where the land actually borders the water is “wildly meandering” and constantly moving and changing. Id. at 515. Thus, determining where the privately-owned lands ended and where the state-owned tidelands began was seemingly impossible. At the time of Cinque Bambini, we recognized that the mean high water mark was found as a more constant boundary of necessity, and as a line that is ascertainable through established and accepted scientific methods. Id. “That mark is not 7 By way of clarification, while “submerged lands” refers to lands “which remain covered by waters, where the tides ebb and flow, at ordinary low tides,” “tidelands” refers to “lands which are daily covered and uncovered by water by the action of the tides, up to the mean line of the ordinary high tides.” Miss. Code Ann. § 29-15-1(g), (h). See also Phillips Petroleum, 484 U.S. at 477. 8 Miss. Const. art. 4, § 104 (1890) states that “[s]tatutes of limitation in civil causes shall not run against the State, or any subdivision or municipal corporation thereof.” 12 a line observable on the ground, although it may be plotted by surveyors trained in the field. When plotted we confront the geographical reality of a continuous, unbroken line wildly meandering, to be sure, but reaching from Alabama on the east in uninterrupted sequence to Louisiana on the west.” Id. at 515. The line separating the water from the land, which also separates private land from that land held in trust, changes over time in part due to accretions to the land, which can be natural deposits or artificial fill. Accretions include the gradual deposits of alluvial soil upon the margin of the water (gradual recession of the water can, of course, also change the line), or deposits of silt or sand over tidewaters adjacent to the shoreline due to artificial causes. Harrison County v. Guice, 244 Miss. 95, 108, 140 So.2d 838, 842 (1962). ¶13. In Guice, this Court had to determine what the legal effect of these accretions would be. At the time of Guice, we recognized that the rule was generally that the uplands owner is entitled to the title to accretions to his land, protecting the riparian or littoral owner’s access to the water. Id. We found it irrelevant whether the accretions were the result of natural causes or artificial ones, attempting to ensure that a landowner’s littoral rights would not be cut off. Id. “This reason is just as valid when the area adjacent to the upland owner is filled in or pumped up by acts of strangers to the upland title, as it is when the gradual deposit of alluvial soil raises the land adjacent to the upland owner. In either event, the upland owner should be given title in fee to the new land so that he may have continued access to the water.” Id. at 842-43. This rule was eventually modified when we overruled Guice in part in Miss. State 13 Highway Comm’n v. Gilich, 609 So.2d 367, 375 (Miss. 1992).9 In 1989, after our decisions in Guice and Cinque Bambini, but before our decision in Gilich, the state legislature enacted the Public Trust Tidelands Act, Miss. Code Ann. §§ 29-15-1, et seq., in an attempt to make a determination of the line of demarcation between land belonging to private landowners and land belonging to the public trust. Wiesenberg, 633 So. 2d at 987. ¶14. In its enactment of the Public Trust Tidelands Act, the legislature made unquestionably clear its intent and purpose. Section 29-15-3 provides: Declaration of public policy and purpose (1) It is declared to be the public policy of this state to favor the preservation of the natural state of the public trust tidelands and their ecosystems and to prevent the despoliation and destruction of them, except where a specific alteration of specific public trust tidelands would serve a higher public interest in compliance with the public purposes of the public trust in which such tidelands are held. (2) It is hereby declared to be a higher public purpose of this state and the public tidelands trust to resolve the uncertainty and disputes which have arisen as to the location of the boundary between the state's public trust tidelands and the upland property and to confirm the mean high water boundary line as determined by the Mississippi Supreme Court, the laws of this state and this chapter. In Wiesenberg, we set out legislative findings of fact relating to the enactment of the Public Trust Tidelands Act, as provided in the Editor’s Note – Laws, 1989, ch. 495, § 1, effective from and after March 31, 1989: 9 In Gilich, we stated, “[O]n the basis of Section 95 [“no- donation of state-owned or state-controlled lands”] of the Mississippi Constitution we hereby overrule Guice insofar as it applies the doctrine of artificial accretion so as to render lands once a part of the public trust, the property of private land owners by the action of the government in artificially recovering such lands.” 609 So.2d at 375. However, as will be discussed in more detail, infra, our limited overruling of Guice in Gilich does not affect the outcome of today’s case. Gilich was factually dissimilar to Guice, and likewise, to today’s case. 14 SECTION 1. The Legislature finds that certainty and stability of the land titles of riparian and littoral property owners along the banks of the navigable rivers and waterways on the borders and in the interior of the state and along the shores of the tidally affected waters of the state are essential to the economic welfare of the state and to the peace, tranquility and financial security of the many thousands of citizens who own such lands; that a dispute has developed with respect to such lands bordering on tidally affected waters, calling into question titles and legal issues believed secure and determined from the date of statehood; that this dispute has cast a doubt and cloud over the titles to all littoral lands and all riparian lands along the rivers and shorelines of the coastal area to such a degree that land sales are being prevented, business and home purchasing has been made difficult or impossible, industrial financing based on such titles has become unavailable, and homeowners and other owners have been rendered apprehensive as to their security in their ownership. Economic growth and development in the coastal counties are at a virtual standstill, creating a constantly increasing and incalculable loss of dollars to the area as well as the loss of countless new jobs for the average citizens of this state. The Legislature finds that this dispute has already caused extensive harm, is intolerable, and immediate resolution is required and would serve the higher public purpose, in order that public trust tidelands and submerged lands may be utilized through their normal interface with the fast lands in furtherance of all the usual purposes of the trust. The Legislature recognizes that it serves the interests of all the citizens of the state as well as the interests of each individual area and that when controversies and problems arise between divergent interests it becomes the duty and responsibility of the Legislature to balance these interests and reach equitable solutions which will create the least amount of harm to the individual citizens and the state as a whole. The Legislature finds, in accordance with justice and sound policy, that resolving the problems in the manner herein set out would create far less harm and be of greater benefit to the state and its citizens in terms of preventing economic loss, loss of jobs, loss of development, use and enjoyment of the tidelands and submerged lands, loss of industry and loss of revenue to the state than any benefits which would be derived from any attempt to completely rectify unregulated wetlands use which has occurred in the past, that the amount of damage, harm or loss that has occurred to the lands held in public trust since statehood is negligible compared to the benefit of resolving the problem, that the cost of any other solution is far in excess of the amount of public gain. 15 633 So.2d at 987-88. The statutory purpose was “to resolve the uncertainty and disputes which have arisen as to the location of the boundary between the state’s public trust tidelands and the upland property and to confirm the mean high water boundary line as determined by the Mississippi Supreme Court, the laws of this state and this chapter.” Miss. Code Ann. § 29-15- 3(2). B. An overview of the Public Trust Tidelands Act ¶15. An overview of the Public Trust Tidelands Act is equally important as we consider today’s