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FILED
NOT FOR PUBLICATION
SEP 15 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10367
Plaintiff - Appellee, D.C. No. 2:15-cr-00382-DLR-1
v.
MEMORANDUM*
EDWIN VIDAL TORRES,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted September 13, 2017**
San Francisco, California
Before: WALLACE and WATFORD, Circuit Judges, and SANDS,*** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable W. Louis Sands, Senior United States District Judge
for the Middle District of Georgia, sitting by designation.
Page 2 of 4
1. Edwin Torres appeals from the judgment entered by the district court
pursuant to his guilty plea to one count of assault resulting in serious bodily injury
in violation of 18 U.S.C. § 113(a)(6). Torres asserts that his guilty plea was
involuntary. “Although we review de novo whether a defendant entered a plea
knowingly and voluntarily, we apply only plain error review when a defendant
appeals based on an unobjected-to Rule 11 procedural violation.” United States v.
Carter, 795 F.3d 947, 950 (9th Cir. 2015) (internal citations omitted).
Torres’s guilty plea was constitutionally valid because it was knowing and
voluntary. “A plea is voluntary if it ‘represents a voluntary and intelligent choice
among the alternative courses of action open to the defendant.’” United States v.
Kaczynski, 239 F.3d 1108, 1114 (9th Cir. 2001) (quoting North Carolina v. Alford,
400 U.S. 25, 31 (1970)). Torres’s claim that he suffered from untreated depression
when he pleaded guilty does not render his plea involuntary. “[D]epression alone
is very unlikely to render a plea involuntary,” particularly when the defendant was
“lucid[]” and appeared to understand the plea proceedings. Tanner v. McDaniel,
493 F.3d 1135, 1146 (9th Cir. 2007).
Here, Torres was lucid and actively participated in his plea hearing. In
response to questions about his mental health, Torres stated that he felt “solid” and
“okay.” Throughout the plea colloquy, he was responsive to the court’s questions.
Page 3 of 4
He confirmed that he understood the terms of the plea offer he rejected, the
elements of the charged offense, and the consequences of pleading guilty.
Moreover, Torres’s own counsel informed the court that he believed Torres was
competent to plead guilty. Based on this record, we conclude that Torres’s plea
was voluntary.
2. To the extent Torres argues that the magistrate judge failed to inquire
about his mental state in violation of Federal Rule of Criminal Procedure 11(b), his
argument fails. Because Torres did not object to any procedural violation, this
court reviews for plain error. See Carter, 795 F.3d at 950. If a defendant’s
statements during a plea colloquy raise questions about his mental state, the court
accepting the plea has a duty to inquire further. See id. at 955. Here, the court’s
inquiry was sufficient. After Torres advised the court of his depression, the court
asked Torres about his treatment history, whether he was continuing to experience
mental health problems, and how he felt at the plea hearing. Only after the court
received assurances from Torres and Torres’s counsel did it proceed with the plea
colloquy. After observing Torres for the rest of the plea hearing, the court
concluded that Torres seemed “absolutely 100 percent clear-headed,” and was
competent to plead guilty. The court fully satisfied the demands of Rule 11(b).
Torres’s motion to strike (Docket Entry 27) is DENIED.
Page 4 of 4
AFFIRMED.
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889 F.2d 1087
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Ralph Stanton HAYES, II, Plaintiff-Appellant,v.Lorraine SWEAT; M.L. Williams; Bill Russell; HollisMcPhetridge; Dwight Kessell, Defendants-Appellees.
No. 89-5429.
United States Court of Appeals, Sixth Circuit.
Nov. 15, 1989.
1
Before MERRITT, Chief Judge, WELLFORD, Circuit Judge, and ROBERT E. DeMASCIO, Senior District Judge.*
ORDER
2
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
3
Ralph Stanton Hayes II appeals the summary judgment for the defendant Superintendent of the Knox County Penal Farm in this civil rights action filed under 42 U.S.C. Sec. 1983. Essentially, Hayes alleged that his civil rights were violated when he was not permitted to keep an appointment he made from prison with an "outside" surgeon. The district court concluded that plaintiff failed to establish a constitutional deprivation and granted summary judgment for defendant. Upon consideration, we conclude that summary judgment was proper.
4
Generally, summary judgment is proper where there are no genuine issues of material fact and movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1987). We review a grant of summary judgment de novo. Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987). Here, the undisputed material facts reveal no injury actionable under Sec. 1983.
5
Plaintiff was diagnosed as suffering from an inguinal hernia by a prison physician. An orthopedic clinic was unable to alleviate pressure from a leg brace required by plaintiff. Plaintiff, who has been convicted of escaping from two "outside" appointments in the past, then scheduled an appointment with a private surgeon without the consent of prison officials. The appointment was cancelled after prison officials were notified of it only two days in advance. The surgeon ultimately performed successful "elective" surgery at government expense to correct the hernia approximately three months after the original appointment was scheduled.
6
First, plaintiff established nothing which would "evidence deliberate indifference to a serious medical need." See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Further, plaintiff's claim that he was treated in a discriminatory manner is wholly unsupported. Therefore, summary judgment for defendant was appropriate. See Celotex Corp., 477 U.S. at 324.
7
Accordingly, the judgment of the district court is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.
*
The Honorable Robert E. DeMascio, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation
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912 F.2d 285
30 Fed. R. Evid. Serv. 1270
UNITED STATES of America, Plaintiff-Appellee,v.George Gordon AIKINS, Roosevelt Rodney, Manuel ArcenioAngulo-Castillo, Roberto Daniel Cayasso-Schellett, Lai ChaiHai, Anastacio Henry-Barnard, Eusebio Samudio-Jiminez,William Graham Snyder, Defendants-Appellants.
Nos. 88-1369, 88-1373, 88-1374, 88-1375, 88-1376, 88-1377,88-1378, 88-1379 and 89-16067.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted June 7, 1990.Decided Aug. 15, 1990.
John Ashford Thompson, Michael R. Levine, Federal Public Defender, Benjamin B. Cassidy, III, Richard T. Pafundi, William A. Harrison, R. Steven Geshell, Richard S. Kawana, Honolulu, Hawaii, for defendants-appellants.
Louis A. Bracco, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee.
Appeal from the United States District Court for the District of Hawaii.
Before CANBY, NOONAN and RYMER, Circuit Judges.
NOONAN, Circuit Judge:
1
George Aikins, Manuel Angulo-Castillo, Roberto Cayasso-Schellett, Lai Chai Hai, Anastacio Henry-Barnard, Roosevelt Rodney, Eusebio Samudio-Jiminez, and William Snyder were convicted of possessing with intent to distribute 21,000 pounds of marijuana on the high seas on February 19, 1988 and of distributing a separate 14,000 pounds of marijuana on the high seas on February 17, 1988, all in violation of the Maritime Drug Enforcement Act, 46 U.S.C.App. Sec. 1903(a). We reverse their convictions and remand for a new trial.
FACTS
2
The facts are well set out by Judge Takasugi in the district court and with minor editorial revisions are restated here:
3
During an ongoing undercover investigation of marijuana trafficking/importation, approximately two weeks preceding the seizure in this case, an undercover United States Customs agent was solicited by a marijuana trafficker to off-load a large quantity of marijuana from a mother ship located on the high seas southeast of the Hawaiian Islands. The undercover agent agreed to provide a vessel to off-load marijuana from the mother ship and transport the substance to the Bay Area of Northern California as directed by the trafficker.
4
A plan was developed among members of United States Customs, Drug Enforcement Administration and the United States Coast Guard whereby a crew of federal agents, posing as marijuana traffickers, would rendezvous with the mother ship and off-load the marijuana. The plan included the United States Coast Guard cutter Mallow 's following the undercover off-load vessel at a safe distance and remaining in radio contact with the off-load vessel.
5
On February 16 and 17, 1988, the undercover vessel rendezvoused with the mother ship approximately 600-800 miles southeast of the Hawaiian Islands. The mother ship was identified as the Christina M, a Panamanian coastal freighter bearing a Panamanian flag. After off-loading to a capacity of approximately 14,000 pounds of marijuana from the Christina M, the undercover agents were able to ascertain that the Panamanian freighter still had a large quantity of marijuana remaining aboard. All identification, registry and description of the Christina M were relayed by radio from the undercover crew to the Mallow.
6
Thereafter, the government contends that on February 18, 1988, U.S. Coast Guard officials on the Mallow sought and received permission from Panamanian officials "to the enforcement of United States law by the United States against the individuals found aboard the M/V Christina M." The Christina M was not then proceeding toward the United States.
7
On February 19, 1988, some 48 hours after the previous off-loading operation by the undercover vessel, the Mallow closed within visual distance of the Christina M. Lt. Commander Christian Bohner, Commanding Officer of the Mallow, identified the Mallow as a United States Coast Guard vessel and requested permission to board the Christina M. Defendant Augustus Rodney, Captain of Christina M, initially refused Bohner's request. Bohner then indicated to Rodney that the Coast Guard had permission of the Panamanian authorities to board and search the Christina M and that he, Bohner, had "other means" to stop the Christina M. Rodney relented and the Christina M made no effort to flee.
8
Shortly thereafter, without a search or arrest warrant or any efforts to secure same, the Coast Guard personnel from Mallow boarded the Christina M for the express purpose of searching the freighter for marijuana. A strong odor of marijuana was immediately apparent to all members of the boarding party. They found in excess of 21,000 pounds of marijuana in the aft hold. Although no other cargo was found, other than the bales of marijuana, documents and other personal effects were found and seized from the living quarters assigned to the crew. Rodney and his crew of seven men were arrested. The Mallow possessed radio equipment capable of communicating with a magistrate in Hawaii or the mainland.
9
Captain Rodney and the seven crew members were arrested and subsequently indicted.
PROCEEDINGS
10
The defendants moved to suppress the evidence. The district court, per Judge Takasugi, denied the motion. United States v. Aikens, 685 F.Supp. 732 (D.Hawaii 1988).
11
According to a procedure not unusual in some district courts, the voir dire of the jury was conducted by a magistrate. The defendants objected, each using the following written form:
OBJECTION TO MAGISTRATE CONDUCTING VOIRE DIRE
12
The defendant objects to having voire dire conducted by a magistrate and requests that it be done by the district court.
13
Although the Ninth Circuit has held that it is not unconstitutional for the magistrate to conduct voire dire, e.g., United States v. Bezold, 760 F.2d 999 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 811, 88 L.Ed.2d 786 (1986), the Fifth Circuit has recently held to the contrary. United States v. Ford, 824 F.2d 1430 (5th Cir.1987) (en banc ), cert. denied, 484 U.S. 1034, 108 S.Ct. 741, 98 L.Ed.2d 776 (White, J., dissenting). Because of split in the circuits, certiorari is likely to be granted by the Supreme Court to resolve the issue. The defendant, therefore, wishes to preserve his objection for the record.
14
The magistrate overruled the objection and went ahead with the voir dire. All counsel made numerous objections to the magistrate's failure to ask follow-up questions of certain jurors, to his failure to excuse certain jurors for cause, and to certain remarks of his to the jury that the defendants asserted were prejudicial questions.
15
The case was assigned to visiting judge Robert P. Aguilar for trial. Counsel raised various objections before him regarding the magistrate's conduct of jury selection. In response Judge Aguilar offered to select a new jury panel or, alternatively, to pose additional questions to the impaneled jury and to admonish them to disregard any prejudicial remarks made by the magistrate.
16
Judge Aguilar stated his views as to selecting a new jury including these remarks: "If necessary, I will pick a jury. I don't want to pick a jury. I want to get this case started. I have a calendar for the balance of the month that does not provide for an extra day to pick a jury." In the face of these comments, defendants' counsel acquiesced in the panel that had been selected.
17
The trial proceeded in 1988, the defendants were convicted. They appeal.
ANALYSIS
18
1. Selection of the Jury.
19
In 1989, the Supreme Court held that a magistrate did not have jurisdiction to select the jury in a felony case. Gomez v. United States, --- U.S. ----, 109 S.Ct. 2237, 2247-2248, 104 L.Ed.2d 923 (1989). This court has held that Gomez must be applied to all cases not yet final on July 7, 1989, the date on which the mandate in Gomez issued. United States v. France, 886 F.2d 223, 227 (9th Cir.1989). The present case was not final on the relevant date. Therefore Gomez governs.
20
The government argues that certiorari has been granted in France, --- U.S. ----, 110 S.Ct. 1921, 109 L.Ed.2d 285 (1990), and that this case should not be decided pending the disposition of France by the Supreme Court. There appears, however, no doubt that the retroactivity of Gomez is required by Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Accordingly, there is no reason not to apply Gomez retroactively here. We are not otherwise dependent upon the holdings in France.
21
Gomez points out that by statute a magistrate's jurisdiction to try a misdemeanor "depends on the defendant's specific, written consent." Gomez, 109 S.Ct. at 2245 (citing 18 U.S.C. Sec. 3401(b)). Here, where the issue is whether the magistrate may preside over the selection of jurors and the case involves a felony and not a misdemeanor, the same safeguard should apply. The waiver of objection must be by specific written consent.
22
A defendant prosecuted for a felony has the "basic ... right to have all critical stages of [his] criminal trial conducted by a person with jurisdiction to preside." Id. at 2248. As Gomez recognizes, jury selection is a critical stage. If consent can confer authority to preside--a proposition doubted in France, 886 F.2d at 227--that consent must meet the minimal requirements of being specific and in writing.
23
An additional reason leads us to doubt the consent here given. As Gomez points out, Congress has provided by statute that, in a civil case, "neither the district judge nor the magistrate shall attempt to persuade or induce any party to consent to reference of a civil matter to a magistrate." Gomez, 109 S.Ct. at 2244 (citing 28 U.S.C. Sec. 636(c)(2)). This court has said en banc that the waiver of the right to an Article III judge must be "freely and voluntarily undertaken." Pacemaker Diagnostic Clinic of America v. Instromedix, 725 F.2d 537, 543 (9th Cir.) (en banc) (per Kennedy, J.), cert. denied, 469 U.S. 824, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984). In the present case, the defendants' agreement was induced by Judge Aguilar, whose strong indication of what he considered the desirable and practicable course of action left the defendants with no choice.
24
Because their consent was induced and because their consent was not in writing there was no agreement to the magistrate selecting the jury. The jury was invalidly selected by an officer without jurisdiction to act. The case must be retried.
25
A number of issues have been presented by the defendants as to rulings made by Judge Aguilar in the course of the trial, and they have challenged his failure to recuse himself. We need not decide these issues on this appeal. The defendants, however, have presented certain issues which go to the question of whether there is admissible evidence against them or whether there is jurisdiction to try them. These issues must be dealt with now.
26
2. The Search and Seizure of the Christina M.
27
The defendants raise the protection of the Fourth Amendment in objection to the Coast Guard's search and seizure of the vessel. The Fourth Amendment was not "understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters." United States v. Verdugo-Urquidez, --- U.S. ----, 110 S.Ct. 1056, 1061, 108 L.Ed.2d 222 (1990). The Fourth Amendment does not apply to a search of aliens conducted in foreign territory. Id. 110 S.Ct. at 1066. The Fourth Amendment does not apply to the search of non-resident aliens on a ship in international waters. United States v. Davis, 905 F.2d 245, 250-51 (9th Cir.1990). All but one of the defendants here was an alien to whom the guarantees of the Fourth Amendment do not apply. William Snyder, who is an American citizen, has no standing to challenge the search of the Christina M, "it being well settled that the crew has no legitimate expectation of privacy in the cargo hold of a vessel." United States v. Peterson, 812 F.2d 486, 494 (9th Cir.1987).
28
3. The Constitutionality of the Maritime Drug Law Enforcement Act.
29
The defendants contend that the Maritime Drug Law Enforcement Act, 46 U.S.C.App. Sec. 1903(a), is unconstitutional as applied to them. It has been established that the Act is intended by Congress to apply to conduct on the high seas. Davis, 905 F.2d at 248. It is clear that Congress has power "to define and punish piracies and felonies committed on the high seas." United States Constitution, Art. I, Sec. 8, cl. 10. The statute is not void for vagueness: it expressly prohibits the possession of drugs on certain vessels with intent to distribute. United States v. Mena, 863 F.2d 1522, 1527 (11th Cir.) cert. denied, --- U.S. ----, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989). The statute is not applied to the defendants ex post facto; although Panama gave its consent after they had set to sea, they took the risk of such consent being given. Id. at 1528.
30
Due process is not offended by the extent of the jurisdiction created if there is a sufficient nexus between the conduct condemned and the United States. Davis, 905 F.2d at 248-49; Peterson, 812 F.2d at 493-94. A sufficient nexus exists where the ship with drugs is bound ultimately for the United States. Id. In the present case, although the Christina M at the moment of seizure was not headed in the direction of the United States, the entire operation of off-loading was set up by an agreement that was designed to bring the off-loaded marijuana into the United States. A sufficient nexus existed. Davis, 905 F.2d at 249; Peterson, 812 F.2d at 493-94.
31
4. Evidence of the Consent of Panama.
32
The statute provides that the consent of a foreign nation to the enforcement of United States law "may be obtained by radio, telephone, or similar oral or electronic means, and may be proved by certification of the Secretary of State or the Secretary's designee." 46 U.S.C.App. Sec. 1903(c)(1).
33
The consent of Panama to the enforcement of the law of the United States aboard the Christina M was proved by a certificate issued by Tom R. Wilson, Jr., the designee of the Secretary of State. On March 3, 1988 Wilson certified: "That on February 18, 1988 the government of Panama consented to the enforcement of the United States law by the United States against the individuals found aboard the M/V Christina M." A further certificate of George P. Shultz, Secretary of State, declared that Wilson was authorized to issue such a certificate.
34
Invoking the Confrontation Clause of the Sixth Amendment and the hearsay rule, the defendants make heavy weather about this evidence. They contend that it violates the hearsay rule and deprives the defendants of the opportunity to confront the witnesses against them. The defendants are mistaken in these contentions.
35
Evidence in the form of a certificate of an officer of the government with authority to issue the certificate is an old and well-established exception to the general prohibition against hearsay. The certificate of a governmental official is a particular case of the admissibility of a public document. The general reason for the exception is the probable trustworthiness of the public officer's statement and the great inconvenience that would be caused to public business if public officers had to be called to court to verify in person every fact they certify. See Wigmore on Evidence, Secs. 1631-32 (Chadbourn rev.1974). Thousands of statutes permit certification of facts by public officials. Id. Sec. 1676. The certificate of a notary is, for example, a common instance. Id. Sec. 1675. No one supposes that the Confrontation Clause is violated if the notary does not appear. The certificate of an authorized official "is admissible only for those facts covered by the terms of the authority, and, conversely, that it is admissible to prove all the facts thus included." Id. Sec. 1674 (footnote and emphasis omitted).
36
Wilson's certificate sets out what appears to be his means of knowing the fact of consent to which he certifies, viz., that Charles Vopat, a State Department employee at the embassy in Panama contacted Captain Luis Quiel, who represented the Panamanian government with authority to consent to the enforcement of law against vessels of Panamanian registration. The defendants characterize Quiel's consent as hearsay. Again, the defendants are mistaken.
37
Quiel's consent was not hearsay but a verbal act. See Mena, 863 F.2d at 1531. Vopat's report, inferably the source of Wilson's knowledge, is hearsay, but it is hearsay which the exception of Wilson's admissible certificate covers. Wilson had authority to certify. His authority is not diluted, and the admissibility of his certificate is not diminished, because he indicated the basis for his statement. See S.Rep. No. 530, 99th Cong., 2d Sess. 16 (1986), reprinted in 1986 U.S.Code Cong. & Admin.News 5986, 6001 (detailing what information should be included in the certificate).
38
In an early instance of a certificate being upheld, the Postmaster General certified that a particular postmaster owed a certain sum of money to the United States. There was no suggestion that the Postmaster General had personally computed the amount owing; he must have relied on the report of a subordinate. See United States v. Dumas, 149 U.S. 278, 13 S.Ct. 872, 37 L.Ed. 734 (1893). So here the designee of the Secretary of State could properly rely on those in his chain of command. A probability of trustworthiness attends the statement of the certifying officer; it is equally probable that the officer has taken reasonable measures to assure himself of the fact he certifies.
39
Settled practice understands the Confrontation Clause not to require the presence at trial of every officer whose certificate is in evidence. But by authorizing a certificate Congress does not authorize the creation of irrebuttable facts. The certificate of Wilson is not conclusive. It is only prima facie evidence of the fact certified and so may be rebutted by the defendants. Dumas, 149 U.S. at 285-87, 13 S.Ct. at 873-74. Thus the defendants were entitled to depose Quiel, if they could show that he would submit to deposition expeditiously. See Peterson, 812 F.2d at 494. At the same time it should be noted that Peterson held that a telex "sent to the Coast Guard" was "substantial evidence of Panamanian consent." Id. at 495. In short, consent can be disputed or proved in ways beyond the certificate.
40
Whether the jury is to decide that the fact of consent has been proved or whether the court is to decide has been a matter of debate. See Mena, 863 F.2d at 1532 (collecting cases). When a jurisdictional fact is at issue, the court should determine the existence or not of the fact. Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); see also Gough v. Rossmoor Corp., 487 F.2d 373, 377 (9th Cir.1973). Where the jurisdictional fact is disputed, as it is here, the court should rule only after a full presentation of the evidence.
41
REVERSED AND REMANDED FOR TRIAL.
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75 N.Y.2d 530 (1990)
In the Matter of Ronald Levandusky, Respondent,
v.
One Fifth Avenue Apartment Corp., Appellant.
Court of Appeals of the State of New York.
Argued February 14, 1990.
Decided April 5, 1990.
Joel David Sharrow and Arthur F. Abelman for appellant.
Irwin Brownstein for respondent.
Chief Judge WACHTLER and Judges SIMONS, ALEXANDER, HANCOCK, JR., and BELLACOSA concur with Judge KAYE; Judge TITONE concurs in a separate opinion.
*533KAYE, J.
This appeal by a residential cooperative corporation concerning apartment renovations by one of its proprietary lessees, factually centers on a two-inch steam riser and three air conditioners, but fundamentally presents the legal question of what standard of review should apply when a board of directors of a cooperative corporation seeks to enforce a matter of building policy against a tenant-shareholder. We conclude that the business judgment rule furnishes the correct standard of review.
In the main, the parties agree that the operative events transpired as follows. In 1987, respondent (Ronald Levandusky) decided to enlarge the kitchen area of his apartment at One Fifth Avenue in New York City. According to Levandusky, some time after reaching that decision, and while he was president of the cooperative's board of directors, he told Elliot Glass, the architect retained by the corporation, that he intended to realign or "jog" a steam riser in the kitchen area, and Glass orally approved the alteration. According to Glass, however, the conversation was a general one; Levandusky never specifically told him that he intended to move any particular pipe, and Glass never gave him approval to do so. In any event, Levandusky's proprietary lease provided that no "alteration of or addition to the water, gas or steam risers or pipes" could be made without appellant's prior written consent.
Levandusky had his architect prepare plans for the renovation, which were approved by Glass and submitted for approval to the board of directors. Although the plans show details of a number of other proposed structural modifications, *534 including changes in plumbing risers, no change in the steam riser is shown or discussed anywhere in the plans.
The board approved Levandusky's plans at a meeting held March 14, 1988, and the next day he executed an "Alteration Agreement" with appellant, which incorporated "Renovation Guidelines" that had originally been drafted, in large part, by Levandusky himself. These guidelines, like the proprietary lease, specified that advance written approval was required for any renovation affecting the building's heating system. Board consideration of the plans appropriately detailed to indicate all structural changes was to follow their submission to the corporation's architect, and the board reserved the power to disapprove any plans, even those that had received the architect's approval.
In late spring 1988, the building's managing agent learned from Levandusky that he intended to move the steam riser in his apartment, and so informed the board. Both Levandusky and the board contacted John Flynn, an engineer who had served as consulting agent for the board. In a letter and in a subsequent presentation at a June 13 board meeting, Flynn opined that relocating steam risers was technically feasible and, if carefully done, would not necessarily cause any problem. However, he also advised that any change in an established old piping system risked causing difficulties ("gremlins"). In Flynn's view, such alterations were to be avoided whenever possible.
At the June 13 meeting, which Levandusky attended, the board enacted a resolution to "reaffirm the policy no relocation of risers." At a June 23 meeting, the board voted to deny Levandusky a variance to move his riser, and to modify its previous approval of his renovation plans, conditioning approval upon an acceptable redesign of the kitchen area.
Levandusky nonetheless hired a contractor, who severed and jogged the kitchen steam riser. In August 1988, when the board learned of this, it issued a "stop work" order, pursuant to the "Renovation Guidelines." Levandusky then commenced this article 78 proceeding, seeking to have the stop work order set aside. The corporation cross-petitioned for an order compelling Levandusky to return the riser to its original position. The board also sought an order compelling him to remove certain air-conditioning units he had installed, which allegedly were not in conformity with the requirements of the Landmarks Preservation Commission.
*535Supreme Court initially granted Levandusky's petition, and annulled the stop work order, on the ground that there was no evidence that the jogged pipe had caused any damage, but on the contrary, the building engineer had inspected it and believed it would likely not have any adverse effect. Therefore, balancing the hardship to Levandusky in redoing the already completed renovations against the harm to the building, the court determined that the board's decision to stop the renovations was arbitrary and capricious, and should be annulled. Both counterclaims were dismissed, the court ruling that the corporation had no standing to complain of violations of the Landmarks Preservation Law, particularly as the building had not been cited for any violation.
On reargument, however, Supreme Court withdrew its decision, dismissed Levandusky's petition, and ordered him to restore the riser to its original position and submit redrawn plans to the board, on the ground that the court was precluded by the business judgment rule from reviewing the board's determination. The court adhered to its original ruling with respect to the branch of the cross motion concerning the air conditioners, notwithstanding that the Landmarks Preservation Commission had in the interim cited them as violations.
On Levandusky's appeal, the Appellate Division modified the judgment. The court was unanimous in affirming the Supreme Court's disposition of the air conditioner claim, but divided concerning the stop work order. A majority of the court agreed with Supreme Court's original decision, while two Justices dissented on the ground that the board's action was within the scope of its business judgment and hence not subject to judicial review. Concluding that the business judgment rule applies to the decisions of cooperative governing associations enforcing building policy, and that the action taken by the board in this case falls within the purview of the rule, we now modify the order of the Appellate Division.
At the outset, we agree with the Appellate Division that the corporation's cross claim concerning Levandusky's three air-conditioning units was properly dismissed, as the appropriate forum for resolution of the complaint at this stage is an administrative review proceeding. That brings us to the issue that divided the Appellate Division: the standard to be applied in judicial review of this challenge to a decision of the board of directors of a residential cooperative corporation.
*536As cooperative and condominium home ownership has grown increasingly popular, courts confronting disputes between tenant-owners and governing boards have fashioned a variety of rules for adjudicating such claims (see generally, Goldberg, Community Association Use Restrictions: Applying the Business Judgment Doctrine, 64 Chi-Kent L Rev 653 [1988] [hereinafter Goldberg, Community Association Use Restrictions]; Note, Judicial Review of Condominium Rulemaking, 94 Harv L Rev 647 [1981]). In the process, several salient characteristics of the governing board homeowner relationship have been identified as relevant to the judicial inquiry.
As courts and commentators have noted, the cooperative or condominium association is a quasi-government "a little democratic sub society of necessity" (Hidden Harbour Estates v Norman, 309 So 2d 180, 182 [Fla Dist Ct App]). The proprietary lessees or condominium owners consent to be governed, in certain respects, by the decisions of a board. Like a municipal government, such governing boards are responsible for running the day-to-day affairs of the cooperative and to that end, often have broad powers in areas that range from financial decisionmaking to promulgating regulations regarding pets and parking spaces (see generally, Note, Promulgation and Enforcement of House Rules, 48 St John's L Rev 1132 [1974]). Authority to approve or disapprove structural alterations, as in this case, is commonly given to the governing board. (See, Siegler, Apartment Alterations, NYLJ, May 4, 1988, at 1, col 1.)
Through the exercise of this authority, to which would-be apartment owners must generally acquiesce, a governing board may significantly restrict the bundle of rights a property owner normally enjoys. Moreover, as with any authority to govern, the broad powers of a cooperative board hold potential for abuse through arbitrary and malicious decision-making, favoritism, discrimination and the like.
On the other hand, agreement to submit to the decisionmaking authority of a cooperative board is voluntary in a sense that submission to government authority is not; there is always the freedom not to purchase the apartment. The stability offered by community control, through a board, has its own economic and social benefits, and purchase of a cooperative apartment represents a voluntary choice to cede certain of the privileges of single ownership to a governing body, often made up of fellow tenants who volunteer their *537 time, without compensation. The board, in return, takes on the burden of managing the property for the benefit of the proprietary lessees. As one court observed: "Every man may justly consider his home his castle and himself as the king thereof; nonetheless his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in common or cooperation with others. The benefits of condominium living and ownership demand no less." (Sterling Vil. Condominium v Breitenbach, 251 So 2d 685, 688, n 6 [Fla Dist Ct App].)
It is apparent, then, that a standard for judicial review of the actions of a cooperative or condominium governing board must be sensitive to a variety of concerns sometimes competing concerns. Even when the governing board acts within the scope of its authority, some check on its potential powers to regulate residents' conduct, life-style and property rights is necessary to protect individual residents from abusive exercise, notwithstanding that the residents have, to an extent, consented to be regulated and even selected their representatives (see, Note, The Rule of Law in Residential Associations, 99 Harv L Rev 472 [1985]). At the same time, the chosen standard of review should not undermine the purposes for which the residential community and its governing structure were formed: protection of the interest of the entire community of residents in an environment managed by the board for the common benefit.
We conclude that these goals are best served by a standard of review that is analogous to the business judgment rule applied by courts to determine challenges to decisions made by corporate directors (see, Auerbach v Bennett, 47 N.Y.2d 619, 629). A number of courts in this and other states have applied such a standard in reviewing the decisions of cooperative and condominium boards (see, e.g., Kirsch v Holiday Summer Homes, 143 AD2d 811; Schoninger v Yardarm Beach Homeowners' Assn., 134 AD2d 1; Van Camp v Sherman, 132 AD2d 453; Papalexiou v Tower W. Condominium, 167 NJ Super 516, 401 A2d 280; Schwarzmann v Association of Apt. Owners, 33 Wash App 397, 655 P2d 1177; Rywalt v Writer Corp., 34 Colo App 334, 526 P2d 316). We agree with those courts that such a test best balances the individual and collective interests at stake.
Developed in the context of commercial enterprises, the business judgment rule prohibits judicial inquiry into actions *538 of corporate directors "taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes." (Auerbach v Bennett, 47 N.Y.2d 619, 629, supra.) So long as the corporation's directors have not breached their fiduciary obligation to the corporation, "the exercise of [their powers] for the common and general interests of the corporation may not be questioned, although the results show that what they did was unwise or inexpedient." (Pollitz v Wabash R. R. Co., 207 N.Y. 113, 124.)
Application of a similar doctrine is appropriate because a cooperative corporation is in fact and function a corporation, acting through the management of its board of directors, and subject to the Business Corporation Law. There is no cause to create a special new category in law for corporate actions by coop boards.
We emphasize that reference to the business judgment rule is for the purpose of analogy only. Clearly, in light of the doctrine's origins in the quite different world of commerce, the fiduciary principles identified in the existing case law primarily emphasizing avoidance of self-dealing and financial self-aggrandizement will of necessity be adapted over time in order to apply to directors of not-for-profit homeowners' cooperative corporations (see, Goldberg, Community Association Use Restrictions, op. cit., at 677-683). For present purposes, we need not, nor should we determine the entire range of the fiduciary obligations of a cooperative board, other than to note that the board owes its duty of loyalty to the cooperative that is, it must act for the benefit of the residents collectively. So long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith, courts will not substitute their judgment for the board's. Stated somewhat differently, unless a resident challenging the board's action is able to demonstrate a breach of this duty, judicial review is not available.
In reaching this conclusion, we reject the test seemingly applied by the Appellate Division majority and explicitly applied by Supreme Court in its initial decision. That inquiry was directed at the reasonableness of the board's decision; having itself found that relocation of the riser posed no "dangerous aspect" to the building, the Appellate Division concluded that the renovation should remain. Like the business judgment rule, this reasonableness standard originating in the quite different world of governmental agency decision-making *539 has found favor with courts reviewing board decisions (see, e.g., Amoruso v Board of Managers, 38 AD2d 845; Lenox Manor v Gianni, 120 Misc 2d 202; see, Note, Judicial Review of Condominium Rulemaking, op. cit., at 659-661 [discussing cases from other jurisdictions]).
As applied in condominium and cooperative cases, review of a board's decision under a reasonableness standard has much in common with the rule we adopt today. A primary focus of the inquiry is whether board action is in furtherance of a legitimate purpose of the cooperative or condominium, in which case it will generally be upheld. The difference between the reasonableness test and the rule we adopt is twofold. First unlike the business judgment rule, which places on the owner seeking review the burden to demonstrate a breach of the board's fiduciary duty reasonableness review requires the board to demonstrate that its decision was reasonable. Second, although in practice a certain amount of deference appears to be accorded to board decisions, reasonableness review permits indeed, in theory requires the court itself to evaluate the merits or wisdom of the board's decision (see, e.g., Hidden Harbour Estates v Basso, 393 So 2d 637, 640 [Fla Dist Ct App]), just as the Appellate Division did in the present case.
The more limited judicial review embodied in the business judgment rule is preferable. In the context of the decisions of a for-profit corporation, "courts are ill equipped and infrequently called on to evaluate what are and must be essentially business judgments * * * by definition the responsibility for business judgments must rest with the corporate directors; their individual capabilities and experience peculiarly qualify them for the discharge of that responsibility." (Auerbach v Bennett, 47 NY2d, supra, at 630-631.) Even if decisions of a cooperative board do not generally involve expertise beyond the usual ken of the judiciary, at the least board members will possess experience of the peculiar needs of their building and its residents not shared by the court.
Several related concerns persuade us that such a rule should apply here. As this case exemplifies, board decisions concerning what residents may or may not do with their living space may be highly charged and emotional. A cooperative or condominium is by nature a myriad of often competing views regarding personal living space, and decisions taken to benefit the collective interest may be unpalatable to one resident or another, creating the prospect that board decisions *540 will be subjected to undue court involvement and judicial second-guessing. Allowing an owner who is simply dissatisfied with particular board action a second opportunity to reopen the matter completely before a court, which generally without knowing the property may or may not agree with the reasonableness of the board's determination, threatens the stability of the common living arrangement.
Moreover, the prospect that each board decision may be subjected to full judicial review hampers the effectiveness of the board's managing authority. The business judgment rule protects the board's business decisions and managerial authority from indiscriminate attack. At the same time, it permits review of improper decisions, as when the challenger demonstrates that the board's action has no legitimate relationship to the welfare of the cooperative, deliberately singles out individuals for harmful treatment, is taken without notice or consideration of the relevant facts, or is beyond the scope of the board's authority.
Levandusky failed to meet this burden, and Supreme Court properly dismissed his petition. His argument that having once granted its approval, the board was powerless to rescind its decision after he had spent considerable sums on the renovations is without merit. There is no dispute that Levandusky failed to comply with the provisions of the "Alteration Agreement" or "Renovation Guidelines" designed to give the board explicit written notice before it approved a change in the building's heating system. Once made aware of Levandusky's intent, the board promptly consulted its engineer, and notified Levandusky that it would not depart from a policy of refusing to permit the movement of pipes. That he then went ahead and moved the pipe hardly allows him to claim reliance on the board's initial approval of his plans. Indeed, recognition of such an argument would frustrate any systematic effort to enforce uniform policies.
Levandusky's additional allegations that the board's decision was motivated by the personal animosity of another board member toward him, and that the board had in fact permitted other residents to jog their steam risers, are wholly conclusory. The board submitted evidence unrefuted by Levandusky that it was acting pursuant to the advice of its engineer, and that it had not previously approved such jogging. Finally, the fact that allowing Levandusky an exception to the policy might not have resulted in harm to the building *541 does not require that the exception be allowed. Under the rule we articulate today, we decline to review the merits of the board's determination that it was preferable to adhere to a uniform policy regarding the building's piping system.
Turning to the concurrence, it is apparent that in many respects we are in agreement concerning the appropriate standard of judicial review of cooperative board decisions; it is more a matter of label that divides us. For these additional reasons, we believe our choice is the better one.
For the guidance of the courts and all other interested parties, obviously a single standard for judicial review of the propriety of board action is desirable, irrespective of the happenstance of the form of the lawsuit challenging that action.[*] Unlike challenges to administrative agency decisions, which take the form of article 78 proceedings, challenges to the propriety of corporate board action have been lodged as derivative suits, injunction actions, and all manner of civil suits, including article 78 proceedings. While the nomenclature will vary with the form of suit, we see no purpose in allowing the form of the action to dictate the substance of the standard by which the legitimacy of corporate action is to be measured.
By the same token, unnecessary confusion is generated by prescribing different standards for different categories of issues that come before cooperative boards for example, a standard of business judgment for choices between competing economic options, but rationality for the administration of corporate bylaws and rules governing shareholder-tenant rights (see, concurring opn, at 545). There is no need for two rules when one will do, particularly since corporate action often partakes of each category of issues. Indeed, even the decision here might be portrayed as the administration of corporate bylaws and rules governing shareholder-tenant rights, or more broadly as a policy choice based on the *542 economic consequences of tampering with the building's piping system.
Finally, we reiterate that "business judgment" appears to strike the best balance. It establishes that board action undertaken in furtherance of a legitimate corporate purpose will generally not be pronounced "arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]) in article 78 proceedings, or otherwise unlawful in other types of litigation. It is preferable to a standard that requires Judges, rather than directors, to decide what action is "reasonable" for the cooperative. It avoids drawing sometimes elusive semantical distinctions between what is "reasonable" and what is "rational" (the concurrence rejects the former but embraces the latter as the appropriate test). And it better protects tenant-shareholders against bad faith and self-dealing than a test that insulates board decisions "if there is a rational basis to explain them" or if "an articulable and rational basis for the board's decision exists." (Concurring opn, at 548.) The mere presence of an engineer's report, for example "certainly a rational explanation for the board's decision" (concurring opn, at 548) should not end all inquiry, foreclosing review of nonconclusory assertions of malevolent conduct; under the business judgment test, it would not.
Accordingly, the order of the Appellate Division should be modified, with costs to appellant, by reinstating Supreme Court's judgment to the extent it granted appellant's cross motions regarding the steam riser and severed and set down for assessment the issue of damages and, as so modified, affirmed.
TITONE, J. (concurring).
I concur in the majority's decision to modify, and I agree with much of its reasoning. Indeed, like the majority, I conclude that in fashioning standards for review of decisions made by cooperative apartment boards we should be guided by the need to afford these boards the greatest possible degree of deference, since excessive judicial interference would unquestionably undermine their effectiveness. My disagreement with the majority thus lies not in its rejection of a test of "reasonableness" that would embroil the courts in second-guessing the wisdom of every cooperative board decision, but rather in its choice to formulate the proper standard in terms of the "business judgment rule." That standard, which is most often applied to review of management's business decisions and use of corporate assets, is ill-suited *543 to the entirely different task of reviewing management's implementation of the bylaws and rules governing shareholders' rights and duties. Accordingly, I write separately to express my own views as to the proper standard for judicial review in these cases.
My own analysis begins with the fact that the shareholder's challenge to the cooperative board's action in this case was made through the procedural vehicle of a CPLR article 78 proceeding. That procedural choice was not a mere "happenstance" or accident of nomenclature (majority opn, at 541). Petitioner was not making a claim of waste or self-dealing by corporate management of the type that would ordinarily be cognizable in a derivative action brought pursuant to Business Corporation Law § 626. Rather, petitioner was alleging misfeasance in the administration of the bylaws and rules governing shareholders' rights to use and enjoy their apartments.
In the past, similar claims involving the administration of shareholders' rights and duties vis-à-vis the other shareholders, the corporation's management and the corporation as a discrete legal entity have been treated as matters cognizable under article 78 (see, e.g., Matter of Crane Co. v Anaconda Co., 39 N.Y.2d 14; Matter of Auer v Dressel, 306 N.Y. 427; see also, 5A Fletcher, Cyclopedia Corporations § 2214 [Perm ed 1987]). As one commentator has noted, "[m]andamus to review the discretional acts of a private corporation is commonplace since the corporation is a creature of the state" (McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C7802:1, at 276 [and cases cited therein]; cf., Matter of Carr v St. John's Univ., 12 N.Y.2d 802 [decisions of educational corporations also subject to review for arbitrariness under article 78]). The justification for article 78 review in these circumstances is, quite simply, that the authority of corporations and their directors to act is derived directly from franchises issued by the State (McLaughlin, Practice Commentaries, op. cit., at 276). Since the decision of which petitioner complains was a discretionary act affecting shareholders' rights and was made by a board of directors acting pursuant to the bylaws and rules of a franchised corporation, article 78 review was plainly the proper remedy.
Given that conclusion, our choice of an appropriate standard for judicial review must be guided by CPLR 7803, which describes with particularity "[t]he only questions that may be raised in a[n article 78] proceeding". It is well established that *544 the four "questions" set forth in CPLR 7803 (1)-(4) are the exclusive measures of the judiciary's power of review in matters cognizable under article 78 (see, e.g., Matter of Pell v Board of Educ., 34 N.Y.2d 222). It is equally well established that the standard for reviewing discretionary decisions of "bodies or officers" is whether the challenged decision was "made in violation of lawful procedure" or was "arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]). It is that test which should be our starting point here.
The "arbitrary and capricious" standard of CPLR 7803 (3), used judiciously, would be more than adequate to accomplish the primary goals identified by the majority, i.e., providing some check on the potential for abusive exercise of the power of cooperative apartment boards, while, at the same time, minimizing the type of judicial interference that could impair the ability of these boards to govern effectively (cf., Matter of Olsson v Board of Higher Educ., 49 N.Y.2d 408, 413-414; Matter of Fiacco v Santee, 72 AD2d 652; Matter of Edde v Columbia Univ., 8 Misc 2d 795, affd 6 AD2d 780, cert denied 359 US 956 [all noting judicial reluctance to interfere with academic decisionmaking and applying minimal "arbitrary and capricious" scrutiny to such decisions]). Indeed, the cornerstone of article 78 review under the "arbitrary and capricious" test is that "a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable" (Matter of Diocese of Rochester v Planning Bd., 1 N.Y.2d 508, 520).
Given the suitability of the statutory "arbitrary and capricious" standard, I cannot concur in the majority's decision to reach out and embrace the "business judgment rule", a standard that was developed to address an entirely different class of problems. The "business judgment" rule to which the majority refers is most relevant, and has most often been applied in the past, to shareholder derivative actions brought to challenge the propriety of management's business decisions including such diverse matters as investment choices, the making of contractual commitments, long-range corporate planning and the decision as to whether it is in the corporate interest to pursue an action against a director for waste (see, e.g., Auerbach v Bennett, 47 N.Y.2d 619; Kalmanash v Smith, 291 N.Y. 142; Pollitz v Wabash R. R. Co., 207 N.Y. 113). In fact, the classic formulation of the rule is closely tailored to the open-ended decisionmaking within a virtually limitless universe of economic options that typifies business choices: "Questions *545 of policy of management, expediency of contracts or action, adequacy of consideration, lawful appropriation of corporate funds to advance corporate interests, are left solely to [the directors'] honest and unselfish decision, for their powers therein are without limitation and free from restraint" (Pollitz v Wabash R. R. Co., supra, at 124, quoted in Auerbach v Bennett, supra, at 629). Concomitantly, review under the "business judgment" rule is limited to determining whether the challenged action is "taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes", because "courts are ill equipped * * * to evaluate what are and must be essentially business judgments * * * [as to which] there can be no available objective standard" for measuring their correctness (Auerbach v Bennett, supra, at 629, 630; see, Fe Bland v Two Trees Mgt. Co., 66 N.Y.2d 556, 565).
This test may have some utility by analogy in a limited class of cases involving cooperative apartment boards. In Schoninger v Yardarm Beach Homeowners' Assn. (134 AD2d 1), for example, the court used the business judgment rule to rebuff a shareholder's challenge to a decision by a cooperative board to pursue a particular program of repair and rehabilitation in preference to the program suggested by the shareholder and her experts. Application of the rule to this problem was appropriate because the challenged action was, in essence, a business judgment, i.e., a choice between competing and equally valid economic options, albeit one not necessarily motivated by the desire to make a profit.
The justification for applying the business judgment rule to cooperative apartment board decisions falls short, however, in cases such as this one, which involves the administration of the corporate bylaws and rules governing shareholder-tenant rights (cf., Schoninger v Yardarm Beach Homeowners' Assn., supra, at 8-9 [distinguishing between the two categories of decisionmaking and recognizing that different standards of review should be applied]). First, in contrast to cases involving sheer business choices, our courts' extensive experience in reviewing licensing, zoning and other discretionary administrative matters renders them well suited, rather than "ill equipped," to deal with questions such as the rationality or arbitrariness of a board decision to grant or deny a shareholder's application for permission to renovate. Second, this test provides an objective standard and thereby minimizes the risk *546 of excessive judicial intervention and entanglement in what, as the majority notes, are often highly emotional disputes.
In contrast, the standard of review mandated by the traditional business judgment rule focuses principally on the honesty and integrity of the decisionmaker, and the presence or absence of self-dealing or fraud in the decisionmaking process (see, e.g., Auerbach v Bennett, supra, at 629-630; Pollitz v Wabash R. R. Co., supra). However, questions of pure venality or dishonesty on the part of board members rarely enter into disputes about the use of residential cooperative apartment units. The more common sources of disputes in this area are the alleged arbitrariness of a particular board decision or, as here, the alleged existence of a vendetta or other personally malicious motive (see, e.g., Matter of Boisson v 4 E. Hous. Corp., 129 AD2d 523).
By its own admission, the majority's adoption of the "business judgment" rule for these intramural controversies is motivated largely by its own view that the courts ought to mediate in the latter class of cases. It is this choice that most clearly differentiates my position from the majority's and renders our disagreement more than a simple "matter of label" (majority opn, at 541). Unlike the majority, I believe that a rule which authorizes judicial inquiry into the personal motives and potentially vindictive aims underlying otherwise rational decisions is fundamentally unsound for precisely the same reasons that have led the majority to reject the "reasonableness" test that the Appellate Division apparently used.
As the majority notes, these disputes over the use of the shareholder's own living space often pit neighbor against neighbor under circumstances that are likely to generate bitterness and distrust. Further, the very nature of cooperative apartment living, which throws relative strangers together, requires them to reside in close proximity and forces them to cede a degree of personal freedom to the collective good, provides a fertile breeding ground for festering resentments and long-standing feuds. Thus, claims of "bad faith," in the sense of personally directed animus, will be relatively easy to make in these cooperative board disputes and will be equally easy to support with factual allegations dredging up the details of the parties' old grievances. The likely consequence will be more claims capable of surviving a motion to *547 dismiss (see, e.g., Matter of Boisson v 4 E. Hous. Corp., supra)[1] and more judicial interference with management decisionmaking than the "reasonableness" standard the majority rejects would produce.
Moreover, a standard that would authorize our courts to explore the board members' ulterior personal motives is, in my view, both impractical and undesirable as a matter of judicial policy. It is impractical because many, if not most, of the challenged decisions will involve a mixture of malevolent and legitimate motives. Exposing, separating and then measuring the role that the various motives played in the decisionmaking process is a daunting, and probably unrealistic, inquiry. Further, the undesirability of focusing on the parties' subjective motives is plain, since such a focus will encourage the combatants to bring all of their dirty laundry into the courtroom and will place the court in the distasteful role of arbiter of a myriad of petty accusations and grievances.[2]
Because of these serious pitfalls, I would simply apply the "arbitrary and capricious" standard of article 78 to these cases and hold that discretionary decisions of the cooperative board regarding individual shareholder-tenants' rights are not *548 actionable if there is a rational basis to explain them. Contrary to the majority's suggestion (majority opn, at 541-542), there is nothing undesirable, or even particularly unusual, about applying differing standards of judicial review to cases involving different types of issues. Indeed, CPLR 7803 mandates the use of different standards for disputes between citizens and the State, depending upon the category of issue to be considered (CPLR 7803). Similarly, there is no sound reason to insist upon a single standard for judicial review for cases presenting diverse legal problems simply because they arise within the setting of cooperative apartment corporations. Again, this is not a matter of mere "happenstance" or "labeling," but rather of claims which present fundamentally different problems requiring the use of different analytical tools. Disputes in which shareholder-tenants seek to vindicate their group interests as against the board of directors are analogous to Business Corporation Law § 626 derivative actions and lend themselves readily to the "business judgment" standard of review. In contrast, disputes which pit an individual shareholder-tenant against the other shareholder-tenants, acting either as a group or through their elected board, are more amenable to analysis under the CPLR 7803 (3) "arbitrary and capricious" standard. The distinction is not difficult to apply and is no more confusing than the well-understood distinction between representative shareholder actions for waste and mismanagement and those brought by individual shareholders to vindicate their personal rights.
Finally, despite the majority's assertions to the contrary, the arbitrary and capricious standard, when properly applied, does not entail an inquiry into the "reasonableness" or the wisdom of the challenged decision. To the contrary, as in the case of article 78 review of discretionary administrative determinations, the judicial role in these cases is limited to ascertaining that an articulable and rational basis for the board's decision exists.
Here, for example, the board's stated concern and its ostensible basis for refusing petitioner's request for permission to tinker with a steam riser was the risk of creating unforeseen problems elsewhere in the building's old, well-worn pipe system. This concern, which was articulated by the building's engineer, was certainly a rational explanation for the board's decision and was therefore sufficient to remove that decision from the category of "arbitrary and capricious" determinations *549 that are cognizable under article 78. This conclusion should, and would, end the inquiry under the test I propose.
In sum, the business judgment rule, with its attendant focus on the honesty of the decisionmaker, is a poor fit in the context of discretionary administrative decisions such as this one. Further, I can see no reason to stretch the contours of that rule's standard of review for these cases, because a more apt test lies readily at hand, i.e., the standard set forth in CPLR 7803 (3). Since application of that test leads me to the same ultimate conclusion as the majority has reached by its somewhat more circuitous route, I concur, but only in the result.
Order modified, with costs to appellant, in accordance with the opinion herein and, as so modified, affirmed.
NOTES
[*] We of course do not disregard the form of action. In determining whether appellant's decision was "arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]), we would use "business judgment," the concurrence some form of "rationality" or "reasonableness." By analogy, we hold today in Akpan v Koch (75 N.Y.2d 561, 574 ([decided today]) that because a governmental agency took the required "hard look" under the State's environmental protection laws, its action cannot be characterized as arbitrary and capricious or an abuse of discretion under CPLR 7803 (3). So too here, board action that comes within the business judgment rule cannot be characterized as arbitrary and capricious, or an abuse of discretion.
[1] The majority's decision to reject petitioner's claims without an evidentiary hearing is difficult to reconcile with its expressed unwillingness to foreclose review of allegations of "malevolent conduct" (majority opn, at 542). Petitioner's papers contained factual allegations that one of the board members "has for several years been * * * causing problems for any other cooperator who needs something from the Board" and that this board member "is causing problems for [petitioner] because [he] said publicly that she had violated her proprietary lease by hooking up a sink in the rooftop greenhouse of her apartment." Petitioner further claimed that the full board knew about this violation but was "afraid to do anything because of the threat of becoming victim of [the board member's] vendettas." Although the majority describes petitioner's claims on this point as "wholly conclusory" (majority opn, at 540), these allegations seem to me to be sufficiently specific to survive a motion to dismiss under a test that looks beyond the objective rationality of the decision and mandates an inquiry into the subjective motivations of the decisionmaker. Indeed, the allegations here are indistinguishable in principle from those made in Matter of Boisson v 4 E. Hous. Corp. (129 AD2d 523), in which the court concluded that a hearing into bad faith was warranted on the basis of an alleged "vendetta" arising from a prior incident involving the petitioner and the current board president.
[2] These difficulties do not arise in the more conventional applications of the "business judgment" rule to shareholder's suits involving the actions of business corporation boards, since the focus in these applications is on the alleged ulterior financial motives of the directors a matter which is susceptible to objective verification.
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DISMISS; and Opinion Filed July 23, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00450-CV
JAMES T. CHAO, Appellant
V.
PLANO BUILDING STANDARD COMMISSION, CITY OF PLANO, TEXAS, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-05450-2016
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Evans, and Justice Brown
Opinion by Justice Brown
Pro se appellant appeals from the trial court’s order granting appellee’s plea to the
jurisdiction. After numerous extensions, appellant filed his brief on March 15, 2018. In an order
dated March 27, 2018, we informed appellant his brief was deficient. Specifically, the brief is
deficient in that, among other things, (1) it does not contain a concise statement of the case, the
course of proceedings, and the trial court’s disposition of the case supported by record
references, (2) it does not concisely state all issues presented for review, (3) it does not contain a
concise statement of facts supported by record references, (4) it does not contain a succinct,
clear, and accurate statement of the arguments made in the body of the brief, (5) the argument
does not contain appropriate citations to authorities and to the record, and (6) it does not contain
a short conclusion that clearly states the nature of the relief sought. See TEX. R. APP. P. 38.1 (d),
(f), (g), (h), (i), and (j). We ordered appellant to file, by April 16, 2018, an amended brief
correcting the noted deficiencies and cautioned him that failure to comply may result in the
appeal being dismissed without further notice. See id. 38.8(a)(1); 42.3(b), (c).
Since this Court’s March 27 order, appellant has filed three motions to extend the time to
file his amended brief. By order dated June 19, 2018, we granted appellant an extension and
cautioned him that no further extension would be granted and that failure to comply may result in
dismissal of the appeal without further notice. Appellant failed to comply. On July 16, 2018, he
filed a motion for extension.
Although individuals have the right to represent themselves as pro se litigants in civil
cases, they are required to follow the same rules of appellate procedure that licensed attorneys
are required to follow. See Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 895
(Tex. App.—Dallas 2010, no pet.). Appellate court judges are not responsible for “identifying
possible trial court error” or favorable facts or law to support parties’ contentions. Id.
Importantly, under rule 38.1(f), the court “must be able to discern what question[s] of law [it]
will be answering.” Id. at 896. A brief fails if it does not articulate the issues to be answered by
the court. Id. If a brief articulates the issues to be decided by the court, “then rule 38.1(i) calls
for the brief to guide [the court] through the appellant’s argument with clear and understandable
statements of the contentions being made.” Id. Under rule 38.1(i), appellant’s argument must
make direct references to facts in the record and applicable legal authority. Id. A brief fails
under rule 38.1(i) if the court must speculate or guess as to the contentions being made or if
record references are not provided. Id.
Appellant’s brief consists basically of three sentences and a request for an extension to
file the remaining sections “due to server cyberspace attacks” and an allegation that “one of the
clerk’s certifications is a misrepresentation.” The brief is admittedly incomplete. It does not
–2–
contain any statement of facts supported by record references or any argument in support of the
issues with citations to authorities and the record. Because appellant has not provided the Court
with existing legal authority that can be applied to the facts of the case, the brief
fails. See Bolling, 315 S.W.3d at 896.
Appellant has failed to comply with the briefing requirements of our appellate rules after
having been given numerous opportunities to do so. Accordingly, we deny appellant’s July 16
motion requesting an extension and dismiss the appeal. See Tex. R. App. P 38.8(a)(1); 42.3(b),
(c).
/Ada Brown/
ADA BROWN
JUSTICE
170450F.P05
–3–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JAMES T. CHAO, Appellant On Appeal from the 401st Judicial District
Court, Collin County, Texas
No. 05-17-00450-CV V. Trial Court Cause No. 401-05450-2016.
Opinion delivered by Justice Brown. Chief
PLANO BUILDING STANDARD Justice Wright and Justice Evans
COMMISSION, CITY OF PLANO, participating.
TEXAS, Appellee
In accordance with this Court’s opinion of this date, the appeal is DISMISSED.
Judgment entered this 23rd day of July, 2018.
–4–
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520 N.E.2d 1267 (1988)
Kenneth H. ROZIKA, Appellant,
v.
STATE of Indiana, Appellee.
No. 26S00-8703-CR-332.
Supreme Court of Indiana.
April 6, 1988.
Rehearing Denied June 14, 1988.
*1268 Joe D. Black, Ramsey & Black, Vincennes, for appellant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
GIVAN, Justice.
A jury trial resulted in appellant's conviction of Robbery Resulting in Bodily Injury, a Class B felony, for which he received a twelve (12) year sentence.
The facts are: During the early morning hours of August 19, 1986, Thomas Robb finished his shift at work and returned to his home in Gibson County, Indiana. When he was unlocking his door, he noticed appellant behind him. Robb testified that appellant was holding a can of spray mace behind his back and said he planned to take his television set. Robb further testified that appellant erroneously believed he owed him money pursuant to a loan agreement, and he wanted Robb's personal property to use a collateral. They both entered Robb's house, and Robb tried to convince appellant to leave. With the can of mace in his hand, appellant demanded that Robb locate his television set, which he did. Appellant found Robb's electric guitar in a bedroom, and as Robb entered the room, appellant sprayed him in the face with mace. A struggle ensued as Robb attempted to reach his shotgun behind the door, and appellant continued to spray him with mace. After Robb was able to grasp his gun, appellant ran out of the house with Robb's electric guitar.
Mable Adkins testified that on August 19, 1986, appellant came to her house because he thought her son might be interested in purchasing the electric guitar for $400. While her son was using it on a trial basis, they learned it was stolen property so they informed the police. The next day police charged appellant with robbery.
Appellant argues the evidence is insufficient to support his conviction. He believes that because he had used Robb's personal property as collateral for previous loan transactions and because the guitar was taken to serve the same purpose, he had no criminal intent.
This Court will not reweigh the evidence or judge the credibility of the witnesses. Polk v. State (1984), Ind., 467 N.E.2d 666. Recently this Court has held that a creditor's attempt to collect by force a secured loan does not negate the criminal intent element of robbery. "[T]he law does not sanction the use of self-help with firearms as a debt collection device. It does not permit creditors to rely on violence, threats, or weapons to collect debts; they should seek redress through the appropriate legal and peaceful channels (footnote omitted)." Sheckles v. State (1986), Ind., 501 N.E.2d 1053. We find the evidence is sufficient to sustain his conviction.
Appellant contends the trial court erred by denying his motion for new trial based on newly-discovered evidence. He produced an affidavit of Monte Frederick who, according to appellant's testimony, sat in the car while he visited Robb's home on the night of the offense. The affiant stated that after the incident occurred he saw Robb at a tavern, and Robb told him that he was sorry; his parents made him press charges, and he would pay appellant the money he owed him plus extra.
Relief by a new trial when evidence is newly-discovered is authorized by Ind.R. Tr.P. 59(A)(6). To gain such relief, appellant must prove that: 1) the evidence has been discovered since the trial; 2) it is material and relevant; 3) it is not cumulative; 4) it is not merely impeaching; 5) it is not privileged or incompetent; 6) due diligence was used to discover it in time for trial; 7) the evidence is worthy of credit; 8) it can be produced on a retrial of the case; and 9) and it will probably produce a different *1269 result. Wilson v. State (1987), Ind., 511 N.E.2d 1014.
Appellant believes that the new evidence will produce a different result upon retrial because it will directly contradict the victim's testimony. We cannot agree. As we stated above, whether Robb owed appellant money is not relevant because appellant may not defend a robbery charge by alleging that the victim owed him money. Therefore, the affiant's information would not cause a different result upon retrial. The trial court did not err in denying appellant's motion.
Appellant believes he was denied effective assistance of counsel. He contends that his trial counsel's failure to call three witnesses, failure to make a motion to strike certain testimony, and failure to move for a continuance violated his right to effective assistance of counsel.
Appellant must overcome with strong and convincing evidence the presumption of his counsel's competency. Stewart v. State (1988), Ind., 517 N.E.2d 1230. Also, this Court will not speculate about what may have been the most advantageous strategy in a particular case. Isolated poor strategy, inexperience, or bad tactics do not necessarily establish ineffective assistance of counsel. Grigsby v. State (1987), Ind., 503 N.E.2d 394. Appellant also must prove that he was prejudiced by showing that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Geary v. State (1986), Ind., 497 N.E.2d 228.
Appellant states that Monte Frederick, Kathy Langston and Rocky Sumner would have provided their opinions that a robbery did not occur, that appellant was acting in self-defense, and that Robb had told them that appellant did not rob him. He believes that if these witnesses had testified, he probably would have been acquitted.
The decision whether to call a particular witness to testify on behalf of the defendant is a matter within trial counsel's strategy. We will not declare counsel ineffective for failure to call a particular witness without a clear showing of prejudice.
The statement that Frederick accompanied appellant to Robb's home and saw them engage in a struggle might have been considered by appellant's counsel to have a negative impact on appellant's case. We will not speculate as to his trial tactics.
Appellant believes his trial counsel's failure to call Langston and Sumner as witnesses was error because they would have testified that Robb told them he was not robbed by appellant. Appellant has provided no affidavit from Langston or Sumner stating what their testimony would have been had they been allowed to testify. Appellant's bare assertion does not provide a clear showing of prejudice. We cannot find his trial counsel ineffective based upon this allegation. Cobb v. State (1987), Ind., 505 N.E.2d 51.
Appellant asserts that his trial counsel was ineffective because he failed to make a motion to strike Robb's testimony. During cross-examination, Robb was asked whether he kept any receipts showing payments he made to appellant, and Robb said no. When he was asked why he did not keep them, Robb pleaded the Fifth Amendment to the United States Constitution. At the conclusion of the State's case, appellant's attorney moved to strike Robb's testimony because his invocation of the Fifth Amendment was inconsistent with his promise to tell the "whole truth." His motion was denied and appellant argues that because the motion to strike was delayed, he was not afforded effective assistance of counsel.
Appellant has not alleged or demonstrated how he was prejudiced by the delayed motion to strike, thus we cannot find that his attorney's conduct was ineffective. Grigsby, supra.
Appellant argues his counsel was ineffective because he "hurried appellant into a very fast trial." The record shows that on September 3, 1986, appellant's trial counsel was appointed. Appellant's jury trial began on September 25, 1986. No allegation was made by appellant that his trial counsel was unprepared for trial, nor does the record demonstrate such. We *1270 cannot find that appellant's trial counsel was ineffective based upon his lone assertion that he was hurried into trial.
Appellant contends the trial court committed fundamental error by refusing his tendered instruction on self-defense.
Appellant asserts that because self-defense was an issue at trial, the refusal of his instruction deprived him of a fair trial. We have held that self-defense is not available where the accused is the initial aggressor. Arnold v. State (1984), Ind., 460 N.E.2d 494; Ind. Code § 35-41-3-2(d)(3). We find no error in the refusal of the instruction.
Appellant argues that the trial court erred in refusing to reread the instructions to the jury.
After the trial judge read final instruction twelve to the jury, a juror began to ask him to repeat it. The judge responded that he would be happy to reread all the instructions upon any juror's request but he could not put undue emphasis on any single one. In the order book, the trial judge noted that the court, on its own motion, tendered a copy of the instructions to the jury prior to deliberations because a juror requested that he reread an instruction. Appellant contends it was error to give the jury a copy of the instructions in lieu of rereading them.
We first note that appellant made no objection to the procedure of tendering the instructions to the jury, and his failure to object results in waiver of the issue. Wood v. State (1987), Ind., 512 N.E.2d 1094. Further, it is not error to send instructions to the jury room if they were first read in open court, so long as the instructions are devoid of any extraneous markings which could place undue emphasis on any single instruction. Id.; Denton v. State (1986), Ind., 496 N.E.2d 576. In the order book, the trial judge noted that the instructions bore no marks which could identify from whom they originally emanated, and the trial court believed it necessary to provide a copy of the instructions to the jury to assist them in their deliberations. We find no error.
The trial court is affirmed.
SHEPARD, C.J., and PIVARNIK and DICKSON, JJ., concur.
DeBRULER, J., concurs in result without separate opinion.
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Case: 14-10688 Date Filed: 08/29/2014 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10688
Non-Argument Calendar
________________________
D.C. Docket No. 8:12-cv-00656-JSM-EAJ
FRANCISCO MARTIN,
Plaintiff-Appellant,
versus
ONE BRONZE ROD,
ONE CHEST, including its contents and associated artifacts,
ONE CHEST, including its contents and associated artifacts,
ONE CHEST, including its contents and associated artifacts,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 29, 2014)
Before HULL, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 14-10688 Date Filed: 08/29/2014 Page: 2 of 14
Plaintiff-Appellant Francisco Martin sought warrants of arrest in rem against
one bronze rod and three chests, including their contents and associated artifacts, in
connection with his claims for salvage, forfeiture, and/or possession brought under
federal admiralty jurisdiction in the district court. Martin believes the res to be
cargo of the Gasparilla Pirates buried over 150 years ago. The district court denied
his motion for the issuance of a warrant of arrest in rem as to the three chests,
which remain buried on private and state-owned lands, but granted it as to the
bronze rod, which Martin had already seized, and eventually awarded Martin full
title to the rod as compensation for his salvage services. Martin now appeals the
district court’s rulings as to the three chests. After careful review, we affirm.
I. BACKGROUND
Martin alleges that through extensive research, including deciphering codes
engraved on copper and pewter plates, he discovered the location of what he
believes to be piratical cargo buried by the Gasparilla Pirates over 150 years ago in
the Peace River Basin in DeSoto County, Florida. Martin already found and took
possession of one bronze rod, which he removed by hand from the river bottom,
15% of the rod having been buried. He also claims that he has pinpointed the
locations of three buried chests using a deep penetrating metal detector, but he has
been prevented from unearthing the chests because they are on private property
2
Case: 14-10688 Date Filed: 08/29/2014 Page: 3 of 14
and state-owned lands. Notably, he alleges that the rod and the chests are different
portions of the same res.
Martin filed a verified amended complaint in the district court, which
included a salvage claim pursuant to the law of salvage, a forfeiture claim pursuant
to 33 U.S.C. §§ 383, 384, and 385,1 and possessory and ownership claims pursuant
1
Section 383 provides:
The commander and crew of any merchant vessel of the United States, owned
wholly, or in part, by a citizen thereof, may oppose and defend against any
aggression, search, restraint, depredation, or seizure, which shall be attempted
upon such vessel, or upon any other vessel so owned, by the commander or crew
of any armed vessel whatsoever, not being a public armed vessel of some nation
in amity with the United States, and may subdue and capture the same; and may
also retake any vessel so owned which may have been captured by the
commander or crew of any such armed vessel, and send the same into any port of
the United States.
33 U.S.C. § 383. Section 384 provides:
Whenever any vessel, which shall have been built, purchased, fitted out in whole
or in part, or held for the purpose of being employed in the commission of any
piratical aggression, search, restraint, depredation, or seizure, or in the
commission of any other act of piracy as defined by the law of nations, or from
which any piratical aggression, search, restraint, depredation, or seizure shall have
been first attempted or made, is captured and brought into or captured in any port
of the United States, the same shall be adjudged and condemned to their use, and
that of the captors after due process and trial in any court having admiralty
jurisdiction, and which shall be holden for the district into which such captured
vessel shall be brought; and the same court shall thereupon order a sale and
distribution thereof accordingly, and at its discretion.
Id. § 384. Section 385, which provides for the condemnation of piratical vessels upon capture by
any public-armed ship, is not applicable to Martin’s case, as his claims do not allege capture by
any such ship. See id. § 385.
3
Case: 14-10688 Date Filed: 08/29/2014 Page: 4 of 14
to the law of finds.2 He also filed a motion requesting the issuance of a warrant of
arrest in rem against the rod and the chests under Rules C and G of the
Supplemental Rules for Admiralty and Maritime Claims and Asset Forfeiture
Actions to the Federal Rules of Civil Procedure. 3 The magistrate judge found that
Martin had established a valid salvage claim as to the rod, but not the chests, and
rejected all other claims. Accordingly, the magistrate granted Martin’s motion for
the issuance of a warrant of arrest in rem for the rod and denied his motion in all
other respects.
Martin then filed a motion for reconsideration, arguing that the magistrate
erred in refusing to issue a warrant of arrest in rem for the chests. The magistrate
judge denied that motion, and Martin filed objections to the magistrate’s order.
2
Martin does not sufficiently raise any argument as to his claim under the law of
finds on appeal; he includes only one sentence in his Statement of the Case declaring that he
seeks title to the chests alternatively under the law of finds, which is insufficient to raise the issue
for review. See, e.g., Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir.
1989) (“Although Greenbriar refers to the district court’s dismissal of its amendment in its
Statement of the Case in its initial brief, it elaborates no arguments on the merits as to this issue
in its initial or reply brief. Accordingly, the issue is deemed waived.”).
3
Rule C of the Supplemental Rules for Admiralty and Maritime Claims provides
for maritime actions in rem to enforce any maritime lien or when a federal statute authorizes
such an action. Rule C states that “[i]f the conditions for an in rem action appear to exist, the
court must issue an order directing the clerk to issue a warrant for the arrest of the vessel or other
property that is the subject of the action.” Fed. R. Civ. P. Supp. R. C(3)(a)(i).
Rule G applies in conjunction with Rule C and governs forfeiture actions in rem arising
from a federal statute. It provides, inter alia, that “the court—on finding probable cause—must
issue a warrant to arrest the property if it is not in the government’s possession, custody, or
control and is not subject to a judicial restraining order.” Id. R. G(3)(b)(ii).
4
Case: 14-10688 Date Filed: 08/29/2014 Page: 5 of 14
The district court subsequently overruled Martin’s objections and affirmed the
magistrate’s order denying Martin’s motion for reconsideration. Martin then filed
a Notice of Interlocutory Appeal from the district court’s order affirming the
magistrate’s denial of his motion for reconsideration of the order refusing to issue a
warrant of arrest in rem for the chests. This Court dismissed the interlocutory
appeal for lack of appellate jurisdiction, finding that the appeal was from a
nonfinal order of the district court.
Martin filed a petition for reconsideration with the Eleventh Circuit, and
while his petition was pending, the district court ordered the case to be
administratively closed “without prejudice to Plaintiff to move to reopen the case if
he receives a favourable ruling from the Eleventh Circuit.” After this Court denied
his petition for reconsideration, Martin filed a motion to reopen the case with the
district court only “to seek a salvage or forfeiture award for his seizure of [the
bronze rod] (or, in the alternative, title to [the rod]).” He included one sentence
about the chests in his motion, stating that he “should be given leave to amend his
complaint as against [the chests] upon their eventual actual seizure by Martin.”
The district court granted Martin’s motion to reopen “for the sole purpose of
permitting Plaintiff to seek a salvage or forfeiture award related to his seizure of
Defendant One Bronze Rod.” The court denied Martin’s request for leave to
amend his complaint upon seizure of the chests, finding that he failed to state any
5
Case: 14-10688 Date Filed: 08/29/2014 Page: 6 of 14
reason why the court should permit amendment at such a late date. The court
noted that the magistrate’s order denying Martin’s motion for a warrant of arrest in
rem against the chests did not contemplate amendment and that Martin chose to
file an interlocutory appeal to the Eleventh Circuit rather than seek amendment.
After the district court granted his motion to reopen, Martin filed a motion
for judgment on the pleadings, claiming a right to the bronze rod or the proceeds
from the sale thereof under salvage and forfeiture law. He also declared that “[f]or
purposes of appeal, reconsideration and/or other review, Plaintiff preserves his
claims regarding Defendants Chests.” The court referred Martin’s motion for
judgment on the pleadings to the magistrate, who again rejected Martin’s forfeiture
claim under § 384 but found that Martin had established a valid salvage claim.
The magistrate recommended that Martin be awarded title to the rod, and the
district court adopted the magistrate’s Report and Recommendation on all
accounts, awarding Martin title to the rod as compensation for his salvage
services.4 The court entered final judgment, granting Martin full title to the rod
and dismissing his amended complaint in all other respects. Martin now appeals.
4
Martin had attached a 3.5-inch segment of the rod to his amended complaint,
turning over custody of the rod to the court, and the magistrate judge ordered the clerk of the
court to temporarily take possession of the segment. Then, after directing the clerk to issue a
warrant of arrest in rem for the rod, the magistrate, upon Martin’s motion, appointed Martin
substitute custodian of the rod and directed the United States Marshal to surrender possession of
the rod to Martin. After the issuance of the warrant of arrest in rem for the rod, Martin submitted
to the court proof of publication, which gave notice of the action in rem against the rod and the
6
Case: 14-10688 Date Filed: 08/29/2014 Page: 7 of 14
II. DISCUSSION
We review a judgment on the pleadings de novo. Hawthorne v. Mac
Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998). On appeal, Martin
challenges the lower court’s rejection of his salvage and forfeiture claims as to the
chests. 5 He also avers that the lower court erred in ruling that it lacked
constructive in rem jurisdiction over the chests.
Under Rule C of the Supplemental Rules for Admiralty and Maritime
Claims, a party may bring an action in rem to enforce any maritime lien or if a
federal statute provides for such an action. See Fed. R. Civ. P. Supp. R. C(1). If
the court determines that a prima facie case exists for an in rem action, “the court
must issue an order directing the clerk to issue a warrant for the arrest of the vessel
or other property that is the subject of the action.” Id. R. C(3)(a)(i). Under Rule
arrest thereof. Martin repeatedly demonstrated to the district court that no one had come forward
claiming title to the rod, and the court granted Martin’s motion to reopen the case to allow him to
seek a salvage or forfeiture award as to the rod. The court then granted him full title to the rod.
5
Martin’s Notice of Appeal identifies the district court’s final judgment, which
granted him full title to the bronze rod and dismissed his amended complaint in all other
respects, as the order from which he appeals. Although the district court reopened the case after
Martin’s interlocutory appeal to this Court solely to allow Martin to seek further action as to the
rod, because “the appeal from a final judgment draws in question all prior non-final orders and
rulings which produced the judgment,” Barfield v. Brierton, 883 F.2d 923, 930 (11th Cir. 1989),
his Notice of Appeal is sufficient to allow review of the district court’s orders regarding the
chests as well. See 16A Charles Alan Wright et al., Federal Practice and Procedure § 3949.4, at
100–05 (4th ed. 2008) (“A notice of appeal that names the final judgment suffices to support
review of all earlier orders that merge in the final judgment . . . , at least if the earlier orders are
part of the progression that led up to the judgment rather than being separate from that
progression.” (footnote omitted)).
7
Case: 14-10688 Date Filed: 08/29/2014 Page: 8 of 14
G, where an in rem forfeiture action arises from a federal statute, “the court—on
finding probable cause—must issue a warrant to arrest the property if it is not in
the government’s possession, custody, or control.” Id. R. G(3)(b)(ii). In this case,
the magistrate judge found, and the district court affirmed, that Martin failed to
establish either a prima facie case or probable cause pursuant to Rules C and G
justifying arrest in rem of the three chests under either salvage or forfeiture law.
For the following reasons, we affirm.
A. Salvage
Although the magistrate judge and the district court held that Martin had a
viable salvage claim with respect to the bronze rod, the lower courts rejected his
salvage claim with respect to the three chests. We agree.
“Salvage is the compensation allowed to persons by whose assistance a ship
or her cargo has been saved, in whole or in part, from impending peril on the sea,
or in recovering such property from actual loss, as in cases of shipwreck, derelict,
or recapture.” Simmons v. The S.S. Jefferson, 215 U.S. 130, 139–40, 30 S. Ct. 54,
57 (1909) (internal quotation marks omitted). A salvor has a lien on the property
saved under maritime law, which allows him to maintain a suit in rem against the
ship or cargo. The Sabine, 101 U.S. 384, 386 (1879). “[W]hen a party files an in
rem complaint, the court issues a warrant for the arrest of the res and the res
remains in the court’s custody for the remainder of the proceedings.” Odyssey
8
Case: 14-10688 Date Filed: 08/29/2014 Page: 9 of 14
Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1171
(11th Cir. 2011). Three elements are necessary to establish a valid claim for a
salvage award: (1) a maritime peril from which the ship or other property could not
have been rescued without the salvor’s assistance; (2) a voluntary act by the salvor
under no preexisting official or contractual duty to render assistance; and (3)
success in saving or in helping to save at least part of the property at risk. The
Sabine, 101 U.S. at 384; Klein v. Unidentified Wrecked & Abandoned Sailing
Vessel, 758 F.2d 1511, 1515 (11th Cir. 1985).
“Success is essential to the claim; as if the property is not saved, or if it
perish, or in case of capture if it is not retaken, no compensation can be allowed.”
The Blackwall, 77 U.S. (10 Wall.) 1, 12 (1869). Success in recovering the res is
especially important because the court is required to have “exclusive custody and
control over the property . . . so as to be able to adjudicate rights in it that are
binding against the world.” Odyssey Marine Exploration, 657 F.3d at 1171
(internal quotation marks omitted). In certain cases, however, courts have issued
arrest warrants and exercised in rem jurisdiction over property not yet in the actual
possession of the court where part of a shipwreck is recovered. See, e.g., R.M.S.
Titanic, Inc. v. Haver, 171 F.3d 943, 964 (4th Cir. 1999) (“The propriety of
exercising in rem jurisdiction over an entire ship wreck within the court’s
territorial jurisdiction when only part of that wreck is actually presented to a court
9
Case: 14-10688 Date Filed: 08/29/2014 Page: 10 of 14
rests upon the fiction that the res is not divided and that therefore possession of
some of it is constructively possession of all.”).
Regarding his success in salvaging the chests, Martin alleges only that he
has located three “large metallic objects” that he believes are piratical cargo
consisting of copper chests containing gold, silver, and jewelry. He nevertheless
argues that he was successful in recovering part of the imperiled res to which the
chests belong by salvaging the rod. Accordingly, he asks this Court to adopt a
theory of constructive in rem jurisdiction over the chests based on his successful
recovery of the rod. However, we agree with the lower courts that Martin has not
sufficiently demonstrated that the rod and the chests are part of an undivided res so
as to allow the court to exercise constructive in rem jurisdiction over the chests
based on his salvage of the rod. To the contrary, in his amended complaint Martin
describes the chests as “isolated and not in geographical association with any
shipwreck.” Moreover, Martin cites no case indicating that a theory of
constructive possession, which courts have used to exercise constructive in rem
jurisdiction over an entire shipwreck when only part of the wreck is presented to
the court, extends to separate items of cargo that are isolated from one another and
10
Case: 14-10688 Date Filed: 08/29/2014 Page: 11 of 14
do not hail from any shipwreck.6 And we decline the opportunity to extend the
theory in such a way under the circumstances of this case.
As Martin has otherwise failed to adequately plead success in whole or in
part in salvaging the chests, he has not established a valid salvage claim as to the
chests. 7 Thus, we find that the lower courts did not err in refusing to issue a
warrant of arrest in rem against the chests under the law of salvage.
B. Forfeiture
The magistrate judge and the district court found that Martin failed to
establish a viable forfeiture claim with respect to the three chests (or the bronze rod
for that matter). We agree.
Martin argues that he established a forfeiture claim against the chests under
33 U.S.C. §§ 383 and 384. Section 383, entitled “Resistance of pirates by
merchant vessels,” authorizes any merchant vessel owned by a United States
6
Martin does allege that he has located the shipwreck of a three-mastered schooner
operated by the Gasparilla Pirates in the Peace River Basin, and he also alleges that the rod and
the chests were all carried on board that ship. However, he repeatedly asserts that the chests
were intentionally buried—as opposed to being scattered by the sinking of any ship—and are
“not in geographical association with any shipwreck.” The circumstances of this case are
therefore distinct from those in which courts have applied a theory of constructive in rem
jurisdiction over an entire shipwreck based on actual possession of a part thereof.
7
Because we find that Martin’s salvage claim fails on the element of success, we
need not address the other two elements.
11
Case: 14-10688 Date Filed: 08/29/2014 Page: 12 of 14
citizen 8 to “oppose and defend against any aggression, search, restraint,
depredation or seizure” by a piratical vessel and to capture the vessel and retake
any other ship that the vessel previously captured. 33 U.S.C. § 383. Section 384,
entitled “Condemnation of piratical vessels,” provides:
Whenever any vessel, which shall have been built, purchased, fitted
out in whole or in part, or held for the purpose of being employed in
the commission of any piratical aggression, search, restraint,
depredation, or seizure, or in the commission of any other act of
piracy . . . is captured and brought into or captured in any port of the
United States, the same shall be adjudged and condemned to their use,
and that of the captors after due process and trial in any court having
admiralty jurisdiction . . . ; and the same court shall thereupon order a
sale and distribution thereof accordingly, and at its discretion.
Id. § 384. These provisions fall within a chapter of the United States Code entitled
“Regulations for the Suppression of Piracy,” and the cases triggering application of
§§ 383 and 384 are distinguishable from Martin’s circumstances. See, e.g., The
City of Mexico, 28 F. 148, 150 (S.D. Fla. 1886) (dismissing a claim for forfeiture
of a vessel as prize because the vessel had not committed any overt act of piracy);
The Chapman, 5 F. Cas. 471, 476 (N.D. Cal. 1864) (determining that the captured
vessel did not fall under the provisions relating to piracy and that, consequently,
the captors of the vessel were not entitled to any proceeds resulting from the
condemnation of the vessel because its seizure was not authorized under those
8
Martin alleged in his amended complaint that he is the owner and commander of a
merchant vessel.
12
Case: 14-10688 Date Filed: 08/29/2014 Page: 13 of 14
provisions); The Marianna Flora, 24 U.S. (11 Wheat.) 1, 2 (1825) (deciding
whether an armed vessel’s attack upon a United States armed schooner constituted
an act of piratical aggression).
The magistrate judge found, and the district court affirmed, that Martin
failed to demonstrate a sufficient nexus between the “large metallic objects” he
detected and piratical activity to support a forfeiture action against the rod or the
chests. Alternatively, the magistrate found in her denial of Martin’s motion for
reconsideration, which the district court affirmed, that Martin failed to establish
that he had captured the chests for purposes of a forfeiture claim against them
under §§ 383 and 384. Because we agree that Martin failed to establish that he
captured the chests, we need not comment on whether he demonstrated a sufficient
nexus between the chests and piratical activity.
Even assuming, but expressly not deciding, that cargo separate from a
vessel—the rod and the chests here—can give rise to a forfeiture action in rem
under these statutes, Martin has not established that he has captured the chests so
as to merit the issuance of a warrant of arrest in rem against them. It is undisputed
that he has not actually captured the chests. Instead, Martin asks us to adopt a
theory of constructive in rem jurisdiction as to the chests based on his seizure of
the rod, arguing that they are all part of the same res, and he contends that the
district court erred in not including the chests in the arrest warrant issued for the
13
Case: 14-10688 Date Filed: 08/29/2014 Page: 14 of 14
rod based on this constructive capture. However, we decline to adopt such a
theory under the circumstances of this case for the same reasons we declined to
find constructive possession of the chests under salvage law. See supra Part II.A.
We therefore affirm the district court’s finding that the forfeiture provisions of
Rule G do not authorize arrest of the chests.
Because Martin failed to establish a valid salvage or forfeiture claim for
arrest of the chests under Rule C or Rule G, the judgment of the district court is
AFFIRMED.
14
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3 So.3d 481 (2009)
STATE of Louisiana
v.
George KELLY.
No. 2008-KO-1482.
Supreme Court of Louisiana.
March 6, 2009.
Denied.
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61 Cal.App.3d 545 (1976)
132 Cal. Rptr. 236
PRONTO MARKET NO. 1, INC., Petitioner,
v.
ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Respondent; DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, Real Party in Interest.
Docket No. 48746.
Court of Appeals of California, Second District, Division Three.
August 26, 1976.
*546 COUNSEL
White, Price, Peterson & Robinson, Edward E. Weissman and M. Richardson Lynn, Jr., for Petitioner.
Evelle J. Younger, Attorney General, and Marilyn Mayer Moffett, Deputy Attorney General, for Respondent.
No appearance for Real Party in Interest.
OPINION
FORD, P.J.
Petitioner Pronto Market No. 1, Inc., seeks review of a decision of the Alcoholic Beverage Control Appeals Board (hereinafter designated as Board) denying petitioner's application for a type 9 beer and wine importer's license.
(1a) The issue presented in this matter is whether the tied-house restrictions contained in the Alcoholic Beverage Control Act (Bus. & *547 Prof. Code, § 25500 et seq.)[1] prohibit issuance of a type 9 beer and wine importer's license (§ 23320, subd. (9)) to petitioner because petitioner already holds a winegrower's license (§ 23320, subd. (2)) and an off-sale general license (§ 23320, subd. (21)).
Section 25502, upon which the Board primarily relied in denying petitioner's application, provides in pertinent part as follows: "No manufacturer, winegrower, ... importer, or wholesaler, or any officer, director, or agent of any such person, shall, except as authorized by this division: (a) Hold the ownership, directly or indirectly, of any interest in an off-sale general license...."
The purposes for and historical development of the tied-house restrictions were discussed by our Supreme Court in the case of California Beer Wholesalers Assn., Inc. v. Alcoholic Bev. etc. Appeals Bd., 5 Cal.3d 402 [96 Cal. Rptr. 297, 487 P.2d 745], wherein the court stated (pp. 407-408): "Following repeal of the Eighteenth Amendment, the vast majority of states, including California, enacted alcoholic beverage control laws. These statutes sought to forestall the generation of such evils and excesses as intemperance and disorderly marketing conditions that had plagued the public and the alcoholic beverage industry prior to prohibition. [Citations.] By enacting prohibitions against `tied-house' arrangements, state legislatures aimed to prevent two particular dangers: the ability and potentiality of large firms to dominate local markets through vertical and horizontal integration [citation] and the excessive sales of alcoholic beverages produced by the overly aggressive marketing techniques of larger alcoholic beverage concerns [citations].[7] [Fn. 7 is as follows: "`Underlying the tied-house prohibition is the assumption that the retail market for alcoholic beverages is elastic and that price cutting, aggressive marketing techniques, and similar practices tend to increase consumption and threaten the legislative goal of temperance.' [Citations.]"] [¶] The principal method utilized by state legislatures to avoid these anti-social developments was the establishment of a triple-tiered distribution and licensing scheme. [Citations.] Manufacturing interests were to be separated from wholesale interests; wholesale interests were to be segregated from retail interests. In short, business endeavors engaged in the production, handling, and final sale of alcoholic beverages were to be kept `distinct and apart.' (25 Ops.Cal.Atty.Gen. 288, 289 (1955).) [¶] In the era when most tied-house statutes were *548 enacted, state legislatures confronted an inability on the part of small retailers to cope with pressures exerted by larger manufacturing or wholesale interests.[8] [Citations.] [Fn. 8 is as follows: "The purpose of tied-house prohibitions was `to prevent the integration of retail and wholesale outlets and to remove retail dealer [sic] in intoxicating liquors from financial or business obligations to the wholesaler, with the exception of ordinary commercial credit for liquors sold.' (Pickerill v. Schott (Fla. 1951) 55 So.2d 716, 718 (quoting from 48 C.J.S., § 197, at p. 329).) `[T]he prohibition ... exists primarily to remove the influence by the manufacturer over the wholesaler and the wholesaler over the retailer, a practice which might result in preference for the manufacturer's or wholesaler's product....' 32 Ops.Cal.Atty.Gen. 75, 76 (1958)."]"
In California Beer Wholesalers Assn., Inc., supra, our Supreme Court further stated (5 Cal.3d at p. 408): "Consequently, most of the statutes enacted during this period (1930-1940) manifested a legislative policy of controlling large wholesalers; the statutes were drafted in sufficiently broad terms, moreover, to insure the accomplishment of the primary objective of the establishment of a triple-tiered system. All levels of the alcoholic beverage industry were to remain segregated; firms operating at one level of distribution were to remain free from involvement in, or influence over, any other level. Thus, although the most significant development in the industry since the 1950's has been the growth of large retail chains, the alcoholic beverage statutes enacted in the 1950's are sufficiently broad to control industry-wide domination by large retail chains as well. [Fn. omitted.] [¶] In addition, most statutes placed more stringent requirements on interests dealing in distilled spirits than on those dealing exclusively in beer and wine. Legislatures were especially concerned with the prevention of intemperance in the consumption of distilled spirits, since distilled spirits, of course, contain a significantly higher alcoholic content than beer and wine. Further, since distilled spirits may not deteriorate as rapidly as some beer and wine, legislatures were particularly fearful of the possibility that wholesalers of distilled spirits would foist even greater inventories upon local retailers. (Cf. Ralphs Grocery Co. v. Reimel (1968) 69 Cal.2d 172, 186, fn. 1 [70 Cal. Rptr. 407, 444 P.2d 79] (dissenting opn. of Burke, J.).)"
Despite the manifest purpose of the tied-house restrictions to prohibit integration of retail and wholesale outlets, an exception to that policy *549 was allowed by the Legislature in favor of California winegrowers and brandy manufacturers when it enacted section 23362, which provides as follows: "Notwithstanding any other provisions of this division [division 9], a licensed winegrower or brandy manufacturer may be issued and may hold an offsale general license...." An off-sale general license allows the holder to sell beer, wine and distilled spirits "to consumers only and not for resale" for consumption off the premises where sold, (§§ 23393, 23394.)