case.10 Miss. Code Ann. § 29-15-7 and this Court’s decision in Wiesenberg, 633 10 In fact, we interject here various definitions which will be helpful to the reader. Miss. Code Ann. § 29-15-1 provides numerous definitions: (a) "Commission" means the Mississippi Commission on Marine Resources. (b) "Local tidal datum" means the datum established for a specific tide station through the use of tidal observations made at that station. (c) "Mean high water" means the arithmetic mean of all the high waters occurring in a particular nineteen-year tidal epoch period; or for a shorter period of time after corrections are applied to the short term observations to reduce these values to the equivalent nineteen-year value. (d) "Mean high water line" means the intersection of the tidal datum plane of mean high water with the shore. (e) "Mean high water survey" means a survey of the intersection of the shoreline with the tidal datum plane of mean high water using local tidal datums and surveying methodologies approved by the commission. Methodologies shall include but not be limited to the "staking method," "the topographic method" and "tide coordinated aerial photography." (f) "National map accuracy standards" means a set of guidelines published by the Office of Management and Budget of the United States to which maps produced 16 So.2d at 990-93, outline in detail the procedure to be used in determining a final map of Mississippi’s public trust tidelands; however, restating here verbatim the procedure laid out in the Act and discussed at length in Wiesenberg would serve no useful purpose, and thus we will not do so. ¶16. On the other hand, we will generally discuss the mapping procedure here, focusing on section 29-15-7 and Wiesenberg. The Secretary of State is to file a preliminary map depicting “the boundary as the current mean high water line where shoreline is undeveloped and in developed areas or where there have been encroachments, such maps shall depict the boundary as the determinable mean high water line nearest the effective date of the Coastal Wetlands Protection Act.” Miss. Code Ann. § 29-15-7(1); Wiesenberg, 633 So.2d at 990. This preliminary map is submitted to the chancery clerks of the coastal counties (Hancock, Harrison and Jackson), and each of the chancery clerks is to post the map in a public place in the clerk’s office. Miss. Code Ann. § 29-15-7(3). The Secretary of State likewise is statutorily required to cause this preliminary map to be published in a newspaper having general circulation within each of the coastal counties; to publish a notice in three (3) public places in each coastal county; and to have the map available for public inspection in the office of the by the United States government adhere. (g) "Submerged lands" means lands which remain covered by waters, where the tides ebb and flow, at ordinary low tides. (h) "Tidelands" means those lands which are daily covered and uncovered by water by the action of the tides, up to the mean line of the ordinary high tides. 17 Secretary of State. Id. For sixty (60) days after publication, comments and/or additional documentation may be received, with the Secretary of State having discretion to revise the map based on receipt of comments and/or documentation, though further revision is not statutorily mandated. Id. Section 29-15-7(4). The final certified map is to then be published, utilizing the same method of publication, and shall be filed in the land records located in the chancery clerk’s offices in each of the three coastal counties.11 Upon recordation, the map is final as to properties not subject to the trust; however, as to those properties subject to the trust, the Secretary of State, within one-hundred twenty (120) days of final adoption of the certified map, shall notify those property owners that their lands are subject to the public trust and are in violation of the trust. Any such property owner shall have six (6) months to negotiate a settlement with the Secretary of State. Id. Absent a settlement, the aggrieved property owner may commence suit in the appropriate chancery court. Section 29-15-7(5). Aggrieved parties have additional remedies as provided in section 29-15-7(6).12 ¶17. Turning to today’s case, and keeping in mind the facts and circumstances peculiar to this particular case, we emphasize that how the mean high water line is to be determined for the preliminary map depends on whether shorelines of the mapped areas are developed or undeveloped. In developed lands, as in today’s case, the preliminary map “shall depict the 11 Recognizing that Harrison County has two judicial districts with the county seat of the First Judicial District being Gulfport, and the county seat of the Second Judicial District being Biloxi, there would be filings in both offices. See Miss. Code Ann. § 9-1-39 (Rev. 2002). 12 Again, this is but a generalized overview of the statutory mapping procedure. Other statutory requirements not discussed here must also be followed. The mapping procedure and boundary challenge procedure are set out in detail in section 29-15-7(1)-(6). 18 boundary as the determinable mean high water line nearest the effective date of the Coastal Wetlands Protection Act,”13 which is July 1, 1973. Miss. Code Ann. § 29-15-7(1). The Secretary of State, in exercising discretion vested under the statute, may revise the preliminary map based on comments and additional documentation received during the statutory 60-day period, and prepare the final map accordingly. “Any comments indicating the presence of any unauthorized artificial filling on developed properties prior to July 1, 1973, should be reflected on the final map.” Wiesenberg, 633 So.2d at 991. ¶18. Once the certified final map is filed, the Secretary of State is to determine which landowners are in violation of the public trust, meaning they occupy land that, because of the trust boundary, is actually the property of the State, and then notify those landowners by certified mail. Miss. Code Ann. § 29-15-7(4). Pursuant to the Act, after the notice is received by the landowners, the affected landowners are allowed a six-month period in which “to negotiate and settle differences with the Secretary of State” arising from the final map, also allowing for any extensions granted by the Secretary of State, in the exercise of discretion. 13 Miss. Code Ann. § 49-27-1. Miss. Code Ann. § 49-27-5(a)(b) (Rev. 2003), as it existed and applied to today’s case, defined “coastal wetlands” as “all publicly- owned lands subject to the ebb and flow of the tide; which are below the watermark of ordinary high tide; all publicly- owned accretions above the watermark of ordinary high tide and all publicly-owned submerged water-bottoms below the watermark of ordinary high tide” and includes “the flora and fauna on the wetlands and in the wetlands.” In 2005, the legislature amended this statute by, inter alia, basically combining subsections (a) and (b) into a new subsection (a). The Coastal Wetlands Protection Act declared the public policy of this state to be “to favor the preservation of the natural state of the coastal wetlands and their ecosystems and to prevent the despoliation and destruction of them, except where a specific alteration of specific coastal wetlands would serve a higher public interest in compliance with the public purposes of the public trust in which coastal wetlands are held.” Miss. Code Ann. § 49-27-3. 19 Id. The notice delivered by certified mail is to include an explanation of the procedures available to the affected landowners to resolve these disputes. Id. § 29-15-7(5). See also id. §§ 11-17-1, et seq. (Rev. 2004). The Secretary of State and the affected landowner may execute a boundary determination in a written agreement which would be final and binding to its parties after it is recorded in the proper chancery clerk’s office where the property is located (in either Hancock, Harrison or Jackson Counties). Id. 29-15-7(4). The affected landowners who are unable to resolve their disputes via this statutory avenue may then seek judicial relief by filing suit within three years following receipt of the notice described above. Id. §§ 29-15-7(5)(6). If no action is taken by any adversely affected landowner within that time period, the boundary on the certified map is to become final. Id. § 29-15-7(6). The Act clearly provides that “[i]n any such action, the state shall have the burden of proof by a preponderance of evidence that any such land is subject to the trust.” Id. § 29-15-7(5). The State carries this statutorily required burden of proof regardless of whether the judicial proceedings are commenced by the State or by the individual landowner. This Court has stated, “[a]fter the preliminary map is drawn using the mean high water line in developed areas as of July 1, 1973, the burden of proof is on the Secretary of State to show that any artificial accretion occurring prior to July 1, 1973, was not done pursuant to a constitutional legislative enactment and for a higher public purpose.” Wiesenberg, 633 So.2d at 992. 