The concept that a winegrower may also have an off-sale general license may evoke a picture of a simple stand beside the vineyard where the winegrower sells his bottled product to consumers. Analysis of the Alcoholic Beverage Control Act, however, makes it clear that a winegrower with an off-sale general license may purchase any amount of wine or brandy from any winegrower, brandy manufacturer or importer and sell it along with his own wine to consumers without the necessity of dealing with a wholesaler. Under section 23356 a winegrower may produce wine, export wine whether it is produced by him or any other person, and sell only such alcoholic beverages as are packaged by or for him and only to wholesalers, manufacturers, other winegrowers, et cetera. Section 23358 provides, however, that winegrowers may also sell wine and brandy to "any person holding a license authorizing the sale of wine or brandy" (including retailers) and to consumers for consumption off the premises where sold.[2] Section 23358 also allows winegrowers to maintain "a bona fide eating place" on their premises or contiguous thereto wherein they are allowed to sell wine and brandy to consumers for consumption on the premises. In addition to these incidents of a winegrower's license, section 23356.1 provides that a winegrower may conduct winetastings of his wine or wine bottled for him either on or off his premises. If the privileges of an off-sale general license are added to those allowed under a winegrower's license, it is clear that a winegrower may sell wine, brandy, beer and distilled spirits to consumers for consumption off the premises in addition to being able to sell wine and brandy to wholesalers and retailers.
(2) While a licensed wholesaler is strictly prohibited from dealing exclusively with just one retailer (§ 23779; Louis Stores, Inc. v. *550 Department of Alcoholic Beverage Control, 57 Cal.2d 749, 759 [22 Cal. Rptr. 14, 371 P.2d 758]), there is nothing in the Alcoholic Beverage Control Act which prevents a winegrower who also holds an off-sale general license from dealing exclusively with himself as a retailer. Under the license now held by petitioner in this case, it could buy wines produced by various producers in California and cause the wines to be transferred to itself to be resold directly to consumers under its general off-sale license.
While our research has revealed no legislative material enunciating the specific reasons for the less restrictive treatment accorded winegrowers and brandy manufacturers under the Alcoholic Beverage Control Act, it is clear that the difference in treatment has existed for some time. In 1935, when the Alcoholic Beverage Control Act was enacted, the tied-house restrictions applied only to the interest of a manufacturer, distiller, importer, or wholesaler in an on-sale license or premises. (Stats. 1935, ch. 330, § 54, p. 1148.) In 1937 section 54 was amended to provide in subdivision (f) that, in addition, no manufacturer, distiller, importer, or wholesaler could hold an interest in any off-sale distilled spirits license other than for such licensee's wholesale premises. (Stats. 1937, ch. 758, § 87, pp. 2170-2171.) In 1941 a provision was added allowing a licensed wine or brandy manufacturer to hold an off-sale distilled spirits license for his licensed premises and any branch offices. (Stats. 1941, ch. 1044, § 1, pp. 2706-2707.) In 1945 licensed winegrowers and brandy manufacturers were first allowed to hold an off-sale general license, but only for their own premises or branch offices. (Stats. 1945, ch. 1401, § 4, p. 2627.) Under the 1959 amendment to section 23362 a licensed winegrower or brandy manufacturer was allowed to hold an off-sale general license without limiting the license to his own premises or branch offices. (Stats. 1959, ch. 750, § 4, p. 2738.) Section 25502 was amended in 1969 (Stats. 1969, ch. 759, § 1, p. 1518) to add, among other things, the following language: "Nothing in this section shall alter, change, or otherwise affect, retroactively or prospectively, any of the rights or privileges granted to a winegrower or brandy manufacturer by Section 23362 of this code, or by any other provision of this division." Thus winegrowers are specifically exempted from the tied-house restrictions pertaining to off-sale general licenses.
Petitioner seeks to add to its privileges held as a result of its winegrower's license and its off-sale general license the privileges *551 accorded a person holding a type 9 importer's license (§ 23320, subd. (9)).[3] An importer's license may be issued only to a person who holds a license authorizing the sale for resale of the type of alcoholic beverage mentioned in the importer's license. (§ 23775.) Thus in order to qualify for an importer's license an applicant must already hold a manufacturer's, a winegrower's, a wholesaler's or some other license which authorizes sale for resale. However, only the holder of a distilled spirits importer's general license or a beer and wine importer's general license may sell to manufacturers, wholesalers and other general importers. (See §§ 23374.5, 23374.6.) The holder of a simple importer's license, such as the type 9 wine importer's license sought by petitioner here, may only transfer the alcoholic beverages designated in the license to himself under another license. (§ 23374.)
(1b) While it is clear that a winegrower may hold an off-sale general license and that nothing in the Alcoholic Beverage Control Act specifically prohibits a winegrower from obtaining a type 9 beer and wine importer's license, section 25502 clearly provides that no importer shall hold "the ownership, directly or indirectly, of any interest in an off-sale general license." Petitioner, of course, is not an importer seeking an interest in an off-sale general license but, rather, a winegrower and general off-sale licensee seeking to hold an importer's license. We note that section 25506, which pertains to restrictions on the ownership interests of off-sale general licensees, provides only that "[e]xcept as authorized by this division, no off-sale general licensee, or any officer, director, employee, or agent of such licensee, shall hold any ownership or interest, directly or indirectly, in the business, property, or license of any distilled spirits wholesaler, rectifier, distilled spirits manufacturer, or distilled spirits manufacturer's agent." That section by its terms does not forbid an off-sale general licensee from acquiring an importer's license.
The seemingly anomalous relationship between sections 25502 and 25506 was considered by our Supreme Court in California Beer Wholesalers Assn., Inc. v. Alcoholic Bev. etc. Appeals Bd., supra, 5 Cal.3d 402. In that case Thriftimart, Inc., the holder of 73 off-sale general *552 licenses for 73 of its 77 retail grocery-store outlets, applied for a beer and wine wholesaler's license for its wholesale division, Smart and Final Iris Company. At the hearing on the application the hearing officer found that Thriftimart, Inc., if granted the license, would not violate section 23779 by selling exclusively to its retail outlets; however, the hearing officer decided that a single firm could not hold both an off-sale retail license and a wholesale liquor license without violating the tied-house restrictions of section 25502. The department agreed with the hearing officer but the Board reversed the department's decision, reasoning as follows: "Section 25502 provides that no wholesaler of beer, wine, or distilled spirits [fn. omitted] shall hold any interest in a retailer's off-sale liquor license. Section 25506 provides that no holder of a retailer's off-sale license shall possess any interest in a firm holding a distilled spirits wholesaler's license. By forbidding a retailer from holding only a distilled spirits wholesaler's license, section 25506 might be construed under the doctrine of inclusio unius est exclusio alterius to suggest that a retailer is free to acquire a wholesaler's beer and wine license." (5 Cal.3d at p. 406.)
In California Beer Wholesalers Assn., Inc., supra, our Supreme Court reversed the Board's decision, holding that section 25502 necessarily prohibits the holder of an off-sale retail license from obtaining a beer and wine wholesaler's license. The court reasoned as follows (5 Cal.3d at pp. 410-411): "Contrary to the board's assertion, section 25502 and section 25506 are neither inherently nor fundamentally in conflict. As it stood at the time of the application of Thriftimart, Inc. prior to its amendment in November 1969 section 25502 prohibited, in general terms, integration between wholesale and retail interests dealing in alcoholic beverages. [Fn. omitted.] Section 25506, on the other hand, placed more stringent and particular restraints upon those interests dealing in distilled spirits. Thus, although section 25502 prohibited a general wholesaler of beer, wine, or distilled spirits from owning an interest in the license or premises of an off-sale retailer, section 25506 prohibited an off-sale retailer from having any interest in the business, property, or license of a distilled spirits wholesaler. In other words, the Legislature framed the ban that forbade the retailer from holding an interest in a distilled spirits wholesaler in much stronger and more formidable terms than the direct prohibition against the retailer's ownership of an interest in the license or premises of a wholesaler. Section 25506 therefore was not drawn to limit in any way the more *553 general policy of segregation announced in section 25502. That the Legislature later amended and expanded the prohibitions of section 25502 to correlate them with section 25506 does not serve to impair the legislative design or to diminish the effect of the ban of section 25502. [¶] We therefore reject the contention that because section 25506 does not specifically prohibit a retailer from possessing an interest in a beer and wine wholesale license, it creates an inference that it permits a retailer to possess an interest in such a license. To argue that section 25506 should be interpreted to sanction such dual licensing because the section does not specifically prohibit the retail off-sale licensee from holding a wholesale beer and wine license is to overlook the legislative prohibition of such consolidation of licenses in section 25502. The Legislature was not required to repeat that prohibition in section 25506. Further, as we have noted, the attempt to use section 25506 to nullify the general prohibition of section 25502 would also nullify the Legislature's basic objective of erecting a triple-tiered system of distribution and licensing and would thereby weaken the entire framework of the statutory structure."
Adhering to the reasoning of our Supreme Court in California Beer Wholesalers Assn., Inc., in the instant case it is clear that if petitioner were granted a type 9 importer's license it would then be an importer holding an off-sale general license in direct violation of the terms of section 25502.
Petitioner argues, however, that the Legislature has exempted winegrowers from the tied-house restrictions, stating: "Once the legislature determined to permit licensed winegrowers to sell at retail (§ 23362), the tier separation was effectively broken down by virtue of the very nature of the winegrower's function.[4] Acquisition of a type 9 importer's license would do nothing more than permit petitioner to bring in additional wines from outside the state of California to be sold at retail." Petitioner points to the 1969 amendment to section 25502 which provides as follows: "Nothing in this section shall alter, change, or otherwise affect, retroactively or prospectively, any of the rights or privileges granted to a winegrower or brandy manufacturer by Section 23362 of this code, or by any other provision of this division." Petitioner argues that since nothing *554 in the act prohibits a winegrower from holding a type 9 importer's license, such a license is one of the privileges allowed to a winegrower by the provisions of division 9 which privilege is not affected by the tied-house restrictions of section 25502.
A licensed winegrower is not totally exempted from the tied-house restrictions. Section 25500, which contains the prohibition against the holding of any interest in an on-sale general license, is clearly still applicable to a winegrower. Furthermore, there is no specific provision of the act which grants a winegrower the "right or privilege" of holding an importer's license, let alone the "right or privilege" of holding an importer's license in addition to an off-sale general license. But there are some provisions of division 9 which specifically grant particular "rights and privileges" to a winegrower, in addition to section 23362, which appear to conflict with the basic objectives of the tied-house restrictions. Among them are the provisions which grant a winegrower on-sale rights at a restaurant on or contiguous to his licensed premises (§ 23358) and off-sale privileges at his licensed premises as to wine and brandy produced or bottled by him (§§ 23358, 23358.2). It is undoubtedly specific provisions of this nature, in addition to section 23362, which the Legislature had in mind when it enacted the 1969 amendment to section 25502.
While the Legislature has clearly relaxed the tied-house restrictions with respect to winegrowers, it has not moved in the direction of relaxing those restrictions with respect to importers. A licensed winegrower has no right to import wine. In order to exercise the privileges of an importer, petitioner must have an importer's license, and while engaging in the importing business petitioner would exercise those rights accorded to it under its importer's license, not those accorded to it as a licensed winegrower.
While the Legislature has enacted some exceptions to the tied-house restrictions in favor of various types of licensees, it is also true that the Legislature has been careful to enact specific provisions restricting the license ownership interests available to each new classification of licensee created by the Legislature. (See § 23356.8 (no interest in any retailer's license for wineblender); §§ 23375.5 and 23375.6 (no distilled spirits importer general licensee or beer and wine importer general licensee may hold any interest in retail license and vice versa); § 23373.1 *555 (holder of wholesaler's license or of any retail license may not hold California winegrower's agent's license); § 23368.1 (no distilled spirits rectifier's license permitted for anyone with interest in an on-sale or off-sale general license).)
(3) A state has broad powers to control the sale of alcoholic beverages within its borders, and the provisions of the Alcoholic Beverage Control Act are to be liberally construed to effect its purposes. (Kirby v. Alcoholic Bev. etc. Appeals Bd., 33 Cal. App.3d 732, 735 [109 Cal. Rptr. 291].) Section 23001 provides: "This division [division 9] is an exercise of the police powers of the State for the protection of the safety, welfare, health, peace, and morals of the people of the State, to eliminate the evils of unlicensed and unlawful manufacture, selling, and disposing of alcoholic beverages, and to promote temperance in the use and consumption of alcoholic beverages. It is hereby declared that the subject matter of this division involves in the highest degree the economic, social, and moral well-being and the safety of the State and of all its people. All provisions of this division shall be liberally construed for the accomplishment of these purposes."
As was said in Duke Molner etc. Liquor Co. v. Martin, 180 Cal. App.2d 873, at page 880 [4 Cal. Rptr. 904]: "The `economic' welfare which will be achieved by strict regulation and curtailment of the use of liquor and the economic benefits resulting to the people from the promotion of temperance, rather than those resulting from the promotion of the liquor industry is the welfare which is meant by such section. [Section 23001.] (American Distilling Co. v. State Board of Equalization, 144 Cal. App.2d 457 [301 P.2d 495].)"
(1c) Until the Legislature specifically moves to exempt either importers in general or winegrowers who hold importer's licenses from the tied-house restrictions of section 25502, a construction of the statutory scheme involved herein to allow petitioner the third type of license sought by it would be inconsistent with the Legislature's expressed intention of erecting a triple-tiered system of distribution and licensing and would weaken the entire framework of the statutory structure. In light of the legislative injunction that provisions of division 9 be construed liberally to further the purposes of the act, we hold that the *556 Board properly construed section 25502 and we affirm the Board's decision denying petitioner's application for a type 9 wine importer's license.
The decision of the Alcoholic Beverage Appeals Board is affirmed.
Allport, J., and Potter, J., concurred.
NOTES
[1] All code references herein are to the Business and Professions Code unless otherwise specified.
[2] Under section 23358.2 winegrowers selling to consumers for consumption off the premises may sell only wine or brandy produced or bottled by the winegrower or wine or brandy produced for or produced and packaged for the licensee and sold under a brand name owned by the licensee.
[3] There are five different importer's licenses for which provision is made in section 23320, subdivisions (9)-(13), including a beer and wine importer's license (9), a beer and wine importer's general license (10), a brandy importer's license (11), a distilled spirits importer's license (12), and a distilled spirits importer's general license (13). Of these five different types of license only the two general licenses require the payment of a fee before issuance.
[4] Petitioner here refers to the fact that a licensed winegrower with an off-sale general license has the right to acquire California domestic wines from other persons in unlimited quantities and to sell such wines at retail as well as to produce its own wines and sell them at retail.
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759 F.2d 20
*Paynev.Intern'l Harvester Co.
84-4740
United States Court of Appeals,Fifth Circuit.
3/28/85
1
S.D.Miss.
AFFIRMED
2
---------------
* Fed.R.App.P. 34(a); 5th Cir.R. 34.2.
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341 S.W.3d 490 (2011)
Billie Jean AVERY, Appellant,
v.
The STATE of Texas, Appellee.
No. 13-10-00339-CR.
Court of Appeals of Texas, Corpus Christi-Edinburg.
March 31, 2011.
*491 Ricardo Pumarejo Jr., Kittleman, Thomas & Gonzales, McAllen, for Appellant.
Martha W. Warner, Dist. Atty., Beeville, Edward F. Shaughnessy III, San Antonio, for State.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and PERKES.
OPINION
Opinion by Chief Justice VALDEZ.
Appellant, Billie Jean Avery, was charged by indictment with obtaining an increased quantity of a Schedule II controlled substance through the use of a fraudulent prescription form, a second-degree felony.[1]See TEX. HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(B), (d)(1) (Vernon 2010). After a jury trial, Avery was convicted of the underlying offense and was sentenced to twenty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice with a $1,500 fine.[2] On appeal, Avery argues that the trial court erred in denying her motion for a directed verdict because the State failed to present sufficient evidence proving the manner and means of the offense stated in the indictment. Specifically, Avery contends that there is no evidence that she used a "fraudulent prescription form" to obtain an increased dosage of a controlled substance, as alleged in the indictment. We reverse and vacate the judgment, and remand for entry of a judgment of acquittal.
I. BACKGROUND
On January 15, 2010, Donald Breech, M.D. treated Avery for pain associated with her knee.[3] Dr. Breech prescribed forty 2.5-milligram tablets of Lortab, a controlled substance containing hydrocodone, for Avery. Dr. Breech used his own prescription form when filling out the prescription, and at trial, he noted that he *492 prescribed Avery the lowest dose of Lortab that is manufactured because he believed that Avery was possibly abusing the drug in some manner. Dr. Breech further opined that he did not give Avery permission to alter the prescription and that when it was later presented at Wal-Mart, the prescription form constituted a "fraudulent prescription form."
Later that day, Avery, her common-law husband, Robin Bright, and Bright's mother went to a Wal-Mart in Beeville, Texas, to fill the prescription. Adela Munoz, a certified pharmacy technician working for Wal-Mart, testified that Avery presented the prescription form to her. Munoz described the incident as follows:
What I did do, ma'am, iseverything now is computerized, so we have to actually scan our prescriptions into the system to have a visual for our records. The prescription, itself, when I scanned it in came outthis area right here came out shaded black. So right above it, I put "seven-point-five." And then the pharmacist did receive the prescription on her screen, our visual. And she asked me, you know, "What is this above here?" And I told her I did that. Because through the system, all you could see was just a black spot where it had been changed.[[4]]
Munoz admitted to writing the "seven-point-five" notation of the prescription form, presumably at the direction of Avery; however, Munoz denied making any "cross-out marks" or shading on the form.[5]
Once Avery left, Munoz became suspicious about the form and the "cross-out marks," so she informed Stephani Trbula, M.D., the staff pharmacist on duty that day. Dr. Trbula testified that she did a "four-point" inspection of the prescription form, which included four different things:
the name of the patient, the name of the drug, the directions[,] and the doctor. And during my four-point evaluation, I also verify that it is a legitimate prescription. And if there are any alterations, I check to see, you know, if my technician made the alteration or if it was the doctor that made the alteration and we make phone calls at that time if there's anything that I need to clarify before I send [the prescription] on [to be filled].
Dr. Trbula noted that the prescription form was "a typicaljust a plain prescription pad. This wasI believeyeah, it does have a security guard on the back."[6]*493 Nevertheless, when conducting her inspection, Dr. Trbula was troubled by what appeared to be alterations to the form. She first spoke to Munoz, who admitted to writing the "`seven-point-five' in parentheses" on the form. However, Dr. Trbula was troubled by the "cross-outs" on the form, so she called Dr. Breech's office. Dr. Trbula spoke to "Karen," who purportedly is a nurse in Dr. Breech's office. Karen informed Dr. Trbula that no one in Dr. Breech's office made the "cross-outs" on the prescription form and that the form was supposed to prescribe "two-point-five milligrams" of Lortab for Avery. Dr. Breech confirmed these facts in his testimony. Karen concluded that the form had been altered after Avery left Dr. Breech's office; thus, Dr. Trbula was instructed to not dispense the medication and to call law enforcement.
Shortly thereafter, Bright returned to the Wal-Mart, and when he acknowledged that he was there to pick up the prescription, police handcuffed him and escorted him out to the Wal-Mart parking lot. Bright told police that Avery was waiting in the car for him, and he directed police to the car. Upon questioning by police, Avery admitted to altering the prescription form. Bright was subsequently released from police custody, and Avery was arrested.
In the indictment, the State alleged that on or about January 15, 2009, Avery "through use of a fraudulent prescription form . . . knowingly attempt[ed] to obtain a controlled substance, namely, Lortab, by increasing the dosage." See id. § 481.129(a)(5)(B). The language of the indictment clearly indicates that the State charged Avery with violating section 481.129(a)(5)(B) of the health and safety code, rather than section 481.129(a)(5)(A), which states that a defendant commits an offense by knowingly obtaining or attempting to obtain an increased quantity of a controlled substance "by misrepresentation, fraud, forgery, deception, or subterfuge." See id. § 481.129(a)(5)(A)-(B).
The case was tried to a jury on May 17-18, 2010. At the close of the State's case-in-chief, Avery moved for a directed verdict, asserting that there was no evidence that she attempted to obtain an increased quantity of a controlled substance "through use of a fraudulent prescription form," as alleged in the indictment and the jury charge. Specifically, counsel for Avery argued that: "The testimony is that the prescription form is not fraudulent. It is the prescription form of the doctor. What the testimony has been is that the prescription itself, that the doctor wrote on his form was altered." The State countered that "the form is not limited to what has been pre-printed on the document"; thus, the alteration of the prescription form resulted in a "fraudulent prescription form."
In analyzing section 481.129(a)(5)(A) and (B), the trial court noted that:
[T]he problem is the State has used a fraudulent prescription form. Plain meaning of that term would be somebody wrote "Dr. A.B.C." on there instead of "Dr. Breech." Dr. Breech has testified that's his form. Yesterday the pharmacist [Dr. Trbula] testified that's a good form; there's nothing wrong with that prescription form. The indictment says "fraudulent prescription form." Okay. So I think the legislators in their intent to note that was a separate thingthere's [sic] people out there, like, making checks. That's in my mind, "B" is like you're over there chucking *494 the change and making your own checks. You're making your checks. Our legislators, that's why they have "A" up there. I mean, I think the evidence substantiates "A," but you didn't indict her on that.
. . . .
There is no definition of the word "form." Okay. There is the definition of "prescription" provided but not for the word "form." So when you don't have a legal definition, you go back to the common-law meaning of the definition of "form" which is a preprintedpreprinted, without looking at Webster's, would be a preprinted . . . piece of document or paper that you fill in blanks, and that's what we have in this case.
Despite its apparent agreement with Avery's argument in her motion for directed verdict, the trial court denied the motion without explanation. The jury subsequently convicted Avery of the charged offense, and the trial court sentenced her to twenty-five years' confinement with a $1,500 fine. This appeal followed.
II. STANDARD OF REVIEW
We treat a challenge to the denial of a motion for directed verdict as a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App.1996); see also Trevino v. State, Nos. 13-09-00511-CR & 13-09-00512-CR, 2010 WL 3279492, at *1, 2010 Tex.App. LEXIS 6751, at *3 (Tex.App.-Corpus Christi Aug. 19, 2010, no pet.) (mem. op., not designated for publication). To assess whether the evidence supporting the verdict is sufficient, we consider all the evidence in the record in the light most favorable to the jury's verdict and determine whether a rational jury could have found the defendant guilty of all the elements of the crime beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 898-99 (Tex.Crim.App.2010) (plurality opinion) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); see Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007).
We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Grotti v. State, 273 S.W.3d 273, 280-81 (Tex.Crim.App.2008). The hypothetically correct jury charge in this case would have required the jury to find that: (1) on or about January 15, 2009; (2) Avery knowingly; (3) possessed, obtained, or attempted to possess or obtain; (4) an increased quantity of a controlled substance; and (5) through use of a fraudulent prescription form. See TEX. HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(B).
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
TEX. PENAL CODE ANN. § 6.03(b) (Vernon 2003). Knowledge may be inferred from a person's acts, words, and conduct. Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App.2002); Martinez v. State, 833 S.W.2d 188, 196 (Tex.App.-Dallas 1992, pet. ref'd).
In addition, "when the statute defines alternative methods of manner and means of committing an element and the indictment alleges only one of those methods, `the law' for purposes of the hypothetically correct charge, is the single method alleged in the indictment." Gollihar v. State, 46 S.W.3d 243, 255 (Tex.Crim.App. 2001) (citing Curry v. State, 30 S.W.3d 394, *495 405 (Tex.Crim.App.2000)); see Jacobs v. State, 230 S.W.3d 225, 230 (Tex.App.-Houston [14th Dist.] 2006, no pet.) ("Because the indictment alleges only one of those methodstheft by deceptionappellant could be convicted only if he committed theft by that method."). Thus, the State was required to prove that Avery procured or attempted to procure Lortab "through use of a fraudulent prescription form" and cannot rely on the alternative methods of manner and means described in section 481.129(a)(5)(A). See TEX. HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(A).
III. ANALYSIS
In her sole issue, Avery contends that the trial court erred in denying her motion for directed verdict because the State failed to present sufficient evidence proving the manner and means of the offense charged in the indictment. Specifically, Avery argues that the evidence does not demonstrate that she procured or attempted to procure Lortab through use of a fraudulent prescription form. She further argues that the alteration to the form presented to the pharmacy department at the Beeville Wal-Mart did not "result in a prescription form that was fraudulent." The State asserts that Avery's altering of the prescription form did, in fact, "create a fraudulent prescription form"; thus, the evidence is sufficient to sustain Avery's conviction under section 481.129(a)(5)(B) of the health and safety code.[7]See id. § 481.129(a)(5)(B).
A. Applicable Law
Our analysis of the sufficiency of the evidence supporting Avery's conviction hinges upon the proper definition of the term "fraudulent prescription form," as described in section 481.129(a)(5)(B) of the health and safety code, and how it applies. See id. The parties do not dispute that section 481.129 of the health and safety code does not explicitly define "fraudulent prescription form." Thus, we must resort to other resources to determine the proper definition of "fraudulent prescription form."
When interpreting statutes, we seek to effectuate the intent or purpose of the legislators who enacted them. See Camacho v. State, 765 S.W.2d 431, 433 (Tex. Crim.App.1989). If the statute is clear and unambiguous, the plain meaning of the words should be applied. Hines v. State, 75 S.W.3d 444, 447 (Tex.Crim.App.2002); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.App.1991); see TEX. HEALTH & SAFETY CODE ANN. § 1.002 (Vernon 2010) (noting that chapter 311 of the government code applies to the construction of each provision of the health and safety code); TEX. GOV'T CODE ANN. § 311.011(a)-(b) (Vernon 2005) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage," unless the words have acquired a technical or particular meaning, in which case the words shall be construed accordingly). If an application of the plain language would lead to an absurd result the Legislature could not have intended, we may look to extra-textual factors to arrive at a sensible interpretation of the statute. See Hines, 75 S.W.3d at 447; Boykin, 818 S.W.2d at 785-86. However, we must keep in mind that "[i]t would be illogical to presume that the Legislature intended a part of the statute to be superfluous" and "the Legislature must be understood to mean what it has expressed, *496 and it is not for the courts to add or subtract from . . . a statute." Boykin, 818 S.W.2d at 785-86.
The court of criminal appeals has also stated that:
"Every word of a statute is presumed to have been used for a purpose, and a cardinal rule of statutory construction requires that each sentence, clause, phrase[,] and word be given effect if reasonably possible. . . . This rule is not altered by the fact that the Legislature has not defined a particular word or phrase, and in the absence of such a definition[,] the words of the enactment will usually be given their ordinary meaning."
Morter v. State, 551 S.W.2d 715, 718 (Tex. Crim.App.1977) (quoting Eddins-Walcher Butane Co. v. Calvert, 156 Tex. 587, 298 S.W.2d 93, 96 (1957)); see Campos v. State, 623 S.W.2d 657, 658 (Tex.Crim.App.1981) (holding that when words in a criminal statute are not defined, the words employed are given their plain meaning).
B. Discussion
On appeal, the State argues that section 481.075(e) of the health and safety code guides us in determining the proper contents of a "prescription form." TEX. HEALTH & SAFETY CODE ANN. § 481.075(e) (Vernon 2010). Section 481.075(e) of the controlled substances act provides, in relevant part, that:
Each official prescription form used to prescribe a Schedule II controlled substance must contain:
(1) information provided by the prescribing practitioner, including:
(A) the date the prescription was written;
(B) the controlled substance prescribed;
(C) the quantity of controlled substance prescribed, shown numerically followed by the number written as a word;
(D) the intended use of the controlled substance or the diagnosis for which it is prescribed and the instructions for use of the substance;
(E) the practitioner's name, address, department registration number, and the Federal Drug Enforcement Administration number;
(F) the name, address, and date of birth or age of the person for whom the controlled substance is prescribed; and
(G) if the prescription is issued to be filled at a later date under Section 481.074(d-1), the earliest date on which a pharmacy may fill the prescription;
(2) information provided by the dispensing pharmacist, including the date the prescription is filled; and
(3) the signatures of the prescribing practitioner and the dispensing pharmacist.
Id. We find section 481.075(e) to be applicable because the drug involved in this matterLortabis a Schedule II controlled substance.[8]See id.
A copy of the prescription form that Avery presented was made a part of the indictment and was entered into evidence as State's exhibit 1. The prescription form included, among other things: (1) Dr. Breech's name, office address, phone number, and signature; (2) Avery's name and birth date; (3) the Federal Drug Enforcement Administration number; (4) the date the form was signed by Dr. Breech; (5) the prescribed dosage and strength of Lortab; *497 and (6) security measuresnumerous imprints of the word "VOID"meant to prevent reproductions of the form from being presented for prescription fulfillment. Essentially, the form contains the requirements listed in section 481.075(e) and, thus, constitutes an "official prescription form." See id. Now, we must determine whether the changes made by Avery constituted a forgery, misrepresentation, deception, or fraud under section 481.129(a)(5)(A), as Avery argues, or whether the prescription form constituted a "fraudulent prescription form" as a result of Avery's alterations, as argued by the State. See TEX. HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(A)-(B).
In determining whether Avery's actions fall within section 481.129(a)(5)(A) or 481.129(a)(5)(B), we first examine the prior version of section 481.129(a)former article 4476-15, section 4.09(a). See id.; see also Acts 1979, 66th Leg., R.S., ch. 90, § 6, eff. May 2, 1979 (former TEX.REV.CIV. STAT. art. 4476-15, § 4.09(a)(3)), repealed by Act of June 14, 1989, 71st Leg., R.S., ch. 678, § 13(1), 1989 Tex. Gen. Laws 2230, 2942; Whitfield v. State, 784 S.W.2d 484, 486 (Tex.App.-Texarkana 1990, no pet.). In comparing former article 4476-15, section 4.09(a) with section 481.129(a), we observe a significant change made by the Legislature. Under former article 4476-15, section 4.09(a), the Legislature bundled together manners and means involving the procurement or attempted procurement of an increased quantity of controlled substances by "misrepresentation, fraud, forgery, deception, or subterfuge" and "through use of [a] fraudulent prescription form"; however, when the Legislature enacted section 481.129(a), it separated the manner and means into two subsectionsone involving "misrepresentation, fraud, forgery, deception, or subterfuge" (section 481.129(a)(5)(A)) and a second provision involving only the use of "fraudulent prescription form[s]" (section 481.129(a)(5)(B)). See Acts 1979, 66th Leg., R.S., ch. 90, § 6, eff. May 2, 1979 (former TEX.REV.CIV. STAT. art. 4476-15, § 4.09(a)(3) (repealed 1989)); see also TEX. HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(A)-(B). In repealing former article 4476-15, section 4.09(a) and replacing it with the provisions of section 481.129(a), the Legislature clearly intended for each provision to constitute a separate offense, rather than two sides of the same coin. See Acts 1979, 66th Leg., R.S., ch. 90, § 6, eff. May 2, 1979 (former TEX. REV.CIV. STAT. art. 4476-15, § 4.09(a)(3) (repealed 1989)); see also TEX. HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(A)-(B). Therefore, because the Legislature separated the manner and means through the enactment of section 481.129(a), we are not persuaded by the State's argument that Avery's changing of the valid prescription form created a "fraudulent prescription form." To so hold would render section 481.129(a)(5)(A) superfluous, which would be contrary to the Legislature's intent.[9]See TEX. *498 HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(A)-(B); see also Boykin, 818 S.W.2d at 785-86 (stating that we are to interpret statutes so as to not render provisions superfluous).
Based on our review of the predecessor statute to section 481.129(a) and governing case law, we believe that the Legislature intended for section 481.129(a)(5)(B) to apply to those instances where, for example, an individual has created his own prescription form, filled out the entire prescription form, and presented it to a pharmacy for fulfillmentan act that would essentially render a prescription form invalid at all relevant time periods. See TEX. HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(B). Section 481.129(a)(5)(A) appears to apply to instances, such as in this case, where an individual makes a modification to an otherwise valid prescription form. Though the terms "misrepresentation," "fraud," "forgery," and "deception" are not defined in the health and safety code, we believe that Avery's actions in this case coincide more with section 481.129(a)(5)(A). See id. § 481.129(a)(5)(A).
As noted earlier, if terms are not clearly defined in the code, we are to apply the plain and common meaning of the words so long as the interpretation does not lead to an absurd result that the Legislature could not have intended. See Hines, 75 S.W.3d at 447; Boykin, 818 S.W.2d at 785-86. "[F]raud" is defined as "[a] knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment." BLACK'S LAW DICTIONARY 731 (9th ed. 2009); see MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 464 (10th ed. 1996) (defining "fraud" as "an act of deceiving or misrepresenting. . . ."). On the other hand, "misrepresentation" is defined as "[t]he act of making a false or misleading assertion about something . . . with the intent to deceive." BLACK'S LAW DICTIONARY at 1091; see MERRIAM WEBSTER'S COLLEGIATE DICTIONARY at 744 (defining "misrepresentation" as giving "a false or misleading representation . . . with an intent to deceive or be unfair. . . ."). Further, the common definition of "forgery" is "[t]he act of fraudulently making a false document or altering a real one to be used as if genuine. . . ." BLACK'S LAW DICTIONARY at 722; see MERRIAM WEBSTER'S COLLEGIATE DICTIONARY at 457 (defining "forgery" as "the crime of falsely and fraudulently making or altering a document"). And, finally, "deceit" is defined as "[t]he act of intentionally giving a false impression." BLACK'S LAW DICTIONARY at 465; see MERRIAM WEBSTER'S COLLEGIATE DICTIONARY at 298 (defining "deceive" as giving "a false impression"). The change Avery made on the prescription form most resembles a "forgery." See TEX. HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(A); see also BLACK'S LAW DICTIONARY AT 722; MERRIAM WEBSTER'S COLLEGIATE DICTIONARY at 457.
The testimony adduced at trial was that the prescription form was valid when Avery left Dr. Breech's office and that Avery made the changes in an attempt to pass off the altered document as the act of Dr. Breech for the purpose of acquiring an increased dosage of Lortab. See BLACK'S LAW DICTIONARY at 722; see also MERRIAM WEBSTER'S COLLEGIATE DICTIONARY at 457. Based on her actions, the State should have charged Avery with violating section *499 481.129(a)(5)(A). See TEX. HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(A). However, it chose not do so.
Moreover, the State does not cite any case law to support its contention that the prescription form at issue in this case amounted to a "fraudulent prescription form." Based on our review, we have only found a handful of cases involving a purported "fraudulent prescription form," and each appears to support this Court's interpretation of section 481.129(a)(5)(A) and (B). See Beaty v. State, 156 S.W.3d 905, 906-07 (Tex.App.-Beaumont 2005, no pet.); Whitfield v. State, 784 S.W.2d 484, 485-87 (Tex.App.-Texarkana 1990, no pet.); see also Greer v. State, No. 2-09-087-CR, 2010 WL 2813404, at *1-3, 2010 Tex.App. LEXIS 5632, at **1-7 (Tex.App.-Fort Worth July 15, 2010, pet. ref'd) (mem. op., not designated for publication); Kirby v. State, No. 05-08-00217-CR, 2009 WL 1493006, at *1-4, 2009 Tex.App. LEXIS 3990, at **2-9 (Tex.App.-Dallas May 29, 2009, no pet.) (not designated for publication); Travis v. State, Nos. 11-07-00204-CR, 11-07-00205-CR, 11-07-00206-CR, 2008 WL 3141045, at *3-5, 2008 Tex.App. LEXIS 5947, at **10-13 (Tex.App.-Eastland Aug. 7, 2008, pet. ref'd) (mem. op., not designated for publication). In most of the cases, the defendant was charged with both (1) forging, misrepresenting or engaging in fraud, see TEX. HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(A), and (2) utilizing a "fraudulent prescription form" to obtain an increased amount of a controlled substance. See id. § 481.129(a)(5)(B); Beaty, 156 S.W.3d at 906; Whitfield, 784 S.W.2d at 486; see also Travis, 2008 WL 3141045, at *1, 2008 Tex. App. LEXIS 5947, at *1. Unlike the instant case, the State in Beaty, Whitfield, and Travis did not constrain itself to one manner or means of committing the charged offense, which allowed for the convictions to be sustained under either section 481.129(a)(5)(A) or section 481.129(a)(5)(B). See Beaty, 156 S.W.3d at 906; Whitfield, 784 S.W.2d at 486; see also Travis, 2008 WL 3141045, at *1, 2008 Tex. App. LEXIS 5947, at *1.
Of the above-mentioned cases, only two involved instances in which the defendants were charged solely under section 481.129(a)(5)(B). See Greer, 2010 WL 2813404, at *1-3, 2010 Tex.App. LEXIS 5632, at **1-7; Kirby, 2009 WL 1493006, at *1-4, 2009 Tex.App. LEXIS 3990, at **2-9. As such, these cases warrant additional discussion. Moreover, the fact patterns in Beaty and Whitfield cases are also instructive in our analysis of Avery's issue.
1. The Greer case
In Greer, the defendant was charged with "knowingly possessing or attempting to possess or obtain a controlled substance through the use of a fraudulent prescription." 2010 WL 2813404, at *1, 2010 Tex. App. LEXIS 5632, at *2. In affirming the defendant's conviction, the Fort Worth Court of Appeals noted that the evidence showed that the defendant presented a fraudulent prescription for 120 pills of Lortab at a Denton County Walgreen's. Id. at *2, 2010 Tex.App. LEXIS 5632 at *4. The Court noted that the prescription was fraudulent because it was for an unknown "Jason Martin"; "it was for six times the normal prescription amount"; and "it was created to look like a prescription form from the doctor who purportedly wrote it." Id. at *2, 2010 Tex.App. LEXIS 5632 at *4. Essentially, the Court concluded that the prescription form was fraudulent because the defendant had re-created a prescription form to look like another written by a licensed doctor. See id. at *2, 2010 Tex. App. LEXIS 5632 at *4.
In the instant case, Avery did not re-create a prescription form or change the *500 name on the prescription to refer to a fictitious person; instead, she made a change to the dosage strength of a valid prescription form that was created by Dr. Breech. The record in this case demonstrates that had Avery not changed the dosage strength, the prescription would have been filled given that all aspects of the prescription form were valid.
2. The Kirby case
In Kirby, the defendant was charged with "intentionally and knowingly obtain[ing] or attempt[ing] to obtain a controlled substance . . . by fraud through use of a fraudulent prescription form." 2009 WL 1493006, at *1, 2009 Tex.App. LEXIS 3990, at *2. The facts revealed that the defendant presented a pharmacy technician with a prescription form for "eight ounces of Promethazine with codeine and twenty Veetid antibiotic tablets." Id. The pharmacy technician was suspicious of the form and showed it to the on-duty pharmacist. The on-duty pharmacist was also suspicious because: (1) the prescription form "had a different background and color than most other prescriptions, and looked like a photocopy"; (2) "the antibiotic Veetid had not been manufactured under that name for six years because the company had gone out of business"; (3) the pharmacist had received valid prescriptions from the prescribing doctor "but those `scripts' were on white paper with a different font size and style"; and (4) "a fraudulent prescription had been presented to him about ten days earlier that was on the same paper and was represented to be from the same doctor." Id. at *2, 2009 Tex.App. LEXIS 3990 at **3-4. The pharmacist did not fill the prescription and contacted the prescribing doctor's office manager about the form. Id. at *2, 2009 Tex.App. LEXIS 3990 at **4-5. The prescribing doctor's office manager told the pharmacist that the form was fraudulent because it was not in the doctor's handwriting and it did not contain the doctor's signature. Id. at *2, 2009 Tex.App. LEXIS 3990 at *5. She further testified that the doctor had stopped using the particular prescription form that was tendered; that the defendant had never been one of the doctor's patients; and that the doctor had never written a prescription for the defendant. Id.
Though Kirby's appellate argument centered on whether the evidence was factually sufficient to establish that he was the individual who presented the purported "fraudulent prescription form" to the pharmacy, the Dallas Court of Appeals concluded that the evidence supporting the defendant's conviction for obtaining or attempting to obtain a controlled substance by fraud through use of a fraudulent prescription form was sufficient. Id. at *3-4, 2009 Tex.App. LEXIS 3990 at **8-9. Implicit in this ruling is that a form becomes a "fraudulent prescription form" when an individual re-creates an entire prescription form and attempts to use the newly-created prescription form to obtain a controlled substance. This is so because the State only charged Kirby with a section 481.129(a)(5)(B) offense; the jury convicted; and the Dallas Court of Appeals affirmed when it could have reversed the conviction by concluding that Kirby engaged in the fraudulent activities prescribed in section 481.129(a)(5)(A). See TEX. HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(A).
In this case, Avery merely changed one term of an otherwise valid prescription form. Dr. Breech testified at trial that he prescribed Lortab for Avery, albeit the lowest dosage possible, whereas the doctor in Kirby had never treated the defendant nor written a prescription for him. Kirby, 2009 WL 1493006, at *2, 2009 Tex.App. LEXIS 3990, at *5. In addition, both Dr. *501 Breech and Dr. Trbula testified that the form tendered was an ordinary prescription form and was valid, though it contained a change in the dosage strength. Avery's prescription form was signed by Dr. Breech and contained the necessary information outlined in section 481.075(e). See TEX. HEALTH & SAFETY CODE ANN. § 481.075(e). One can hardly say that the prescription form tendered by Avery resembles the clearly fraudulent prescription form at issue in Kirby. See Kirby, 2009 WL 1493006, at *1-2, 2009 Tex.App. LEXIS 3990, at **3-4.
3. The Beaty case
The defendant in Beaty was charged under two separate indictments for having obtained controlled substances, Lortab and Xanex, by forgery, under section 481.129(a)(5)(A) and (B) of the health and safety code. 156 S.W.3d at 906. The defendant brought a written prescription to a Wal-Mart pharmacy located in Livingston, Texas. Id. at 906-07. The prescription form indicated that Achi Chary, M.D. had issued it on January 22, 2003, to "Laura Green" for Lortab and Xanex. Id. at 907. At trial, Dr. Chary testified that he had never treated a "Laura Green" and that he had never written a prescription for "Laura Green." Id. Dr. Chary further testified "that a blank prescription pad was stolen from his office" and that "anyone could have forged the `Laura Green' prescription." Id. Dr. Chary recalled treating and prescribing similar medications for the defendant about a week before this prescription form was presented. Id.
On appeal, the defendant argued that the evidence was insufficient to establish that she "knew that the prescription form used to obtain the controlled substance was forged." Id. at 906. In concluding that the evidence supporting the defendant's conviction was sufficient, the Beaumont Court of Appeals held that the jury could reasonably infer that the defendant "presented the `Laura Green' prescription to the Wal-Mart pharmacy with full knowledge that the prescription was not the act of Dr. Chary." Id. at 910.
Unlike the instant case, the jury in Beaty inferred that the defendant stole a prescription pad from Dr. Chary's office and then filled out a prescription for similar medications that were received about a week earlier, while using the alias "Laura Green." See id. at 907. In fact, the Beaty defendant filled out the entire prescription form that was presented at the Wal-Mart pharmacy in Livingston. Id. at 906-07. In this case, Dr. Breech filled out the entire prescription form, and when Avery left Dr. Breech's office, she had a valid prescription form. However, before she presented it to the Wal-Mart pharmacy in Beeville, she made a single change to the dosage strength. Clearly, the prescription form in this case does not involve the use of a stolen prescription pad, and Avery did not fill out the entire prescription form herself. Like Greer and Kirby, the Beaty court appears to conclude that the use of a "fraudulent prescription form" involves a form that defendants create or fill out entirely by themselves to facilitate the procurement of a controlled substance.[10]See id. at 910; see also Greer, 2010 WL *502 2813404, at *2, 2010 Tex.App. LEXIS 5632, at *4; Kirby, 2009 WL 1493006, at *1-2, 2009 Tex.App. LEXIS 3990, at **3-4.
4. The Whitfield case
The Texarkana Court of Appeals' decision in Whitfield is important in that it involves a conviction for obtaining a controlled substance by forgery under the predecessor statute to section 481.129 of the health and safety codeformer article 4476-15, section 4.09(a)(3) of the Texas Revised Civil Statutes. 784 S.W.2d at 486. Under former article 4476-15, section 4.09(a)(3), it was unlawful for any person to knowingly or intentionally "acquire, obtain, or attempt to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge, or through use of fraudulent prescription form or fraudulent oral or telephonically communicated prescription." Id. (citing Acts 1979, 66th Leg., R.S., ch. 90, § 6, eff. May 2, 1979 (former TEX. REV.CIV. STAT. art. 4476-15, § 4.09(a)(3) (repealed 1989))). Testimony at trial revealed that Whitfield forged an entire prescription and gave another individual $50 to go to the drug store and get the prescription filled. Id. at 487. Specifically, the Whitfield court noted that the car that Whitfield was driving "had other prescription pads from Dr. Haley's office." Id. Ultimately, the Texarkana Court of Appeals concluded that the evidence was sufficient to sustain Whitfield's conviction. We do not find the Whitfield case to be controlling in this matter because the Texarkana Court of Appeals affirmed Whitfield's conviction under former article 4476-15, § 4.09(a)(3), which, as noted earlier, combined the manner and means described in current sections 481.129(a) and 481.129(b). It is not clear whether the prescription forms used by Whitfield were valid or invalid at the time of their creation; thus he could have been convicted for either forging the prescription form or for using a fraudulent prescription form.
5. Summary
A review of the Greer, Kirby, Beaty, and Whitfield cases reveals that for an individual to be convicted for using a fraudulent prescription form to procure an increased quantity of a controlled substance, the individual must engage in acts very different from the acts in this casei.e., re-creating prescription forms. See Beaty, 156 S.W.3d at 906-07; Whitfield, 784 S.W.2d at 486; see also Greer, 2010 WL 2813404, at *2, 2010 Tex.App. LEXIS 5632, at *4; Kirby, 2009 WL 1493006 at, *1-2, 2009 Tex.App. LEXIS 3990, at **3-4. Here, because the State chose to include a specific manner and means of committing the offense, the State was obligated to prove "the single method alleged in the indictment." Gollihar, 46 S.W.3d at 255; see Curry, 30 S.W.3d at 405; Jacobs, 230 S.W.3d at 230. Viewing the evidence in the light most favorable to the prosecution, we cannot say that a rational jury could have found Avery guilty of a section 481.129(a)(5)(B) offense beyond a reasonable doubt. See Brooks, 323 S.W.3d at 898-99; see also Jackson, 443 U.S. at 319, 99 S.Ct. 2781. As such, we conclude that the evidence supporting Avery's conviction is insufficient and that the trial court erred in *503 denying Avery's motion for directed verdict. See Williams, 937 S.W.2d at 482; see also Trevino, 2010 WL 3279492, at *1, 2010 Tex.App. LEXIS 6751, at *3. We sustain her sole issue on appeal.
IV. CONCLUSION
Having concluded that the evidence is not sufficient to support Avery's conviction for a section 481.129(a)(5)(B) offense, we reverse the case on that basis, vacate the trial court's judgment of conviction, and remand the case to the trial court for the entry of a judgment of acquittal. See Brooks, 323 S.W.3d at 904 (citing Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) (noting that a reversal based on the "insufficiency of the evidence" has the same effect as a jury acquittal "because it means that no rational fact[-]finder could have voted to convict the defendant" and that "the prosecution has failed to produce sufficient evidence to prove its case")).
Dissenting Opinion by Justice PERKES.
Dissenting Opinion by Justice PERKES.
The majority's opinion is premised on a mistaken notion that the 1989 recodification of the controlled-substances fraud statute was a substantive change in the law. On that premise, the majority interprets the meaning of "fraudulent prescription form" so narrowly that it would be virtually impossible to violate the statute by use of a fraudulent prescription form. The majority effectively defeats the Legislature's intent to prohibit fraudulent procurement of controlled substances using a fraudulent prescription form. For these reasons, I respectfully dissent.
When interpreting a statute, a reviewing court considers the entire act, its nature and object, and the consequence that would follow from each construction. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.App.1991). A court must reject any statutory interpretation that defeats the legislative purpose. Id. Under the Code Construction Act, even when a statute is not ambiguous on its face, a court may consider several factors to determine the Legislature's intent and these factors include (1) the object sought to be obtained; (2) the circumstances of the statute's enactment; (3) the legislative history; (4) the common law or former statutory provisions, including laws on the same or similar subjects; and (5) the consequences of a particular construction. See TEX. GOV'T CODE ANN. §§ 311.023(1)-(5), 312.008 (West 2005). When the same or a similar term is used in the same connection in different statutes, the term will be given the same meaning in one as in the other, unless there is something to indicate that a different meaning was intended. Beedy v. State, 194 S.W.3d 595, 601 (Tex.App.-Houston [1st Dist.] 2006), aff'd on other grounds, 250 S.W.3d 107 (Tex.Crim.App. 2008).
Contrary to the majority's premise, when the Legislature recodified the predecessor statute to list "forgery" and "use of a fraudulent prescription form" in separate clauses, the revision was not intended to be substantive. The revision was made pursuant to Texas Government Code section 323.007, which requires the Texas Legislative Council to make a complete, non-substantive recodification of Texas statutes. See TEX. GOV'T CODE ANN. § 323.007. Accordingly, at the beginning of the session law in which the Health and Safety Code was created, the Legislature stated that the changes did not affect the substance of the law. Act of May 18, 1989, 71st Leg., R.S., Preamble, 1989 Tex. Gen. Laws 2230, 2230. The session law contains a repeal of the predecessor statute and an enactment of the recodified statute as part of the Health and Safety Code. Compare Id., ch. 678, § 13, 1989 Tex. Gen. Laws at 3165 (repealing prior statute) with § 1, 1989 Tex. Gen. Laws at 2942 (recodifying *504 fraud provision as section 481.129 of the Health and Safety Code).
The Court of Criminal Appeals wrote, in Ex parte Holbrook, that the aim of the fraud statute is to proscribe every possession of a controlled substance unless authorized by the Texas Controlled Substances Act. 609 S.W.2d 541, 544-45 (Tex. Crim.App.1980) (en banc) (discussing the predecessor statute, TEX.REV.CIV. STAT. ANN. art. 4476-15, § 4.09(a)(3) (West 1979)). The majority, by effectively holding that only proof of a counterfeit prescription form can be used to prove the offense in this case, defeats the Legislature's intent. The majority's case authority does not support its holding. Under the majority's interpretation, an offense for "use of a fraudulent prescription form" can never overlap with an offense for misrepresentation, fraud, forgery, deception, or subterfuge. See TEX. HEALTH & SAFETY CODE ANN. § 481.129, (a)(5)(A), (B) (West 2003). Under the majority's interpretation, to violate the act by use of a fraudulent prescription form, one would have to try to obtain a controlled substance using only a blank counterfeit prescription form, so as not to overlap with the forgery clause. This approach is clearly not the intent of the law. In addition, the majority's narrow interpretation is inconsistent with the misdemeanor statute which on its face parallels the statute at issue by proscribing an offense for altering a written prescription, followed by an offense for attempting to obtain a dangerous drug by a fraudulent telephone call. Compare TEX. HEALTH & SAFETY CODE ANN. § 483.045 (West 2003) with § 481.129(a)(5)(A)-(C).
It is undisputed appellant admitted to the police that she altered the prescription form. As argued by the State on appeal, the State was required to prove the appellant knowingly obtained or attempted to possess or obtain a controlled substance through use of a fraudulent prescription form. Therefore, when appellant altered the prescription form, it became fraudulent. The statute does not require the State to prove more to meet its burden of proof. This interpretation is consistent with Health and Safety Code section 481.075 which, as quoted by the majority, defines an "official prescription form" for a schedule II controlled substance to include potentially "handwritten" information such as the patient's birth date, type and quantity of the controlled substance, and the prescriber's signature. See id. § 481.075(e)(1)(C),(F), (G)(3) (West 2003); see also Beaty v. State, 156 S.W.3d 905, 906 & 910 (Tex.App.-Beaumont 2005, no pet.) (affirming conviction for attempting to obtain a controlled substance by use of a fraudulent prescription form when defendant wrote purported prescription on a sheet from a stolen prescription pad). For these reasons, the trial court's judgment should be affirmed.
NOTES
[1] In this case, Avery allegedly tried to obtain an increased quantity of Lortab. Lortab is the trade name for hydrocodone, a controlled substance which is listed in Schedule II of the health and safety code. See TEX. HEALTH & SAFETY CODE ANN. § 481.032 (Vernon 2010); see also Smith v. State, No. 2-07-125-CR, 2008 WL 2553451, at *1-2, 2008 Tex. App. LEXIS 4779, at **4-5 (Tex.App.-Fort Worth June 26, 2008, pet. ref'd) (mem. op., not designated for publication) (noting that Lortab contains hydrocodone and that hydrocodone is listed in Schedule II); Beaty v. State, 156 S.W.3d 905, 906 n. 2 (Tex.App.-Beaumont 2005, no pet.) (stating that Lortab is a Schedule II controlled substance because it contains hydrocodone); Tilson v. State, No. 05-96-00292-CR, 1998 WL 452065, at *1, 1998 Tex.App. LEXIS 4789, at *2 (Tex.App.-Dallas Aug. 6, 1998, no pet.) (mem. op., not designated for publication) (same); United States Dep't of Justice, Drug Enforcement Admin., Drugs and Chemicals of Concern: Hydrocodone, available at http://www.de adiversion. usdoj.gov/drugs_concern/hydrocodone/hydrocodone.htm (last visited Feb. 8, 2011); Drugs.com, Lortab, available at http:// www.drugs.com/lortab.html (last visited Feb. 8, 2011) (describing Lortab as a combination of acetaminophen and hydrocodone).
[2] The indictment contained two enhancement paragraphs alleging Avery's prior felony convictions for forgery and burglary of a habitation, both of which the trial court ultimately determined were "true." Because she had been twice convicted of felonies and the offense in this case was a third-degree felony, Avery was subject to the punishment range associated with first-degree feloniesconfinement for five to ninety-nine years or life. See TEX. PENAL CODE ANN. § 12.32(a) (Vernon Supp.2010) (outlining the punishment range for first-degree felonies); see also id. § 12.42(b) (Vernon Supp.2010) ("[I]f it is shown on the trial of a second-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a first-degree felony.").
[3] Dr. Breech testified that Avery had reoccurring pain in her knee and her ankle that had previously required surgery.
[4] Stephani Trbula, M.D., the Wal-Mart pharmacist on duty, was shown the prescription form that Avery presented to the pharmacy department at the Beeville Wal-Mart and described it as follows:
Where the original prescription was written, there was [sic] cross-out marks and then the actual strength had been written over a couple of times so that it was darker throughout the cross-out mark. And then above that, there were parentheses that said "seven-point-five." And so it had been altered and so I wasn't sure who made the alterations or what the true strength was.
She further noted that:
[Munoz] had wrote [sic] the "seven-point-five" in parentheses above the original strength of the medication because when she scanned it into our computer, you couldn't read it. Because of the erasure marks, you couldn't see the strength on our digital screen. So she had written it in parentheses to let me know that that's what it said but that she did not make any of the cross-out marks or any of the darkening on the actual image.
[5] The "seven-point-five" notation refers to the dosage strength of the prescribed Lortab.
[6] On cross-examination, Dr. Trbula stated that if people manufactured their own prescription forms and then presented them for fulfillment, the forms would be "fraudulent prescription forms." She also acknowledged that the prescription form in this case was Dr. Breech's form and that the form, itself, was not a fraudulent prescription form. Instead, she testified that the form merely contained an unauthorized alteration.
[7] At the outset of our analysis, we note that the State has not cited to any relevant authority to support its position on appeal.
[8] See supra note 1.
[9] Section 481.129(a)(5)(A) would be superfluous if we agreed with the State's argument because all prescriptions require the presentment of a prescription form or order and, according to the State's reasoning, any attempts to alter, change, or re-create a prescription form would make the form a "fraudulent prescription form," rendering the acts criminalized in section 481.129(a)(5)(A) meaningless or included in the "fraudulent prescription form" offense. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.002(41) (defining a "prescription" as "an order by a practitioner to a pharmacist for a controlled substance for a particular patient," which includes several identifying pieces of information), 481.075, 481.129(a)(5)(A)-(B) (Vernon 2010). We do not believe that such a construction reflects the intent of the Legislature, especially considering former article 4476-15, section 4.09 previously grouped all of the manner and means together and section 481.129(a) separated the acts into unique divisions that each are separate and distinct.
[10] The dissent suggests that the Beaty court affirmed Beaty's conviction under section 481.129(a)(5)(B)the fraudulent prescription form provision. However, we note that Beaty was charged by indictment with both forging a prescription and using a fraudulent prescription form under sections 481.129(a)(5)(A) and 481.129(a)(5)(B). See Beaty v. State, 156 S.W.3d 905, 906 (Tex.App.-Beaumont 2005, no pet.). On appeal, Beaty only challenged the sufficiency of the evidence indicating that she presented the prescription form to the Wal-Mart pharmacy with full knowledge that the prescription was not the act of the doctor, or in other words, she merely challenged the intent prong of the offensea culpable mental state that is common to both offenses. Id.; see TEX. HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(A), (a)(5)(B). She did not argue that the State charged her under the wrong statute. In affirming Beaty's conviction, the Beaumont Court of Appeals simply concluded that Beaty acted with full knowledge that the prescription form presented to the pharmacy was not the act of the doctor. Beaty, 156 S.W.3d at 910. The Beaty court did not definitively state that it was affirming Beaty's conviction under either section 481.129(a)(5)(A) or section 481.129(a)(5)(B). To that end, we do not believe that the Beaty case supports the dissent's position.
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Court of Appeals
of the State of Georgia
ATLANTA, November 09, 2018
The Court of Appeals hereby passes the following order
A19I0086. SUN ARCHITECTURAL PRODUCTS, LLC v. LEE PUFFER et al.
Upon consideration of the Application for Interlocutory Appeal, it is ordered that it be
hereby DENIED.
LC NUMBERS:
17CV2154
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, November 09, 2018.
I certify that the above is a true extract from the minutes
of the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk.
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State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 17, 2014 517526
________________________________
In the Matter of the Claim of
NATALIE M. DeROSE,
Respondent.
WINSTON RETAIL SOLUTIONS, LLC, MEMORANDUM AND ORDER
Appellant.
COMMISSIONER OF LABOR,
Respondent.
(And Two Other Related Claims.)
________________________________
Calendar Date: June 9, 2014
Before: Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.
__________
Epstein Becker & Green, PC, New York City (Dean L.
Silverberg of counsel), for appellant.
Francis J. Smith, Albany, for Natalie M. DeRose and others,
respondents.
__________
Appeals from six decisions of the Unemployment Insurance
Appeal Board, filed November 27, 2012, which ruled that Winston
Retail Solutions, LLC was liable for unemployment insurance
contributions based on remuneration paid to claimants and others
similarly situated.
Winston Retail Solutions, LLC is a retail consulting firm
that provides merchandising coordinators, such as claimants, to
various clothing manufacturers. The merchandising coordinators
assist Winston's clients by, among other things, installing,
stocking and cleaning their display areas in retail stores that
-2- 517526
sell their brand. After claimants ceased working for Winston and
applied for unemployment insurance benefits, the Department of
Labor issued initial decisions finding that Winston was liable
for contributions based upon the exercise of control over
claimants and others similarly situated. An Administrative Law
Judge sustained the decisions following a hearing and the
Unemployment Insurance Appeal Board agreed, ruling that claimants
and others similarly situated were employees of Winston, not
independent contractors. Winston now appeals.
We affirm. "Whether an employer-employee relationship
exists is a factual question to be resolved by the Board and its
determination in that regard will be upheld so long as it is
supported by substantial evidence, even though there may be
evidence in the record that could have supported a contrary
conclusion" (Matter of Perdue [Environmental Compliance,
Inc.–Commissioner of Labor], 47 AD3d 1139, 1139 [2008] [citations
omitted]; accord Matter of Victor [Aubrey Organics, Inc.–
Commissioner of Labor], 116 AD3d 1327, 1327 [2014]). Here,
claimants were required to sign an agreement with Winston that
provided, among other things, that Winston would set their
schedule and claimants were prohibited from working for any of
Winston's clients during the term of the agreement and for six
months thereafter. Winston provided claimants with orientation
training and training manuals. Claimants were not free to hire
substitutes and had to inform Winston if they could not work on a
given day and Winston would arrange coverage. Winston also
required daily reports from claimants, in some cases, including
pictures, reflecting the services provided each day, and Winston
representatives would review the reports and require claimants to
fix any displays that they found unacceptable. Notwithstanding
the proof in the record that could support a contrary result, the
above constitutes substantial evidence supporting the
determination of the Board that claimants and those similarly
situated were Winston's employees and not independent contractors
(see Matter of Cohen [Just Energy Mktg. Corp.–Commissioner of
Labor], 117 AD3d 1112, 1113 [2014]; Matter of Tekmitchov [Musika
LLC], 110 AD3d 1301, 1301 [2013], lv dismissed 23 NY3d 941
[2014]). Finally, although Winston argues that our prior
decision involving similar employment in Matter of Baker
(P.I.M.M.S. Corp.–Hudacs) (209 AD2d 751 [1994]) is controlling,
-3- 517526
that case is factually distinguishable and we are not persuaded
that a different conclusion is warranted here.
Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.,
concur.
ORDERED that the decisions are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court
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602 N.W.2d 329 (1999)
John A. EGLI and Margaret L. Egli, Appellees,
v.
Todd M. TROY, Diana J. Troy, Joseph Ranson a/k/a Joseph H. Ranson, Jr., and Diane Ranson a/k/a Diane C. Ranson, Appellants,
v.
Rosemary E. Greve, Appellee.
No. 98-831.
Supreme Court of Iowa.
November 17, 1999.
*330 Les V. Reddick, Todd L. Stevenson, and D. Flint Drake of Kane, Norby & Reddick, P.C., Dubuque, for appellants.
William C. Fuerste of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., Dubuque, for appellees John A. Egli and Margaret L. Egli.
Timothy J. Healy, Farley, for appellee Rosemary E. Greve.
Considered by McGIVERIN, C.J., and LARSON, CARTER, CADY, and ANDREASEN,[*] JJ.
LARSON, Justice.
When these plaintiffs, the Eglis, discovered a home being built on land they thought was theirs, they brought an action against the parties building the house, the Troys, as well as other adjoining neighbors, the Ransons, who the Eglis claim were also asserting dominion over some of the Egli land. The Eglis' action was brought under Iowa Code chapter 650 (1995) to establish ownership of the land by acquiescence.
The Troys and Ransons brought in their seller, Rosemary Greve, on a third-party petition asserting breach of a special warranty deed given to the Ransons (who later conveyed part of it to the Troys). The district court, Robert J. Curnan, Judge, entered summary judgment against the Troys and Ransons on their third-party claim against Mrs. Greve. Later, *331 the court, Lawrence H. Fautsch, Judge, ruled in favor of the Eglis on their claim that the property in question was bounded by a fence line. This is so, according to the court, because the fence line had been established for over ten years and the adjoining owners had acquiesced in the fence as a boundary. We affirm the acquiescence ruling but reverse the summary judgment in favor of the third-party defendant.
I. Facts.
Two parcels of land in Dubuque County are involved. Both are shaped as right triangles, and both are located on the east side of a common fence line, forming the hypotenuse for both triangular tracts. The tracts, whose right-angle legs are shown with heavy marking on the attached plat, are designated on the plat as "disputed area 1" and "disputed area 2." The house is being built in disputed area 1.
The Eglis claim they own the two tracts because they and their predecessors on the east side of the fence have treated the fence as the boundary, and the Troys, Ransons, and their predecessors on the west side of the fence have acquiesced in that boundary line for over ten years. See Iowa Code § 650.14.
Rosemary Greve, who gave a special warranty deed to the Ransons, was brought in as a third-party defendant. The extent of her liability under that deed is discussed in the following division.
II. The Special Warranty Deed.
When the Ransons purchased their property from Elmer and Rosemary Greve in 1988, part of it was purchased for cash, with a warranty deed, and the balance was purchased on an installment contract. The contract was paid off in 1996. In the meantime, Elmer Greve had died. When the Ransons paid off the contract, a court officer's deed was given to convey Elmer's share of the land to the Ransons. Rosemary Greve conveyed her interest by the special warranty deed now at issue. The deed provided in part:
Grantors do Hereby Covenant with Grantees and successors in interest to Warrant and Defend the real estate against the lawful claims of all persons claiming by, through or under them, except as may be above stated.
The Ransons, relying on the covenants of this deed, seek protection in the event they lose on the Eglis' claim of title by acquiescence. The district court granted Greve's motion for summary judgment, ruling that Greve could not be held liable under any covenants of the deed because the suit by the Eglis was not a claim by "persons claiming by, through or under" her.
Special warranty deeds such as this, covenanting only against liens or encumbrances by the seller, are commonly used to convey legal title on satisfaction of an installment real estate contract.
Under a contract for a deed the vendee is customarily in possession for a number of years before the deed is executed. He is thus in a position to make and suffer liens and other encumbrances upon the property. The vendor in his deed naturally does not want to warrant that the title is free from such liens. If a general deed form, and not the special form warranting only for the acts of the grantor, is used, it is recommended that a statement similar to the following be added to the deed in the space for listing encumbrances:
... that they are free from incumbrances except as to any liens or incumbrances created or suffered to be created by the acts or defaults of the grantee.
1 Marlin M. Volz, Jr., Iowa Practice § 7.32, at 163 (3d ed.1996).
We have not previously considered special warranty deeds under similar circumstances. The parties cite an old Iowa case, Funk v. Creswell, 5 Iowa 62 (1857), which discussed various types of warranties in deeds but lends no help in this case. Nor *332 do any other Iowa cases. Other courts, however, have discussed the role of special warranty deeds. The North Dakota Supreme Court has stated, "under a special warranty deed a grantor is liable if the grantee's ownership is disturbed by some claim arising through an act of the grantor." Stracka v. Peterson, 377 N.W.2d 580, 583-84 (N.D.1985). In Central Life Assurance Society v. Impelmans, 13 Wash.2d 632, 126 P.2d 757, 763 (1942), the Washington Supreme Court held a special warranty deed normally warrants title only against claims held by, through, or under the grantor, or against incumbrances made or suffered by him, and it cannot be held to warrant title generally against all persons. The Arkansas Supreme Court has stated a special warranty deed "simply warrants the title against all defects therein done or suffered by the grantor." Reeves v. Wisconsin & Arkansas Lumber Co., 184 Ark. 254, 42 S.W.2d 11, 12 (1931) (emphasis added).
The issue before us is whether a grantor who has allegedly acquiesced in the establishment of an encumbrance on real estate is responsible for a claim "by, through or under" the vendor, as these third-party petitioners claim. We believe the warranty in this case covers claims permitted by the vendor as well as those affirmatively created by her. If that were not so, encumbrances such as mechanics' liens, which are imposed by others, would be excluded from the warranty. We do not believe that would be a reasonable interpretation of the warranting language.
The third-party defendant, Greve, does not appear to challenge this as a legal proposition or claim an acquiescence cannot constitute a breach of warranty under such a deed. She argues principally that, even assuming acquiescence can give rise to a claim covered by the warranty, any title acquired by her neighbors across the fence through acquiescence occurred long before she and her husband acquired title in 1964. Therefore, according to her, any acquiescence in the boundary line during the time the Greves owned the property would be irrelevant.
The acquiescence, if any, cannot be pinpointed in terms of time. In fact, the district court, in denying the Eglis' motion for summary judgment (in which they attempted to fix a pre-1964 acquiescence as a matter of law) stated, "the court cannot find as a matter of law that the boundaries were established by acquiescence prior to the Greves' 1964 purchase of the ... property." We agree; the third-party petitioners should be permitted to show when, with respect to the Greves' ownership, the acquiescence occurred.
We hold that the special warranty deed warranted against claims arising through acquiescence by the Greves as well as any affirmative acts by them. A genuine issue of material fact was generated as to whether the Greves were responsible for any part of the ten-year period of acquiescence. It was therefore error for the court to grant summary judgment in favor of Greve. We reverse and remand for further proceedings on the third-party petition.
III. The Court's Finding That the Fence Line Was Established by Acquiescence.
An action under Iowa Code chapter 650 to establish a boundary is considered on appeal as an ordinary action. Iowa Code §§ 650.4, 650.15. The district court's judgment has the effect of a jury verdict, and on appeal the only inquiry is whether the findings are supported by substantial evidence. Ollinger v. Bennett, 562 N.W.2d 167, 170 (Iowa 1997). The Troys and Ransons argue that the record does not meet that test. They argue that the fence in question was only a barrier, apparently for grazing livestock, and not intended to be a boundary. See Brown v. McDaniel, 261 Iowa 730, 735, 156 N.W.2d 349, 352 (1968).
Under Iowa Code section 650.14,
*333 [i]f it is found that the boundaries and corners alleged to have been recognized and acquiesced in for ten years have been so recognized and acquiesced in, such recognized boundaries and corners shall be permanently established.
"Acquiescence" is defined as
"the mutual recognition by two adjoining landowners for ten years or more that a line, definitely marked by fence or in some manner, is the dividing line between them. Acquiescence exists when both parties acknowledge and treat the line as the boundary. When the acquiescence persists for ten years the line becomes the true boundary even though a survey may show otherwise and even though neither party intended to claim more than called for by his deed."
Ollinger, 562 N.W.2d at 170 (quoting Sille v. Shaffer, 297 N.W.2d 379, 381 (Iowa 1980)). The adjoining landowners or their predecessors must have knowledge of and consent to the asserted property line as a boundary. Tewes v. Pine Lane Farms, Inc., 522 N.W.2d 801, 806 (Iowa 1994).
A party seeking to establish a boundary other than a survey line must prove it by "clear" evidence. Id.; see 11 C.J.S. Boundaries § 74, at 143 (1995) ("Inasmuch as the ownership of land is affected so far as the agreed line varies from the true line, the proof of the agreed location should be clear."). We apply the clear-evidence standard in reviewing this case.
Acquiescence may be inferred by the silence or inaction of one party who knows of the boundary line claimed by the other and fails to dispute it for a ten-year period. Tewes, 522 N.W.2d at 806. Acquiescence is said to be "consent inferred from silencea tacit encouragement[and] involves notice or knowledge of the claim of the other party." Patrick v. Cheney, 226 Iowa 853, 856, 285 N.W. 184, 186 (1939).
Evidence at trial showed that the present contestants, as well as their predecessors in interest, treated the fence line as the boundary. Both the Eglis and their predecessors believed the fence was the boundary and had been the boundary since about 1945. Elmer Greve's own son testified that the fence was the "divider" between the farms.
Several witnesses testified that parties on both sides of the fence had, for many years, used the land up to the fence and no further. In addition, the owners on both sides of the fence have treated it as a boundary fence by entering into a fence maintenance agreement, and the maintenance of the fence in accordance with that agreement continued until approximately 1985.
We believe substantial evidence supports the trial court's finding.
IV. The Evidence Rulings.
The defendants complain the court erroneously admitted hearsay evidence on the question of acquiescence. Specifically, they complain the plaintiffs were permitted to present testimony as to conversations with their seller and with a real estate agent prior to the purchase of the land. The defendants also objected to the written fence agreement admitted into evidence, complaining that it was hearsay. All of this evidence was inadmissible, according to the defendants, because it was offered to prove the truth of the matter asserted in it.
The plaintiffs respond in several ways. Part of the evidence came in before a hearsay objection was made and is therefore a part of the record in any event. Also, they claim if the evidence was hearsay at all it was subject to an exception under Iowa Rule of Evidence 803(3) (a statement of the declarant's then-existing state of mind, emotion, intent, design, etc.). The plaintiffs also argue a lack of prejudice, claiming that any hearsay statements by the plaintiffs' witnesses were merely cumulative because the defendants' own witnesses testified to similar statements about the fence.
*334 We believe the court properly admitted the evidence under rule 803(3) with respect to the intent of the parties and their predecessors regarding the location of the boundary. In addition, we believe the evidence was admissible under Iowa Rule of Evidence 803(20), which provides this exception for reputation concerning boundaries:
Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in a community, and reputation as to events of general history important to the community....
In this case, we believe the "community" means the neighborhood and those persons who had knowledge predating the litigation concerning the boundary line.
One authority has said with respect to this exception:
This is a minor exception to the hearsay rule. Boundaries and easements are usually proven by reference to deeds and other documentary evidence.
Reputation evidence is multiple hearsay. It is glorified gossip and is not extraordinarily trustworthy.... However, in controversies concerning boundaries or customary usage of land in a community, it is sometimes the only evidence available. On the premise that some evidence, though multiple hearsay, is better than no evidence at all, this exception to the hearsay rule can be justified.
David F. Binder, Hearsay Handbook § 21.03, at 358 (3d ed.1991). This comment, we believe, demonstrates the practical necessity for such evidence in a case such as this. Evidence in the form of statements by neighbors and the real estate agent, as well as the fence maintenance arrangement under which the then-owners acknowledged the fence as a boundary provides sufficient trustworthiness to justify the application of this exception. Furthermore, we agree with the plaintiffs that any such evidence was merely cumulative because the defendants' own evidence presented basically the same facts. We find no error in the court's evidence ruling.
We affirm the district court on its finding of acquiescence discussed in Division III. We reverse the summary judgment discussed in Division I and remand to the district court for further proceedings.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
*335
NOTES
[*] Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).
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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 August 15, 2013*
Decided August 21, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13‐1740
GLORIA E. SWANSON, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 12 C 8290
BAKER & McKENZIE, LLP, et al.
Defendants‐Appellees. Amy J. St. Eve,
Judge.
O R D E R
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. The appeal is therefore submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 13‐1740 Page 2
Seventeen years ago, Gloria Swanson left her position as a legal secretary with
the law firm of Baker & McKenzie, where she had worked for five years. Her
relationship with the partner to whom she was assigned was not a happy one, and so in
May 1995, she requested a transfer. When Baker denied that request, Swanson decided
to resign. Believing that the firm had allowed comparable white secretaries to transfer,
Swanson (an African‐American) refused to sign a release that would have prohibited
her from suing Baker for racial discrimination. Later, however, she negotiated a more
favorable arrangement.
After she left Baker, Swanson obtained comparable employment at other Chicago
law firms, including a 14‐year stint with one. She was laid off in March 2011,
unfortunately, and found herself back on the job market. Although she sent out
numerous résumés, her efforts at securing new employment were unsuccessful. She
wondered why this was so, since it seemed that she was often rejected at the final stage,
and so she hired a reference‐checking company, Allison & Taylor, to look into the
situation. When A&T contacted Baker around July 18, 2012, Human Resources Manager
Patricia Griffin told them that Baker could not find Gloria Swanson in its system, and
thus it could neither confirm nor deny her employment there. Later, Nancy
Offdenkamp, who worked for Griffin, told Swanson that Baker’s payroll system had
changed, but that she would try to obtain access to the older records. Swanson found
this suspicious, because Baker was able to confirm the employment of the partner for
whom she had worked, even though he had died in 2007 after working for the firm for
50 years. Baker continued searching, and on September 13, 2012, Offdenkamp called
A&T and informed them that Baker had located Swanson’s employment records and
was now in a position to confirm this information upon Swanson’s signing a release.
Swanson did so; Baker told A&T that she had worked there from February 2, 1990,
through May 22, 1995; and it also confirmed Swanson’s employment history to an
attorney who wanted a reference for her.
In the meantime, Swanson filed a charge of racial discrimination with the Equal
Employment Opportunity Commission on July 23, 2012, alleging that Baker had
discriminated against her based on her race and had retaliated against her for engaging
in protected activity. The EEOC issued her a right‐to‐sue letter on August 2, 2012, and
she filed this action two weeks later. The district court dismissed under Federal Rule of
No. 13‐1740 Page 3
Civil Procedure 12(b)(6). Swanson challenges that decision on appeal, urging that her
complaint states a plausible claim for relief.
To the extent that Swanson is attempting to resuscitate her allegations of racial
discrimination in connection with her 1995 departure from Baker, it is plain that she
cannot succeed. The complaint itself reveals that any such claim is time‐barred. Even
though the statute of limitations is an affirmative defense, district courts may grant
judgment on the pleadings if there is no conceivable way to save the claim. That
describes Swanson’s case.
Swanson has also presented two theories that do not suffer from that flaw: first,
she argues that the firm’s responses to various requests for references in 2011 and 2012
amounted to retaliation against her for her 1995 accusations of racial discrimination;
and second (relying on the district court’s supplemental jurisdiction, 28 U.S.C. § 1367),
she argues that Baker defamed her by giving false, negative information in response to
inquiries from prospective employers. We address these in turn, reviewing the district
court’s decisions de novo.
With respect to her retaliation claim, Swanson urges that the district court erred
by concluding that her complaint failed to allege any adverse employment action. She
believes that Baker must have told prospective employers something adverse. In
particular, she thinks that if she represented on her job application that she had worked
for Baker between 1990 and 1995, yet Baker told the prospective employer that it could
neither confirm nor deny her employment there, then the prospective employer would
conclude that she was lying and would refuse to hire her. But, in the absence of any
additional facts that would support that final inferential leap, this is the type of
speculation that Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal,
556 U.S. 662 (2009), identify as insufficient to pass muster under Rule 12(b)(6). The
statement “we have searched our records and can neither confirm nor deny that X
worked for us” says nothing about X’s credibility. All it says is that Baker’s record‐
keeping may leave something to be desired. This would be a different case, we can
assume, if Baker had responded to the reference inquiry by saying that its records
showed that Swanson had never worked there, but that is not what it said. Swanson’s
own complaint also shows that after two months of looking, Baker did find her records,
confirmed her employment history to A&T, and then confirmed it to a prospective
No. 13‐1740 Page 4
employer. Taking every reasonable inference as favorably to Swanson as one can, this
account does not portray retaliation of any kind. As the district court properly found, it
does not state a claim upon which relief may be granted.
For similar reasons, Swanson’s defamation claim was properly dismissed. Under
Illinois law, which applies here, a plaintiff must show that the defendant made a false
statement concerning her, that the defendant made an unprivileged publication of that
defamatory statement to a third party, and that the plaintiff suffered damages as a
result. Seith v. Chicago Sun‐Times, Inc., 861 N.E.2d 1117, 1126 (Ill. App. 2007). Swanson’s
complaint reveals that she cannot satisfy either of the first two requirements. Nothing
but speculation suggests that Baker was lying when it said that it could not find her
employment records. There is no reason to think that the records concerning partners
would have been kept in the same place, in the same way, as records concerning staff.
In addition, the statement that Baker could neither confirm nor deny her employment is
not defamatory, because it is capable of an innocent construction. See Lott v. Levitt, 556
F.3d 564, 568 (7th Cir. 2009). Finally, the statements Swanson attributes to Baker were
made to her own agent, A&T, which does not qualify as a third party for defamation
purposes. See, e.g., Snyder v. Ag Trucking, Inc., 57 F.3d 484, 489 (6th Cir. 1995).
As we said in an earlier case brought by Swanson, “a plaintiff must do better
than putting a few words on paper that, in the hands of an imaginative reader, might
suggest that something has happened to her that might be redressed by the law.”
Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010). We have no doubt that the
experience Swanson recounts in the current complaint was frustrating, but that does not
automatically mean that some form of legal remedy exists. This time, she has not
presented a set of facts that support a claim for relief.
The judgment of the district court is therefore AFFIRMED.
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302 U.S. 761
58 S.Ct. 369
82 L.Ed. 590
Raymond E. KORTE, petitioner,v.The UNITED STATES of America.
No. 588.
Supreme Court of the United States
December 20, 1937
Mr. U. S. Lesh, of Indianapolis, Ind., for petitioner.
1
For opinion below, see Weir v. U. S., 92 F.2d 634.
2
Petition for writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied.
3
Rehearing denied 302 U.S. 781, 58 S.Ct. 480, 82 L.Ed. ——.
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United States Court of Appeals
for the Federal Circuit
______________________
RICHARD STORER, GILLES GOSSELIN, JEAN-
PIERRE SOMMADOSSI, PAOLA LACOLLA,
Appellants
v.
JEREMY CLARK,
Appellee
UNITED STATES,
Intervenor
______________________
2015-1802
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 105,981.
______________________
Decided: June 21, 2017
______________________
GREGORY A. CASTANIAS, Jones Day, Washington, DC,
argued for appellants. Also represented by JENNIFER
LORAINE SWIZE; ANTHONY M. INSOGNA, JOHN DAVID
KINTON, San Diego, CA; THOMAS EUGENE FRIEBEL, New
York, NY; CALVIN GRIFFITH, Cleveland, OH.
FRANK SCHERKENBACH, Fish & Richardson PC, Bos-
ton, MA argued for appellee. Also represented by
2 STORER v. CLARK
JONATHAN ELLIOT SINGER, CRAIG E. COUNTRYMAN, W.
CHAD SHEAR, San Diego, CA.
JOSEPH FORREST BUSA, Appellate Staff, Civil Division,
United States Department of Justice, Washington, DC,
argued for intervenor. Also represented BY MARK R.
FREEMAN, BENJAMIN C. MIZER; THOMAS W. KRAUSE, Office
of the Solicitor, United States Patent and Trademark
Office, Alexandria, VA.
______________________
Before PROST, Chief Judge, NEWMAN, and DYK, Circuit
Judges.
NEWMAN, Circuit Judge.
This patent interference contest involves methods of
treating hepatitis C by administering compounds having
a specific chemical and stereochemical structure, based on
the following foundation formula of a five-membered ring
having the fluorine substituent in the 2´(down) position:
Storer Br. at 8. The priority decision was based on ena-
blement of this product. The interference was declared
between an issued patent (Storer et al.) and a pending
application (Clark), both of which were filed before the
effective date of the America Invents Act, the statute that
abolished the first-to-invent interference rule in favor of a
STORER v. CLARK 3
first-to-file rule. By the terms of the Act, § 3(n)(2), the
prior, first-to-invent, law applies to this interference.
To establish priority, Storer relied on the disclosure in
the provisional specification from which priority was
claimed for conception and constructive reduction to
practice. In its joint decision on Clark’s motion to deny
Storer the benefit of the provisional application and on
Clark’s motion to invalidate Storer’s claims on the
grounds of lack of enablement and written description, 1
the Patent Trial and Appeal Board (PTAB or “Board”)
held that Storer’s provisional application was not ena-
bling for the count of the interference, and on that ground
the PTAB entered judgment granting priority to Clark. 2
Storer appeals that judgment and the underlying decision
on Clark’s motions.
We take note that Storer initially filed in the District
of Delaware, seeking review of the Board’s decision under
35 U.S.C. § 146. The district court dismissed the case,
Idenix Pharmaceuticals. LLC v. Gilead Pharmasset LLC,
2016 WL 6804915, at *1 (D. Del. Nov. 16, 2016), based on
this court’s ruling in Biogen MA, Inc. v. Japanese Founda-
tion for Cancer Research, 785 F.3d 648 (Fed. Cir. 2015),
that the America Invents Act eliminated the option of
district court review under Section 146 for interferences
declared after September 15, 2012. Although Storer says
that Biogen was incorrectly decided, that decision is
binding on this panel. Storer’s appeal of the district
court’s dismissal has been stayed pending the outcome of
1 Decision on Motions – Bd.R. 125, Clark v. Storer,
Interference No. 105,981, (P.T.A.B. Jan. 16, 2015), Doc
No. 687 (“Bd. Op.”).
2 Clark v. Storer, Interference No. 105,981, 2015
WL 1325503 (P.T.A.B. Mar. 23, 2015).
4 STORER v. CLARK
this appeal. Order, Idenix Pharm. LLC v. Gilead Phar-
masset LLC, No. 17-1369 (Fed. Cir. Feb. 16, 2017).
BACKGROUND
Inventors Richard Storer et al. were issued U.S. Pa-
tent No. 7,608,600 (“the ‘600 Patent”), on a final applica-
tion filed on June 27, 2003. The patent is assigned to
Idenix Pharmaceuticals. In the interference proceeding,
Storer was initially declared the senior party based on the
June 28, 2002 filing date of provisional application No.
60/392,350 (called “the S1 application” by the Board).
Clark’s Application No. 11/854,218, assigned to Gilead
Pharmasset, was filed September 12, 2007, with priority
claimed to a provisional application filed on May 30, 2003.
Clark moved to deny Storer the priority date of the S1
application and to invalidate Storer’s claims, arguing that
the S1 application did not enable compounds having the
2´F(down) substituent. Storer argued that these com-
pounds were generically disclosed in the S1 application,
and were readily obtained based on the disclosure in the
S1 provisional and the prior art. The Board did not agree,
and by withdrawing entitlement to the provisional’s filing
date, the Board awarded priority to Clark. Storer now
appeals that decision.
DISCUSSION
The Interfering Claims
Storer and Clark were investigating the treatment of
hepatitis C using modified nucleoside compounds, includ-
ing certain heterocyclic compounds having a fluorine
substituent in the 2´ position. The PTAB identified the
interfering subject matter, and selected claims for purpos-
es of determining priority. From the Storer patent, the
Board selected claim 1:
1. A method for the treatment of a host infected
with a hepatitis C virus, comprising administer-
STORER v. CLARK 5
ing to the host infected with a hepatitis C virus an
effective amount of a compound having the formu-
la:
or a pharmaceutically acceptable salt thereof,
wherein:
R1 is H; mono-, di- or triphosphate; acyl; an amino
acid ester; a carbohydrate; a peptide;
or a pharmaceutically acceptable leaving group
which when administered in vivo provides a com-
pound wherein R1 is H or phosphate;
R2 is H; acyl; an amino acid ester; a carbohydrate;
a peptide; or a pharmaceutically acceptable leav-
ing group which when administered in vivo pro-
vides a compound wherein R2 is H;
Base* is selected from the group consisting of ad-
enine, N6-alkylpurine, N6-acylpurine, N6-
benzylpurine, N6-halopurine, N6-vinylpurine, N6-
acetylenic purine, N6-acyl purine, N6-
hydroxyalkylpurine, N6-alkylamino-purine, N6-
thioalkyl purine, N2-alkylpurine, N2-alkyl-6-
thiopurine, thymine, cytosine, 5-fluorocytosine, 5-
methylcytosine, 6-azapyrimidine, 6-azacytosine, 2-
and/or 4-mercaptopyrimidine, uracil, 5-halouracil,
5-fluorouracil, C5-alkylpyrimidine, C5-
benzylpyrimidine, C5-halopyrimidine, C5-
vinylpyrimidine, C -acetylenic pyrimidine, C -acyl
5 5
6 STORER v. CLARK
pyrimidine, C5-hydroxyalkyl purine, C5-
amidopyrimidine, C5-cyanopyrimidine, C5-
iodopyrimidine, C -iodo-pyrimidine, C -Br-vinyl
6 5
pyrimidine, C6-Br-vinylpyrimidine, C5-
nitropyrimidine, C -amino-pyrimidine,
6 N2-
alkylpurine, N2-alkyl-6-thiopurine, 5-azacytidinyl,
5-azauracilyl, triazolopyridinyl, imidazolopyridi-
nyl, pyrrolopyrimidinyl, pyrazolopyrimidinyl,
guanine, hypoxanthine, 2,6-diaminopurine, and 6-
choropurine;
R12 is C(Y3)3; and
Y3 is independently H or F.
From the Clark application, the Board selected claim 164:
164. A method for the treatment of hepatitis C in-
fection, which comprises:
administering to a mammal in need thereof an an-
tivirally effective amount of a (2ˊR)-2ˊ-deoxy-2ˊ-
fluoro-2ˊ-C-methyl nucleoside (β-D or β-L) or its
pharmaceutically acceptable salt of the structure:
wherein R1 and R7 are independently H, a mono-
phosphate, a diphosphate, a triphosphate, a H-
phosphonate, an alkyl, an alkyl sulfonyl, or an ar-
ylalkyl sulfonyl; and R4 is NH2 or OH.
STORER v. CLARK 7
The parties agree that the only question focuses on
whether the Storer S1 provisional together with the prior
art enabled compounds having a 2´F(down) substituent.
Enablement
Enablement is relevant for validity and to the issue of
whether the provisional application is a constructive
reduction to practice. “Constructive reduction to practice
means a described and enabled anticipation under 35
U.S.C. 102(g)(1), in a patent application of the subject
matter of a count.” 37 C.F.R. § 41.201. “When a party to
an interference seeks the benefit of an earlier-filed United
States patent application, the earlier application must
meet the requirements of 35 U.S.C. § 120 and 35 U.S.C. §
112 ¶ 1 for the subject matter of the count.” Hyatt v.
Boone, 146 F.3d 1348, 1352 (Fed. Cir. 1998) (footnotes
omitted). Section 112 ¶ 1 requires:
The specification shall contain a written descrip-
tion of the invention, and of the manner and pro-
cess of making and using it, in such full, clear,
concise, and exact terms as to enable any person
skilled in the art to which it pertains, or with
which it is most nearly connected, to make and
use the same, and shall set forth the best mode
contemplated by the inventor of carrying out his
invention.
35 U.S.C. § 112, para. 1. 3 Therefore, when the issue is
priority based on the content of the specification, “[t]he
earlier application must contain a written description of
the subject matter of the interference count, and must
meet the enablement requirement.” Hyatt, 146 F.3d at
1352.
3 This section is now § 112(a).
8 STORER v. CLARK
Enablement is a matter of law, and is reviewed with-
out deference; however, the factual underpinnings of
enablement are reviewed for support by substantial
evidence on the entirety of the PTO record. Microsoft
Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1297 (Fed. Cir.
2015). To establish enablement of a claim whereby new
chemical compounds are provided for use to treat disease,
the application must enable production or synthesis of the
new compounds. See In re Brebner, 455 F.2d 1402, 1404
(C.C.P.A. 1972) (“A method of making starting materials
not known in the art must be set forth in order to comply
with the enablement requirement.”).