20 C. How the boundary was determined in this case ¶19. We now turn to the facts of today’s case. The State filed its preliminary map in September of 1994. On November 14, 1994, Bayview and IPM submitted their comments and objections to the preliminary map. The State filed its final certified Map of Public Trust Tidelands on December 15, 1994. This final map had no changes incorporated into it based on the comments and objections that Bayview and IPM had submitted, but was instead identical to the preliminary map with regard to the Bayview property. On April 4, 1995, the Secretary of State sent out the notices required under the Act to three of IPM’s predecessors in title. On June 7, 1995, Bayview and IPM filed their Notice of Protest and Dispute. Bayview and IPM filed their complaint on April 3, 1998, within the statutorily allowed three-year limitations period. ¶20. The trial court heard testimony from various witnesses, including engineers from Thompson Engineering, geologists from the Mississippi Office of Geology, experts in geography, experts in coastal surveying, as well as archeologists and land surveyors. The trial court also received into evidence various documents prepared by the experts. Based on the evidence presented at trial, the chancellor found that relevant, credible evidence appeared in the record to show where the last natural shoreline position existed. Specifically, the chancellor found: Based upon the totality of the credible, relevant evidence in this record, the Court finds by a preponderance of the evidence that (1) the 1851 coastal survey map (B-1) depicts the natural mean high water line, circa 1851, at the IPM site; (2) there is no credible evidence that the LNSP (Last Natural Shoreline Position) at the IPM site has been masked or placed beyond reasonable 21 discovery by hurricanes or dredging; (3) that between the 1880's and early 1900's there were massive unnatural, manmade alterations of the natural shoreline at the IPM site; (4) that such manmade alterations consisted of oyster shells and fill placed by IPM’s canning company predecessors in interest; (5) that the highest probability LNSP at the IPM site is the TELNSP (Thompson Engineering Last Natural Shoreline [Meander] Position) as shown on Exhibit S- 26; (6) that the TELNSP at the IPM site is credibly surveyed and depicted by reference to existing and known landmarks and the land lying north and east of the TELNSP is credibly surveyed, depicted, described and quantified. (Exhibits S161 and S179). The chancellor thus found that the 1851 natural mean high water line was reliably ascertainable; that the last natural shoreline position was not beyond reasonable discovery; and, that manmade, artificial accretions occurred at the IPM site between the 1880's and early 1900's which changed the shoreline. The chancellor concluded: Having found by a preponderance of the evidence that the line which corresponds with the mean high water line at its last natural position at the IPM site at the moment of human intervention is the TELNSP and that all land lying bayward, i.e. north and east of said TELNSP is the result of artificial filling it follows as a matter of law that the boundary line separating State owned public trust tidelands and uplands owned by IPM is the TELNSP as surveyed and placed on the ground by [professional land surveyor] Michael Cassady. Title to all land lying north and east of said boundary line is confirmed in the State. Title to all lands claimed by IPM lying south and west of said line is confirmed in IPM. D. The arguments on appeal ¶21. Exactly what the State must prove (by a preponderance of the evidence) is “that any artificial accretion occurring prior to July 1, 1973, was not done pursuant to a constitutional legislative enactment and for a higher public purpose.” Wiesenberg, 633 So.2d at 992. For example, if a landowner artificially accreted to his land to provide environmental protection or to allow docking of vessels and make fishing more efficient, this would serve a higher 22 public purpose of the trust. Cinque Bambini, 491 So.2d at 512 (citations omitted). In such cases, such an artificial accretion would be authorized and vest to the uplands title holder. On the other hand, for the land to vest in the trust, the Secretary of State must prove the accretions offend our state constitution and were not made for a higher public purpose. This should ordinarily be done “[a]fter the preliminary map is drawn using the mean high water line in developed areas as of July 1, 1973.” Wiesenberg, 633 So.2d at 992. This is so because, in Wiesenberg, we affirmed that date as a starting point for determination of the mean high water line in developed areas. Id. at 986, 991 (emphasis in original). We no doubt emphasized that this date was not “a mandatory bench mark.” Id. ¶22. Bayview and IPM first point out that the State holds its tidelands and submerged lands in trust for two beneficiaries, members of the general public and private landowners with littoral and riparian rights under statute and common law. Miss. Code Ann. § 29-15-5. Next, Bayview and IPM, conceding that its land was in fact extended bayward by pre-1973 artificial accretions, contend now that the Secretary of State simply did not meet at trial the burden it carried, in that the State never showed that the artificial accretions were not done pursuant to a constitutional legislative enactment and for a higher public purpose. In fact, Bayview and IPM argue that the evidence the State presented shows that the accretions were consistent with the common law and the statutory law of the public trust. This Court has held the many public purposes of the trust to include “navigation and transportation, commerce, fishing, bathing, swimming, and other recreational activities, development of mineral resources, environmental 23 protection and preservation, the enhancement of aquatic, avarian and marine life, sea agriculture and no doubt others.” Cinque Bambini, 491 So.2d at 512 (internal citations omitted). See also Wiesenberg, 633 So.2d at 988-89. Bayview and IPM argue that the Secretary of State had the burden to prove that not an inch of ground arose from the acts of strangers, including the state, and had the burden to prove that any accretions were not already vested in the upland owner by common or statutory law of the trust. IPM thus argues that because the State cannot meet its burden, the State cannot prove that the IPM accretions are subject to the trust. ¶23. The State, on the other hand, argues that land that was once in trust, beginning upon Mississippi’s admission to the Union, simply cannot be taken away from the trust. The State directs our attention to our holding that “once the state possesses public trust lands it is deemed to possess such property forever.” Gilich, 609 So.2d at 374. This holding was based on our reading of Miss. Const. art. 4, § 95 (1890), which provides that “lands belonging to, or under the control of the state, shall never be donated directly or indirectly to private corporations or individuals.” Id. The State further argues that because the mean high water line is naturally ambulatory, and because the statute recognizes this, the legal boundary moves with the mean high water line and where the trust boundary may have been at an earlier time becomes legally irrelevant. Miss. Code Ann. § 29-15-7(2). See also Cinque Bambini, 491 So.2d at 510-11.14 On the other hand, the State argues that the same cannot be said when the 14 We held that “fee simple title to all lands naturally subject to tidal influence, inland to today’s mean high water mark, is held by the State of Mississippi in trust. On the other hand, 24 water line ambulates from non-natural means. Private land can be artificially submerged, through trenching for example, and become subject to the tidal influence without becoming part of the public trust; likewise, private