The Board held that the S1 provisional, taken togeth-
er with the prior art, did not enable the specific com-
pounds having the identified structure. Storer argued,
and repeats on appeal, that a person of ordinary skill
would have been able to make this class of compounds,
having the requisite stereochemistry, based on infor-
mation in the S1 provisional application and the prior art.
“The enablement requirement is met where one skilled in
the art, having read the specification, could practice the
invention without ‘undue experimentation.’” Streck, Inc.
v. Research & Diagnostic Sys., Inc., 665 F.3d 1269, 1288
(Fed. Cir. 2012) (quoting ALZA Corp. v. Andrx Pharm.,
LLC, 603 F.3d 935, 940 (Fed. Cir. 2010)).
“Whether undue experimentation is required ‘is not a
single, simple factual determination, but rather is a
conclusion reached by weighing many factual considera-
tions.’” Id. As summarized in In re Wands, 858 F.2d 731,
737 (Fed. Cir. 1988), relevant factors may “include (1) the
quantity of experimentation necessary, (2) the amount of
direction or guidance presented, (3) the presence or ab-
sence of working examples, (4) the nature of the inven-
tion, (5) the state of the prior art, (6) the relative skill of
those in the art, (7) the predictability or unpredictability
of the art, and (8) the breadth of the claims.”
STORER v. CLARK 9
The Board determined that the claimed compounds
having a 2´F(down) substituent were not enabled in
Storer’s S1 provisional application, in that undue experi-
mentation would be required to produce this structure.
The Board analyzed the disclosure in terms of the eviden-
tiary factors set forth in Wands.
Storer does not dispute the Board’s findings as to the
third, fourth, fifth, sixth, and eighth Wands factors, but
argues that these factors are not dispositive of enable-
ment. For the third Wands factor—the presence or ab-
sence of working examples—Storer does not dispute that
the S1 provisional contains no specific examples of syn-
thesis of compounds having the fluoro substituent in the
2´(down) position. Bd. Op. at 24.
For the fourth Wands factor—the nature of the inven-
tion—the Board found that:
Count 1 is best characterized as the administra-
tion of a genus of nucleosides used in the treat-
ment of viruses, particularly those of the family
Flaviviridae (which includes HBV and HCV). We
also find that, as of the time of filing of the S1 ap-
plication, although organic fluoridation mecha-
nisms were generally well-known in the art a 2ˊ-
fluoro-2ˊ-methyl nucleoside with the fluoro sub-
stituent in the “down” position had not yet been
synthesized.
Id. at 25 (footnote omitted). Storer does not dispute this
finding.
For the fifth Wands factor—the state of the prior
art—the Board found that:
although DAST [N,N-diethylamino-sulfur trifluo-
ride] was well-known in the prior art as fluoridat-
ing agent for nucleosides and nucleoside analogs,
the prior art did not teach, or explicitly suggest,
the use of DAST in the fluoridation of a tertiary
10 STORER v. CLARK
alcohol to convert a tertiary alcohol at a nucleo-
side 2ˊ position to a tertiary fluorine at the nucle-
oside 2ˊ “down” position. We further find that,
although organic fluoridation techniques were
well-known in the art at the time the S1 applica-
tion was filed, fluoridation of tertiary alcohols to
produce a 2ˊ “down” tertiary fluorine was not
taught or suggested by the prior art.
Id. at 29. Storer does not dispute this finding.
With respect to the sixth Wands factor, the Board par-
ticularly relied on Wands factors 1, 2, 3, 4, and 7 and
found that “the parties largely agree that the level of skill
in the art is very high” and that
a person possessing the ordinary level of skill in
this art, as of the time of the invention, would
hold a doctoral degree in the field of organic, syn-
thetic, or medicinal chemistry with at least a
year’s experience in the field of nucleoside synthe-
sis or relevant drug discovery.
Id. at 29–30. The Board also found that neither party
argued the eighth Wands factor regarding the breadth of
the claims. Id. at 34 n.64. These findings are not disput-
ed.
The Board summarized the evidence and findings on
which it concluded that undue experimentation would be
needed to produce the designated molecule:
(1) synthesis of a 2ˊ-fluoro-2ˊ-methyl nucleoside
with the fluoro moiety in the “down” position re-
quired at least two years of a high-priority exper-
imentation by persons skilled in the art, including
multiple consultations with experts at the top of
their fields and additional formal training;
STORER v. CLARK 11
(2) the S1 application provides little in the way of
direction or guidance as to how to synthesize such
a compound;
(3) the S1 application provides no explicit example
of a 2ˊ-fluoro-2ˊ-methyl nucleoside, nor was an ex-
ample provided by the relevant art as of the S1
application’s filing date;
(4) the invention is characterized as the admin-
istration of a genus of nucleosides used in the
treatment of viruses, particularly those of the
family Flaviviridae (which includes HBV and
HCV) and an embodiment of the count requires a
2ˊ-fluoro(“down”) 2ˊ-methyl nucleoside;
(5) although organic fluoridation techniques were
well-known in the art at the time the S1 applica-
tion was filed, fluoridation of tertiary alcohols to
produce a 2ˊ “down” tertiary fluorine was not
taught or suggested by the prior art;
(6) the level of skill in the art was highly sophisti-
cated: a person possessing the ordinary level of
skill in this art, as of the time of invention, would
hold a doctoral degree in the field of organic, syn-
thetic, or medicinal chemistry with at least a
year’s experience in the field of nucleoside synthe-
sis or relevant drug discovery; and
(7) the art, at least with respect to fluoridation of
tertiary alcohols to produce a tertiary fluorine in
the 2ˊ “down” position, was highly unpredictable.
We therefore find that Wands factors 1, 2, 3, 5,
and 7 strongly indicate that a person skilled in the
art would not arrive at the claimed invention
without undue experimentation.
Id. at 34–35.
12 STORER v. CLARK
Based on these findings, the Board concluded that the
interference subject matter was not enabled by Storer’s
S1 provisional application.
Argument on Appeal
Storer argues that the S1 provisional application “per-
formed the substantial step of disclosing the precise
chemical structure of the target compound.” Storer Br. at
47. Storer does not, however, identify any specific struc-
ture having the 2´F(down) substituent. The pages of the
S1 provisional cited by Storer include generic structures,
and Clark does not dispute that the “target compounds,”
as the Board calls the 2´F(down) compounds, are generi-
cally included in the S1 provisional application’s generic
formulas.
Storer states that the prior art contains “a well-known
precursor compound that is only one step away from the
target compound.” Id. at 8. Storer states that this pre-
cursor is “Matsuda Compound 17,” citing Akira Matsuda
et al., Alkyl Addition Reaction of Pyrimidine 2´-
Ketonucleosides: Synthesis of 2´-Branched-Chain Sugar
Pyrimidine Nucleosides (Nucleosides and Nucleotides
LXXXI), 36 CHEMICAL & PHARMACEUTICAL BULL., no. 3,
Mar. 1988, at 945.
Matsuda Compound 17 is presented in Storer’s brief
as
STORER v. CLARK 13
Storer Br. at 12. Matsuda Compound 17 contains a
methyl group in the 2´(down) position, and Storer states
that Matsuda Compound 17 is readily converted into the
target compound by known methods to produce the de-
sired stereochemistry. Matsuda Compound 17 is not
mentioned in the S1 provisional, but Storer argues that
the precursor to Matsuda Compound 17 is in the S1
provisional, “as is that precursor’s conversion to the
Matsuda compound,” Id. at 48 n.16. Storer states that the
precursor “is only two steps away from the desired 2´-
methyl ‘up’, 2´-fluoro ‘down’ configuration,” and “each
scheme discloses how to modify the 2´-keto precursor to
obtain” Matsuda Compound 17. Id. at 9.
Thus Storer argues that the Matsuda reference, to-
gether with the information in the S1 provisional, enable
synthesis of 2´F(down) compounds. Storer states that
Schemes 3, 4 and 8 in the S1 provisional each describes a
“2´-keto precursor, i.e., a compound with ‘=O’ at the 2´
position,” and that this is the path to the 2´F(down)
molecule. Id. at 9. The three schemes from the S1 provi-
sional are:
14 STORER v. CLARK
Storer Prov. Appl. at 119.
STORER v. CLARK 15
Id. at 120.
Id. at 1948.
These three schemes indeed show a compound with
=O at the 2´ position, but none shows conversion to
Matsuda Compound 17 or further conversion to the
2´F(down) analog. Clark points out that each scheme
produces compounds with the opposite spatial arrange-
ment from Matsuda Compound 17, for in Matsuda Com-
pound 17 the 2´-OH is “up,” whereas in Scheme 4 the 2´-
OH is “down.” Clark Br. at 5.
Storer does not dispute the chemical facts, but argues
that the difference between Matsuda 17 and the provi-
sional synthesis schemes does not negate enablement
because
if the alkylation reagent is methyl lithium (MeLi)
or methyl Grignard (MeMgBr) for methylation as
taught by the specification, one of ordinary skill in
the art will obtain products with the orientation
(i.e., “stereochemistry”) of the OH and methyl
groups needed to synthesize the target compound
using DAST or Deoxo-Fluor. Furthermore, the
prior art teaches how to control the stereochemis-
try of these groups.
16 STORER v. CLARK
Storer Br. at 9-10 n.5. Although the S1 provisional
schemes show products with the opposite stereochemistry,
Storer argues that a person of ordinary skill could make
Matsuda Compound 17 employing these schemes. Storer
argues that “a skilled artisan would have recognized that
Matsuda Compound 17 was a viable precursor,” id. at 48,
and that: “With knowledge of those structures, the hypo-
thetical person would have known to use a common, one-
step synthesis to modify the well-known precursor to
obtain the target compound.” Id. Storer states that
“simply by looking at the chemical structure of the target
compound disclosed by Idenix, a person of ordinary skill
would know to use a fluorination reagent,” id., and “DAST
and Deoxo-Fluor were the most well-known fluorinating
reagents at the time for one-step fluorination reactions.”
Id. at 49. Storer argues that Matsuda provides any
necessary information not in the S1 provisional.
Clark responds that these are overstatements, for nei-
ther Matsuda Compound 17 nor any compound with the
2´F(down) structure is mentioned in the Storer S1 provi-
sional. Clark points out that none of the several synthetic
schemes in Storer’s provisional application shows conver-
sion of any precursor into Matsuda Compound 17. Clark
states that Storer’s synthetic schemes only disclose com-
pounds with the “wrong stereochemistry.” Clark Br. at
37.
The Board agreed with Clark’s position, and held that
the S1 provisional’s description of the 2´-keto precursor, in
combination with the Matsuda reference, was insufficient
to enable and thereby to establish possession of the
2´F(down) methyl(up) compound of claim 1 before Clark’s
priority date. The Board stated, correctly, that for new
chemical compounds the specification must provide suffi-
cient guidance that undue experimentation is not re-
quired to obtain the new compounds.
STORER v. CLARK 17
ANALYSIS
The boundary between a teaching sufficient to enable
a person of ordinary skill in the field, and the need for
undue experimentation, varies with the complexity of the
science. Knowledge of the prior art is presumed, as well
as skill in the field of the invention. The specification
need not recite textbook science, but it must be more than
an invitation for further research. Genentech, Inc. v. Novo
Nordisk A/S, 108 F.3d 1361, 1366 (Fed. Cir. 1997).
In Genentech the patentee argued that the prior art
taught a method that could be used to produce a claimed
human growth hormone product, compensating for lack of
detail in the specification. The patentee argued that it
did not need to include information in the prior art. This
court agreed, but stressed the need to assure enablement
of the novel aspects of the invention:
It is true . . . that a specification need not disclose
what is well known in the art. See, e.g., Hybritech
Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367,
1385 (Fed. Cir. 1986). However, . . . . [i]t is the
specification, not the knowledge of one skilled in
the art, that must supply the novel aspects of an
invention in order to constitute adequate enable-
ment.
Genentech, 108 F.3d at 1366.
The Storer provisional specification does not describe
synthesis of the 2´F(down) target compounds. The ques-
tion devolves to the adequacy of the disclosure in the
provisional of general schemes for synthesizing these
general classes of modified nucleosides, taken with the
knowledge of the art. The S1 provisional discloses two
general approaches. Provisional schemes 3 and 8 modify
the sugar portion of the target compound and then add
the base portion, as the provisional application calls the
18 STORER v. CLARK
“Glycosylation of the nucleobase with an appropriately
modified sugar.” Storer Prov. Appl. at 117.
Provisional scheme 4 shows modifying a compound
with the base already attached, to achieve the desired
structure. The provisional calls this “Modification of a
pre-formed nucleoside.” Id. at 119. The Board observed
that none of the approaches in the provisional proceeds
through a compound like Matsuda Compound 17, or
suggests how Matsuda 17 may be converted into the
target 2´F(down) compounds. The Board found that the
Storer provisional does not exemplify such a reaction, or
lead a person of ordinary skill to perform it. The Board
also observed that the S1 provisional schemes produce
compounds with opposite spatial arrangement from
Matsuda Compound 17.
On review, we conclude that substantial evidence
supports the Board’s findings that the synthetic schemes
in Storer’s provisional application do not teach or suggest
conversion of any precursor into the 2´F(down) structure,
and that the Matsuda synthesis of a corresponding 2´-
methyl (down), 2´-hydroxyl (up) structure does not enable
a person of ordinary skill to produce the target compounds
without undue experimentation.
Wands factor 7, the predictability or unpredictability
of the art, appears to be particularly relevant. Although
Storer states that this is predictable chemistry, and
therefore that detailed specific examples are not neces-
sary, the Board’s findings are in accord with the record.
The Board found:
Having reviewed the parties’ arguments, and the
proffered evidence, we find that the art, with re-
spect to fluoridation of tertiary alcohols, was high-
ly unpredictable, as evidenced by Idenix’s
repeatedly unsuccessful attempts to synthesize its
high-priority target nucleoside, and as further
STORER v. CLARK 19
evinced by the statements of Dr. Coe and Dr.
Storer.
Bd. Op. at 33–34. Regarding Dr. Coe’s and Dr. Storer’s
statements, the Board stated:
Dr. Paul Coe, an expert in organofluorines, ex-
pressed skepticism regarding the use of DAST;
and Dr. Richard Storer stated that “[a] lot of
things which look simple on paper in related sys-
tems have been tried and don’t work in this series.
Having to make the tertiary fluoride is very dif-
ferent to [sic] having to make secondary.”
Id. at 31 (quoting from the record). The Board also re-
ferred to evidence presented on behalf of Clark that
“attempted fluorination reactions (including those involv-
ing DAST) could fail, resulting in unfluorinated elimina-
tion and/or rearrangement products, or products with
incorrect stereochemistry.” Id. at 30.
Even on Storer’s position that a person skilled in this
science would have started with Matsuda Compound 17,
Storer has not shown that the critical stereochemical
result would predictably ensue, although the reaction had
never been performed. The Board received evidence of
side reactions and the skepticism of experts. The Board
received evidence that Storer and his team had difficulty
and failures in synthesizing the target compound, as well
as evidence that Clark and his team were more readily
successful using apparently the same method. The
Board’s finding that the chemistry was unpredictable is in
accord with the evidence.
The first Wands factor is concerned with “undue” ex-
perimentation, and recognizes that what is “undue” of
itself depends on the subject matter and skill. The Board
discussed the amount of experimentation needed to
produce the claimed compounds, and found that:
20 STORER v. CLARK
a high amount of experimentation is necessary to
synthesize a 2´-fluoro-2´-methyl nucleoside with
the fluoro moiety in the “down” position, requiring
at least two years of a high priority experimenta-
tion by persons skilled in the art, including multi-
ple consultations with experts at the top of the
fields and additional formal training.
Id. at 19. The Board discussed the evidence showing
Storer’s continuing research after the S1 provisional was
filed, including the following findings:
• “Idenix’s research team in Montpellier,
France, repeatedly attempted without success
to synthesize a 2´-methyl(“up”) 2´-
fluoro(“down”) nucleoside during the interval
between December 2002 and September
2004.” Id. at 14.
• “Idenix scientists also corresponded with con-
sultants Dr. George Fleet and Dr. Paul Coe in
an attempt to effect a synthesis of the desired
compound.” Id. at 14.
• “Idenix personnel also attended a ‘Scientific
Update Course’ entitled ‘Making and Using
Fluoroorganic Molecules’ in April, 2003, and
submitted a report summarizing the course
content.” Id. at 15.
• “Dr. Jean-François Griffon, leader of the
Montpellier group, testified that he attempted
at least seven different synthetic schemes, in-
cluding several suggested by Dr. Coe, and in
some cases employing DAST, without suc-
cess.” Id. at 15.
• “[A]ttempts by the Montpellier team to use
DAST in the synthesis of a 2´-fluoro-2´-methyl
nucleoside produced similar failures.” Id. at
16.
STORER v. CLARK 21
• “With respect to the testimony of Jingyang
Wang who allegedly synthesized the desired
compound in a single attempt in January,
2015, at Idenix’s research facility in Cam-
bridge, Massachusetts, we note that, prior to
beginning her synthesis, Ms. Wang had re-
ceived the reports from the Montpellier group
as well as intermediate compositions synthe-
sized at Montpellier. Consequently, Ms. Wang
was not, as Storer seems to suggest, attempt-
ing synthesis of a 2´-fluoro-2´methyl nucleo-
side ab initio, but rather had the hindsight
benefit of the Montpellier group’s efforts.” Id.
at 17 (citations to the record omitted).
Storer argues that the Board failed to address the fact
that Clark readily synthesized a target compound in a
single step from Matsuda Compound 17. The Board
acknowledged Storer’s argument that it was “informative
that Clark, a chemist without a Ph.D., was allegedly able
to make a 2ˊ-methyl (up) 2ˊ-fluoro (down) nucleoside in
just a few months using DAST.” Id. at 13. Storer states
that “Clark’s experiments directly contradict the Board’s
reliance on the allegedly failed attempts of Griffon.”
Storer Br. at 55. There was evidence that Clark used a
method similar to that attempted by Griffon on the Storer
team, and that Clark succeeded where Griffon apparently
failed. Storer stated to the Board that Griffon actually
produced the target compound, but was not able to purify
it from the reaction mixture.
The Board found, on consideration of the entire rec-
ord, that a person of ordinary skill, with the disclosure in
the provisional application and knowledge of the prior art,
would not have been led to make the target compound,
and could not do so without undue experimentation. The
Board received evidence that successful fluorination
reactions of the desired stereochemistry had not been
reported for structurally similar compounds.
22 STORER v. CLARK
We conclude that substantial evidence supports the
Board’s finding that “a high amount of experimentation is
necessary to synthesize” the target compound. The record
before the Board showed sufficient variability and unpre-
dictability to support the Board’s conclusion that Storer’s
provisional application did not enable the interference
subject matter. The Board’s decision is affirmed.
AFFIRMED
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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 April 7, 2020*
Decided August 14, 2020
Before
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 19-2995
SHANNON LEWANDOWSKI, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 2:16-cv-01089-WED
CITY OF MILWAUKEE, William E. Duffin,
Defendant-Appellee. Magistrate Judge.
ORDER
Plaintiff Shannon Lewandowski, a former Milwaukee police officer, alleged that
the Milwaukee Police Department violated Title VII of the Civil Rights Act of 1964 by
discriminating against her on the basis of sex and retaliating against her for opposing
sex discrimination. The district court granted summary judgment for the City of
Milwaukee. We affirm. Our decision should not be interpreted as saying that the City
has definitively shown that no discrimination or retaliation occurred. Rather,
*
This court granted the parties' joint motion to waive oral argument. The case is therefore
submitted on the briefs.
No. 19-2995 Page 2
Lewandowski’s litigating tactics have failed to engage with the district court’s
reasoning, and she has failed to show a reversible error on any issue she presented
fairly to the district court.
I. Factual and Procedural Background
A. Facts on Summary Judgment
Our review of a summary judgment is de novo, construing all facts in favor of
the nonmovant (here, Lewandowski). Joll v. Valparaiso Community Schools, 953 F.3d 923,
928 (7th Cir. 2020). Lewandowski was a Milwaukee police officer for seventeen years,
eventually rising to the rank of detective before she was fired in 2015. She says that she
encountered resistance from male officers throughout her career, who assigned her to
“undesirable tasks” and called her names like “pitbull” and “black cloud.”
The particular issues that gave rise to this suit began in the fall of 2014. Another
female officer, a friend of Lewandowski's, had been in a romantic relationship with a
male officer. Lewandowski’s friend shared that things had gone badly wrong when she
tried to end the relationship. The male officer had stalked her, made death threats, and
raped her with his service gun close by. Lewandowski and her friend reported these
incidents to their respective supervisors. However, neither supervisor wanted to
intervene after learning that the male officer was someone prominent in the
department. Lewandowski ultimately helped her friend obtain a temporary restraining
order. Lewandowski says that her help and support for her friend made higher-ups in
the department angry, and they started looking for opportunities to retaliate.
In January 2015, Lewandowski was in a car accident while on duty. This accident
began the chain of events that ultimately led to her termination. On her way to
investigate a reported shooting, Lewandowski took a detour. Lewandowski says that
she went to another police station to help her friend deal with ongoing fallout from her
abusive relationship, and then was on her way to handle the shooting. The City says
that after leaving her friend’s station, Lewandowski next went to try to get her college-
age son out of a traffic stop, and that she told investigators so in the original statement
she gave them. Lewandowski characterizes this story as a lie told to discredit her. She
also argues that any statements she gave at the scene should be discounted as the
product of a head injury she suffered in the collision.
Following the accident, the Milwaukee Police Department opened an
investigation into Lewandowski, alleging misconduct in public office as to the
No. 19-2995 Page 3
possibility that Lewandowski had not been on official department business when the
accident occurred. The investigation later expanded to examine whether Lewandowski
had lied about what she was doing at the time. In December 2015, then-Chief Edward
Flynn found Lewandowski guilty of three violations. He suspended her for a total of 35
days for misconduct and safety violations and fired her for lying.
Lewandowski argues, though, that retaliation began long before her discharge.
For example, she says that she was transferred off her preferred shift in December 2014,
received constant threats from Captain Mike Sgrignuoli that her career was in jeopardy,
was forbidden from taking the lieutenant exam, and was forced to testify in her cases
without pay while on medical leave in early 2015, and that the Department intentionally
dragged out the investigation into her accident far longer than necessary to force her to
remain on unpaid leave. In Lewandowski’s account, her December 2015 discharge was
merely the last in a string of retaliatory and discriminatory actions that supervisors in
the Department had begun at least a year and a half earlier.
B. Procedural History and Jurisdiction
After her discharge, Lewandowski appealed Chief Flynn’s decision to the
Milwaukee Fire and Police Commission. In August 2016, the Commission held a
hearing and issued a written decision sustaining Chief Flynn’s disciplinary decisions,
including the discharge. While the departmental investigation was pending,
Lewandowski filed a charge with the Equal Employment Opportunity Commission on
September 10, 2015; she received a right-to-sue letter on May 16, 2016. Lewandowski
filed this action in federal district court on August 15, 2016. Both parties consented to
magistrate judge jurisdiction on September 15, 2016. After discovery, the City moved
for summary judgment. The district court granted that motion, and Lewandowski has
appealed.
II. Key Arguments Waived
On appeal, Lewandowski argues that the district court mishandled the question
of whether res judicata or collateral estoppel applied to the Fire and Police Commission
decision; failed to follow the Eastern District of Wisconsin Local Rules on summary
judgment and therefore applied the wrong legal standard to her sex discrimination and
retaliation claims; and reiterates her Fourteenth Amendment arguments. We disagree
with her characterization of the district court’s decision and find that Lewandowski’s
tactical choices in the district court preclude her major appellate arguments.
No. 19-2995 Page 4
The district court began by addressing issue preclusion briefly. The City had
argued before the district court that the doctrine of issue preclusion covered all the
issues in the case because the Fire and Police Commission decided several key factual
issues against Lewandowski. The City also argued that claim preclusion barred
Lewandowski’s constitutional claims. The district court declined to decide these issues
at all because it found that Lewandowski’s case failed on the merits. Lewandowski’s
detailed arguments on appeal as to res judicata and collateral estoppel are beside the
point. These arguments might have become relevant for a reply brief if the City had
argued in the appellee’s brief that issue preclusion provided an alternative ground for
affirmance, but that did not happen.
On the merits of the sex discrimination claim, the district court recognized that
Lewandowski had tried to prove her claim under the McDonnell Douglas Corp. v. Green
burden-shifting framework for circumstantial proof. 411 U.S. 792, 802 (1973). The court
applied our reasoning from Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016),
saying: “If the plaintiff presents evidence from which a reasonable finder of fact could
conclude that the plaintiff’s sex caused the discharge or discipline, the court must deny
the defendant’s motion for summary judgment.” The court recognized that
Lewandowski as a female is a member of a protected class and that she suffered an
adverse employment action. But it found that Lewandowski failed to establish a prima
facie case of discrimination because she had not shown that a similarly situated male
employee had been treated more favorably.
Most critically, the district court observed: “Lewandowski’s brief does not
contain any material discussion of similarly situated employees,” and that it only stated
that “Male employees who committed worse offenses than Plaintiff were not
terminated.” The district court examined Lewandowski’s supporting declarations
closely but did not find any admissible evidence regarding comparators. Critical
information came from news stories or things Lewandowski had heard from other
officers. The court pointed out correctly that it could not consider inadmissible hearsay,
over proper objections, in deciding summary judgment. It also noted that Lewandowski
had failed to include information needed to determine whether various named
individuals were indeed proper comparators, such as dates of employment, rank,
supervisor, and details as to their misconduct.
Lewandowski’s showing as to her retaliation claim fared no better. The district
court began by recognizing the proper legal standard for evaluating a retaliation claim,
observing that a prima facie retaliation case can be made via either the “direct” or
“indirect” method. See Swyear v. Fare Foods Corp., 911 F.3d 874, 885 (7th Cir. 2018). The
No. 19-2995 Page 5
court noted: “Lewandowski does not articulate under which method she is proceeding”
and went ahead to analyze her arguments under both methods. The court again found
that Lewandowski had not raised any genuine issues of material fact on her retaliation
claim.
Again, the critical problem for the district court was that plaintiff’s brief
opposing summary judgment did not provide details of any protected complaints,
which can be especially important in cases like this where an employee has had
numerous disputes with her employer. A retaliation claim requires identification of
complaints or other protected activity that rely on the relevant statute or that address
discrimination prohibited by law. Title VII does not protect every complaint by a
woman to management. It protects only those complaints or other protected activity
raising claims of sex discrimination, for example. Nevertheless, in an apparent effort to
be as fair as possible to Lewandowski, the district court walked through everything else
that might support her argument, such as her Fire and Police Commission complaint,
the comparators she offered in support of her sex discrimination claim, and so forth, but
found nothing supported by admissible evidence that raised a genuine issue of material
fact.
Lewandowski’s constitutional equal protection arguments suffered from the
same problems. Though she asserted them, she did not develop them separately, saying
only that, “As both the Title VII sex discrimination and 42 U.S.C. § 1983 equal
protection claim based on sex require the same evidence, these claims are analyzed
together below.” And she neither named an individual defendant, raised any kind of
Monell argument, nor identified any comparators. See Monell v. Dep't of Soc. Servs., 436
U.S. 658 (1978); see also Daniel v. Cook County, 833 F.3d 728, 734 (7th Cir. 2016).
Near the end of its analysis of the retaliation claim, the court emphasized: “It is
the plaintiff’s obligation to articulate how the evidence supports the elements of her
claim. Offering a conclusion and then citing to a string of proposed findings of fact is
not enough.” This comment summarizes why Lewandowski has not preserved her sex
discrimination, retaliation, and constitutional arguments for our review. As we have
recently observed: “Generally, failing to bring an argument to the district court means
that you waive that argument on appeal.” Soo Line Railroad Co. v. Consolidated Rail Corp.,
965 F.3d 596 (7th Cir. 2020), citing Wheeler v. Hronopoulos, 891 F.3d 1072, 1073 (7th Cir.
2018) (quotations omitted). Though we do not require the argument to be “present in all
its particulars” and parties may develop arguments more fully on appeal, the critical
point is that “a conclusory argument that amounts to little more than an assertion does
No. 19-2995 Page 6
not preserve a question for our review.” Id., citing Lawson v. Sun Microsystems, Inc., 791
F.3d 754, 761 (7th Cir. 2015), and Betco Corp. v. Peacock, 876 F.3d 306, 309 (7th Cir. 2017).
We agree with the district court that Lewandowski’s arguments before the
district court were conclusory. On appeal she does not recognize and address the
possibility of waiver or meaningfully engage with the district court’s reasoning. She
focused her brief instead on a mistaken interpretation of the Eastern District of
Wisconsin’s Local Rules under which she argued that the City had failed to respond
properly in the district court to her opposition to its motion for summary judgment. See
Jaworski v. Master Hand Contractors, Inc., 882 F.3d 686, 690 (7th Cir. 2018) (“The purpose
of an appeal is to evaluate the reasoning and result reached by the district court.”). Her
brief on appeal faults the City for having failed to dispute her assertions of fact
opposing summary judgment. But the summary judgment standard makes it pointless
to dispute the non-moving party’s assertions of fact, other than by arguing they are not
actually supported by admissible evidence.
We are not holding that no sex discrimination or retaliation has occurred within
the Milwaukee Police Department. Rather, our application of principles of waiver here
emphasizes that the plaintiff bears the burden of proof. A district court is entitled to
expect a party moving for or opposing summary judgment to lay out her arguments
and the supporting, admissible evidence in sufficient detail that the court is not forced
to construct the arguments itself.
The judgment of the district court is AFFIRMED.
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912 F.2d 819
Debra WALKER, et al., Plaintiffs-Appellees,v.The UNITED STATES DEPARTMENT OF HOUSING AND URBANDEVELOPMENT, Defendant-Appellant,v.The HOUSING AUTHORITY OF THE CITY OF DALLAS, Defendant-Appellee.
Nos. 89-1914, 89-1973.
United States Court of Appeals,Fifth Circuit.
Sept. 27, 1990.
Mark W. Pennak, Michael Jay Singer, U.S. Dept. of Justice, Civ. Div., Appellate Staff, Joseph W. LoBue, Office of Gen. Counsel, U.S. Dept. of HUD, Washington, D.C., for defendant-appellant.
Joseph G. Werner, Kathleen McIntosh Beasley, Haynes & Boone, Dallas, Tex., for Housing Authority.
Michael M. Daniel, Elizabeth K. Julian, North Central Texas Legal Services, Inc., Dallas, Tex., for Debra Walker, et al.
Appeal from the United States District Court for the Northern District of Texas.
Before THORNBERRY, JOHNSON, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
1
A local public housing agency agreed to demolish certain vacant and uninhabitable units of Dallas public housing in compliance with a consent decree entered by the parties to cure racial housing segregation within the city. The planned demolitions have been stalled indefinitely, however, as a consequence of financing problems. Specifically, the United States Department of Housing and Urban Development (HUD) announced a reduction in the subsidization of vacant units to a level that the local agency claims undermines its efforts to raze the condemned structures. The local public housing agency maintains that both its adherence to the demolition schedule and the consent decree have been thwarted as a result. Sadly, the long-term revitalization of one of Dallas's worst slums has become derailed as local and federal agencies debate their respective fiscal obligations incident to a consent decree.
2
This civil rights litigation has drawn the attention of Congress, which has enacted two pieces of restrictive housing legislation in the interim. One statute purports to eliminate any federal funding intended to demolish the particular Dallas units slated for destruction by the consent decree; the other restricts federal approval of demolitions. Of particular significance here is the statutory precondition that federally subsidized public housing be replaced on a one-for-one basis for each unit of low-income housing that is demolished.
3
We are presented with two separate cases, which are consolidated for purposes of this appeal. In the first, HUD challenges court-ordered subsidization of a Dallas public housing agency in regard to vacant units slated for demolition. In the other, HUD maintains that the post-decree legislation that eliminates federal funding for the demolition of the units is not, as the district court held, an unconstitutional breach of the doctrine of separation of powers. Further, HUD asserts that the legislation limiting federal approval of public housing demolitions contemplates only the prospective, not retroactive, application of its restrictive housing replacement features. We vacate in one appeal and reverse in the other.
I.
4
This housing discrimination case traces back to 1985, when minority participants in low-income housing programs challenged the nonparticipation of Mesquite, Texas, in a federally financed voucher plan to desegregate housing. The complaint was amended to include other Dallas metropolitan suburbs, the Dallas Housing Authority (DHA), and HUD.1 The putative class, comprised of about 7,200 black households residing in DHA-owned or -managed property and participating in the voucher program, alleged that the defendants historically had administered Dallas's housing assistance programs in a racially discriminatory fashion.
5
In particular, minority families living in a dilapidated urban housing project, known colloquially as the "West Dallas project," claimed that they were being denied full participation in DHA's "Section 8 Existing Housing Program." This social program is designed to desegregate the racially identifiable Dallas projects through the use of certificates2 and vouchers.3 Participants are entitled to select rental housing in more affluent Dallas metropolitan areas and thus depart the historically dangerous slums.
6
To enlist local property owners, HUD is authorized to compensate landlords in the section 8 program at 120% of fair market rental. In this case, HUD agreed to provide such above-market compensation for DHA vouchers and certificates, although the district court concluded that DHA failed to administer this program aggressively. Nevertheless, the section 8 program offers the promise of desegregating housing and alleviating the enormous governmental expense of reconstructing housing for the indigent.
7
Those suburban communities that agreed to participate in the DHA section 8 program were dismissed from the litigation,4 leaving the minority plaintiff class, DHA, and HUD. The case never went to trial, however, as the litigants entered into a consent decree regarding the future of the West Dallas project.5 The district court approved the decree as being fair to all parties.
8
The consent decree recognizes that of the 3,500 West Dallas housing units still standing, approximately 1,300 are vacant and unfit for human habitation because of lead contamination and physical deterioration. The decree also recognizes "an unbroken pattern of purposeful racial segregation and discrimination by DHA dating from the inception of DHA's program to the present day...." Essentially, DHA traditionally had operated its housing program to prevent blacks from moving into white areas of the city, and it purposefully maintained separate, racially identifiable housing projects. HUD, however, disclaims any liability or discriminatory conduct in this matter.
9
The decree obligated DHA to develop and submit to HUD for approval a comprehensive plan for revitalization of the West Dallas project. The plan accordingly developed by DHA recommends the modernization of 800-900 units with the $18 million of federal funds previously allocated to DHA in 1983 and the demolition of the remaining 2,600 units over a five-year period. The demolition at West Dallas would be coupled with the issuance of a like number of section 8 certificates and vouchers to replace demolished units and to house displaced families.
10
The anticipated five-phase demolition schedule, it was hoped, would mimic the pace at which substitute housing was made available to class members. By a combination of modernization, certificates and vouchers, and limited construction, all units of West Dallas housing would be replaced on a one-for-one basis. At the time, federal law did not require one-for-one substitution of housing to secure HUD approval for demolitions.
11
HUD approved DHA's revitalization plan as being in compliance with federal low-income housing laws, see 42 U.S.C. Secs. 1437 et seq. Further, it pledged sufficient federal resources to DHA to provide 1,000 units of additional housing under the revitalization plan, apart from the 800-900 units to be modernized. HUD's commitment translated into the reconstruction of 100 units of public housing--the first such construction to take place in Dallas since the 1950's--and the issuance of 450 units of section 8 certificates and 450 units of section 8 vouchers. All parties recognize that the revitalization plan reflects the fact that no possibility exists of achieving an acceptable physical and social living environment in the West Dallas project, absent a massive commitment of about $65-88 million in unavailable resources.
12
In January 1987, the district court approved the consent decree and the eventual demolition of 2,654 units, after extensive public hearings on the proposed settlement from various interest groups. Approximately eighteen months thereafter, in July or August 1988, HUD announced to DHA that it would drastically reduce, from $124.96 to $50.00 per unit per month, the $1.2-1.5 million "operating subsidy" used to maintain vacant units slated for demolition.
13
HUD never secured court approval for the reduction in subsidization. Further, it implemented the reduction retroactively for fiscal years 1987 and 1988. The minority plaintiffs responded by filing a motion to restore the deprogrammed units, and DHA filed separately to enforce or modify the decree to restore past levels of subsidization regarding vacant units. The minority plaintiffs contended, and the court agreed, that HUD's reduction in operational subsidies is barred by paragraph 8 of the consent decree, which provides,
14
During the implementation of the Decree and Plan, any proposal to sell or otherwise remove from the housing inventory of DHA any housing units, other than as provided in this Decree or as may occur in the normal operations of DHA programs in order to provide office or support staff, will be submitted to the Court for approval to insure that such action will not interfere with implementation of the Decree and Plan. This requirement will cease at such time as DHA is determined, as provided below, to have complied with this Decree. This requirement shall not apply to proposals to modernize, upgrade or redevelop project sites in a manner that does not result in a reduction in the number of units available at the project site.
15
After a November 1988 hearing, the court admonished HUD for undermining the consent decree. It ordered HUD to pay $1.8 million to DHA, representing the aggregate loss to DHA in federal funding. Alternatively, the court modified the decree to award the same relief, reasoning that it would not have approved the plan absent the annual $1.2-1.5 million operational subsidy from HUD for the vacant units. The court concluded that since DHA has no power to tax, "its ability to comply with the Decree would have been virtually impossible without the operating subsidy from HUD."
16
The reduced federal subsidization translated into a significant loss of annual revenue to DHA, which complained bitterly that reduced HUD funding frustrates its compliance with the consent decree. HUD responded that its own regulations require reduced subsidization once units become "deprogrammed," i.e., slated for destruction. See 24 C.F.R. Secs. 990.102, 990.108(b) (1989). A contrary rule, HUD maintains, would create a windfall for public housing agencies, which would be encouraged to delay demolition indefinitely while enjoying the full measure of subsidization associated with programmed (habitable) units. Thus, the drastic reduction ensures that the demolition schedule will be adhered to by the local agency.
17
HUD appealed the court-ordered subsidization of vacant units to this court, which remanded the cause for an amplification of the court's reasons. The district court subsequently entered its "Further Order with Reasons" in August 1989, coincident with the issuance of a trilogy of opinions focusing upon various aspects of this complicated case.6 That order, coupled with the accompanying opinions, forms the basis of these two appeals.
18
Cause No. 89-1973 is before us for the second time. HUD reasserts its basic argument that the consent decree contains no binding agreement between DHA and HUD regarding funding and that thus, judicially compelled subsidization is a remedy beyond the scope of the instrument. DHA responds, however, that the parties contemplated full subsidization of vacant units in order to finance the demolitions. Additionally, it argues, the restoration of subsidization falls within the equitable jurisdiction of the court and hence is consistent with the eleventh amendment.
19
During the course of this acrimonious subsidization controversy, Congress enacted the "Frost Amendment," Pub.L. No. 100-202, 101 Stat. 1329-213 (1987), incident to the passage of a 1988 HUD appropriations bill. Named after its West Dallas congressional sponsor, the amendment proscribes the use of any federal money for the demolition of the West Dallas project.7 Therefore, although HUD earlier had reserved $2.1 million in federal funds for DHA for the demolition under the Comprehensive Improvement and Assistance Program, 42 U.S.C. Sec. 1437l (West Supp.1990), HUD was constrained by the Frost Amendment to withhold all such funds.
20
The district court was perturbed that Congress would attempt to interfere in this particular case. It held the Frost Amendment to be a blatant legislative intrusion into a pending judicial action, rendering the legislation unconstitutional in light of the doctrine of separation of powers. Walker II, 734 F.Supp. at 1283-85. The court directed that past levels of federal funding of vacant units be maintained, as though such units never had been deprogrammed, until the demolition of these units was in fact completed.
21
Congress injected further uncertainty into this litigation with the enactment of the "Anti-Demolition Statute," 42 U.S.C. Sec. 1437p (West Supp.1990), incident to the passage of the Housing and Community Development Act of 1987, Pub.L. No. 100-242, 101 Stat. 1815, 1837-39 (1987). That statute mandates that the demolition of public housing may be undertaken only where appropriate "project-based" one-for-one replacement housing of at least a fifteen-year duration is supplied. The statute represents a significant change in public housing law in that, at the time the consent decree was approved, there was no obligation for the government to provide one-for-one replacement as a precondition for demolition. Significantly, HUD understood that the legislation would govern demolition approvals after February 5, 1988, the effective date of the legislation.
22
Significantly, the statute eliminates the use of section 8 vouchers as a form of replacement housing, see 42 U.S.C. Sec. 1437p(b)(3)(A)(v), and limits the use of section 8 certificates, see id. Sec. 1437p(b)(3)(B). The district court held that the Anti-Demolition Statute, unlike the Frost Amendment, is constitutional, since it operates as a general change in the applicable law. Walker II, 734 F.Supp. 1285-86. In its enforcement of the consent decree, the court applied the statute retroactively in part, thus incorporating the statute's restrictive--and expensive--housing substitution features into the decree.
23
However, the court recognized that a certain number of HUD-approved section 8 vouchers and certificates--those issued before the law's effective date and used to desegregate housing in nonminority areas--had given the federal government a vested property interest in securing a limited number of demolitions. However, the court held that HUD could not compel demolitions for vouchers issued after the effective date or not applied to relocate families from minority areas. See id. at 1285-89. Predictably, no demolitions have taken place, despite the considerable passage of years.
24
DHA does not quarrel with the retroactive application of the Anti-Demolition Statute, as it would force HUD to finance construction of project-based replacement housing for each unit to be demolished, but without the use of vouchers. HUD objects to any retroactive application of the statute's stringent housing-replacement features, and it claims that such a retroactive application of the intervening legislation is contrary to vested rights for which it bargained. However, HUD urges the constitutionality of the Frost Amendment because it would relieve HUD of any obligation to finance the West Dallas demolition, thus shifting the burden to DHA or the local government. Not surprisingly, the post-decree federal housing legislation that inspired the Walker II opinion similarly inspired HUD to commence a separate appeal, No. 89-1914.
II.
A.
25
We must first review our own jurisdiction in this matter, as it has been challenged by DHA and the minority plaintiffs for reasons of mootness. DHA and the plaintiffs concede that HUD has paid $1.8 million in subsidies formerly withheld by the agency, but they insist that no article III case or controversy remains, as the federal government's voluntary compliance with an "injunctive order" moots the review of such an order.
26
We agree with HUD, however, that the district court's interpretation of the contractual obligations of paragraph 8 of the consent decree to require the maintenance of certain levels of subsidization constitutes a "final decision," appealable under 28 U.S.C. Sec. 1291. Indeed, the payment of $1.8 million in compliance with the court's order does not operate to moot the larger issue here presented, to-wit, whether the decree vests the court with authority to compel federal subsidization of vacant housing units.8 Accordingly, we retain jurisdiction over this appeal.
B.
27
Consent decrees share sufficient attributes with contracts to be enforced as such. United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975). Thus, the district court's interpretation of the terms of a consent decree, including whether the decree is ambiguous, is reviewed de novo.9
28
As a general principle, a consent decree is a product of negotiation and compromise entered into by parties with divergent purposes, but aligned for the simple reason of avoiding costly and protracted litigation. See United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757-58, 29 L.Ed.2d 256 (1971). The respective obligations of these parties are discerned strictly from within the decree's four corners, as written, and not from the articulated purposes of either party. Id. at 682, 91 S.Ct. at 1757.
29
Nor are courts at liberty to redraft the obligations commanded by the decree absent consent of the parties. See United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932) ("[W]hether right or wrong, [the decree] is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting.") (Cardozo, J.). If the instrument is the product of mistake that would have altered the consent of the parties, vacation of the decree is warranted. See United States v. Gould, 301 F.2d 353, 357-58 (5th Cir.1962) (United States entitled to relief from consent decree if land government purchased is found subsequently to be encumbered).
30
A consent decree may be judicially modified, over a party's objection, should the instrument reserve the power to modify and articulate the long-term objective to be accomplished.10 Absent such a reservation, modification remains available where there has been an unforeseen change in circumstances thwarting compliance, such as a change in the controlling substantive law. See Ruiz v. Lynaugh, 811 F.2d 856, 860 (5th Cir.1987) (per curiam). However, "[m]odification of a consent decree is not a remedy to be lightly awarded," id., especially where the design is not to relieve a party of obligations but to impose new responsibilities. A contrary rule would discourage compromise for fear of adverse judicial modification.
C.
31
Paragraph 8 of the consent decree provides in relevant part that
32
[d]uring the implementation of the Decree and Plan, any proposal to sell or otherwise remove from the housing inventory of DHA any housing units, other than as provided in this Decree or as may occur in the normal operations of DHA programs in order to provide office or support staff, will be submitted to the court for approval to insure that such action will not interfere with implementation of the Decree and Plan.