land can be artificially accreted to and abut further into the trust tidelands without making those filled tidelands a new part of the private land. The State may settle boundary disputes, charged with a duty to “hold to a minimum any incidental or accidental public trust losses.” Wiesenberg, 633 So. 2d at 991. ¶24. The history of the IPM parcel of land is a fascinating one. In the early twentieth century, the Biloxi Canning Company, owned by a Croatian immigrant, Bernard Taltavull, occupied the land.15 Mountains of oyster shells began occupying the land bordering the water of the Back Bay. Evidence presented at trial strongly infers that the enormous amount of shells played a vital role in eventually changing the shoreline. The State went to great lengths through the evidence it presented at trial (1) to show that land composed of artificial accretions lay between the natural land and the shore; and, (2) to determine the last natural shoreline position between the natural land and this accreted land bordering the water. However, the State failed to meet its burden of proving by a preponderance of the credible evidence that the accretions were not done pursuant to a constitutional legislative enactment lands brought within the ebb and flow of the tide by avulsion or by artificial or non-natural means are owned by their private record titleholders.” Cinque Bambini P’ship v. State, 491 So.2d 508, 510-11 (Miss. 1986). In other words, lands naturally submerged and subject to the tide belong to the State and lands artificially submerged and subject to the tide belong to the private landowners. 15 Actually, the record reveals that an oyster canning company had occupied this site since 1881. 25 and for a higher public purpose. The State did present substantial credible evidence that went to prove the location of the last natural shoreline, but that substantial credible evidence did not show that the accretions to the IPM land were not done pursuant to a constitutional legislative enactment or for a higher public purpose. Not unlike part of the Secretary of State’s argument in Wiesenberg, the argument of the Secretary of State today depends on using something other than the July 1, 1973, mean high water line as the beginning boundary delineation point to prevail. Nowhere in the statute or in the applicable case law does the last natural shoreline position determine the rights of the State or the private landowner in such a dispute. The Secretary of State should have begun with a preliminary map based on the July 1, 1973, mean high water line. This he did not do. In Wiesenberg, the Secretary of State argued in part that the appropriate date to determine the boundary on the preliminary map was the date on which the property was developed. Today, the Secretary of State uses as his beginning point the date Mississippi entered the Union in 1817. Following the history of the land up to present day, the Secretary of State relies on a map from 1851 to be of great evidentiary value and notes that after the early 1880s, the shape of the land bordering the water began to change because of artificial accretions. His charge is to use the mean high water line nearest July 1, 1973. In doing so, if the Secretary of State is able to present a different water line revealing unlawful accretions, the Secretary may unquestionably use this water line as opposed to the mean high water nearest July 1, 1973. ¶25. In settling other claims in similar boundary disputes, the Secretary admits to the agreed use of a 1954 seawall. Indeed the State points us to the time period when the land in question 26 was being developed, beginning in the early 1880s. We have warned against doing so. “If the developed areas were to be surveyed as of the date of development, the cost would be enormous. In addition it would create more lawsuits to determine exactly what constitutes development, what precise time did this development occur, who did it and why, and was it somehow authorized. The more efficient method is to determine the tidelands boundaries as of one point in time, therefore making it applicable to everyone at the same time, in the same manner, and with all having a right to be heard.” Wiesenberg, 633 So.2d at 992-93. ¶26. We have stated that we do not interpret the tidelands legislation to be a donation in violation of Miss. Const. art. 4, § 95 (1890), “but rather as a unified attempt by the Legislature to resolve the discord existing between the State and area landowners,” and one we have held to be constitutional. Wiesenberg, 633 So.2d at 991. While, as the State points out today, it remains true that the July 1, 1973, line was never meant to be the final determination, we have affirmed its use as “a starting point in ascertaining the mean high water line in developed areas.” Id. The State instead used a starting point which precedes 1973 by more than one and one-half centuries, the boundary line as it existed when Mississippi entered the Union in 1817. We have conceded this 1973 line to be imperfect, but one that should protect the public’s interest as well as private ownership. Id. We quoted the chancellor’s words in Wiesenberg to point out that “while a few may improvidently benefit from the 1989 Tidelands Act, and while a few may be harmed by it, the overall effect of the Act will not be to donate public property to private interests, but will act as a long delayed delineation between public and 27 private interests.” Id. (emphasis in original). This is in accord with the purposes of the trust, reflected in the accompanying legislative history to Section 29- 15- 1 and in the text of Section 29-15- 3, which declares that a higher public purpose of the state and of the Act is “to resolve the uncertainty and disputes which have arisen as to the location of the boundary between the state’s public trust tidelands and the upland property and to confirm the mean high water boundary line as determined by the Mississippi Supreme Court, the laws of this state and this chapter.” However this end can only be efficiently achieved if the procedures and burdens in the Act are heeded. ¶27. We found in Wiesenberg that there was “‘no substantial interference with the original purposes of the trust imposed upon the state in connection with [the lands in question], and the development as authorized by the statutes is consistent with the public trust.’” Id. at 993 (quoting Treuting v. Bridge & Park Comm’n of City of Biloxi, 199 So.2d 627, 633 (Miss. 1967)). In Treuting, we held, “If the totality of the development promotes the public interest in general, the incidental private ownership of individual lots does not negate the comprehensive public purpose.” 199 So.2d at 633. We reaffirmed this principle in Wiesenberg, where we relied on Treuting to find that a transfer of public property to a private party as a result of using the 1973 mean high water line in developed areas for preparing the preliminary map did not violate our state constitution where the transfer was incidental to achieving a higher public purpose, such as determining a definite boundary and stimulating the coast economy. 633 So.2d at 993. We noted that the “presence of any unauthorized artificial 28 filling on developed properties prior to July 1, 1973, should be reflected on the final map.” Id. at 991 (emphasis added). When looking to the purposes of the trust as defined in the Act and in our case law, the presence of the accretions on the land at issue here certainly appear to be one of which is the promotion of commerce. The question we resolved in Wiesenberg is not unlike the one presented to us today. We recognized there that the Act “explicitly states that the common law doctrines pertaining to tidelands such as natural accretion and reliction continue to be applicable.” Id. at 992. See Miss. Code Ann. § 29-15-7(2). We have stated, “There is no constraint on the final map to include or exclude any lands which have been artificially filled prior to 1973. However, if a landowner can show that this artificial filling was done pursuant to a legislative act, or for a higher public purpose, the 1973 mean high water line should remain in tact.” Id. (emphasis added). The State, throughout the life of these civil proceedings, was shouldered with the preponderance of the evidence burden of proof. Here that burden was to show that any pre-1973 accretions were “not done pursuant to a constitutional legislative enactment and for a higher purpose.” Id. (emphasis added). We unquestionably find that the State failed to meet that burden at trial and made no attempt to show on appeal how that burden was met. ¶28. Indeed, the totality of the record reveals that the artificial accretions (primarily oyster shells) constituted “a specific alteration of specific public trust tidelands” which “serve[d] a higher public interest in compliance with the public purposes of the public trust in which such tidelands are held.” Miss. Code Ann. § 29-15-3(1). During the years of existence of the 29 oyster industry on this Back Bay location, the State maintained a program jointly with the oyster canneries to replant the oyster shells on reefs in the trust waters. For example, Miss. Code, 1930, § 6881, provided, inter alia, that twenty-five percent of all oyster shells which were taken from the public reefs were declared to be the non-transferrable property of the state and were to be delivered to the sea-food commission by stock-piling the shells at the place of business of the oyster dealer or factory. An oyster dealer’s failure to comply with this statutory mandate was a misdemeanor subject to payment of a fine. ¶29. The State of Mississippi thus, not only acquiesced in, but mandated certain actions by the oyster industry resulting at least in large part to the artificial accretions which are the subject of today’s litigation. Likewise a portion of these stockpiled oyster shells were used for replanting on reefs in the waters of the trust. Certainly this activity would not only be non- violative of our state constitution, but consistent with its provisions, and certainly would be consistent with our common law and legislative enactments. We recognized such higher public interests and purposes as fishing and the enhancement of aquatic, avarian and marine life and sea agriculture in Wiesenberg, 633 So.2d at 988-89 (citing Cinque Bambini, 491 So.2d at 512). ¶30. We now turn to the common law on accretions, which as discussed above, still applies to the Act. In Harrison County v. Guice, 244 Miss. 95, 107-08, 140 So.2d 838, 842-43 (1962), we held that accretions caused by third-party strangers to the upland title will vest in the upland owner, warning against the mischiefs that could occur if a stranger could sandwich himself between the water and upland owner, cutting off the upland owner’s littoral rights. 30 Specifically, we stated, “where the owner of the upland had no part in creating the artificial addition or accretion, such owner acquires title in fee to such additional land. Reason and authority recommend this rule.” Id. at 842. The land belonging to the private landowner in Guice was extended via accretions which were the result of authorized highway protection improvements by Harrison County, including a state-constructed seawall, in an effort to restore eroded land and prevent further erosion. Id. at 840. Guice once owned lands that bordered the water which partially eroded away as a result of a seawall; however, the State later restored that eroded land and actually added to the Guice property, extending it into the water farther than it had been before the erosion. The effect of our holding in Guice was to make the artificially accreted land, which before the erosion had been submerged lands belonging to the State in trust, part of the privately-owned Guice parcel. ¶31. As already noted, Guice was overruled in part by Miss. State Highway Comm’n v. Gilich, 609 So.2d 367, 375 (Miss. 1992), where we stated that Guice was overruled “insofar as it applies the doctrine of artificial accretions so as to render lands once a part of the public trust, the property of private land owners by the action of the government in artificially recovering such lands.” In Gilich, the private landowners were claiming their oceanfront beach property was taken by the State without compensation in violation of the Mississippi Constitution when the State Highway Commission began building the “I-110 loop,” a connecting route to I-10 which at its southernmost point is a ramp looping over the Gulf of Mexico and back to Highway 90. Id. at 369. We looked to the Fifth Circuit’s reasoning in 31 United States v. Harrison County, 399 F.2d 485, 488 (5th Cir. 1968), to find that the Guice holding conflicted with Miss. Const. art. 4, § 95 (1890), which provides, “Lands belonging to, or under the control of the State, shall never be donated directly or indirectly, to private corporations or individuals, or to railroad companies. Nor shall such land be sold to corporations or associations for a less price than that for which it is subject to sale to individuals.” 609 So.2d at 375. The Fifth Circuit in Harrison County, 399 F.2d at 491, held that “[t]he common law doctrine of artificial accretion must yield to the command of the Mississippi Constitution as to the disposition of state owned lands” and we agreed in Gilich. Id. Bayview and IPM now ask us to revisit Gilich and Guice and reconsider the logical consequences of this Court’s rulings. While we today distinguish Gilich and thus find it inapplicable to today’s case, we continue our discussion consistent with the invitation to revisit Gilich and Guice. ¶32. IPM argues that Gilich’s overruling of Guice applied only insofar as it implicated Section 95 of the Mississippi Constitution, and thus applied only to the State of Mississippi as a stranger to upland title, and Gilich overturned Guice only in part because the facts supporting Guice were not present in Gilich, i.e., Guice actually owned land south of the seawall that was covered by the county’s actions, whereas Gilich did not. IPM emphasizes that the Gilich holding was a limited overruling of Guice because this Court stated that Guice was overruled “insofar as it applies the doctrine of artificial accretions so as to render lands once a part of the public trust, the property of private land owners by the action of the government 32 in artificially recovering such lands.” Gilich, 609 So.2d at 375 (emphasis added). Treasure Bay asserts that the common law rule that accretions caused by third- party strangers to the upland title will vest in the upland owner is still the law in Mississippi, at least as to non-state third-party strangers to the upland title. Guice, 140 So. 2d at 842. We agree. We have already held that employing the Act to determine the boundary of the Public Tidelands Trust does not violate the donation clause of the Mississippi Constitution. Wiesenberg, 633 So.2d at 991. Also the statute and case law leave no doubt that the common law on accretions is to remain intact and work in conjunction with the Act. Holding otherwise would be akin to holding that piers, wharves, and other structures, constructed by private landowners as a statutory right under sections 49-15-9 and 49-27-7,16 would inure to the benefit of the State, causing the State 16 Miss. Code Ann. Section 49-27-7 allows an owner of riparian rights to construct and maintain piers, boathouses and similar structures if they are constructed on pilings that permit a reasonably unobstructed ebb and flow of the tide. “Riparian” refers to land bordering rivers and streams, and “littoral” refers to lands bordering lakes and oceans; however, the statute clearly refers to lands subject to the ebb and flow of the tide. Id. § 49-27-5(a). Ocean waters and connected bays would obviously be subject to the tide while rivers and streams would not ordinarily be. Therefore we must assume the legislature is loosely using the word “riparian” to mean both riparian and littoral. Also, “[t]he riparian owner may reasonably alter the wetland at the end of his pier in order to allow docking of his vessels.” Id. § 49-27-7. “The sole right of planting, cultivating in racks or other structures, and gathering oysters and erecting bathhouses and other structures in front of any land bordering on the Gulf of Mexico or Mississippi Sound or waters tributary thereto belongs to the riparian owner . . . but no person shall plant in any natural channel so as to interfere with navigation, and such riparian rights shall not include any reef or natural oyster bed and does not extend beyond any channel.” Id. § 49- 15-9. “All bathhouses, piers, wharfs, docks and pavilions, or other structures owned by riparian owner are likewise the private property of such owner, who shall be entitled to the exclusive use, occupancy and possession thereof, and may abate any private or public nuisance committed by any person or persons in the area of his riparian ownership