33
734 F.Supp. at 1251 (emphasis added). Relying upon this language at the plaintiffs' urging, the court concluded that the reduction in federal subsidization of vacant units operates to "remove housing inventory of DHA" in contravention of the decree. The court reasoned that the West Dallas demolition would be financially impossible absent HUD's $1.2-1.5 million operating subsidy for vacant units. It held that it never would have approved the consent decree if reductions had been contemplated by HUD, and it ordered HUD to continue past levels of funding until such time as the demolitions are completed. See Walker II, 734 F.Supp. at 1280.
34
The court so ruled despite its admission that "[t]here is nothing in the Consent Decree that requires the use of HUD funds for the West Dallas demolition; and, the HUD promise that it would 'consider' DHA's request for demolition funds did not constitute a binding agreement." Id. n. 22 (emphasis in original). HUD argued to no avail that the reduction is compelled by its regulations, which diminish operational funding for vacant units slated for destruction. The design of such regulations is to prompt the local public housing agency to secure timely demolitions and hence to avoid rewarding procrastination.
35
We agree with HUD that court-ordered subsidization is not authorized by the consent decree's plain language. Specifically, paragraph 8 does not require further judicial approval to demolish those West Dallas units already slated to be razed pursuant to the decree's accompanying revitalization plan. The paragraph's plain language imposes a requirement of judicial approval only with respect to demolitions "other than as provided in this Decree." Accordingly, it is silent regarding judicial supervision of those West Dallas demolitions provided for in the decree. No party suggests that the demolitions at issue include units not contemplated by the original decree.
36
We are of the view that the district court gave its approval of the West Dallas demolitions years ago as a consequence of its approval of the decree generally. While the court may have intended to withhold such approval, or to qualify it, judicial intent does not frame the legal dimensions of this decree or expand the court's remedial authority to enforce it.11 Paragraph 8 only bars the expansion of the demolition program to include other Dallas projects or, perhaps, the 800-900 West Dallas units slated for modernization.
37
We are similarly unconvinced that reducing operational subsidies for uninhabitable and vacant units is tantamount to the "removal" of such units from DHA's inventory. In truth, the housing inventory remains unchanged by the diminished funding, as demolitions have been stalled. Technically, the reduced operating subsidy preserves DHA's current inventory, whereas the court-ordered subsidization has the opposite effect of providing the resources needed to raze public housing.
38
Indeed, paragraph 8 expressly requires the "removal," not the preservation, of housing units from DHA's inventory in order to trigger judicial intervention. We conclude that the district court offered a strained interpretation of DHA's housing "inventory" to infer removal of unauthorized units. That provision neither authorizes judicial supervision of the demolitions approved incident to this decree nor contemplates federal subsidization of vacant units. Accordingly, the decree reserves no authority with the court to order particular levels of funding irrespective of HUD regulations.
39
While we agree with the court that the reduction may foreclose demolitions as the decree is currently drafted, we are not at liberty to modify the decree to bind HUD involuntarily to additional financial obligations to which, as the court admits, the agency never agreed. See also Fox v. HUD, 680 F.2d 315, 320-23 (3d Cir.1982) (consent decree does not obligate HUD to finance development project). Indeed, the decree specifically divests the court of authority to modify HUD's obligations in a manner that would "increase, alter, or otherwise affect the financial or other obligations of HUD pursuant to this Decree." (Emphasis added.) Additionally, paragraph 16 states that there shall be "[n]o additional relief or modification" except as provided in the decree.
40
As was the case in Fox, the parties "have not sought enforcement of an existing term, but imposition of an additional term beyond the scope of HUD's consent." Id. at 322. If the decree has been frustrated because the parties' respective fiscal obligations were not memorialized in writing, the decree should be vacated, renegotiated and, if impasse persists, the cause scheduled for trial. Since we cannot conclude that the consent decree, as confined by its plain language, has been frustrated as a consequence of reduced subsidies, we remand the case for the district court's more informed view on this matter.
III.
A.
41
Our jurisdiction to review the district court's invalidation of the Frost Amendment and its retroactive application of the Anti-Demolition Statute to the consent decree has been challenged by the minority plaintiffs and DHA. However, these parties are not consistent in their jurisdictional attacks. The minority plaintiffs, for instance, maintain that the district court's judgment regarding both pieces of housing legislation is neither a final decision under 28 U.S.C. Sec. 1291 nor a modification of an injunction under id. Sec. 1292(a)(1).
42
DHA departs with the minority plaintiffs to a limited extent, conceding that the invalidation of the Frost Amendment is immediately reviewable as a final judgment. However, DHA joins the plaintiff class in arguing that the district court's retroactive application of the Anti-Demolition Statute is not ripe for appellate scrutiny.
43
We reject these jurisdictional challenges as being misplaced. It is elementary that the invalidation of an act of Congress is immediately reviewable as a final judgment under section 1291. Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 109 S.Ct. 1726, 1730-31, 104 L.Ed.2d 250 (1989) ("Appeals from District Court judgments finding Acts of Congress unconstitutional ... must now be taken to the appropriate Federal Court of Appeals, pursuant to 28 U.S.C. Sec. 1291."). Further, the Walker II opinion applied the Anti-Demolition Statute to redefine the number of units of housing that HUD, under the consent decree, could demand to be razed in consideration of the section 8 assistance it provided. See 734 F.Supp. at 1286-89. We regard this retroactive application of the legislation to constitute a modification of the consent decree, a view shared by the district court itself. See id. at 1288 (section entitled "Modification of the Consent Decree"). The judicial modification amends an injunctive order; thus we retain appellate jurisdiction to review the modification under section 1292(a)(1).
B.
44
The Frost Amendment precludes the application of any federal funds for the demolition of certain public housing units, including the West Dallas project. The legislation in no way amends HUD's substantive obligations regarding the administration of federal housing laws and, thus, is strictly appropriational in nature. HUD, which had voluntarily reserved in excess of $2 million for the West Dallas demolition, thereafter declined to disperse any federal funds that could be used, directly or indirectly, to raze the condemned units.
45
The amendment's sponsors, Reps. Frost (Dallas) and Leland (Houston), bitterly objected to the planned demolitions in their congressional districts. In fact, the primary sponsor conceded that the amendment, attached to a 1988 HUD appropriation bill, "seeks to prohibit [HUD] from expending any money for [the] demolition of 2,600 public housing units in my congressional district in Dallas, TX, or in a specific public housing project in the district of my good friend and colleague, [Rep. Leland]." 133 Cong.Rec. H7742 (daily ed. Sept. 22, 1987) (statement of Rep. Frost). Since DHA is heavily dependent upon federal financing, the representatives have succeeded in preserving the units from destruction.
46
The district court protested that the "Frost Amendment is a blatant attempt by Congress to interfere with the ability of this Court to adjudicate a pending case." Walker II, 734 F.Supp. at 1283-84. It reasoned that the Frost Amendment, if valid, frustrates the consent decree by effectively prohibiting any demolition in West Dallas, as DHA has no money to pay for this demolition. See id. at 1280. The court added that it "would not have approved the Decree if HUD was going to stop paying DHA the ... 'operating subsidy' before the vacant units in West Dallas had been demolished." Id.
47
The district court reviewed the scant legislative history and the unambiguous design of the amendment's sponsors and concluded that the legislation was intended to unravel the consent decree. The court was alarmed by Rep. Frost's indictment of its judicial temperament and by the Congressman's pernicious charge that the court had fulfilled "cynical Reagan administration policies" to generate more homeless people.12 The court rebuked its congressional critics, retorting that the sponsors seemed more concerned with corralling their public housing constituencies within their voting districts than improving the quality of low-income housing generally. See id. at 1283-85 & n. 29.
48
The district court concluded that the Frost Amendment dictates the outcome of a pending judicial action and thus violates the separation created by the Constitution between Congress and the judiciary. Id. at 1285. Citing the amendment's legislative history, it viewed the law as being narrowly tailored to amend or thwart the consent decree legislatively. The court held that a long line of Supreme Court cases, tracing back to United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1872), and Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 15 L.Ed. 372 (1855), direct invalidation of this intrusive legislation. 734 F.Supp. at 1282.
49
We agree with the district court that Klein instructs that Congress cannot prescribe a rule of decision in a case pending before the courts so as to decide a matter as Congress would like. See United States v. Sioux Nation of Indians, 448 U.S. 371, 404, 100 S.Ct. 2716, 2735, 65 L.Ed.2d 844 (1980). However, Klein does not stand for the proposition that any attempt by Congress to affect a pending case is unconstitutional. Indeed, if a court "is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons." Mistretta v. United States, 488 U.S. 361, 384, 109 S.Ct. 647, 661, 102 L.Ed.2d 714 (1989) (quoting Bowsher v. Synar, 478 U.S. 714, 736, 106 S.Ct. 3181, 3192, 92 L.Ed.2d 583 (1986)).
50
We adhere to the well-settled principle of statutory construction that legislation should be construed narrowly to avoid invalidation unless such a construction is plainly contrary to the intent of Congress.13 This maxim is particularly important regarding legislative appropriations, since the Constitution vests Congress with plenary power to disperse or withhold federal money.14 It is also axiomatic that Congress is not presumed to have usurped power constitutionally forbidden it or to have intended to impinge upon constitutionally protected liberties.15
51
In this case, HUD argues that the Frost Amendment eliminates only federal funding of the West Dallas demolition, not state or local financing. Significantly, the amendment does not preclude demolitions generally or reverse HUD's approval of the demolitions. We agree. Regardless of the sponsor's obvious motivation to derail demolitions, the legislation only withdraws federal appropriations.
52
The amendment does not, as the court suggests, ban the razing of West Dallas's public housing. We recognize that the Frost Amendment has stalled West Dallas's revitalization, but such a result does not authorize courts to invalidate the decisions of Congress in regard to appropriations. We are persuaded that the decree and the amendment do not conflict sufficiently to estop Congress from exercising its power under the appropriations clause.
53
With limited exceptions, Congress's actions on appropriations are not subject to judicial invalidation.16 The Supreme Court has stated that "[a]ny exercise of a power granted by the Constitution to one of the other Branches of Government is limited by a valid reservation of congressional control over funds in the Treasury." Office of Personnel Management v. Richmond, --- U.S. ----, 110 S.Ct. 2465, 2472, 110 L.Ed.2d 387 (1990). Thus, the misrepresentations of executive branch employees do not impose a lien on the treasury in favor of private citizens under an estoppel theory. Id. 110 S.Ct. at 2476.
54
Nor does the President's pardoning power override the appropriations clause and allow the president to direct disbursements. Knote v. United States, 95 U.S. (5 Otto) 149, 154, 24 L.Ed. 442 (1877) ("Moneys once in the Treasury can only be withdrawn by an appropriation by law."). Courts of equity are no exception to the rule that disbursements from the United States Treasury first must be authorized by a congressional appropriation. See INS v. Pangilinan, 486 U.S. 875, 883, 108 S.Ct. 2210, 2216, 100 L.Ed.2d 882 (1988) ("Courts of equity can no more disregard statutory and constitutional requirements than can courts of law") (quoting Hedges v. Dixon County, 150 U.S. 182, 192, 14 S.Ct. 71, 74, 37 L.Ed. 1044 (1893)).
55
Further, the controversial remarks of the congressional sponsors do not render this appropriations amendment unconstitutional. While the remarks arguably evince a wish to direct an outcome that Congress deems favorable, the amendment falls short of dictating the judicial result. The demolitions remain possible, albeit without federal funding. Moreover, the sponsors' charged rhetoric is not necessarily reflected in the text of the statute.
56
Had Congress attempted to vacate the decree or ban West Dallas demolitions entirely, we might agree with the district court that Congress had usurped power constitutionally forbidden it. However, it selected the more sober approach of registering dissatisfaction by withdrawing federal funding. We conclude that if, as here, no constitutionally protected interest is implicated by the reduced federal funding, the Constitution confers on Congress the authority under the appropriations clause to withdraw financial support of this demolition.
57
Had a burgeoning federal deficit inspired the Frost Amendment, no one disputes that Congress retains the constitutional authority to slash HUD appropriations earmarked for low-income housing. The parties have no constitutionally protected interest in continued subsidization, nor is Congress estopped from exercising its appropriations power once litigation commences. Thus, the motive of the sponsors, while arguably relevant if the legislation had banned demolitions generally, does not change the constitutional nature of the enactment in this case.
58
Absent legislation that matches the congressional rhetoric to direct pending litigation in its favor, we decline to invalidate congressional appropriations or the lack thereof. Significantly, the elimination of federal funding for the West Dallas demolitions does not legislatively dictate the outcome of this case. Accord National Juvenile Law Center, Inc. v. Regnery, 738 F.2d 455, 465-66 (D.C.Cir.1984) (per curiam) (elimination of federal funding does not necessarily direct the outcome of pending lawsuits in favor of the government). Accordingly, we hold the Frost Amendment to be constitutionally sound.
C.
59
The Anti-Demolition Statute is broader, imposing restrictive preconditions upon HUD for the approval of public housing demolitions. Of particular significance to this case is the feature that substitute housing, preferably project-based, must be supplied on a one-for-one basis for each unit razed. 42 U.S.C. Sec. 1437p(b)(3). Additionally, section 8 vouchers no longer qualify as a substitute for project-based housing. Id. Sec. 1437p(b)(3)(A)(v).
60
HUD's approval of the West Dallas demolition predates the statute's effective date. Nevertheless, the district court applied the statute retroactively in part, to modify the number of West Dallas units that possibly could be demolished without compliance with the new legislation. The court conceded that it would be "manifestly unjust" to apply the statute strictly and thereby deny HUD the benefit of all demolitions that it bargained for through the issuance of certificates and vouchers. See Walker II, 734 F.Supp. at 1287.
61
Accordingly, the court held that the Anti-Demolition Statute applies retroactively to impose new demolition restrictions only upon those West Dallas housing units not "effectively replaced" by section 8 vouchers before the law's effective date. Id. at 1288. A section 8 voucher "effectively replaced" a housing unit, the court reasoned, if the holder used the voucher to move into a "non-minority area," as distinguished from a racially identifiable project. Id. Consequently, by the court's logic, a significant number of housing units were never effectively replaced.17
62
The court held that the Anti-Demolition Statute, unlike the Frost Amendment, is a general change in the law and thus constitutional. Id. at 1285. It dismissed HUD's "technical arguments" for prospective application and concluded that "it is apparent that this statute ... was intended to apply retroactively to pending cases." Id. But no statutory language is cited by the court to support retroactive application; instead, it asserts that retroactivity "is supported to some degree by the scant legislative history." Id.
63
As a general proposition, the law disfavors retroactivity. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988). Indeed, "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Id.; accord Bennett v. New Jersey, 470 U.S. 632, 639, 105 S.Ct. 1555, 1560, 84 L.Ed.2d 572 (1985) ("statutes affecting substantive rights and liabilities are presumed to have only prospective effect").
64
The district court apparently overlooked Bowen and instead applied the language of Bradley v. Richmond School Bd., 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974), which instructs that "a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." (Emphasis added.) Significantly, however, Bradley expresses no presumption of statutory retroactivity; rather, it binds courts, with some exceptions, to apply legislation enacted while cases are pending decision, not those already decided or those, as here, that may evade decision completely.
65
In brief, Bradley does not contemplate situations in which there has been no adjudication on the merits of the controversy. The court's approval of the consent decree in this case is not equivalent to a "decision" on the merits of the action. As is true generally with consent decrees, judicial action is limited to whether the compromise forged by the parties is fair to all. Consequently, we conclude that Bradley does not control this case. That being so, the district court's preoccupation with calculating the number of units of West Dallas housing "effectively replaced" by certificates and vouchers in non-minority areas is inapposite.
66
Assuming arguendo that the consent decree constitutes a judicial "decision," the district court is bound in this case by the law as it exists upon approval of the decree (i.e., the time of decision), not by subsequent amendments in the substantive law enacted months thereafter. This pre-amendment approval/post-amendment demolition problem has confronted HUD before. In Project BASIC v. O'Rourke, 907 F.2d 1242, 1244-45 (1st Cir.1990), the court held that the Anti-Demolition Statute does not apply to HUD approvals predating the amendment. According, the restrictive features of the amendment may not interfere with post-amendment demolitions, even if such demolitions are not yet completed or begun by the local public housing agency, provided that such demolitions were approved prior to the subject amendment.
67
We find the First Circuit's logic to be persuasive and consistent with Supreme Court precedent, and we decline to create a split between circuits on this issue. A contrary rule would have the perverse effect of modifying the obligations of HUD for demolitions partially or totally completed. We join with the First Circuit in holding that nothing in the statute commands such an onerous result.
68
Our conclusion is reinforced by Bennett v. New Jersey, which held that "practical considerations related to the administration of federal grant programs imply that obligations generally should be determined by reference to the law in effect when the grants were made." 470 U.S. at 638, 105 S.Ct. at 1559. This logic extends to the obligations borne by HUD incident to its approval of a federally subsidized housing or demolition plan. Accordingly, the enactment of the Anti-Demolition Statute does not retroactively modify the consent decree in this case.
IV.
69
In summary, we VACATE the judgment and REMAND in No. 89-1973 for renegotiation, trial, and/or other proceedings consistent herewith. We REVERSE the judgment in 89-1914 regarding the unconstitutionality of the Frost Amendment and the retroactive effect of the Anti-Demolition Statute upon previously approved demolitions, and we likewise REMAND that cause for further appropriate proceedings.
1
HUD is joined because it provides subsidies to public housing agencies, such as DHA, for the operation of low-income housing units and for other housing assistance to the indigent. See, e.g., 42 U.S.C. Secs. 1437c, 1437f, 1437g(a)(1) (West 1978 & Supp.1990)
2
The Sec. 8 certificate program, see, e.g., id. Sec. 1437f(b) and 24 C.F.R. pt. 882 (1989), authorizes local public housing agencies to enter into housing assistance payment contracts with private housing owners who lease to low-income families. The participating family generally is obliged to contribute 30% of its adjusted gross income to its housing needs. HUD aids in financing the balance so that the landlord receives fair market rental
3
The Sec. 8 voucher program, see 42 U.S.C. Sec. 1437f(o ), differs from the certificate program in that the participating family locates and selects the unit to be rented within a given geographical area
4
The Texas communities dismissed from this housing discrimination case include Carrollton, Plano, Richardson, Mesquite, Irving, Addison, Garland, and Farmers Branch
5
Constructed in the 1950's and located in a historically depressed area, the West Dallas project has a long history of neglect. A substantial portion of the project has been contaminated over the years by lead from an adjacent lead smelter. Since 1980, an average of 1,340 units, or 38% of West Dallas's total, remains vacant and uninhabitable. In 1987, only about 1,900 black families remained in the project, besieged by drugs and violent crime
In 1976, DHA secured a $13 million rehabilitative grant for West Dallas, which was drained by incompetence and fraud and resulted in negligible improvement in project quality. In 1983, HUD earmarked $18 million for rehabilitation of the West Dallas project. Today, DHA has yet to receive full disbursement of that grant, as it forms part of the consent decree at issue in this case.
6
See Walker v. HUD, 734 F.Supp. 1231 (N.D.Tex.1989) ("Walker I ") (DHA's violations of the consent decree and appointment of a special master); Walker v. HUD, 734 F.Supp. 1272 (N.D.Tex.1989) ("Walker II ") (effect of subsequent federal legislation on consent decree); Walker v. HUD, 734 F.Supp. 1289 (N.D.Tex.1989) ("Walker III ") (history of deliberate housing discrimination by DHA and City of Dallas). See also Baylor v. HUD, 734 F.Supp. 1314 (N.D.Tex.1989) (related case), appeal filed, No. 89-1880 (5th Cir. argued May 3, 1990). The consent decree is set forth in full as Appendix A to Walker I, 734 F.Supp. at 1247-62
7
This amendment to the Department of Housing and Urban Development--Independent Agencies Appropriations Act, 1988, also withdraws federal funding for the demolition of Houston's Allen Parkway Village housing project, as requested by co-sponsor Rep. Leland:
None of the funds provided by this Act or any other Act for any fiscal year shall be used for demolishing George Loving Place, at 3320 Rupert Street, Edgar Ward Place, at 3901 Holystone, Elmer Scott Place, at 2600 Morris, in Dallas, Texas, or Allen Parkway Village, 1600 Allen Parkway, in Houston, Texas.
8
Alternatively, the court's modification of the consent decree to compel federal subsidization is appealable pursuant to 28 U.S.C. Sec. 1292(a)(1) (modification of injunctive decrees). Accord Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 572, 104 S.Ct. 2576, 2584, 81 L.Ed.2d 483 (1984) (party to decree cannot invoke the jurisdiction of a federal court to secure a favorable modification of a consent decree and then insulate the modification from appellate review by claiming mootness)
9
North Shore Lab. Corp. v. Cohen, 721 F.2d 514, 518 (5th Cir.1983); see also ITT Continental Baking, 420 U.S. at 234-35, 95 S.Ct. at 933-34 (consent decree should be construed in its natural sense); United States v. Atlantic Refining Co., 360 U.S. 19, 23, 79 S.Ct. 944, 946, 3 L.Ed.2d 1054 (1959) (language of a consent decree given its normal meaning)
10
See United States v. United Shoe Machinery Corp., 391 U.S. 244, 249-50, 88 S.Ct. 1496, 1499-1500, 20 L.Ed.2d 562 (1968) (parties in antitrust consent decree may petition court to exercise the reserved power of modification in order to remain faithful to decree's goal of increased competition); Swift, 286 U.S. at 114, 52 S.Ct. at 462 (power of modification may be reserved)
11
See Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 522, 106 S.Ct. 3063, 3075, 92 L.Ed.2d 405 (1986) ("it is the parties' agreement that serves as the source of the court's authority to enter any judgment at all")
12
See 133 Cong.Rec. H7774 (daily ed. Sept. 22, 1987) (statement of Rep. Frost) ("What we have is a cynical action by the Reagan administration to eliminate one-third of the public housing units in Dallas at a time when the problem of the homeless is increasing and at a time when there is an increasing number of poor people in the seventh largest city of the United States.")
13
See DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988) ("every reasonable construction must be resorted to, in order to save a statute from unconstitutionality") (quoting Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 211, 39 L.Ed. 297 (1895)); accord United States v. Monsanto, --- U.S. ----, 109 S.Ct. 2657, 2664, 105 L.Ed.2d 512 (1989); Public Citizen v. United States Dep't of Justice, --- U.S. ----, 109 S.Ct. 2558, 2572, 105 L.Ed.2d 377 (1989)
14 U.S. Const., art. I, Sec. 9, cl. 7 ("No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law"). Accord Reeside v. Walker, 52 U.S. (11 How.) 272, 291, 13 L.Ed. 693 (1850) ("However much money may be in the Treasury at any one time, not a dollar of it can be used in the payment of any thing not thus previously sanctioned.").
15
See DeBartolo Corp., 485 U.S. at 575, 108 S.Ct. at 1397; accord NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507, 99 S.Ct. 1313, 1322, 59 L.Ed.2d 533 (1979); United States v. Security Indus. Bank, 459 U.S. 70, 78, 103 S.Ct. 407, 412, 74 L.Ed.2d 235 (1982)
16
The Constitution, for example, bars Congress from diminishing judicial compensation, U.S. Const. art. III, Sec. 1, or adjusting presidential compensation during an elected term, id. art. II, Sec. 1, cl. 7. But neither DHA nor the minority plaintiffs enjoy a constitutional right to have vacant and uninhabitable government housing destroyed
17
Of the 1,335 Sec. 8 certificates and vouchers ultimately issued by HUD to replace West Dallas housing, the agency estimates that it could secure the demolition of approximately 636 housing units as a consequence of the court's retroactive interpretation of the Anti-Demolition Statute and incorporation of an "effective replacement" requirement
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6224
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BERNARD BOSTIC,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, Chief District
Judge. (4:08-cr-00060-TLW-1; 4:13-cv-02134-TLW)
Submitted: April 24, 2014 Decided: April 29, 2014
Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Bernard Bostic, Appellant Pro Se. Robert Frank Daley, Jr.,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bernard Bostic seeks to appeal the district court’s
order dismissing as untimely his 28 U.S.C. § 2255 (2012) motion.
The order is not appealable unless a circuit justice or judge
issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B) (2012). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the
district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the constitutional
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the motion states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Bostic has not made the requisite showing. Accordingly, we
deny Bostic’s motion for appointment of counsel, deny a
certificate of appealability, and dismiss the appeal. We
dispense with oral argument because the facts and legal
2
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
3
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806 F.Supp.2d 558 (2011)
Robert I. TOUSSIE and Chandler Property, Inc., Plaintiffs,
v.
COUNTY OF SUFFOLK, Robert J. Gaffney, individually, and in his official capacity as Suffolk County Executive, Allen Grecco, and Peerless Abstract Corp., Defendants.
Robert I. Toussie, Laura Toussie, Elizabeth Toussie, Michael I. Toussie, Prand Corp. f/k/a Chandler Property, Inc., Arthur A. Arnstein Corp., Toussie Land Acquisition & Sales Corp., and Toussie Development Corp., Plaintiffs,
v.
County of Suffolk, Paul Sabatino, II, Patricia B. Sielinski and Thomas A. Isles, Defendants.
Nos. 01-CV-6716 (JS)(ARL), 05-CV-1814 (JS)(ARL).
United States District Court, E.D. New York.
August 2, 2011.
*567 Abbe David Lowell, Esq., Chadbourne & Parke, LLP, Washington, DC, Scott S. Balber, Esq., Emily Abrahams, Esq., Jeffrey Carson Pulley, Esq., Chadbourne & Parke LLP, New York, NY, for Plaintiffs.
Arlene S. Zwilling, Esq., John Richard Petrowski, Esq., Chris P. Termini, Esq., William G. Holst, Esq., Suffolk County Attorney's Office, Hauppauge, NY, for Defendants, County of Suffolk; Robert J. Gaffney, Individually and in his official capacity as Suffolk County Executive; Patricia B. Sielinski; and Thomas A. Isles.
Anton J. Borovina, Esq., Law Office of Anton J. Borovina, Melville, NY, for Defendant Paul Sabatino, II.
MEMORANDUM & ORDER
SEYBERT, District Judge:
Plaintiffs, Robert I Toussie ("Toussie") and Chandler Property, Inc., began this action (01-CV-6716) in October 2001, asserting that their civil rights had been violated when the Defendants, Suffolk County and Robert J. Gaffney ("Gaffney"), denied them the opportunity to purchase thirty-one parcels of real estate at the 2001 Suffolk County Surplus Auction. (2001 Am. Compl. [Doc. No. 45].) In April 2005, those plaintiffs, joined by Laura Toussie, Elizabeth Toussie, Michael I. Toussie, Prand Corp. f/k/a Chandler Property, Inc., Arthur A. Arnstein Corp., Toussie Land Acquisition and Sales Corp., and Toussie Development Corp. (collectively "Plaintiffs" or "Toussies"), commenced a second action (05-CV-1814) asserting similar claims under 42 U.S.C. § 1983. (2005 Compl. [Doc. No. 1].) The 2005 Complaint alleged that the Defendants, Suffolk County, Paul Sabatino, II ("Sabatino"), Patricia B. Zielinski ("Zielinski")[1], and Thomas A. Isles ("Isles"), violated Plaintiffs' civil rights when they blocked the sale of sixteen parcels in 2002 and barred Plaintiffs' attendance from public auctions in 2004. As they had in the 2001 Amended Complaint, Plaintiffs also asserted several state law claims including, among other things, breach of contract, unjust enrichment, and defamation. On May 18, 2007, the Court consolidated the 2001 and 2005 actions in the interest of judicial economy. [Doc. No. 182]. Pending before the Court is Defendants' motion for summary judgment. For the following reasons, Defendants' motion is GRANTED IN PART and DENIED IN PART.
*568 BACKGROUND[2]
Defendant Suffolk County ("Suffolk County" or "the County") regularly auctions real property that it has acquired as a result of non-payment of real estate taxes. (Pls.' 56.1 Stmt. ¶ 6.) The terms and conditions governing the auctions are set forth in an auction booklet, which is passed as legislation pursuant to County law and distributed in advance of the auction. (Id. ¶ 32; Pls.' 56.1 Supp. ¶ 36; Defs.' 56.1 Stmt. ¶ 3.)
The County held an auction on May 23-24, 2001[3] ("2001 Auction"), where Plaintiff Toussie was the highest bidder on four parcels, and Plaintiff Chandler Property, Inc. was the highest bidder on twenty-seven parcels. (Pls.' 56.1 Stmt. ¶¶ 5, 12.) Pursuant to the terms and conditions of the 2001 Auction, Plaintiffs entered into memoranda of sale for each parcel and tendered the required 20% down payment and auction fee for each of the thirty-one properties. (Pls.' 56.1 Stmt. ¶ 5.) All auction sales, however, were conditioned upon approval by the Suffolk County Legislature ("Legislature"). (Defs.' 56.1 Stmt. ¶ 4.)[4] The Legislature's discretion to approve or disapprove the sales was not limited in the auction booklet, the Suffolk County Administrative Code, or Terms and Conditions of Sale.
The Legislature's approval of the sales was sought on an expedited basis,[5] meaning that the resolution would be submitted to the full Legislature, rather than to the Ways & Means Committee ("Committee") for initial approval. (Id. ¶ 12.) On recommendation of Defendant Sabatino, counsel to the Legislature, the resolution approving the 2001 Auction sales was split into two bills: Introductory Resolution 1676-01 ("IR 1676-01"), which proposed authorization of the sale of parcels to Plaintiffs, and Introductory Resolution 1675-01 ("IR 1675-01"), which proposed authorization for the sale of parcels to all other buyers. (Defs.' 56.1 Stmt. ¶ 13.) The County had never before split auction sales into two separate resolutions.
IR 1675-01 was expedited and submitted to the full Legislature on June 26, 2001; it was approved by a vote of 17-1. IR 1676-01, on the other hand, was submitted to the Committee on July 30, 2001 and was tabled.[6] On August 7, 2001, the *569 full Legislature considered a motion to discharge IR 1676-01 from Committee. Present were members of the community who objected to the properties ever being sold to Toussie or any company affiliated with him. The motion was defeated. (Pls.' 56.1 Stmt. ¶ 17; Defs.' 56.1 Stmt. ¶ 17.) The Committee again considered IR 1676-01 on August 20, 2001 and this time unanimously defeated it. Counsel for Toussie as well as members of the community again appeared to testify regarding the sale. (Defs.' 56.1 Stmt. ¶¶ 18-20.) In response to complaints from community-members, Toussie's attorney stated that Toussie would agree that neither he nor his son would develop the property. (Pls.' 56.1 Supp. ¶ 16; Pls.' 56.1 Stmt. ¶ 19.) Despite these assurances, on August 28, 2001, after again hearing testimony from community members in opposition to the sales, the Legislature affirmed the Committee's action. (Pls.' 56.1 Stmt. ¶ 21; Defs.' 56.1 Stmt. ¶ 21.) Plaintiffs allege that the Legislature had no legitimate reason for defeating IR 1676-01, but did so to pander to their constituents for political gain. (Pls.' 56.1 Stmt. ¶ 25.) Defendants assert that the County's decision was based on their legitimate concerns regarding Toussie's business practices.[7] On October 11, 2001, Toussie and Chandler Property, Inc. commenced one of the two actions consolidated herein challenging the Legislature's failure to approve these sales.
On March 18, 2002, Toussie wrote a letter to the County asking "that the County advise [him] as soon as possible if it intend[ed] to prohibit [him] from purchasing property at the May 2002 Auction." (Pls.' 56.1 Supp. ¶ 21.) The County responded stating that "the failure of the Suffolk County Legislature to approve the conditional sales for the May 2001 auction, did not include a directive barring him from future actions," but also cautioning that "participation does not carry with it a guarantee of success" because "sales are conditioned upon the discretionary approval of the Suffolk County Legislature." (Pls.' 56.1 Stmt. Ex. 47.)
The County held another auction on May 15-16, 2002 ("2002 Auction"). The auction booklet and Terms and Conditions of Sale were identical to those in the 2001 Auction. Toussie, his company, Prand Corp., his wife, Laura Toussie, her company, Arthur A. Arnstein Corp., his daughter, Elizabeth Toussie, his brother, Michael Toussie, and companies bearing the Toussie name but not owned or operated by the family, Toussie Land Acquisition & Sales Corp. and Toussie Development Corp. were the winning bidders on sixteen properties. (Pls.' 56.1 Stmt. ¶ 33.) They again signed memoranda of sale and tendered the required 20% down payment and *570 auction fee for each of the sixteen properties. (Id.)
On June 11, 2002, IR 1730-2002, which proposed the approval of the sale of parcels to the high bidders at the 2002 Auction, was presented to the Legislature. The resolution was assigned to the Committee, which voted unanimously on June 17, 2002 to table IR 1730-2002 so that separate resolutions segregating the Toussie-related parcels could be drafted and introduced. (Defs.' 56.1 Stmt. ¶ 35 & Ex. X.)[8]
On June 25, 2002, two resolutions, IR 1800-2002, which proposed approval of the sales to Plaintiffs, and IR 1801-2002, which proposed approval of the remaining sales, were introduced and assigned to the Committee. (Defs.' 56.1 Stmt. ¶ 36.) On July 29, 2002, IR 1801-2002 was discharged from Committee, and on August 6, 2002, it was approved by the Legislature. (Id. ¶¶ 37-38.) IR 1800-2002, on the other hand, was tabled then retabled three times by the Committee. (Defs.' 56.1 Stmt. ¶¶ 39-48.) At the November 15, 2002 Committee meeting, Plaintiffs' counsel, Richard Hamburger, again stated that Plaintiffs were willing to enter into a binding agreement that would preclude any residential development of the parcels and Isaac's involvement with the land in any manner. (Pls.' 56.1 Stmt. ¶ 42.) Nevertheless, at the December 9, 2002 Committee meeting, IR 1800-2002 was defeated. (Id. ¶ 48; Defs.' 56.1 Stmt. ¶ 48.) IR 1800-2002 was never voted on by the full Legislature, and it died in Committee.
On or about April 25, 2003, Plaintiffs filed an Article 78 proceeding in the Supreme Court of Suffolk County challenging the Legislature's disapproval of their sales in the 2002 Auction. See Toussie v. County of Suffolk, No. 03-9048 (N.Y. Sup.Ct. Suffolk Cnty. Sept. 23, 2003) (Defs.' 56.1 Stmt. Ex. OO.). The Supreme Court found in favor of Defendants, holding that (1) no valid contract existed, (2) in disapproving the sale, the Legislature was acting "within the clear letter of th[e] contract language," and (3) the Legislature's decision was not arbitrary or capricious. Id. The Appellate Division affirmed, see Toussie v. Cnty. of Suffolk, 26 A.D.3d 506, 809 N.Y.S.2d 573 (2d Dep't 2006), and the Court of Appeals denied leave to appeal, see Toussie v. County of Suffolk, 7 N.Y.3d 711, 823 N.Y.S.2d 770, 857 N.E.2d 65 (2006).
The County held another auction on November 30 and December 1, 2004 ("2004 Auction"). (Defs.' 56.1 Stmt. ¶ 64.) Toussie was the winning bidder on one parcel, but the County refused to allow him to sign a memorandum of sale. (Pls.' 56.1 Supp. ¶ 32.) Assistant County Attorney George Nolan then instructed the auctioneer not to accept any more bids from Toussie or anyone with a close relationship to him and directed the police to escort Toussie, his wife and his attorney from the auction room. (Id. ¶¶ 32-33.) After Mr. and Mrs. Toussie were escorted from the premises, Toussie's attorney, Richard Hamburger, returned to bid on properties as agent for Toussie. (Id. ¶ 34.) Although he was the highest bidder, the County refused to accept any down payment or auction fee and refused to allow him to sign the memoranda of sale on Toussie's behalf. (Id.) Plaintiffs assert that Defendants Sabatino, Isles and Zielinski made the decision to reject Toussie's bids and remove Mr. and Mrs. Toussie from the auction. (Id. ¶¶ 33, 35.)
On April 13, 2005, Plaintiffs commenced the second of the two actions consolidated *571 herein challenging the Legislature's failure to approve the 2002 Auction sales and the County's refusal to allow Mr. and Mrs. Toussie to participate in the 2004 Auction. On May 18, 2007, the two actions were consolidated, and on February 22, 2011, Defendants filed for summary judgment.[9]
DISCUSSION
I. Standard of Review
"Summary judgment is appropriate where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law." Harvis Trien & Beck, P.C. v. Fed. Home Loan Mortg. Corp. (In re Blackwood Assocs., L.P.), 153 F.3d 61, 67 (2d Cir.1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
"The burden of showing the absence of any genuine dispute as to a material fact rests on the party seeking summary judgment." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.1997); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). "In assessing the record to determine whether there is a genuine issue to be tried as to any material fact, the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee, 109 F.3d at 134.
"Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must `set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (quoting Anderson, 477 U.S. at 256, 106 S.Ct. 2505). "Mere conclusory allegations or denials will not suffice." Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986). Similarly, "unsupported allegations do not create a material issue of fact." Weinstock, 224 F.3d at 41 (citing Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995)).
II. Collateral Estoppel
Defendants argue that collateral estoppel bars "[t]he bulk" or "most, if not all" of Plaintiffs' claims. (Defs.' Mem. 2.) Under New York law,[10] collateral estoppel or issue preclusion bars a party from re-litigating an issue that (1) was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted has a full and fair opportunity to litigate the issue in the prior proceeding. See Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir.1995); D'Arata v. N.Y. Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 664, 564 N.E.2d 634, 636, 563 N.Y.S.2d 24, 26 (1990). "The party asserting issue preclusion bears the burden of showing that the identical issue was previously decided, while the party against whom the doctrine is asserted bears the burden of showing the absence of a full *572 and fair opportunity to litigate in the prior proceeding." Colon, 58 F.3d at 869 (citing Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 456, 482 N.E.2d 63, 67, 492 N.Y.S.2d 584, 588 (1985)). Issue preclusion will apply only if it is quite clear that these requirements have been satisfied, lest a party be "precluded from obtaining at least one full hearing on his or her claim." Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 485, 386 N.E.2d 1328, 1331, 414 N.Y.S.2d 308, 311 (1979).
Specifically, Defendants argue that all of Plaintiffs' state common law breach of contract claims (2001 Am. Compl. Counts V, VI; 2005 Compl. Counts XIV, XV, XXIV), equal protection claims (2001 Am. Compl. Count II; 2005 Compl. Counts III, XX, XXVI), bill of attainder claims (2001 Am. Compl. Count I; 2005 Compl. Counts XIII, XIX, XXIX), and substantive and procedural due process claims (2001 Am. Compl. Count III; 2005 Compl. Counts I, V, XXII, XXVII, XXVIII) are barred by the Suffolk County Supreme Court's decision in Toussie v. County of Suffolk, No. 03-9048 (Sup.Ct. Suffolk Cnty. Sept. 23, 2003), aff'd, 26 A.D.3d 506, 809 N.Y.S.2d 573 (2d Dep't 2006) because "all issues regarding the Legislature's authority, discretion and legal basis for refusing to execute or approve sales of auction properties . . . have been fully litigated and resolved against [P]laintiffs" (Defs.' Mem. 5).[11]
A. All Claims Based on 2001 and 2004 Auctions
Defendants assert that the state court's decision with respect to the 2002 Auction bars all contract, bill of attainder, equal protection, and substantive and procedural due process claims arising out of the 2001 and 2004 Auctions. Defendants' argument is based primarily on the fact that the language requiring approval of the Legislature, as set forth in the auction booklet, Memorandum of Sale, and applicable Administrative Code provision, is identical for the 2001, 2002 and 2004 Auctions, and the fact that Plaintiffs' past and present business practices, which factored into the Legislature's refusal to deliver deeds in 2002, remained a constant fact whenever the Legislature was faced with the prospect of selling auction properties to the Plaintiffs.
Similar facts or circumstances surrounding the actions, however, do not establish identity of the issues between the Article 78 proceeding and the 2001 and 2004 Auctions. Collateral estoppel depends on the specific facts of each case and will only prohibit the re-litigation of issues that were "actually and necessarily" decided. The Article 78 proceeding dealt exclusively with the 2002 Auction, and the court there held that the Legislature's disapproval of that particular sale to Plaintiffs was not arbitrary or capricious. The Supreme Court's opinion, the appellate record, and the Second Department's opinion are void of any facts regarding the 2001 Auction or the 2004 Auction. Since Plaintiffs have not had any opportunity to argue the unique facts of either of the other two auctions, collateral estoppel will not preclude those claims. See, e.g., Davis v. *573 Halpern, 813 F.2d 37, 40 (2d Cir.1987) (no identity of issues between Article 78 proceeding and current civil rights litigation when "state proceeding dealt only with Davis' second [allegation of discrimination], not with his first (which was barred by the four-month statute of limitations in Article 78 proceedings) or the third . . . (which has not yet occurred)"); Ponterio v. Kaye, No. 06-CV-6289, 2007 WL 141053, at *10 (S.D.N.Y. Jan. 22, 2007) (collateral estoppel did not bar plaintiff from bringing claim arising out of conduct that occurred after state court issued its decision).
B. State Common Law Breach of Contract Claims Based on 2002 Auction
While Defendants have failed to meet their burden with respect to the claims arising out of the 2001 and 2004 Auctions, they have sufficiently established that there is identity of the issues as between the Article 78 proceeding and the state law contract claim related to the 2002 Auction (2005 Compl. Count XXIV). In their 2005 Complaint, Plaintiffs allege that "[t]he disapproval of the sales by the Suffolk County Legislature was arbitrary, capricious, in bad faith, and in violation of the law, and contrary to the terms of the contracts formed when the memoranda of sale were signed. Thus, the County breached the contracts." (2005 Compl. ¶ 287.) Plaintiffs raised the identical question before the Supreme Court of Suffolk County. See Toussie v. Cnty. of Suffolk, No. 03-9048 (N.Y. Sup.Ct. Suffolk Cnty. Sept. 23, 2003) ("Toussie plaintiffs argue that the disapproval was made in violation of lawful procedure, was arbitrary and capricious and constituted an abuse of any discretion."). The court held (1) that no valid contract existed, (2) that in disapproving the sale, the Legislature was acting "within the clear letter of th[e] contract language," and (3) that the Legislature's decision was not arbitrary or capricious. Id. The Appellate Division affirmed. See Toussie v. Cnty. of Suffolk, 26 A.D.3d 506, 809 N.Y.S.2d 573 (2d Dep't 2006). Those issues are identical to issues in the present case.
Plaintiffs respond by arguing that they did not have a full and fair opportunity to litigate their contract claims in the Article 78 proceeding. (Pls.' Opp'n 12-15.) Factors to be considered when determining whether there was a full and fair opportunity to litigate the issue in the prior action include "the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation." Gilberg v. Barbieri, 53 N.Y.2d 285, 292, 423 N.E.2d 807, 441 N.Y.S.2d 49, 51 (1981) (emphasis added) (citation omitted); see also King v. Fox, 418 F.3d 121, 130 (2d Cir.2005).
Plaintiffs argue that they did not have a full and fair opportunity to litigate their claims in state court because of the discovery of new evidence in the form of (1) the Legislative record revealing that IR 1800-2002 was never "disapproved" but was instead repeatedly tabled until it expired; (2) "subsequent discovery" revealing that prior to Defendants' refusal to approve the sale of surplus property to Plaintiffs there had never before been a refusal of such sales; and (3) former Legislator Fred Towle's[12] guilty plea to bribery and fraud. (Pls.' Opp'n 12-15.)
*574 The Legislative record and the "subsequent discovery" are not "new" evidence that would bar the application of collateral estoppel. Courts have held that evidence is not new if it was available during the pendency of the prior action. See Ryan v. N.Y. Tel. Co., 62 N.Y.2d 494, 504, 467 N.E.2d 487, 492-93, 478 N.Y.S.2d 823, 828-29 (1984); Feldstein v. N.Y. State Office of Mental Health, Bronx Psychiatric Ctr., 846 F.Supp. 1089, 1101 (E.D.N.Y. 1994). Evidence is available if it was in the party's possession or the party could have obtained it during the prior proceeding. See Ryan, 62 N.Y.2d at 504, 467 N.E.2d at 492-93, 478 N.Y.S.2d at 828-29 (finding that evidence in party's possession but not introduced in prior proceeding is not "new evidence" that would defeat the application of collateral estoppel in a later proceeding); Feldstein, 846 F.Supp. at 1101 (holding that a party cannot rely on his failure to engage in discovery during an Article 78 proceeding to defeat collateral estoppel). Plaintiffs were in possession of the Legislative record when they brought their Article 78 proceeding, and they could have engaged in discovery during that proceeding to obtain the statistics regarding how often the Legislature disapproved sales. A party has a full and fair opportunity to litigate so long as "the procedures in the initial forum meet the minimum demands of procedural due process." Rameau v. N.Y. State Dep't of Health, 741 F.Supp. 68, 71 n. 3 (S.D.N.Y.1990) (citing Kremer, 456 U.S. at 483-84, 102 S.Ct. 1883). The Article 78 proceeding provided Plaintiffs with a forum to request and present the previously-described "new" evidence; therefore, Plaintiffs cannot argue that their failure to utilize that forum deprived them of their ability to fully litigate this issue.