and may, for such purposes, resort to any remedial action authorized by law.” Id. 33 to become the upland owner and holder of the littoral rights which accompany the real property. ¶33. Presented with a substantial question of law in this case, we are to review the issues de novo. In reviewing an opinion issued after a trial on the merits held before a chancellor, we are to overturn the findings of the chancellor only when they are manifestly wrong or when an erroneous legal standard has been applied. Columbia Land Dev., 868 So.2d at 1011 (relying on Vaughn, 798 So.2d at 433; Tucker, 791 So.2d at 192). We are thus constrained to find that the findings of the chancellor were manifestly wrong in this case as an erroneous legal standard was applied, that being the use of the last natural shoreline position to determine the public trust boundary in developed areas. Our case law and statute are clear that the correct standard to use was the mean high water line nearest to July, 1 1973, and with this in mind the State was then required to prove by a preponderance of the credible evidence that the artificial accretions above this mean high water line were not done pursuant to a constitutional legislative enactment and for a higher public purpose. Inasmuch as the State wholly failed to meet its mandated burden of proof in this case, we find this issue, as asserted by Bayview and IPM, to have merit. Our disposition of this issue thus requires that we remand this case to the trial court, for the limited purpose of conducting a further evidentiary hearing consistent with our directives in order to determine the mean high water line nearest the effective date of the Coastal Wetlands Protection Act [Miss. Code Ann. §§ 49-27-1, et seq.]. The effective date of the Coastal Wetlands Protection Act was July 1, 1973. See Miss. Code Ann. § 29-15-7(1); Wiesenberg, 633 So.2d at 991. Once the chancellor has made this determination, the 34 chancellor shall then declare that all land lying north and east of this line shall be vested in the State as part of the public trust tidelands, and that all land lying south and west of this line as determined by the chancellor shall vest in Bayview and IPM. II. WHETHER THE 1928 PUBLIC LAND PATENT TO TALTAVULL WAS VALID ¶34. The trial court held that the land patent from the State presumedly conveying the land in question to Taltavull, one of IPM’s supposed predecessors in interest, was null and void for want of authority. Taltavull had owned the IPM parcel of land in 1928 where he operated his Biloxi Canning and Packing Company and Bay View Crushing Company businesses engaged in oyster canning and crushing and disposing of the byproduct shells. On July 11, 1928, the State of Mississippi issued a Public Land Patent to Taltavull, for consideration of $8.13. The biennial report of the Commissioner of State Lands dating from July 1, 1927, to June 30, 1929, shows the Taltavull Patent to be 6.5 acres of land for a consideration of $8.13, the statutory minimum of $1.25 per acre as fixed by law in the 1906 Mississippi Code. The trial court concluded that “[t]here is no credible evidence that the statutory minimum consideration paid by Taltavull for the patented land is so grossly inadequate that it constitutes a donation prohibited by Section 95 our State Constitution,” and we agree. ¶35. However, the trial court went further and found there were no later conveyances from Taltavull divesting him, his heirs or devises, of title to the patented land and there were no conveyances vesting IPM or its predecessors in title with any interest in the land. Thus the trial court found the patent null and void for want of authority and violative of section 81 of our 35 state constitution (“Legislature shall never authorize the permanent obstruction of any of the navigable waters of the State”). ¶36. Bayview and IPM argue that Taltavull conveyed to Roy Rosalis and Virgilio DosSantos the upland and the part of the patent area filled. However, the trial court found that no part of the patented land was included in the conveyance. Bayview and IPM point out that the Chancery Court of Harrison County upheld a similar grant of such tidelands to the Beau Rivage, and argue that there is no material difference between the character of the tidelands, the grantee, or the public purposes of the trust that were served through the grant. In Money v. Wood, 152 Miss. 17, 118 So. 357 (1928), this Court voided an attempted sale of public state land to a private party under what was then Section 2919 Miss. Code of 1906 (currently Miss. Code Ann. § 29- 1- 65). This doctrine has been reaffirmed in International Paper Co. v. Mi ssissippi State Highway Dep’t, 271 So.2d 395, 399 (Miss. 1972). See also Cinque Bambini, 491 So.2d at 521. This Court held that “the state cannot convey in fee such rights to private owners for private purposes” because the Court found no authority given to the land commissioner to make such a conveyance. Money, 152 Miss. at 29, 118 So. at 359 (relying on Huber v. Freret, 138 Miss. 238, 103 So. 3 (1925)). Finding the deeds “absolutely void for want of authority on the part of the land commissioner to make such a sale,” this Court reasoned that “land” in the statute at issue in that case meant dry land and not submerged land. Id. at 359-60. This Court found there that the improvements planned by the purchaser for the land purchased were not for any public purpose but rather for “private enterprise, designed as 36 a scheme of financial advantage.” Id. at 358. The trial court distinguished Treuting, where a public land patent to the Biloxi Park Commission was upheld, based on the facts of that particular case. The overall purpose of the conveyed, submerged land in Treuting was to be development of a large marina and some 46 miles of inland waterways fronted by residential property, with plans of better access to seafood packing plants for fishing boats, and a reduction of wave action on the shore of Biloxi, offering greater protection to the Biloxi harbor area. 199 So.2d at 631. When the project is completed, approximately twenty-seven percent of the land area of Deer Island will be devoted to public uses. Included in this classification is land for two 18-hole golf courses, two nine-hole courses, beaches, parks, green belts, waterways, schools, churches, marinas, and similar facilities. Another twenty percent of the island’s surface will be allocated to such uses as street rights of way, utility easements, sewage treatment plants, water wells, and fire stations. The remaining fifty to fifty-three percent of the island will be devoted to residential, commercial and resort development. The completed project will offer 8,700 residential units for sale on the island. A fixed level bridge to the island will be built with a horizontal clearance of 125 feet and a vertical clearance of 50 feet. All of the some 280 vessels which make Biloxi their home port will be able to pass under this bridge. ********** The cost of constructing the project is estimated to be some forty million dollars. The project will be financed by revenue bonds, secured by the sale of property on the island. Revenue from the island is expected to produce some forty million dollars. Id. ¶37. In the end, this Court concluded in Treuting that this action by the State was an appropriate exercise of authority and consistent with the overall purposes of the public trust. [B]ecause the overall purposes of the proposed development of Deer Island promote a large number of public interests and uses, the incidental private ownership of parts of the development is not inconsistent with the public trust 37 in the submerged lands. In essence it is an effectual development and discharge of this trust. ********** The proposed development of Deer Island will promote navigation and fishing, and will give some protection to the Biloxi port. Navigation will be assisted by deeper channels. Biloxi fisheries will be better protected from storms and dangerous weather. Necessary additional housing for the geographically restricted City of Biloxi will promote additional manufacturing, and assist in the industrial development of the area. Id. at 634. ¶38. Distinguishing today’s case from Treuting, the trial court explicitly found that Taltavull’s operating his business on the land in question served no more of a public purpose than the attempted purchaser in Money. Because of this, the trial court found the Taltavull patent to be void for want of authority (of the land commissioner), meaning IPM could not claim to be a successor in interest by deed. ¶39. IPM and Bayview point out that certain exceptions to the Money rule exist. IPM also draws our attention to State v. Stockett, 249 So.2d 388 (Miss. 1971), where this Court upheld a land patent conveying submerged swamp lands under the same statute at issue today. The reasoning in that case was that the land at issue in Stockett was rural rather than urban when conveyed, and validity of a land patent depends on the circumstances of the land at the time of conveyance; thus, this Court was able to distinguish the facts from those in other cases where land patents have been found invalid. Stockett, 249 So.2d at 391-94. ¶40. In the end, we find of significant import the trial court’s application of Money and Treuting to today’s case. The chancellor found this case to be factually aligned with Money 38 and distinguishable from Treuting; however, we find that the case sub judice is factually aligned with Treuting and distinguishable from Money. In Money, a private landowner, Wood, who had a home facing the Mississippi Sound on the beach at Biloxi, and who also had certain property on the west end of Deer Island, brought a suit to prevent private persons from developing property on the west end of Deer Island. 152 Miss. at 24, 118 So. at 358. These private persons had received title to this property from the state land commissioner. Id. “It appear[ed] that the [individuals] had undertaken to buy lands from the state of Mississippi lying under the waters of the Mississippi Sound for the purpose of constructing and erecting an artificial island, with hotels, boulevards, and residences for the private purposes of the [individuals].” Id. Wood claimed that this construction would “invade his rights as enjoyed under the laws of the state, and....would so interfere with his navigation, fishing, and other legitimate uses of the public waters which he enjoyed, and....the enjoyment of his property both on the beach and on Deer Island.” 152 Miss. at 26, 118 So. at 358. This Court, in Money, found that the deeds in question were “void for want of authority on the part of the land commissioner to make the sale” because section 81 of our state constitution prohibited the sale of state lands of such character to “a person for purely private business.” 152 Miss. at 30-31, 118 So. at 360 (emphasis added). ¶41. In today’s case, Taltavull’s 1928 public land patent from the State was at a time when his property (and the subject property in today’s case) was being utilized, albeit by a private company, to promote the State’s booming oyster industry. Taltavull and Biloxi Canning 39 Company, in concert with the State, and indeed as required by statute, was storing oyster shells on its property subject to disposition at the direction of the State, with a portion of the shells being used, inter alia, for paving roads and replanting in the natural oyster reefs of the tidelands. See also 1926 Miss. Laws, ch. 293; 1928 Miss. Laws, § 6881; 1944 Miss. Laws, ch. 288; 1958 Miss. Laws, ch. 195. Thus, clearly, the facts of today’s case are more aligned with the facts of Treuting, as opposed to Money. The 1928 public land patent from the State to Taltavull was not violative of section 81 of our state constitution. This public land patent was certainly wholly consistent with the public purposes of the public trust tidelands. We thus find that the chancellor erred in finding that this conveyance was null and void for want of authority. We are likewise constrained from the record before us to find error in the chancellor’s determination that there were no existing conveyances divesting Taltavull and his heirs of title to he subject property. The substantial credible evidence in the record reveals that the 1943 deed from Taltavull to Rosalis and DosSantos conveyed title to Taltavull’s uplands, including the patented area, as substantiated by the deraignment of title submitted by Bayview and IPM. Therefore, we find that the chancellor likewise erred in finding that there were no existing conveyances divesting Taltavull and his heirs of title to the patented land and vesting title in Bayview’s predecessors in title. 40 III. WHETHER IPM, BAYVIEW LAND, TREASURE BAY, OR THE MLADINICH FAMILY ENJOY ANY LITTORAL RIGHTS ¶42. Littoral rights are the rights of landowners whose land is abutting an ocean, sea or lake rather than a river or stream, in which case the rights would be riparian, not littoral. Stewart, 815 So.2d at 1163 (internal citations omitted). “Littoral rights are usually concerned with the use and enjoyment of the shore.” Id. (internal citations omitted). However, we have consistently held that littoral rights are not property rights per se, but are merely licenses or privileges. Columbia Land Dev., 868 So.2d at 1012. See also Stewart, 815 So.2d at 1163 (citing Watts v. Lawrence, 703 So.2d 236, 238 (Miss. 1997); Gilich, 609 So.2d at 375. These licenses or privileges are also revocable. Stewart, 815 So.2d at 1163. “Littoral and riparian property owners have common law and statutory rights under the Coastal Wetlands Protection Law which extend into the waters and beyond the low tide line, and the state’s responsibilities as trustee extends to such owners as well as to the other members of the public.” Miss. Code Ann. § 29-15-5. These rights are rights to reasonable use, subject to the State’s interest in the lands. State ex rel. Rice v. Stewart, 184 Miss. 202, 237, 184 So.2d 44, 53-54 (1938) (citing Money, 118 So. 359). Operating gaming facilities and a hotel would constitute reasonable use and encourage commerce on the water. The Act and our case law make it clear that these rights are administered through the agency so designated by statute. Watts, 703 So.2d at 239. “That agency’s procedures and requirements must be followed.” Id. That agency is the Secretary of State. Columbia Land Dev., 868 So.2d at 1013. See also Miss. Code Ann. § 7- 11-11. These 41 littoral rights, essentially the right to use and enjoyment of the water, include many activities laid out in the statute. Miss. Code Ann. §§ 49-15-9, 49-27-7. ¶43. The trial court found that because the 3.05- acre of land made up of accretions was vested in the State, IPM had no land touching the water, except for small slivers of land on either side of the accreted parcel in question, and therefore no littoral rights to the water touching any of the land except its own, those small slivers flanking the accretions. “And the land must not only be contiguous to the water, but in contact with it. Proximity without contact is insufficient.” Ill. Cent. RR. v. Illinois, 146 U.S. 387, 445, 13 S. Ct. 110, 115, 36 L. Ed. 1018, 1040 (1892). Because of our disposition of Issue I in favor of IPM, we find that the position of the Mladinich Family and Treasure Bay, which IPM and Bayview join, has merit, in that they do enjoy certain littoral rights to be determined by the chancellor upon conducting further proceedings consistent with our disposition of Issue I, above. IV. WHETHER THE STATE POSSESSES THE AUTHORITY TO REQUIRE LEASES AND COLLECT RENTS ON THE LAND ¶44. The trial court looked to both Miss. Code Ann. Section 29-1-107(2) and Wiesenberg to hold explicitly that Mississippi has authorized the Secretary of State to require leases and collect rents on submerged tidelands belonging to the State and held in trust. The thrust of the argument of Treasure Bay and the Mladinich Family with regard to this issue is that authorizing the State to do this constitutes judicial approval of a taking, offending the Constitutions of both Mississippi and the United States. To make this argument, Treasure Bay relies on our holding in Guice, where we held that a taking occurs if the State fills tidelands below the mean high 42 water line, cutting off the landowner’s littoral rights. “It is a matter of common knowledge that the littoral rights incident to the ownership of beach front property along the Mississippi Gulf Coast is the most valuable attribute of such property. If the State, acting through the County, could ‘pump up’ the submerged bottoms adjacent to privately owned uplands, and thereby cut off direct access to the water, it could effectively destroy the value of much residential property as well as commercial and industrial water front property. Such taking of private property could not be accomplished without first paying just compensation. Mississippi Constitution, Sec. 17.” Guice, 