Towle's guilty plea to third degree receipt of bribery and first degree scheme to defraud, on the other hand, is new evidence that was not considered by the Supreme Court or Appellate Division in the Article 78 proceeding. The guilty plea, coupled with the fact that during a deposition in this case, Towle invoked his Fifth Amendment privilege against self-incrimination [13] when asked whether he received bribes or acted as a conduit for bribes to other legislators during his tenure in exchange for voting against approval of the "Toussie resolutions" (Pls.' 56.1 Stmt. ¶ 17; Towle Dep. 89-90), could have factored into the state courts' analyses of whether the Legislature's action was arbitrary and capricious. Both courts concluded that the Legislature based its decision on Toussie's past and present business practices and held that the Legislature had a rational basis to do so. Since new, previously-unavailable evidence suggests that some of the legislators may have been motivated by bribes, as opposed to Toussie's business practices, Plaintiffs will not be barred from re-litigating the issue of whether the decision was arbitrary and capricious. The other issues, howeverwhether there was a valid contract and whether the Legislature was acting within the boundaries of that contractare barred by collateral estoppel.
C. Constitutional Claims Based on 2002 Auction
Defendants assert that Plaintiffs' equal protection, bill of attainder, and substantive and procedural due process claims related to the 2002 Auction are all barred *575 by collateral estoppel because of the Supreme Court and Appellate Division's finding that the decision to disapprove Plaintiffs' bid was not arbitrary and capricious and was "rationally based on legitimate concerns about the petitioners' past and present business practices." Toussie, 26 A.D.3d at 507, 809 N.Y.S.2d at 574-75. However, since the Court has decided that Plaintiffs are not barred from re-litigating that issue based on new evidence, none of Plaintiffs' constitutional claims are barred by collateral estoppel.
III. Claims Under 42 U.S.C. § 1983
Plaintiffs bring all of their federal claims under 42 U.S.C. § 1983. Section 1983 provides in relevant part that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.
For claims under § 1983, a plaintiff must prove that "(1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir.1999) (citing Dwares v. City of N.Y., 985 F.2d 94, 98 (2d Cir.1993)). Here, the Defendants do not dispute that Defendants were acting under color of state law. The issue, therefore, is whether Defendants' conduct deprived Plaintiffs of a constitutionally protected right.
A. Bill of Attainder
Plaintiffs allege that the "Legislature's decision to disapprove the sale[s]" in 2001 and 2002 and "to approve the[] sales [in 2004] over the objections of Mr. and Mrs. Toussie" constitute unlawful bills of attainder in violation of the Constitution. (2001 Am. Compl. Count I, 2005 Compl. Counts XIII, XIX, XXIX.) The United States Constitution prohibits any state from passing a bill of attainder. U.S. CONST. art. I, § 10, cl. 1. A bill of attainder is "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 468, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); see also United States v. Lovett, 328 U.S. 303, 315, 106 Ct.Cl. 856, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946) ("[L]egislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.").
To determine whether a legislative act[14] is a bill of attainder, "the Supreme Court has adopted a three-pronged conjunctive test that considers whether the act: (1) imposed punishment, (2) specified the affected persons, and (3) lacked the protection of judicial process." In re Extradition of McMullen, 989 F.2d 603, 611 (2d Cir.1993) (citing Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 847, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984)). Here, the lack of a judicial *576 trial is undisputed. Potentially at issue are whether the resolutions singled out the Toussies and if the resolutions inflicted punishment.
The Court finds that the Toussies were sufficiently singled out with respect to the resolutions passed subsequent to the 2001 and 2002 elections.[15] Defendants do not appear to dispute this. The Court does not find, however, that the 2004 resolution specifically identified Plaintiffs. The resolution does not mention Plaintiffs, and unlike with the 2001 and 2002 resolutions, Plaintiffs' sales were not excised and placed in a separate resolution. Plaintiffs argue in their opposition brief that only Resolutions 1675-01 and 1801-2002 are bills of attainder (Pls.' Opp'n 17) and do not even attempt to raise a genuine issue of material fact as to whether they were specifically identified in the 2004 resolution approving the sales. Therefore, the Court GRANTS summary judgment as to Plaintiffs' bill of attainder claim arising out of the 2004 Auction and Count XIII of the 2005 Complaint is dismissed.
The remaining issue is whether IR 1675-01 and IR 1801-2002 inflict punishment. There are three factors courts look at to determine whether a statute is punitive: "(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 [legislative] intent to punish.'" Selective Serv. Sys., 468 U.S. at 852, 104 S.Ct. 3348 (alteration in original) (quoting Nixon, 433 U.S. at 473, 97 S.Ct. 2777). A statute does not need to fit into each factor to be considered a bill of attainder; "rather, those factors are the evidence that is weighed together in resolving a bill of attainder claim." Consolidated Edison Co. of N.Y., Inc. v. Pataki, 292 F.3d 338, 350 (2d Cir.2002) (citing Nixon, 433 U.S. at 473-78, 97 S.Ct. 2777).
Under the historical test, "statutes imposing punishment traditionally judged to be prohibited by the Bill of Attainder Clause, including death, imprisonment, banishment, punitive confiscation of property by the sovereign and . . . laws barring designated individuals or groups from participation in specified employments or vocations have been held to violate the prohibitions on Bills of Attainder." N.Y. State Trawlers Ass'n v. Jorling, 16 F.3d 1303, 1312 (2d Cir.1994) (citations and internal quotation marks omitted). The resolutions at issue here impose none of these burdens. While the resolutions may have interfered with Plaintiffs' ability to buy property in Suffolk County, the resolutions did not act as a complete bar to Plaintiffs' profession: The Toussies may still purchase non-County property, and they are free to purchase property from other counties. See, e.g., id. (law prohibiting fishermen from using trawls to catch lobsters did not bar them from participating in their profession, as the fishermen were free to catch lobsters by other means or use trawls to catch other types of fish).
However, failure to meet the historical test is not dispositive. See Nixon, 433 U.S. at 475-76, 97 S.Ct. 2777. The resolutions may still be unconstitutional bills of attainder if they do not further a legitimate non-punitive purpose or if the Legislature's intent in passing the resolutions was to punish the Toussies. Defendants do not address either the functional test or the motivational test in their briefs. They, *577 instead, rely on the Supreme Court's Article 78 decision which stated that the Legislature's decision to disapprove of the sales to the Toussies was rationally based on a legitimate government interest. (Defs.' Reply 8.) Defendants argue that Plaintiffs' bill of attainder claims are therefore barred by collateral estoppel because that holding necessarily implies that the Legislature was not motivated by an unlawful purpose. (Id.) But, as this Court previously held, the Plaintiffs are not barred from re-litigating this issue.
The Court finds that Plaintiffs have raised genuine issues of material fact as to whether the resolutions were punitive in nature and could not reasonably serve non-punitive purposes. Although protecting Suffolk County residents and appeasing political constituents may be a non-punitive purpose, the record contains evidence of potential chastising and deterrent motives (see, e.g., Defs.' 56.1 Stmt. Ex. M, Pls.' 56.1 Stmt. ¶¶ 23-25, 54), both of which are purposes consistent with punishment. See Consolidated Edison Co., 292 F.3d at 353 ("General and specific deterrence are. . . traditional justifications for punishment."); Lovett, 328 U.S. at 311-314, 66 S.Ct. 1073 (finding that a record revealing that legislature discussed moral blameworthiness of specified individuals is evidence of punitive purpose); see also Nixon, 433 U.S. at 480, 97 S.Ct. 2777 ("[A] major concern [] prompt[ing] the bill of attainder prohibition: [was] the fear that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient openly to assume the mantle of judge or, worse still, lynch mob.").
Additionally, the existence of a "less burdensome achieved its legitimate nonpunitive objectives" undermines any purported non-punitive objective. Id. at 483, 97 S.Ct. 2777. Here, there is evidence that Plaintiffs offered to enter into an agreement barring residential development and Isaac Toussie's involvement with the property. (Pls.' 56.1 Stmt. ¶ 42; Pls.' 56.1 Supp. ¶ 16.) As such, there are material factual disputes, and summary judgment with respect to Count I of the 2001 Complaint and Counts XIX and XXIX of the 2005 Complaint is DENIED.
B. Equal Protection
Defendants argue that Plaintiffs' "class-of-one" equal protection claims must be dismissed because the Toussies were not similarly situated to any other buyer.[16] To prevail on a class-of-one equal protection claim, Plaintiffs must establish "that they were intentionally treated differently from other similarly-situated individuals without any rational basis." Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.2006) (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)).
A plaintiff and the persons with whom he compares himself are "similarly situated" if they are "prima facie identical in all relevant respects." Neilson v. D'Angelis, 409 F.3d 100, 104 (2d Cir. 2005) (quoting Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir.2002), abrogated on other grounds, Appel v. Spiridon, 531 F.3d 138 (2d Cir.2008)). A class-of-one plaintiff must show an "extremely high degree of similarity between themselves and the persons to whom they compare themselves," Clubside, 468 F.3d at 159, and must establish that: "(i) no rational person could regard the circumstances of the plaintiff to differ from those *578 of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy;" and "(ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendant acted on the basis of a mistake." Neilson, 409 F.3d at 105; see also Clubside, 468 F.3d at 159. "As a general rule, whether [individuals] are similarly situated is a factual issue that should be submitted to the jury." Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n. 2 (2d Cir.2001). "A court may grant summary judgment in a defendant's favor on the basis of lack of similarity of situation, however, where no reasonable jury could find that the persons to whom the plaintiff compares itself are similarly situated." Clubside, 468 F.3d at 159.
With respect to the Equal Protection claims arising out of the 2001 and 2002 Auctions, Plaintiffs argue that they were similarly situated to the other auction participants who were the highest bidders on surplus property because they all: "(1) participated in a public bidding process; (2) bid the highest dollar value for the property; (3) executed a memoranda of sale; (4) provided a 20% down payment; and (5) had their names placed on an omnibus resolution." (Pls.' Mem. 16.) With respect to the claims arising out of the 2004 Auction, Plaintiffs argue that they were similarly situated to all other auction participants.
The Court does not find that there is enough evidence in the record to support the conclusionnecessary to sustain a class-of-one equal protection claimthat Plaintiffs' circumstances are "prima facie identical" to those of all other auction participants "in all relevant respects." Neilson, 409 F.3d at 104. Plaintiffs argue that they were similar to the other auction participants because they were also auction participants. This is insufficient. Toussie, his companies, and his family members have been targeted by the media with respect to their real estate work (Defs.' 56.1 Stmt. ¶¶ 8, 27-31), have been named as defendants in a class-action lawsuit by homeowners (id. ¶ 15), and have been the subject of complaints to the Legislature by members of the community (id. ¶ 18).[17] Plaintiffs provide no background information regarding any other auction participant to even enable the Court to make such a comparison. As such, they have failed to raise a genuine issue of fact. See Prestopnik v. Whelan, 249 Fed.Appx. 210, 213-14 (2d Cir.2007) (affirming dismissal of plaintiff's class-of-one equal protection claim because, after claiming that the school district treated her differently from all other candidates for tenure, she introduced no evidence regarding any of the other teachers, leaving the court with no evidence whatsoever to make such a comparison); see also Maulding Dev., L.L.C. v. City of Springfield, 453 F.3d 967, 971 (7th Cir.2006) (affirming dismissal of class-of-one claim because plaintiff "introduce[d] no evidence regarding any of the other developers, not a single one"). Therefore, with respect to Plaintiffs' equal protection claims, summary judgment is GRANTED, and Count II of the 2001 Amended Complaint and Counts III, XX, and XXVI of the 2005 Complaint are DISMISSED.
C. Due Process
The Due Process Clause of the Fourteenth Amendment protects persons *579 against deprivations of "life, liberty, or property." U.S. CONST. amend. XIV, § 1. To establish a violation of either procedural or substantive due process, Plaintiffs must first identify a valid liberty or property interest. Local 342, Pub. Ser. Emps. v. Town Bd. of Huntington, 31 F.3d 1191, 1194 (2d Cir.1994); Harlen, 273 F.3d at 503. Only if such an interest exists can there be a due process violation. Therefore, the Court will first address the threshold question of whether Plaintiffs have asserted a deprivation of a recognized liberty or property interest. Then, if deprivation of such an interest exists, the Court will discuss whether that deprivation violates procedural or substantive due process.
1. Deprivation of Liberty or Property Interest
Plaintiffs assert that the following interests are protected by both procedural and substantive due process: (a) Mr. Toussie's liberty interest in pursuing his chosen occupation (2001 Am. Compl. Count III; 2005 Compl. Counts I, V, XXII, XXVII, XXVIII); (b) all Plaintiffs' liberty interest in entering into contracts (2005 Compl. I, V, XXII, XXVII, XXVIII); (c) Mr. and Mrs. Toussie's liberty interest in attending events open to the public (2005 Compl. Counts I, V, XXVII, XXVIII); (d) all Plaintiffs' property interest in the parcels for which they entered into memorandum of sale (id. Counts XX, XXVII, XXVIII); and (e) Mr. and Mrs. Toussie's property interest in having the County allow them to sign memoranda of sale (2005 Compl. Counts I, V, XXVII, XXVIII). The Court will address each in turn.
a. Liberty Interest in Pursuing Chosen Profession
Plaintiffs argue that the County violated Mr. Toussie's right to pursue his chosen professionthe buying and selling of property in Suffolk Countyby blocking his purchase of auction property and damaging his professional reputation by making false and defamatory statements. While "[a] person's right to pursue the profession of his choice is recognized as a constitutionally protected liberty interest," Jaeger v. Bd. of Educ. of Hyde Park Cent. Sch. Dist., No. 96-CV-9336, 1997 WL 625006, at *1 (2d Cir. Oct. 9, 1997) (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)), courts in the Second Circuit have consistently held "one must have no ability to practice one's profession at all in order to state a claim for deprivation of a liberty interest." Rodriquez v. Margotta, 71 F.Supp.2d 289, 296 (S.D.N.Y.1999) (citations omitted); accord Schultz v. Inc. Vill. of Bellport, No. 08-CV-0930, 2010 WL 3924751, at *7 (E.D.N.Y. Sept. 30, 2010) ("[D]ue process claim based on infringement of [right to pursue chosen occupation] will succeed only where a person is blocked from participating in a particular field.") (citing Conn v. Gabbert, 526 U.S. 286, 291-92, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999). Compare Sacco v. Pataki, 114 F.Supp.2d 264, 273 (S.D.N.Y.2000)) (holding that plaintiffs are not deprived of a liberty interest because "they cannot have the best job in their field") and Empire Transit Mix, Inc. v. Giuliani, 37 F.Supp.2d 331, 336 (S.D.N.Y.1999) (holding that City terminating plaintiff's concrete-supply contracts and publishing negative news report did not constitute deprivation of a liberty interest even though "a significant part of [plaintiff's] business ha[d] involved projects for the City"), with Valmonte v. Bane, 18 F.3d 992, 994 (2d Cir.1994) (finding that plaintiff, whose name was placed on the central register of Department of Social Services ("DSS") as a suspected child abuser had a legitimate interest in pursuing her chosen occupation in child *580 care field because all child care providers must consult the list and she would not be able to get a job in the child-care field). Mr. Toussie is still buying and selling property in Suffolk County (Pls.' 56.1 Stmt. ¶ 67);[18] the fact that certain methods of buying property may now be precluded does not give rise to a valid liberty interest.[19]
b. Liberty Interest in Entering Contracts
Plaintiffs also assert that they had a protected property interest in entering into contracts which the Defendants allegedly violated. Defendants argue that no such right exists. The Court agrees. It is clearly established that "liberty" under the Due Process Clause does not protect "freedom of contract." See W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 391, 57 S.Ct. 578, 81 L.Ed. 703 (1937) ("The Constitution does not speak of freedom of contract."); Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 857, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (Rehnquist, J., concurring).
c. Liberty Interest in Attending Events Open to the Public
Plaintiffs allege that Defendants violated Mr. and Mrs. Toussie's liberty interest to attend events open to the public by refusing to permit them or their attorney to be present at the public auction. Defendants assert that no such right exists. The Court agrees. Although engaging in interstate travel and free movement is a protected liberty interest, the Second Circuit has held that "a municipality's decision to limit access to its facilities does not interfere with the right to free movement. . ., and [an individual's] expulsion and temporary exclusion from the [town's community center] did not deprive him of a liberty interest protected by the Due Process Clause." Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir.2008).
d. Property Interest in Parcels to Which Plaintiffs Entered into Memorandum of Sale in 2001 and 2002
Plaintiffs also assert that they have protected property interests. "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire" and "more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Roth, 408 U.S. at 577, 92 S.Ct. 2701. "Courts have assessed whether a plaintiff has a clear entitlement to a permit or some other benefit by focusing primarily on the degree of discretion enjoyed by the issuing authority, rather than on the likelihood that the authority will make a specific decision." Muller Tours, Inc. v. Vanderhoef, 13 F.Supp.2d 501, 506-07 (S.D.N.Y.1998) (citing Crowley v. Courville, 76 F.3d 47, 52 (2d Cir.1996)); accord Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) ("Our cases recognize a benefit is not a protected entitlement if government officials may grant it or deny *581 it at its discretion." (citing Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 462-63, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989))). "Even if in a particular case, objective observers would estimate that the probability of issuance was extremely high, the opportunity of the local agency to deny issuance suffices to defeat the existence of a federally protected property interest." RRI Realty Corp. v. Inc. Vill. of Southampton, 870 F.2d 911, 918 (2d Cir.1989); see also Clubside, 468 F.3d at 152-53. A clear entitlement exists only when "the discretion of the issuing agency is so narrowly circumscribed" that approval of a proper application is virtually assured. Gagliardi v. Vill. of Pawling, 18 F.3d 188, 192 (2d Cir.1994) (internal quotation marks and citation omitted). Thus, "when the relevant authority has broad discretion in its decision-making process, no property interest or entitlement will be found." Muller Tours, 13 F.Supp.2d at 506-07 (citing Sanitation and Recycling Indus. v. City of N.Y., 107 F.3d 985, 994 (2d Cir. 1997)).
Since the proper focus is "on the degree of official discretion and not on the probability of favorable exercise, the question of whether an applicant has a property interest will normally be a matter of law for the court." RRI Corp., 870 F.2d at 918.
Applying the above standards, Plaintiffs have no "claim of clear entitlement" to the properties for which they entered into memoranda of sale in the 2001 and 2002 Auctions[20] because the County was vested with discretion to decide whether to approve or disapprove the sales.[21] Neither the Suffolk County Administrative Code nor the Terms and Conditions of Sale placed any restrictions on the County's authority, and New York courts have held that a legislative body is not required to set standards for areas in which it has full discretion, see Cummings v. Town Bd. of N. Castle, 62 N.Y.2d 833, 834, 466 N.E.2d 147, 477 N.Y.S.2d 607 (1984); Davis v. City of Syracuse, 158 A.D.2d 976, 977, 551 N.Y.S.2d 128 (4th *582 Dep't 1990).[22]
e. Property Interest in Entering Memoranda of Sale in 2004
However, there may be a legitimate property interest with respect to the 2004 Auction. In 2004, although Mr. and Mrs. Toussie and their attorney were the highest bidders on numerous properties, they were precluded from signing the memoranda of sale. Here, they had a legitimate claim of entitlement.
The Terms and Conditions of Sale for the 2004 Auction state:
Once a bid is accepted by the auctioneer and the auctioneer has announced that the sale has been completed and finalized, the sale of the parcel will be considered FINAL. At this time the sale will not be cancelled nor rescinded in any manner, under any circumstances, except by the County. . . . The successful bidder will be required, at the time and place of the auction, to sign a memorandum of sale pertaining to his or her purchase of the parcel.
(Pls.' 56.1 Stmt. Ex. 54.) Once the highest bid has been accepted, the sale is final, and the successful bidder must sign a memorandum of sale. The County does not appear to have any discretion at this stage of the auction process. As such, Mr. and Mrs. Toussie had a legitimate expectation in being able to sign the memoranda of sale.
The Court must now determine whether Defendants' deprivation of that interest violated procedural or substantive due process.[23]
2. Procedural Due Process
Having identified a possible deprivation of Mr. and Mrs. Toussie's property interest, to establish a procedural due process violation, Plaintiffs must now show that the deprivation was effected without due process. See Local 342, 31 F.3d at 1194. Due process requires that the state not deprive an individual of a significant liberty or property interest without affording notice and some opportunity to be heard. See, e.g., Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264, 299, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); Gudema v. Nassau Cnty., 163 F.3d 717, 724 (2d Cir.1998). Here, Defendants only state that Plaintiffs had an adequate opportunity to present their position to the Legislature in 2001 and 2002.[24] There is a *583 genuine issue of fact as to whether Plaintiffs were afforded such an opportunity in 2004. Therefore, summary judgment with respect to the procedural due process claim arising from the 2004 Auction (2005 Compl. Count I) is DENIED.
3. Substantive Due Process
Having a shown that they had a valid property interest in being able to enter into the sales contract, to establish a violation of substantive due process, Plaintiffs must show that the Defendants infringed that property interest in an arbitrary or irrational manner that shocks the conscience. See Harlen Assocs., 273 F.3d at 503; Clubside, 468 F.3d at 152; Wantanabe Realty Corp. v. City of N.Y., 315 F.Supp.2d 375, 392 (S.D.N.Y.2003). Defendants' only argument is that collateral estoppel precludes Plaintiffs from re-litigating whether the County's actions were arbitrary and capricious. However, this Court already concluded that collateral estoppel does not preclude Plaintiffs from litigating issues related to the 2004 Auction. Defendants have, therefore, failed to meet their burden and summary judgment is DENIED.
D. First Amendment
1. Conduct as Speech
Plaintiffs allege that Defendants violated their right to free speech under the First Amendment when they refused to allow Mr. and Mrs. Toussie to participate in the 2004 Auction. The issue, then, is whether Plaintiffs have a First Amendment right to participate in public auctions that was violated when the County excluded them. To resolve this, the Court must first decide whether participating in a public auction is speech protected by the First Amendment.
Although participating in an auction is not "speech" in the traditional sense, some forms of expressive or symbolic conduct fall within the ambit of the First Amendment. Rumsfeld v. Forum for Academic & Instit. Rights, Inc., 547 U.S. 47, 66, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006). "In determining `whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play,' the Supreme Court asks `whether an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it.'" Young v. N.Y.C. Transit Auth., 903 F.2d 146, 153 (2d Cir.1990) (quoting Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974)); see also, e.g., Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (recognizing the expressive nature of burning the American flag by a protestor during a political march); Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 505, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (recognizing expressive nature of school students wearing black arm bands in protest of Vietnam War). Plaintiffs do not assert that their participation in the auction was "inseparably intertwined with a particularized message." See Young, 903 F.2d at 153. In fact, they fail to assert that their participation in the auction conveyed any message.
Rather, Plaintiffs argue that their conduct deserves First Amendment protection merely because it occurred in a public forum. This is a misstatement of the law. *584 First the Court must determine whether the conduct in question is protected speech. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Only if the activity falls within the bounds of the First Amendment will the Court identify the nature of the forum in which the activity took place. Id. The forum is relevant because the extent to which the government may limit speech depends on whether the forum is public or private. Id. Since here, the activity in question is not constitutionally-protected "expressive conduct," the Court need not determine whether the auction occurred in a public forum. See id. ("[W]e must first decide whether solicitation . . . is speech protected by the First Amendment, for, if it is not, we need go no further."). Since the conduct is not protected by the First Amendment, the Court's inquiry ends.
Therefore, the Court GRANTS summary judgment with respect to Plaintiffs' claim that Defendants' prohibiting Mr. and Mrs. Toussie from participating in the auction violated their First Amendment rights, and Count VII of the 2005 Complaint is DISMISSED.
2. Intimate Association
Plaintiffs allege that the County violated their First Amendment right to intimate association when it took adverse action against Plaintiffs based on Isaac's, and to a lesser extent Toussie's, alleged misconduct. "The right to intimate association protects the close ties between individuals from inappropriate interference by the power of the state." Chi Iota Colony of Alpha Epsilon Pi Fraternity v. C.U.N.Y., 502 F.3d 136, 143 (2d Cir.2007) (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 619, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)). "To determine whether a governmental rule unconstitutionally infringes on an associational freedom, courts balance the strength of the associational interest in resisting governmental interference with the state's justification for the interference." Id.
Defendants do not dispute that the relationship between Mr. and Mrs. Toussie and their son is a protected relationship. See Patel v. Searles, 305 F.3d 130, 136 (2d Cir.2002) (recognizing that parent-child relationship is a constitutionally protected "intimate" relationship); Sutton v. Vill. of Valley Stream, N.Y., 96 F.Supp.2d 189 (E.D.N.Y.2000) (same).[25] Rather, Defendants argue that Plaintiffs' intimate association claims must fail because Defendants' alleged retaliation against Plaintiffs was not related to Toussie or Isaac's exercise of his First Amendment rights. In other words, the alleged retaliation was "in response to Isaac's criminal acts and . . . [D]efendants' perception that Toussie also engaged in questionable conduct" (Defs.' Mem. 18), not because either Toussie or Isaac engaged in protected speech. This is an incorrect statement of the law.
In support of their position, Defendants cite Adler v. Pataki, 185 F.3d 35 (2d Cir. 1999) and Sacay v. Research Foundation of C.U.N.Y., 193 F.Supp.2d 611 (E.D.N.Y. 2002). Although there may have been speech or conduct worthy of First Amendment protection in both Adler, 185 F.3d at 44 (husband terminated from state job after wife filed suit against the state), and Sacay, 193 F.Supp.2d at 634-35 (daughter demoted and transferred after filing letter *585 in support of mother's ADA claim), neither case stated that protected speech was required to state an intimate association claim. The First Amendment right that is implicated in an intimate association claim is the associational right, not free speech. Contrary to Defendants' assertion, one can state a claim for violation of the right to intimate association without alleging that there was any constitutionally protected speech.[26]
The only issue, then, is whether the deprivation of Plaintiffs' right of intimate association with Isaac is outweighed by the County's reasons for disapproving the sales to Plaintiffs in 2001 and 2002 and prohibiting Mr. and Mrs. Toussie's involvement in the 2004 Auction. The Court finds that reasonable jurors would disagree as to whether the balance weights in Defendants' favor; therefore, summary judgment with respect to the intimate association claims is DENIED.
3. Retaliation
Plaintiffs assert that the Defendants retaliated against them for exercising their First Amendment right to petition by disapproving the sales to Plaintiffs after the 2002 Auction and by not allowing Mr. and Mrs. Toussie to participate in the 2004 Auction. The Second Circuit has "described the elements of a First Amendment retaliation claim in several ways, depending on the factual context." Williams, 535 F.3d at 76. When, as here, the plaintiff is "a private citizen who sued a public official," the Second Circuit has required the plaintiff "to show: `(1) [the plaintiff] has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by his exercise of that right; and (3) defendants' actions effectively chilled the exercise of his First Amendment right.'" Williams, 535 F.3d at 76 (alteration in the original) (quoting Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir.2001)); accord Kuck v. Danaher, 600 F.3d 159, 168 (2d Cir.2010) (noting that a "private citizen" bringing a First Amendment retaliation claim must satisfy the three-pronged test set forth in Curley); Butler v. City of Batavia, 323 Fed.Appx. 21, 23 (2d Cir. 2009) (applying the Curley test); Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998) (same).
Defendants argue that they are entitled to judgment as a matter of law because Plaintiffs' lawsuits are matters of public concern, and therefore are not protected by the First Amendment. However, as Plaintiffs correctly assert, this is the standard governing retaliation claims by public employees, not private citizens. Since none of the Plaintiffs were public employees when they filed the 2001 Complaint or the Article 78 proceeding, their lawsuits need not have been related to a matter of public concern for them to fall within the protection of the First Amendment for the purposes of this action. See Williams, 535 F.3d at 77.
Nonetheless, the Court still finds that Defendants are entitled to judgment as a matter of law because Plaintiffs have failed to show how Defendants' action "chilled" the exercise of their First Amendment rights. "[P]laintiffs who allege a violation of their right to free speech must prove that official conduct *586 actually deprived them of that right." Id. at 78 (citing Colombo v. O'Connell, 310 F.3d 115, 117 (2d Cir.2002)). To prove this deprivation, Plaintiffs must come forward with evidence showing either that (1) Defendants silenced them or (2) "[D]efendant[s'] actions had some actual, non-speculative chilling effect" on his speech. Id.; accord Spear v. Town of W. Hartford, 954 F.2d 63, 67-68 (2d Cir.1992) (requiring plaintiff to show that defendants "inhibited him in the exercise of his First Amendment freedoms"). Plaintiffs have not alleged any facts indicating that Defendants have deprived them of their constitutionally protected right to free speech, chilled their speech or otherwise prevented them from speaking.[27] Therefore, the Court GRANTS summary judgment with respect to Plaintiffs' First Amendment retaliation claims and Counts IX and XXI of the 2005 Complaint are DISMISSED.
E. Claims Against Individual Defendants
1. Section 1983 Conspiracy Claims
Plaintiffs allege, pursuant to § 1983, that Sabatino, Zielinski and Isles conspired to violate Plaintiffs' rights to procedural and substantive due process (2005 Compl. Counts II, VI), equal protection (id. Count IV), free speech under the First Amendment (id. Counts VIII, X) and intimate association (id. Count XII) with respect to the 2004 Auction.
"To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.1999).
As a threshold matter, Plaintiffs must establish that the underlying constitutional rights were violated to succeed on their conspiracy claims. See Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir.1995) (explaining that a § 1983 conspiracy claim "will stand only insofar as the plaintiff can prove the sine qua non of a § 1983 action: the violation of a federal right"); see also D'Angelo-Fenton v. Town of Carmel, 470 F.Supp.2d 387, 397 (S.D.N.Y.2007); Schultz v. Inc. Vill. of Bellport, No. 08-CV-0930, 2010 WL 3924751, at *10-11 (E.D.N.Y.2010). The Court has already concluded that Plaintiffs have failed to establish their equal protection, free speech and retaliation claims with respect to the 2004 Auction, therefore the conspiracy claims related to those alleged violations fail as a matter of law and Counts IV, VIII and X of the 2005 Complaint are DISMISSED.
Additionally, Defendants argue that the intra-corporate conspiracy doctrine bars all Plaintiffs' § 1983 conspiracy claims. The Court agrees. "The intra-corporate conspiracy doctrine posits that the officers, agents, and employees of a single corporate or municipal entity, each acting within the scope of his or her employment, are legally incapable of conspiring with each other." Daniel v. Long Island Hous. P'ship, Inc., No. 08-CV-1455, 2009 WL 702209, at *9 (E.D.N.Y. Mar. 13, 2009). Plaintiffs do not dispute that the individual Defendants are all employees of the County but instead argue that Zielinski, Isles and Sabatino were acting outside the scope of their employment when they *587 instructed the auctioneer at the 2004 Auction to ignore Mr. and Mrs. Toussie's bids and then directed Suffolk police to remove them from the auction.
In order to show that Defendants acted outside the scope of their employment, Plaintiffs must show that Zielinski, Isles and Sabatino were "`acting in their personal interests, wholly and separately from the corporation'" or municipal entity. Daniel, 2009 WL 702209, at *9 (quoting Bhatia v. Yale Univ., No. 06-CV-1769, 2007 WL 2904205 (D.Conn. Sept. 30, 2007)). Plaintiff, however, has failed to provide any evidence to suggest that they were motivated by independent personal interests, separate and apart from the interests of the County. Plaintiffs state in their opposition that "[f]act questions abound regarding the individual Defendants' personal stake in their discriminatory conduct toward Toussie" (Pls.' Opp'n 22) yet cite to five paragraphs of their 56.1 Statement that discuss the actions of the "County": "the County refused to allow [Toussie] to sign a contract" (Pls.' 56.1 Supp. ¶ 32); "Nolan told Toussie that the County would not sell him any properties" (id.); "[t]he County refused to accept the down payment plus auction fee" (id. ¶ 34); and "[t]he County's decision to ignore bids from Toussie, his wife, and his attorney was based on the prior litigation history with Toussie and Plaintiffs and to avoid discomfort to the public" (id. ¶ 35). Although these paragraphs also reference actions of Isles, Zielinski and Sabatino, there is no evidence in the record that shows that those actions were motivated by anything other than the interests of the County, nor is there any evidence suggesting what their alleged "personal stake" in the discriminatory conduct is. See Daniel, 2009 WL 702209, at *9; Little v. City of N.Y., 487 F.Supp.2d 426, 441-442 (S.D.N.Y.2007). Such unsupported allegations will not defeat summary judgment. See Weinstock, 224 F.3d at 41. Therefore, the Court GRANTS summary judgment with respect to all of Plaintiffs' § 1983 conspiracy claims.
2. Remaining Underlying Constitutional Violations Allegedly Committed by Individual Defendants
The Court has already determined that Defendants are entitled to summary judgment as to the majority of the claims against the individual Defendants.[28] The only claims remaining are against Isles, Sabatino and Zielinski for violating Plaintiffs rights to procedural and substantive due process and intimate association at the 2004 Auction.
Although the procedural and substantive due process claims arising out of the 2004 Auction survived summary judgment, the claims must be dismissed as against the individual Defendants because Plaintiffs have failed to allege any specific acts committed by Isles, Zielinski or Sabatino that give rise to a constitutional violation. See Gronowski v. Spencer, 424 F.3d *588 285, 292 (2d Cir.2005) ("Before § 1983 damages are awarded, a plaintiff must show by a preponderance of the evidence that the defendant was personally involvedthat is, he directly participated in the alleged constitutional deprivations."); Ricioppo v. Cnty. of Suffolk, No. 04-CV-3630, 2009 WL 577727, at *8 (E.D.N.Y. Mar. 4, 2009) ("In order to make a claim for individual liability under § 1983, there must be personal involvement." (citing Patterson v. Cnty. of Oneida, 375 F.3d 206, 229 (2d Cir.2004))).
Plaintiffs allege that Suffolk County Police escorted Mr. and Mrs. Toussie out of the auction room at the direction of Isles, Zielinski, and Sabatino (Pls.' 56.1 Supp. ¶¶ 33, 35); however, the Court has already determined that Mr. and Mrs. Toussie do not have a protected liberty interest in attending events open to the public. Plaintiffs have a protected property interest in signing memoranda of sale for the parcels for which they are the highest bidder, yet Plaintiffs state that Assistant County Attorney George Nolan instructed the auctioneers not to accept any bids from Mr. or Mrs. Toussie and "[t]he County refused to accept the down payment plus auction fee, and refused to allow Mr. Hamburger to sign the memoranda of sale on behalf of Toussie for those parcels for which he was the winning bidder" (id. ¶ 34 (emphasis added)). Since there are no factual allegations linking any of the individual Defendants to the alleged procedural and substantive due process violations, those claims as against Isles, Sabatino and Zielinski must be DISMISSED.
Plaintiffs do, however, allege specific facts linking Isles, Sabatino and Zielinski to the intimate association claim arising out of their conduct at the 2004 Auction. The individual Defendants are entitled to summary judgment, nonetheless, on the basis of qualified immunity.
3. Qualified Immunity
"Under qualified immunity, `government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Faghri v. Univ. of Conn., 621 F.3d 92, 96 (2d Cir.2010) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
Plaintiffs state that qualified immunity doctrine does not apply because the individual Defendants were not performing discretionary functions when they "barred Toussie's bids and exiled him and his wife from the 2004 Auction grounds" (Pls.' Opp'n 23). The Court disagrees. While, as Plaintiffs correctly assert, qualified immunity only applies where a government official performs a discretionary, as distinct from a ministerial function, see Walz v. Town of Smithtown, 46 F.3d 162, 169 (2d Cir.1993), this ministerial-duty exception only "applie[s] when a government employee has a duty to perform a ministerial task and refuses to do so." See D'Agostino v. N.Y. Liquor Auth., 913 F.Supp. 757, 767 (W.D.N.Y.1996) (citing Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1995)) (court reporter failed to comply with duty to provide convicted criminal defendant with transcript); Walz, 46 F.3d at 169 (town highway superintendent refused to issue excavation permit to allow homeowners to obtain water service, despite his complete lack of discretion to deny permit under town code). Plaintiffs, on the other hand, do not argue that Isles, Zielinski and Sabatino failed to act when they had a duty to do so but rather argue that the individual Defendants acted out-side *589 the scope of their discretion. This is not the standard.[29]
The issue, then, is whether Plaintiffs' right to intimate association was "clearly established" when the individual Defendants had Mr. and Mrs. Toussie escorted out of the 2004 Auction. "In this Circuit `a right is clearly established' if it meets the following three-part test: `(1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable defendant would have understood from the existing law that his conduct was unlawful.'" Talley v. Brentwood Union Free Sch. Dist., 728 F.Supp.2d 226, 234-35 (E.D.N.Y.2010) (citing Luna v. Pico, 356 F.3d 481, 490 (2d Cir.2004)). Although both the Supreme Court and the Second Circuit have recognized a right of intimate association, the parameters of that right are anything but clear. See Poleo-Keefe v. Bergeron, No. 06-CV-0221, 2008 WL 3992636, at *9 (D.Vt. Aug. 28, 2008) ("[B]oundaries of right of freedom of intimate association are largely unsettled and the Second Circuit has declined to articulate the level of review due to actions that infringe upon it. The contours of the right . . . are not sufficiently clear to enable a reasonable official to understand what actions would violate the right."); see also Sacay, 193 F.Supp.2d at 635; Sutton, 96 F.Supp.2d at 194. Burdens of intimate association have been held constitutional where the government's interests have been strong enough and unconstitutional where the government's interest was insufficient. See Talley, 728 F.Supp.2d at 237 (collecting cases). A reasonable defendant would not have understood that escorting Mr. and Mrs. Toussie out of a public auction deprived them of their right to intimate association; therefore, the individual Defendants are entitled to judgment as a matter of law. All claims against the individual Defendants are DISMISSED.
IV. State Law Claims
A. Breach of Contract
Plaintiffs also assert state law breach of contract claims with respect to the 2001, 2002 and 2004 Auctions. Defendants state that Plaintiffs are collaterally stopped from bringing all contract claims. The Court will address the claims arising out of each auction in turn.
1. 2001 Auction
With respect to the 2001 Auction, Plaintiffs allege that the County breached the Memorandum of Sale by disapproving the sale in bad faith and in violation of the law. (2001 Am. Compl. ¶¶ 84-85.) However, "[w]ithout a contract there can be no breach," see Franklin v. Carpinello Oil Co., Inc., 84 A.D.2d 613, 613, 444 N.Y.S.2d 248, 249 (3rd Dep't 1981), and New York courts have consistently held that where, as here, the terms and conditions of a public sale explicitly state that the contract of sale is subject to approval by the Legislature, that "no valid contract to convey title . . . could exist without the approval of the County Legislature." See Kigler v. Cnty. of Rockland, 186 A.D.2d 787, 789, 589 N.Y.S.2d 86, 87 (2d Dep't 1992) (citing Orelli v. Ambro, 41 N.Y.2d 952, 394 N.Y.S.2d 636, 363 N.E.2d 360 (1977); Min-Lee Assocs. v. City of N.Y., 27 N.Y.2d 790, 315 N.Y.S.2d 853, 264 N.E.2d 346 (1970)); see also Toussie v. Cnty. of Suffolk, No. 03-9048 (N.Y. Sup.Ct. Suffolk Cnty. Sept. 23, 2003) ("[W]here, as here, the terms of notices of sale so provide, no valid contract to convey title to *590 real property can exist without the approval of the municipality.").[30] Since here the Legislature did not approve the sale, there is no valid contract and no breach.
Plaintiffs' claim for breach of implied contract also fails as a matter of law. Plaintiffs assert that "[a]lthough Suffolk County retained the right to decline sales in its discretion, Suffolk County did not retain the right to exercise that discretion arbitrarily, capriciously, in bad faith or in violation of the law. By accepting these terms and conditions, Robert Toussie formed an implied contractual relationship with the County." (2001 Am. Compl. ¶ 79.) New York courts recognize an implied covenant of good faith and fair dealing in every contract. See Kirke La Shelle Co. v. Paul Armstrong Co., 263 N.Y. 79, 87, 188 N.E. 163, 167 (1933) (citations omitted). However, no breach of that covenant will exist without the existence of a valid contract from which such a duty would arise. See Keefe v. N.Y. Law Sch., 71 A.D.3d 569, 897 N.Y.S.2d 94 (1st Dep't 2010); Schorr v. Guardian Life Ins. Co. of Am., 44 A.D.3d 319, 319, 843 N.Y.S.2d 24, 25 (1st Dep't 2007); American-European Art Assoc. v. Trend Galleries, 227 A.D.2d 170, 641 N.Y.S.2d 835 (1st Dep't 1996). The Court has already determined that there is no valid contract here; therefore, Defendants are entitled to summary judgment with respect to both breach of contract claims arising out of the 2001 Auction and Counts IV and V of the 2001 Amended Complaint are DISMISSED.
2. 2002 Auction
Plaintiffs' contract claim arising out of the 2002 Auction is similar: that Defendants breached the memoranda of sale by disapproving the sales in bad faith. (2005 Compl. ¶¶ 285, 287.) However, this claim is barred by collateral estoppel. The Supreme Court, New York County, held that there was no valid contract and the Legislature's disapproval was within the clear letter of the contract language. See Toussie v. Cnty. of Suffolk, No. 03-9048 (N.Y. Sup.Ct. Suffolk Cnty. Sept. 23, 2003). Plaintiffs will not be allowed to re-litigate those issues here. Therefore, summary judgment is GRANTED with respect to Count XXIV of the 2005 Complaint.
3. 2004 Auction
Plaintiffs' contract claims arising out of the 2004 Auction are different. Plaintiffs claim that contracts were formed when "Toussie or his agent made offers, which Suffolk County accepted when the gavel fell and Mr. Toussie was identified as the highest bidder" and the County breached those by refusing to allow Toussie or his agent to sign the memoranda of sale for the parcels for which he was the highest bidder. (2005 Compl. ¶ 219.) Plaintiffs also claim that an implied contract was formed when "having obtained written confirmation from the County that he would not be barred from public auctions, and by entering into the Suffolk County auction process in 2004, Robert Toussie accepted the terms and conditions of Suffolk County that if Robert Toussie was the high bidder at the auction for a given parcel, the County would enter into a memorandum of sale reflecting his purchase of the parcel subject to the attached terms of sale." (Id. ¶ 224.)
*591 Defendants raise two defenses: (i) statute of frauds and (ii) collateral estoppel. Both defenses fail. Defendants assert that these contracts are barred by New York's Statute of Frauds; however, Defendants waived any statute of frauds defense when they failed to assert it in their Amended Answer. See Lawrence Intern. Corp. v. N.Y. Pops, No. 91-CV-3112, 1992 WL 123175, at *4 (S.D.N.Y. May 27, 1992) ("Whatever the merits of defendants' statute of fraud defense, defendants waived that defense by failing to include it in their answer."); see also United States v. Cont'l Ill. Nat. Bank & Trust of Chi., 889 F.2d 1248, 1253 (2d Cir.1989) ("[F]ailure to plead an affirmative defense results in waiver of that defense and its exclusion from the case." (citation omitted)). Additionally, as previously explained, collateral estoppel does not bar these claims.
The Court is skeptical as to whether the facts support Plaintiffs' breach of contract claims arising out of the 2004 Auction; however, the Court DENIES summary judgment because Defendants have failed to meet their burden of showing that there are no material factual issues and that they are entitled to judgment as a matter of law.
B. Unjust Enrichment
Plaintiffs claim that Defendants were unjustly enriched when they allowed Mr. Toussie to bid repeatedly at the 2002 and 2004 Auctions, thus driving up the final sale price, knowing that the County would not approve the sales. (2005 Compl. Counts XVI, XXV.) Under New York law, to prevail on an unjust enrichment claim, "[a] plaintiff must show that (1) the other party was enriched, (2) at [plaintiff]'s expense, and (3) that `it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered.'" Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182, 944 N.E.2d 1104, 1110, 919 N.Y.S.2d 465 (2011) (citing Citibank, N.A. v. Walker, 12 A.D.3d 480, 481, 787 N.Y.S.2d 48 (2d Dep't 2004); Baron v. Pfizer, Inc., 42 A.D.3d 627, 629-630, 840 N.Y.S.2d 445 (3d Dep't 2007)). Defendants do not dispute that Mr. Toussie's bids drove up the final sale price, thus enriching Defendants. Rather, Defendants argue that the County was enriched at the expense of the winning bidders, not Mr. Toussie. The Court agrees.