140 So. 2d at 842. This argument confuses two issues before the Court today. While this holding does have a material effect on the first issue in this case, it is of no consequence to the issue at hand. There is quite a difference between filling up tidelands, as illustrated in Guice, and requiring leases and rent for those submerged tidelands that belong to the State. ¶45. Our statutes and our case law provide this authority and leave no room for doubt. “The Secretary of State, with the approval of the Governor, may rent or lease surface lands, tidelands or submerged lands owned or controlled by the State of Mississippi lying in or adjacent to the Mississippi Sound or Gulf of Mexico or streams emptying therein, for a period not exceeding forty (40) years for rental payable to the state annually. However, the term of any lease of state public trust tidelands to a person possessing a license under the Mississippi Gaming Control Act shall be governed by the provisions of subsection (4) of this section.” Miss. Code Ann. § 29-1-107(2)(a). We have addressed this issue before. “This statute unequivocally affords the Secretary of State the discretion to enter into a lease of the public tidelands.” Columbia 43 Land Dev., 868 So.2d at 1013. Further, in Wiesenberg, we clearly recognized that “the State from time to time has granted leases to allow private interests to use certain public trust lands.” 633 So.2d at 989. To restate a principle, “the individual States have the authority to define the limits of the lands held in public trust and to recognize private rights in such lands as they see fit.” Phillips Petroleum, 484 U.S. at 475. This issue is without merit. V. WHETHER THE STATE HAS THE AUTHORITY TO LEVY TAXES UPON THE LAND WHICH THE APPELLANTS LEASE ¶46. The trial court looked to Miss. Code Ann. § 29-15-11 to find that the State and its political subdivisions have authority to assess and collect ad valorem taxes from persons or firms occupying land held by the State in the Public Tidelands Trust. The Appellants reiterate and incorporate their earlier arguments to convince this Court otherwise. “Upon the proper authorized leasing of any state public trust tidelands, or submerged lands, the lessee shall be responsible for any county or municipal tax levy upon the leasehold interest.” Miss. Code Ann. § 29-15-11. This issue is without merit. VI. WHETHER ANY STATE ACTION IN THIS CASE AMOUNTS TO AN UNCONSTITUTIONAL TAKING OF THE LAND ¶47. On this issue, the Appellants collectively argue that the State’s action has constituted a taking of littoral rights, offending the Fifth and Fourteenth Amendments to the U.S. Constitution and Miss. Const. art. 3, § 17 (1890). Because of our disposition of Issue I, above, this issue need not be addressed. 44 VII. WHETHER THERE IS A DENIAL OF THE APPELLANTS’ DUE PROCESS AND EQUAL PROTECTION OF THE LAWS ¶48. The arguments put forward by all of the Appellants here rests on the fact that the State granted 8.255 acres of land to the Beau Rivage because of obvious comparisons between the two casinos, or in other words, IPM was the victim of discriminatory action by the State. The trial court found that this occurred in part because the State had a rational basis for its settlements with the Beau Rivage and IPM exercised its statutory right to decline negotiation. The trial court found IPM was adamant that unless the State abandoned its claim completely, it would pursue its remedy in court. The State argues, at least in part, that because IPM did not attempt to reach amicable settlements like the Beau Rivage, it invited different treatment from that which the Beau Rivage received. However, because of our disposition of Issue I, above, addressing this argument becomes unnecessary. CONCLUSION ¶49. The Public Trust Tidelands Act serves a higher public purpose, and one this Court has held to be consistent with our State Constitution. That purpose is to settle age-old boundary disputes between land belonging to private landowners and that belonging to the State in trust. That the boundary line cannot be drawn exactly where it lay when Mississippi entered the Union and acquired its tidelands and submerged lands is naturally central to many disputes; however, the Act has laid out one final way to determine a line and we have upheld this method as one that protects the interests of the public and the affected private landowners as well as one that is designed to “put to rest the chaos that has plagued this subject matter and this 45 geographical area for many years.” Wiesenberg, 633 So.2d at 991. Looking to the Act and Wiesenberg, we find that Bayview and IPM own all artificially accreted land lying south and west of the mean high water line nearest the date of July 1, 1973, to be determined by the chancellor. This restores the littoral rights to the landowners and settles any disputes concerning them. For these reasons, we reverse the judgment of the Chancery Court for the Second Judicial District of Harrison County and remand this case to the chancellor with directions to enter an appropriate judgment upon conducting further proceedings consistent with this opinion. ¶50. REVERSED AND REMANDED. SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, EASLEY, GRAVES AND RANDOLPH, JJ., CONCUR. DICKINSON, J., NOT PARTICIPATING. 46	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 00-1205 ___________ Donnie Lair, * * Appellant, * * v. * Appeal from the United States * District Court for the Larry Norris, Director, Arkansas * Eastern District of Arkansas. Department of Correction; G. David * Guntharp, Deputy Director, Central * [Unpublished] Office, Arkansas Department of * Correction; Randall Morgan, Warden, * Maximum Security Unit, Arkansas * Department of Correction; Richard E. * Wimberly, Major, Maximum Security * Unit, Arkansas Department of * Correction; Jimmy Via, Lt. Maximum * Security Unit, Arkansas Department of * Correction, (originally sued as Jimmy * Vie); Mark Nordell, Sgt. Maximum * Security Unit, Arkansas Department of * Correction, (originally sued as Sgt. * Nordell); Callaway, Sgt., Maximum * Security Unit, Arkansas Department of * Correction; R. D. Allen, Maximum * Security Unit; Arkansas Department of * Correction; Moses Jackson, Sgt. * Maximum Security Unit, Arkansas * Department of Correction, (originally * sued as Sgt. Jackson); Gary Keith, Sgt., * Maximum Security Unit, Arkansas * Department of Correction, (originally * sued as Sgt. Keith); Arkansas * Department of Correction, Pine Bluff, * Arkansas; Steve Outlaw, Assistant * Warden, Maximum Security Unit, * Arkansas Department of Correction, * (originally sued as S. Outlaw), * * Appellees. * ___________ Submitted: October 7, 2000 Filed: November 8, 2000 ___________ Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. ___________ PER CURIAM. Arkansas inmate Donnie Lair appeals the District Court’s dismissal of his civil rights action against various prison officials. We reverse and remand. Lair filed this action under 42 U.S.C. §§ 1981 and 1983 alleging that the defendants failed to protect him from an attack by another inmate, and failed to properly train and supervise staff. An evidentiary hearing was held but not transcribed, after which the magistrate judge recommended dismissal. The District Court, stating it had carefully reviewed the magistrate judge’s recommendations and Lair’s timely objections, adopted the magistrate judge’s report in its entirety and dismissed the complaint. Because we find this review to be insufficient, we do not address the merits of the District Court’s decision. As we noted in Jones v. Pillow, 47 F.3d 251, 252-53 (8th Cir. 1995), once a proper objection is made to the magistrate judge’s findings, the District Court must conduct de novo review, which must, at a minimum, include listening to the tape recording or reading the transcript of the evidentiary hearing. The -2- presumption that de novo review was performed is negated where – as here – the transcript was not available, and the District Court’s order indicated only that it had reviewed the magistrate judge’s findings and recommendations and the plaintiff’s objections without any mention of a review of the evidentiary-hearing tapes. Accordingly, we reverse and remand so that the District Court may conduct the required de novo review. See Fed. R. Civ. P. 72(b). A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -3-	{ "pile_set_name": "FreeLaw" }

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