Enrichment is "at Plaintiff's expense" if "defendant received something of value which belongs to the plaintiff." Bazak Int'l Corp. v. Tarrant Apparel Group, 347 F.Supp.2d 1, 4 (S.D.N.Y.2004) (quoting 22A N.Y. Jur.2d. Contracts § 515) (interpreting New York law); accord McGrath v. Hilding, 41 N.Y.2d 625, 629, 363 N.E.2d 328, 330, 394 N.Y.S.2d 603, 606 (1977); Clifford R. Gray, Inc. v. LeChase Const. Services, L.L.C., 31 A.D.3d 983, 988, 819 N.Y.S.2d 182, 187 (3d Dep't 2006) (dismissing unjust enrichment claim because "plaintiff assert[ed] no facts suggesting that defendant [wa]s in possession of money or property belonging to plaintiff"). Here, Plaintiffs have not pointed to any facts suggesting that the County "received something of value" from Mr. Toussie. They merely state that "[t]he evidence shows otherwise" and cite to a paragraph of their 56.1 Statement describing the current status of Mr. Toussie's business. (Pls.' Opp'n 24.) This has nothing to do with whether the County unjustly retained money or property belonging to Plaintiffs and thus will not defeat summary judgment.
C. Defamation
Plaintiffs' also fail to defeat summary judgment with respect to their *592 defamation claim. Plaintiffs assert that Defendant Isles' statement to a Newsday reporter that "Suffolk County police asked [Toussie] to leave the auction because he was being disruptive" is defamatory. (2005 Compl. ¶¶ 234-239.) For a defamatory statement to be actionable under New York law, "it must either cause special harm or constitute defamation per se." Peters v. Baldwin Union Free Sch. Dist., 320 F.3d 164, 169 (2d Cir.2003) (citing Dillon v. City of N.Y., 261 A.D.2d 34, 38, 704 N.Y.S.2d 1, 5 (1st Dep't 1999)).
Special harm is the "loss of something having economic or pecuniary value" and "must be fully and accurately identified." Liberman v. Gelstein, 80 N.Y.2d 429, 434-35, 605 N.E.2d 344, 347, 590 N.Y.S.2d 857, 860 (1992) (citation omitted); Matherson v. Marchello, 100 A.D.2d 233, 234, 473 N.Y.S.2d 998, 1000-01 (2d Dep't 1984). Plaintiffs assert that "Mr. Toussie's reputation was injured" (2005 Compl. ¶ 239), presumably, although it is not clear from the pleadings, resulting in a loss of business. However, "[w]hen loss of business is claimed, the person[s] who ceased to be customers must be named and the losses itemized." Matherson, 100 A.D.2d at 234, 473 N.Y.S.2d at 1001 (citations omitted). Plaintiffs do no more than conclusorily state that Mr. Toussie's reputation was damaged; such unsupported allegations that his business may have suffered as a result will not defeat summary judgment. See Weinstock, 224 F.3d at 41.
The statement is also not defamatory per se. A statement is defamatory per se if it asserts that the plaintiff committed a serious crime or tends to injure the plaintiff in his trade, business or profession.[31]See Albert v. Loksen, 239 F.3d 256, 271 (2d Cir.2001) (citing Liberman, 80 N.Y.2d 429, 605 N.E.2d 344, 590 N.Y.S.2d 857). Defendant Isles' statement claiming Toussie was "being disruptive" does not charge him with committing a serious crime, because "[u]nder New York Law constitute [defamation] per se." Ferlito v. Cnty. of Suffolk, 06-CV-5708, 2007 WL 4180670, at *5 (E.D.N.Y. Nov. 19, 2007). Additionally, the statement does not injure Mr. Toussie in his trade, business or profession. To do so, the statement must be "of a kind incompatible with the proper conduct of the business, trade, profession or office itself. The statement must be made with reference to a matter of significance and importance for that purpose, rather than a more general reflection upon plaintiff's character or qualities." Liberman, 80 N.Y.2d at 436, 605 N.E.2d at 348, 590 N.Y.S.2d at 861 (internal citations and quotations omitted) (statement that landlord threatened to kill a tenant did not injure landlord's business as a property owner); see also Ferlito, 2007 WL 4180670, at *5 (statement that plaintiff has a history of disorderly conduct and resisted arrest was not defamatory per se because it was not related to his status as an attorney). Defendant Isles' statement is unrelated to Mr. Toussie's status as a real estate investor, and, therefore, does not qualify as defamation per se. Accordingly, Defendants are entitled to summary judgment on Plaintiffs' defamation claim and Count XVIII of the 2005 Complaint is DISMISSED.
D. Suffolk County Administrative Code
Plaintiffs also assert that Defendants violated Suffolk County Administrative Code § 42-4 (formerly § A14-30), *593 which states that "the Commissioner . . . shall take such measures as shall be necessary and appropriate to expedite the offering for sale of such parcels to the highest bidder at public auction." Defendants argue that Plaintiffs' claim must be dismissed because there is nothing in the language of the County Administrative Code provision that creates a private right of action. The Court agrees.
"Where, as here, a statute does not expressly authorize a private right of action, `[o]ne may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme.'" Bhandari v. Isis, 45 A.D.3d 619, 621, 846 N.Y.S.2d 266, 269 (2d Dep't 2007) (alteration in original) (quoting Pelaez v. Seide, 2 N.Y.3d 186, 200, 810 N.E.2d 393, 400, 778 N.Y.S.2d 111, 118 (2004)). A review of the relevant provisions of the Administrative Code indicates that the Legislature did not intend to create a private cause of action. The provision in question was enacted to assist the County in disposing of surplus property, not to protect purchasers of surplus property. Plaintiffs, without providing any factual or legal support, ask the Court to reject Defendants' theory. Such conclusory allegations will not defeat summary judgment. See Williams, 781 F.2d at 323.
CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART. Specifically, summary judgment is GRANTED in full for the individual Defendants Gaffney, Zielinski, Isles and Sabatino. Suffolk County is awarded summary judgment on (1) all equal protection claims (2001 Am Compl. Count II; 2005 Compl. Count III, XX, XXVI); (2) the procedural due process claims arising out of the 2001 and 2002 Auctions (2001 Am. Compl. III, XXII); (3) the First Amendment freedom of speech claim (2005 Compl. Count VII); (4) all First Amendment retaliation claims (id. Count IX, XXI); (5) the bill of attainder claim arising out of the 2004 Auction (2005 Compl. Count XIII); (6) the contract claims arising out of the 2001 and 2002 Auctions (2001 Am. Compl. Counts V, VI; 2005 Compl. Count XXIV); (7) all unjust enrichment claims (2005 Compl. Counts XVI, XXV); (8) the defamation claim (id. Count XVII); and (9) the violation of the Suffolk County Administrative Code (id. Count XVIII).
Plaintiffs may proceed to trial only against Suffolk County and only with respect to (1) the bill of attainder claims arising out of the 2001 and 2002 Auctions (2001 Am. Compl. Count I; 2005 Compl. Counts XIX, XXIX); (2) the intimate association claims (2001 Am. Compl. IV; 2005 Compl. Counts XI, XXIII); (3) the procedural and substantive due process claims related to Mr. and Mrs. Toussie's protected property interest arising out of the 2004 Auction (2005 Compl. Counts I, V, XXVII, XXVIII); and (4) the breach of contract claims arising out of the 2004 Auction (id. Counts XIV, XV).
SO ORDERED.
NOTES
[1] Ms. Zielinski's name is spelled incorrectly in the case caption and 2005 Complaint.
[2] The following facts are drawn from the parties' Local Civil Rule 56.1 Statements ("56.1 Stmt.") and their evidence in support. Any relevant factual disputes are noted.
[3] Defendants assert that the 2001 Auction took place on May 22-23, 2001 (Defs.' 56.1 Stmt. ¶ 5); however, Defendants fail to provide a citation to any evidence in support. Nonetheless, such discrepancy is immaterial.
[4] The Terms and Conditions state:
[T]his sale is further conditioned upon, and subject to the approval of the Suffolk County Legislature and the County Executive, or charter approval. In the event the proposed resolution of approval of the sale is not approved by the Suffolk County Legislature, then the Seller shall return to the Purchaser the down payment due the purchaser. . . . Upon return of such down payment, the parties shall then be mutually released from any and all other obligations herein. It is hereby understood and agreed that this contract is binding upon both the Purchaser and the County unless the sale is disapproved by the operation of the Suffolk County legislative process.
(Defs.' 56.1 Stmt. ¶ 4 & Ex. B (emphasis in original).) Similarly, the Suffolk County Administrative Code § A-42-2 (previously § A14-30) states that all deeds are subject to express approval by the County Legislature.
[5] The County bore the risk of loss of any deterioration or damage to the properties prior to closing, so the County wanted to close on the properties as quickly as possible. (Pls.' 56.1 Stmt. ¶ 12.)
[6] The committee to which an introductory resolution is assigned can approve it by a majority vote, discharge it to the full Legislature by a majority vote without considering the merits, vote to table it to the next meeting, vote to table it "subject to call" or defeat it by voting against a motion to approve. (Pls.' 56.1 Supp. ¶ 3.)
[7] Before the 2001 Auction sales were submitted to the Legislature, Isaac Toussie ("Isaac"), Toussie's son, pled guilty to submitting false and fraudulent mortgage applications to the United States Department of Housing and Urban Development in connection with his sale of homes through some of Toussie's companies, which he had been operating. (Defs.' 56.1 Stmt. ¶ 7 & Ex. D.) Long Island Newsday published articles about Isaac's "HUD Scam" and a proposed class action lawsuit in the process of being filed by a group of homeowners who were claiming that they had been scammed into buying overpriced and poorly built homes from Isaac and Toussie. (Id. ¶¶ 8-9 & Exs. E, F; Pls.' 56.1 Stmt. ¶ 13.) The articles noted that Toussie had not been charged with committing any crimes. (Pls.' 56.1 Stmt. ¶¶ 8-9.) The County made no effort to confirm any of the allegations in these or subsequent Newsday articles about the Plaintiffs. (Pls.' 56.1 Supp. ¶¶ 14, 18-19.)
[8] The Legislature, in segregating Toussie's parcels, was motivated, in part, by Plaintiffs' pending litigation. (Pls.' 56.1 Stmt. ¶ 54 & Ex. X.)
[9] Defendant Sabatino joined the Defendants Suffolk County, Gaffney, Isles and Zielinski in moving for summary judgment by letter dated February 23, 2011. Plaintiffs object to Defendant Sabatino's letter because it was filed one day late. However, Plaintiffs also filed their opposition brief one day late. The Court will not penalize either party and has considered all submissions filed by all parties related to this motion.
[10] The Court applies New York law because in determining the preclusive effects of a state court decision, federal courts are to give a prior state court decision the same preclusive effects that the courts of that state would give it. See Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982); Colon v. Coughlin, 58 F.3d 865, 869 n. 2 (2d Cir.1995).
[11] It is unclear whether Defendants are also asserting that res judicata or claim preclusion bars Plaintiffs' claims. (Defs.' Mem. 3.) But "claim preclusion generally does not operate to bar a § 1983 suit following the resolution of an Article 78 proceeding, since the full measure of relief available in the former action is not available in the latter." Colon, 58 F.3d at 870 n. 3; accord Karamoko v. N.Y.C. Hous. Auth., 170 F.Supp.2d 372, 377 (S.D.N.Y. 2001); Cohen v. City of N.Y., No. 106947/98, 2001 WL 1635441 (N.Y.Sup.Ct. N.Y.Cnty. Sept. 26, 2001). Here, Plaintiffs are seeking relief not available to them in the Article 78 proceeding, therefore, res judicata is inapplicable.
[12] Towle was a member of the Committee at all relevant times. (Defs.' 56.1 Stmt. ¶¶ 10, 39; Pls.' Opp'n 13.)
[13] The finder of fact is permitted to draw an from a non-party witness's invocation of his privilege in a civil proceeding. See LiButti v. United States, 107 F.3d 110, 120-21 (2d Cir. 1997); Nu-Chem Labs., Inc. v. Dynamic Labs., Inc., No. 96-CV-5886, 2001 WL 35981560 (E.D.N.Y. Mar. 30, 2001).
[14] Defendants' argument that there is no "legislative act" here because "there was simply no legislation enacted which disapproved or in any way addressed auction bids" (Defs.' Mem. 11) misinterprets Plaintiffs' claim. Although not entirely clear from their complaints, Plaintiffs argue that the resolutions approving the sales to other individuals, not the decisions not to approve Plaintiffs' sales, are the alleged bills of attainder.
[15] In fact, IR 1801-2002 actually includes all of the properties sold at auction with Plaintiffs' properties crossed out. (Pls.' 56.1 Stmt. Ex. 35.)
[16] Defendants also again argue that the state courts' decisions relating to the Article 78 proceeding bar Plaintiffs from re-litigating the issue of the Legislator's intent. But, as this Court previously explained, that issue is not barred by collateral estoppel.
[17] Plaintiffs assert that it is improper to "lump" all of the individual plaintiffs together for the purposes of this analysis. The Court disagrees. The reputation of the Toussie family name is relevant to the Court's analysis of whether there are any similarly situated individuals.
[18] Although Mr. Toussie may be foreclosed from purchasing auction property in Suffolk County, he is free to purchase property from sellers other than Suffolk County. In fact, in both 2005 and 2006, Mr. Toussie acquired approximately 50 properties and sold approximately 20 properties in Suffolk County. (Defs.' 56.1 Stmt. ¶ 67(c), (f); Pls.' 56.1 Stmt. ¶ 67(c),(f).)
[19] Since the 2001 Complaint's due process claim only asserts a violation of Mr. Toussie's right to pursue his chosen profession, that claim (Count III) does not survive summary judgment and is DISMISSED.
[20] It is unclear whether Plaintiffs are also alleging that the County's alleged breach of the sales contract is a protected property interest. It is of no matter because an alleged breach of an ordinary contract does not rise to the level of a constitutionally protected interest when the party is alleging a breach of an ordinary contract. See, e.g., Local 342, 31 F.3d at 1195; S & D Maintenance Co. v. Goldin, 844 F.2d 962, 966 (2d Cir.1988) ("[W]henever a person contracts with a state, breach by the state can be considered a denial of his entitlement to performance of the contract. If the concept of `entitlement' were this expansive, federal courts could be asked to examine the procedural fairness of every action by a state alleged to be in breach of its contracts.").
[21] Plaintiffs cite to this Court's decision in Alfaro v. Labrador, No. 06-CV-1470, 2009 WL 2525128 (E.D.N.Y. Aug. 14, 2009), to support the proposition that the Legislature's decision here was not discretionary. In Alfaro, this Court distinguished between "discretion that is actually exercised on a day-by-day basis" and "decisions that are theoretically discretionary butas a practical matteractually depend on de facto standards." 2009 WL 2525128, at *9. However, that case is inapplicable. In Alfaro, this Court was evaluating a class-of-one equal protection claim in light of the then-recent Supreme Court decision in Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008), which barred certain class-of-one claims involving discretionary state action. No court has extended the "de-facto discretionary" standard articulated in Alfaro to the due process context, and the Court declines to do so here. Additionally, the applicability of the de facto discretionary standard to the class-of-one equal protection context is now unclear given the Second Circuit's clarification of the Engquist holding in Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 141-42 (2d Cir.2010).
[22] Even if Plaintiffs' interest in the property from the 2001 and 2002 Auctions was a constitutionally protected property interest, Plaintiffs' procedural due process claim would still fail. Plaintiffs had an adequate post-deprivation remedy available to them in the form of an Article 78 proceeding. See Muller Tours, 13 F.Supp.2d at 506-07; Smith v. O'Connor, 901 F.Supp. 644, 647 (S.D.N.Y. 1995). The fact that Plaintiffs did not challenge the County's decision to disapprove of the auction sales in 2001 is of no avail, because "[a] party's failure to avail itself of an Article 78 proceeding precludes a subsequent Due Process claim." Muller Tours, 13 F.Supp.2d at 507 (citation omitted).
[23] Since there is no factual dispute as to whether Plaintiffs have any legitimate liberty or property interest with respect to the County's actions related to the 2001 and 2002 Auctions, the Court GRANTS summary judgment as to the due process claims arising out of those auctions and DISMISSES Count III of the 2001 Amended Complaint and Count XXII of the 2005 Complaint. The only due process claims remaining are those related to the 2004 Auction.
[24] Defendants also state that "legislative action is not subject to procedural due process." (Defs.' Mem. 16.) While the statement is correct, if "legislative action" is adjudicative as opposed to legislative, then it is subject to procedural due process requirements. Legislative action is adjudicative "when a decision is based on a determination of facts about the parties and their activities, businesses, and properties." Interport Pilots Agency, Inc. v. Sammis, 14 F.3d 133, 143 (2d Cir.1994); accord Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 174 (2d Cir.2005). Here, Defendants admit that the decision by the County Legislature was based on their assessment of Mr. Toussie's professional reputation (Defs.' Reply 4), so this line of cases does not bar Plaintiffs' procedural due process claims.
[25] It is not alleged that Plaintiffs Toussie Land Acquisition & Sales Corporation and Toussie Development Corporation had any right to intimate association that was violated by Defendants. These companies are neither owned nor operated by Mr. Toussie or any member of his family. (Pls.' Opp'n 2.)
[26] For example, in Patel, 305 F.3d at 135-38, the Second Circuit upheld the denial of a motion to dismiss an intimate association claim even though it involved no constitutionally protected speech. The Second Circuit held that the police giving a suspect's family false and defamatory information about the suspect during a murder investigation to create enough hostility within the family to elicit a false accusation against the suspect stated a claim for violation of the suspect's right of intimate association.
[27] Even if Defendants' actions dissuaded Plaintiffs from participating in future auctions (which they did not (Pls.' 56.1 Supp. ¶ 40)), the Court has already concluded that participating in auctions and purchasing property in this context is not expressive conduct worthy of First Amendment protection.
[28] Plaintiffs brought claims against Gaffney individually for violating their right to procedural due process with respect to the 2001 Auction (2001 Am. Compl. Count III); and against Isles, Sabatino and Zielinski individually for violating their rights to procedural and substantive due process (2005 Compl. I, V), equal protection (id. Count III), free speech (id. Counts VII, IX), and intimate association (id. Count XI) with respect to the 2004 Auction. The Court has already determined that Defendants are entitled to summary judgment as to the procedural due process claim arising out of the 2001 Auction because Plaintiffs failed to state a cognizable liberty interest. That being the only claim against Gaffney individually, he is awarded full summary judgment. Of the claims arising out of the 2004 Auction, this Court already has determined that the equal protection, free speech and retaliation claims fail as a matter of law.
[29] It is worth noting that the ministerial-duty exception itself is extremely narrow, and the Second Circuit has questioned the validity of the ministerial-discretionary function distinction. See Varrone v. Bilotti, 123 F.3d 75, 82 (2d Cir.1997).
[30] While the Article 78 proceeding and state court decision do not collaterally estop Plaintiffs from asserting breach of contract claims arising out of the 2001 Auction, the decision is still valid law and persuasive authority. See Hampton Heights Dev. Corp. v. Bd. of Water Supply of Utica, 136 Misc.2d 906, 911-12, 519 N.Y.S.2d 438, 442 (Sup.Ct. Oneida Cnty. 1987) (recognizing and explaining difference between collateral estoppel and precedential or persuasive authority).
[31] A statement can also be defamatory per se if it implies that the plaintiff has a loathsome disease or imputes unchastity to a woman. See Liberman, 80 N.Y.2d at 435, 605 N.E.2d at 347-48, 590 N.Y.S.2d at 860.
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2 So.3d 622 (2009)
STATE of Louisiana
v.
Steven Mark "Marc" ANDERSON.
No. 2008-962.
Court of Appeal of Louisiana, Third Circuit.
February 4, 2009.
*623 G. Paul Marx, Lafayette, Louisiana, for Defendant/Appellant: Steven Mark "Marc" Anderson.
Edward Marquet, Lafayette, Louisiana, for Defendant/Appellant: Steven Mark "Marc" Anderson.
Michael Harson, District Attorney-Fifteenth Judicial District, Michele S. Billeaud, Assistant District Attorney, Lafayette, Louisiana, for Appellee: State of Louisiana.
*624 Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
GENOVESE, Judge.
On June 6, 2006, the Defendant, Steven Mark "Marc" Anderson, was charged by bill of information as follows: 1) count onetheft of a firearm, a felony in violation La.R.S. 14:67.15; 2) count twopossession of a firearm by a convicted felon, a felony in violation of La.R.S. 14:95.1; and 3) count threepossession of drug paraphernalia, a misdemeanor in violation of La.R.S. 40:1023. A trial by jury on the felony charges was held on November 26 and 27, 2007, and the jury found the Defendant guilty as charged on the felonies in counts one and two. The trial court found the Defendant guilty on the misdemeanor charge in count three.
On March 5, 2008, the Defendant was sentenced to serve thirteen years at hard labor for possession of a firearm by a convicted felon to be served without benefit of probation, parole, or suspension of sentence. He was also fined $1,000.00. For theft of a firearm, the Defendant was sentenced to five years at hard labor without benefit of probation, parole, or suspension of sentence. Lastly, for possession of drug paraphernalia, the Defendant was ordered to serve six months in the parish jail. The Defendant's sentences were ordered to run concurrently with each other.
Following sentencing, the State gave oral notice of its intent to file a multiple offender bill, charging the Defendant as a multiple offender; however, said bill is not found in the record, nor is a hearing or ruling included in the record. The Defendant did not file a motion to reconsider sentence.
The Defendant appeals, asserting that the evidence is insufficient to support his convictions and that the trial court should have ordered a mistrial because the alternate juror participated in deliberations. For the following reasons, we affirm as amended and remand.
FACTS
On April 4, 2006, the Defendant's stepfather, Joseph Boudreaux, reported that the Defendant had stolen his handgun. When the Defendant was found, he admitted to taking the gun from his stepfather's house and stated that he traded it for crack cocaine. The Defendant was subsequently arrested. After being advised of his rights, he waived his rights and signed an Interrogation: Advice of Rights Form. Once more, the Defendant admitted to taking his stepfather's gun and stated that he gave it to someone else.
More than two months after the initial report, Mr. Boudreaux reported that the gun had not been stolen after all and that his wife, Margaret Boudreaux, who is also the Defendant's mother, had moved the gun to Mr. Boudreaux's mother's house because the Defendant, a convicted felon, was not allowed to be around the gun. Mrs. Boudreaux, however, did not contact the district attorney's office to report that she had moved the gun, nor did she produce the gun to confirm that the gun was not stolen. Further, Mr. Boudreaux allegedly sold the gun at a gun show, despite the fact that charges were pending against the Defendant for theft of the gun.
ERRORS PATENT AND PROCEDURAL ISSUE
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we note that there are several errors patent, a procedural issue, and the minutes of sentencing are in need of correction.
*625 In this case, there was a misjoinder of offenses in the bill of information. The bill of information charged the Defendant with three separate counts: 1) count onetheft of a firearm, a violation La.R.S. 14:67.15; 2) count twopossession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1; and 3) count threepossession of drug paraphernalia, a violation of La.R.S. 40:1023.
Louisiana Code of Criminal Procedure Article 493 provides for the joinder of offenses in a single bill of information under limited circumstances if the offenses joined are triable by the same mode of trial. Louisiana Code of Criminal Procedure Article 493.2 allows joinder of offenses in which punishment is necessarily confinement at hard labor to be charged in the same indictment or bill of information with offenses in which the punishment may be confinement at hard labor under limited circumstances.
In the present case, count two, which is punishable at hard labor, is triable by a twelve person jury, ten of whom must concur. See La.Code Crim.P. art. 782. Count one, in which the punishment is confinement with or without hard labor, is triable by a jury composed of six jurors, all of whom must concur. See La.Code Crim.P. art. 782 and La. Const. art. 1, § 17. Count three, which is a misdemeanor, is triable by a judge only. See La.Code Crim.P. art. 779. Therefore, pursuant to La.Code Crim.P. art. 493.2, counts one and two were properly joined, but count three, the misdemeanor, was improperly joined.
However, the Defendant did not file a motion to quash the indictment on the basis of misjoinder of offenses as required by statute. See La.Code Crim.P. art. 495. Accordingly, this error is deemed waived.
Next, because the misdemeanor charge was not triable by a jury, the proper mode of appellate review for that offense is an application for writ of review, rather than an appeal. See La.Code Crim.P. art. 912.1. In State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La.12/12/05), 917 So.2d 1084, this court severed a misdemeanor conviction from the defendant's appeal of two felony convictions. This court ordered the defendant to file a writ of review regarding the misdemeanor conviction in compliance with the rules of court. Noting that the defendant did not make any specific arguments regarding the misdemeanor conviction, this court considered the notice of appeal as a notice to file a writ of review within thirty days of its opinion, if the defendant desired to seek review of the misdemeanor conviction.
As in Turner, the Defendant herein has not raised any assignment of error regarding his misdemeanor conviction. Therefore, as was done in Turner, we sever Defendant's misdemeanor conviction from his appeal and order the Defendant to file a writ of review, should he desire to do so, regarding the misdemeanor conviction in compliance with the Uniform Rules of Louisiana Courts of Appeal.
Next, the trial court imposed an illegally lenient sentence on the conviction of theft of a firearm. In addition to imprisonment, the penalty for a conviction of theft of a firearm also mandates a fine of $1,000.00. See La.R.S. 14:67.15. The trial court failed to impose a fine, thus rendering the Defendant's sentence on this charge illegally lenient. We, therefore, amend Defendant's illegally lenient sentence by imposing upon the Defendant the $1,000.00 fine mandated by La.R.S. 14:67.15. We also instruct the trial court to make a notation in the minutes reflecting the amendment.
*626 We likewise note the minutes of sentencing are in need of correction. The minutes state that the trial court ordered the Defendant to pay a $100.00 fine for the conviction of possession of a firearm by a convicted felon. The transcript, however, indicates that the trial court ordered the Defendant to pay a $1,000.00 fine for that offense. Therefore, we remand the case to the trial court and instruct it to amend the minutes of sentencing to correctly reflect the $1,000.00 fine imposed on the conviction of possession of a firearm by a convicted felon.
ASSIGNMENTS OF ERROR
The Defendant is before this court asserting the following three assignments of error:
1. The participation of an alternate juror in deliberations is a patent structural error. The conviction must be reversed because the alternate participated in discussion and asked a specific question during deliberations. The discovery during jury deliberations was too late for the Trial Court to seek specific evidence on the question of violation of the law, and reversal is the only remedy.
2. The jury could not convict the Defendant of being in Possession of a Firearm where no-one could testify for a fact that he ever had possession. The conjecture regarding a weapon taken from the Defendant's father and what happened to it was insufficient to prove any crime had occurred, and testimony of the owner of the gun and his wife that it had been sold at a gun show was sufficient to create a reasonable doubt on the charges of theft and felon in possession of a firearm.
3. Without evidence of there being a firearm, the "corpus delecti[,]" the statements of the Defendant could not be sufficient to establish proof beyond a reasonable doubt of the crime of being a Felon in Possession of a Firearm.
ASSIGNMENTS OF ERROR 2 AND 3:
Assignments of error two and three involve claims of insufficient evidence and are interrelated. As such, these assignments are addressed first and considered together. The Defendant argues that the evidence was insufficient to convict him of theft, and, without proof of theft, the evidence was insufficient to convict him of possession of a firearm by a convicted felon.
The analysis for a claim of insufficient evidence is well-settled:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La. 1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state *627 has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
Theft of a firearm is defined in La.R.S. 14:67.15(A) as "the misappropriation or taking of a firearm which belongs to another, either without the consent of the other to the misappropriation or taking or by means of fraudulent conduct, practices, or representations." Also, the defendant must intend to permanently deprive the owner of the firearm.
At trial, Lieutenant McCullan Gallien, with the Lafayette Police Department, testified that, on April 4, 2006, he received a complaint that a handgun owned by Joseph Boudreaux was stolen and that Mr. Boudreaux believed that the Defendant had taken the gun. Mr. Boudreaux, the Defendant's stepfather, gave a description of the Defendant and a location to begin searching for him. When the Defendant was found, he was advised of his rights and indicated to Lieutenant Gallien that he understood his rights.
Next, Lieutenant Gallien asked the Defendant about the location of the gun, and the Defendant offered to help him find it and get it off the street. According to Lieutenant Gallien, the Defendant admitted taking the gun from inside his stepfather's house. The Defendant did not indicate to Lieutenant Gallien that Mr. Boudreaux had given him permission to take the gun. Further, the Defendant reported that he put the gun in his waistband and transported it to an area where he then traded the gun for crack cocaine.
The Defendant was subsequently arrested by Lafayette City Police and taken to its Department of Vital Services where he was advised of his rights once more and signed an Interrogation: Advice of Rights form. When asked if he had used any illegal narcotics, the Defendant reported that he had used crack cocaine an hour prior to the interview. The Defendant denied taking any medication. Lieutenant Gallien testified that the Defendant did not appear sick, dazed, or confused, and appeared to be coherent and aware of his surroundings and the questions Lieutenant Gallien was asking. The Defendant did not appear to have any problem comprehending. Based on his observations of the Defendant, Lieutenant Gallien believed that the Defendant was able to answer his questions.
After waiving his rights, Lieutenant Gallien asked the Defendant if he could help him find the gun. The Defendant indicated again that he had the gun in his waistband when he gave it to someone else. Also, during their conversation, the Defendant admitted that he had taken the gun and that the gun belonged to his stepfather. Lieutenant Gallien stated that he had spoken with Mr. Boudreaux prior to taking the Defendant's statement and that the Defendant's statement was consistent with what Mr. Boudreaux had reported. According to Lieutenant Gallien, the Defendant did not complain of feeling ill during the interview, but later on reported that he had swallowed some crack cocaine. During the interview, the Defendant indicated that he wanted to stop the interview. Accordingly, Lieutenant Gallien complied, stopped the video tape recorder, and gave it to the booking officer.
Lieutenant Gallien stated that he began looking for the gun, a Ruger .357 revolver, which had been described by Mr. Boudreaux at the time he made the complaint. Also, the serial number was entered into the NCIC database used by officers around the country to check to see if an item has been stolen. Hence, if someone ran the serial number on Mr. Boudreaux's *628 gun, the NCIC would report it as stolen. According to Lieutenant Gallien, the report of the stolen gun had never been removed from the database, and he had checked the database the morning before testifying.
Lieutenant Gallien also testified that Mr. Boudreaux completed a written statement about what had occurred, which was submitted into evidence. According to Lieutenant Gallien, Mr. Boudreaux's written statement was consistent with his prior verbal statement, and he never indicated that he did not want to proceed with the prosecution. Mr. Boudreaux was also advised to notify the department if he located the gun so that it could be removed from the NCIC database. Lieutenant Gallien stated that Mr. Boudreaux never notified him that he had located the gun.
Following the interview, the Defendant was taken to the hospital after reporting that he had swallowed three grams of crack cocaine. Lieutenant Gallien did not recall seeing any symptoms, such as sweating, or anything life threatening. He did not accompany the Defendant to the hospital, and he was not sure how long the Defendant was at the hospital.
Mr. Boudreaux testified at trial that he had been married to the Defendant's mother for seven years and that the Defendant was his wife's only child. Mr. Boudreaux maintained that he got along with the Defendant. With regard to the gun, Mr. Boudreaux stated that he reported to the police that the gun was taken from his home by the Defendant. In Mr. Boudreaux's report to the police, he wrote:
On April 4 I had all kind of dope deliveries coming at my house. So I went in my Bed Room look under the mattress and my gun was gone. So I called my wife and she said she hadn't seen it. So I asked Steven Anderson about it, he said he picked the lock on the bedroom door and stole it. He would need 60 dollars to pay the drug dealer so I gave him the sixty dollars he never came back.
At trial, Mr. Boudreaux testified that he did not know at the time that his wife had moved the gun to his mother's house and maintained that his wife had not told him anything about moving the gun.
After discovering that the gun was missing, Mr. Boudreaux asked the Defendant if he had taken the gun. According to Mr. Boudreaux, the Defendant did not admit to taking the gun, but instructed Mr. Boudreaux to give him seventy dollars, and he would bring the gun back to him. Mr. Boudreaux complied because he thought the Defendant had taken the gun. The Defendant left, telling Mr. Boudreaux that he was going to look for the gun, but never came back. At that time, Mr. Boudreaux went to the police and filled out a report. Next, Mr. Boudreaux stated: "A couple days later, I guess, you know, after I pressed charges on him, told my wife about it. She told me, `Well, I put the gun at your momma's house.' I didn't know. So I came back here and I filled out a report." Mr. Boudreaux indicated that he filled out a report to drop the charges.
When asked what happened to the gun, Mr. Boudreaux testified that he sold it at a gun show because he had no use for it and needed money at the time. He also stated that his wife moved the gun because she knew that the Defendant could not be around guns. According to Mr. Boudreaux, the Defendant did not know at the time that there was a gun under the mattress.
On cross-examination, Mr. Boudreaux admitted reporting that, when he confronted the Defendant, the Defendant told him that he had picked the lock on his bedroom door, taken the gun, and traded it for *629 crack cocaine. Mr. Boudreaux maintained at trial, however, that the Defendant told him this to get the seventy dollars to go buy crack.
Mr. Boudreaux also testified that he kept his bedroom door locked because he knew the Defendant was on crack cocaine and that "crack heads" were coming around his house. He also stated that he should have put a better lock on the bedroom door and admitted that the lock had actually been picked by the Defendant so he could purportedly get the gun and his wife's change.
When asked why his wife did not tell him that she had moved the gun when he first told her he could not find it, Mr. Boudreaux had no explanation. He just reiterated his prior testimony that, when his wife learned a few days later that he had pressed charges against the Defendant, she told him that she had moved the gun.
Mr. Boudreaux was shown a copy of the report indicating that the charges should be dropped because he had found the gun. He acknowledged his handwriting on the report and that the report was dated June 12, 2006, more than two months after the initial report. Mr. Boudreaux could not recall when he sold the gun.
Mr. Boudreaux admitted that he refused to speak with the assistant district attorney who called and made several attempts to come to his house to speak with him about the claim that he had found his gun. He also admitted that he would not answer the door when she came to his house. Mr. Boudreaux acknowledged that the assistant district attorney left a message on his phone, indicating that she needed to speak to him and to please answer the door. He was also asked if he thought it would be important to speak with the assistant district attorney prosecuting the case if he had actually found the gun. Mr. Boudreaux responded, "I don't know."
Mr. Boudreaux admitted that he was aware that charges were still pending against the Defendant regarding the gun, but maintained that there was nothing else he could do other than filing the affidavit. He stated once more that he sold the gun at a gun show a couple of years ago and did not remember what he did with the receipt. Mr. Boudreaux also admitted that the incident had put a strain on his relationship with his wife since the Defendant was her only child.
The Defendant's mother, Margaret Boudreaux, testified that, when she returned from work on the day Mr. Boudreaux reported the gun stolen, he told her what had happened, and she informed him that she had packed up the gun and taken it to his mother's house. She explained that the Defendant was not supposed to be around weapons because he was a convicted felon. According to Mrs. Boudreaux, she had told Mr. Boudreaux about moving the gun, and she guessed that he must have forgotten about it since it had been a long time. Mrs. Boudreaux stated that, since the late nineties, Mr. Boudreaux has had two strokes, two heart attacks, and had been taking a lot of medication since that time. As such, Mrs. Boudreaux maintained that he forgets a lot.
With regard to the initial report, Mrs. Boudreaux testified that Mr. Boudreaux did not call her about the missing gun as indicated in the report, and she maintained that she did not speak to him until that evening when she returned from work. At that time, she told Mr. Boudreaux that the Defendant could not have stolen the gun.
Mrs. Boudreaux also stated that Mr. Boudreaux attends a lot of gun shows, and she believed that he sold the gun because he said so; however, she was not with him when he sold it. Mrs. Boudreaux testified *630 that she did not force Mr. Boudreaux to sign the document seeking to drop the charges and that he did so voluntarily. According to Mrs. Boudreaux, she retrieved Mr. Boudreaux's gun and gave it back to him, telling him that the Defendant did not take it.
On cross-examination, Mrs. Boudreaux confirmed that she had seen the assistant district attorney several times in court and at court hearings and that they had talked about the case and the Defendant's future; however, Mrs. Boudreaux had no explanation as to why she never told the assistant district attorney that she found the gun or that she moved the gun to her mother-in-law's house. Instead, Mrs. Boudreaux responded, "Well, you asked to come see it, so you had to know that I had it." When asked why she did not talk to the assistant district attorney about the fact that the gun was found at her mother-in-law's house, Mrs. Boudreaux stated that she was talking to Mr. Amos, counsel for the Defendant, who told her not to talk about the gun or show the assistant district attorney the gun. According to Mrs. Boudreaux, Mr. Amos told her that the assistant district attorney wanted to take a picture of the gun to use it against the Defendant in court. However, Mrs. Boudreaux could not explain how a gun that was not stolen could be used against the Defendant in court to prove that he stole it.
Mrs. Boudreaux maintained that she was not lying and that her son was being charged for a crime for which he was not guilty. However, she could not explain why she had not tried to help the Defendant until the day of trial, a year and a half later. When she arrived home from work and learned that her husband had reported the gun stolen, she did not immediately go to the police at that time and report the mistake, or report that her husband had made the mistake because he was sick and forgetful. Mrs. Boudreaux stated that Mr. Boudreaux was going to take care of the problem and that she had to work because "[p]eople need their money."
On appeal, the Defendant asserts that no one testified for a fact that the Defendant ever possessed the gun and complains that the State introduced out of court statements to contradict the testimony of Mr. and Mrs. Boudreaux that the gun was never stolen. Also, the Defendant complains that the credibility of Mr. and Mrs. Boudreaux was not challenged. Lastly, the Defendant maintains that the testimony of Mr. Boudreaux and his mother that the gun was sold at a gun show was sufficient to create a reasonable doubt as to the theft and possession charges.
First, it was the State's burden to prove that the theft occurred, not to contradict the defense that the gun was not stolen as stated by the Defendant. Second, it was the Defendant's burden to contradict the evidence presented by the State to establish a reasonable doubt as to the charges. Further, the Defendant's assertion that the State did not put on any testimony to prove its case is incorrect.
The record reflects that, in addition to the Defendant's video recorded statement and Mr. Boudreaux's initial report which both indicate that the Defendant had stolen Mr. Boudreaux's gun, Lieutenant Gallien also testified that the Defendant confessed to stealing the gun and trading it for crack cocaine. After receiving Mr. Boudreaux's complaint that the gun had been stolen by the Defendant, Mr. Boudreaux gave Lieutenant Gallien a description of the Defendant and a location to begin searching for him. When the Defendant was found, he admitted taking the gun from his stepfather's house and transporting it in his waistband to an area where he traded it for crack cocaine. The *631 Defendant even offered to help Lieutenant Gallien find the gun. Then, in a recorded statement, the Defendant admitted a second time that he had taken the gun and that the gun belonged to his stepfather. Also, the Defendant indicated once more that he had the gun in his waistband when he gave it to someone else.
In response to these allegations, the defense called on Mr. and Mrs. Boudreaux to testify that the gun had not been stolen and asserts on appeal that their credibility was not challenged at trial. We disagree. The record is replete with inconsistencies in the testimonies of these witnesses. First, Mr. Boudreaux waited more than two months to recant his allegation of theft, even though he testified that Mrs. Boudreaux informed him a couple of days later that she had moved the gun. Also, Mrs. Boudreaux maintained that Mr. Boudreaux did not call her before making the report, and she indicated that she told Mr. Boudreaux the same evening he reported the theft that she had moved the gun, not a couple of days later as stated by Mr. Boudreaux.
Even more incredible is the fact that, other than filing an affidavit more than two months after the charge, Mr. and Mrs. Boudreaux did nothing to clear the Defendant of the charges, even up to the day of trial. They would not accept calls from the assistant district attorney to prove that the gun was found, nor would they allow her to see the gun. Moreover, Mr. Boudreaux allegedly sold the gun, the same gun which would have exonerated the Defendant, at a gun show.
Simply put, not only did the testimony of these two witnesses conflict with each other, their credibility from the record alone does not support their claim that the gun was later found and was not stolen as originally reported. Considering the evidence and testimony at trial and the lack of credible evidence to cast a reasonable doubt, we find that the State satisfied its burden of proving the elements of theft of a firearm beyond a reasonable doubt.
Possession of a firearm by a convicted felon is defined in La.R.S. 14:95.1(A) (footnote omitted), which reads as follows:
It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541(14.1), or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.
The only element that the Defendant challenges is possession of the firearm. The Defendant contends that the State did not prove that the theft of the firearm had occurred because he never had possession of the gun; and, therefore, the State did not prove that he possessed the firearm for the purpose of proving this offense.
As set forth above, we find that the State, in its efforts to prove that the Defendant committed theft of a firearm, did prove that the Defendant possessed Mr. Boudreaux's gun. As such, there is no merit to this claim or the claims that he *632 did not take Mr. Boudreaux's gun. Accordingly, the Defendant's convictions are affirmed.
ASSIGNMENT OF ERROR NO. 1:
In this assignment, the Defendant argues that the participation of an alternate juror in the jury deliberations is a patent structural error. The Defendant maintains that, because the alternate juror asked a specific question during jury deliberations, his convictions must be reversed. Further, the Defendant contends that the discovery of the alternate juror being involved during deliberations came too late for the trial court to seek specific evidence as to the violation.
In support of his argument, the Defendant refers to State v. Barber, 97-2749 (La.4/24/98), 708 So.2d 1054. From the limited facts of this writ opinion, it appears that alternate jurors were present during deliberations. As a result thereby, the case was remanded to the trial court for an evidentiary hearing to determine if the outcome was affected by the presence of alternate jurors and to what extent the outcome was affected. In rendering its ruling, the supreme court in Barber relied on La.Code Evid. art. 606(B), and concluded as follows:
Participation by alternates in deliberations is an extraneous influence on the jury representing a prima facie case of prejudice requiring reversal. La.C.E. art. 606(B); State v. Howard, 573 So.2d 481 (La.1991); State v. Smith, 367 So.2d 857 (La.1979). Louisiana courts are "required to take evidence upon well-pleaded allegations of prejudicial juror misconduct...." State v. Graham, 422 So.2d 123, 131-132 (La.1982); State v. Horne, 679 So.2d 953, 958 (La.App. 2nd Cir.8/21/96), writ denied, 688 So.2d 521 (La.2/21/97); State v. Sanders, 539 So.2d 114, 121 (La.App. 2nd Cir.), writ denied, 546 So.2d 1212 (La.1989); State v. Duncan, 563 So.2d 1269, 1272 (La.App. 1st Cir.1990). See also State v. Searile, 643 So.2d 455, 457-458 (La.App. 3rd Cir. 10/5/94). At the conclusion of the hearing, the trial court shall determine whether a new trial or other appropriate relief is required, reserving to the parties a right to seek review of the ruling.
Id. at 1054.
The States contends, on the other hand, that the presumption of prejudice as a result of an unauthorized communication by a non-juror during trial is not conclusive. The State, however, has the burden to establish, after notice to the Defendant and a hearing, that the contact between the non-juror and juror was harmless to the Defendant. In support of its argument, the State refers to State v. Bibb, 626 So.2d 913, 922 (La.App. 5 Cir.1993), writ denied, 93-3127 (La.9/16/94), 642 So.2d 188, wherein the court addressed the issue as follows:
Initially in any trial, there is a presumption of jury impartiality. United States v. Winkle, 587 F.2d 705, 714 (5th Cir.), cert denied, 444 U.S. 827, 100 S.Ct. 51, 62 L.Ed.2d 34 (1979). However, any unauthorized communication, contact, or tampering directly or indirectly, made by a non-juror with a juror during a trial about the matter pending before the jury is deemed presumptively prejudicial, if not made in accordance with rules of court and the instructions and directions of the court made during the trial, with full knowledge of all the parties. The presumption is not conclusive, but the burden rests heavily upon the state to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to defendant. Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954); State v. Marchand, 362 So.2d at 1092. Prejudice may be shown *633 by evidence that an extrinsic factual matter tainted the jury's deliberations. Thus, an adequate demonstration of extrinsic influence upon the jury overcomes the presumption of jury impartiality and shifts the burden to the state to show that the influence demonstrated was not prejudicial. United States v. O'Keefe, 722 F.2d 1175, 1179 (5th Cir. 1983); United States v. Howard, 506 F.2d 865, 869 (5th Cir.1975); State v. Sinegal, 393 So.2d 684, 687 (La.1981).
After the trial court's instructions to the jury in the instant case, the jury retired to deliberate. During deliberation, the jurors sent out a note asking to review the Defendant's videotaped interrogation and Mr. Boudreaux's two written statements. After calling the jury back into the courtroom and explaining why their request was denied, the trial court stated:
I committed an oversight when you retired to deliberate because the alternate, Ms. Knight, you're not supposed to be in there. Your duties are concluded when we reach the end of the trial and we've not lost a regular juror. So you haven't had to replace anybody.
So you areyour services are complete. So the twelve (12) regular jurors will now retire to the deliberation room to continue your deliberations.
And, Ms. Knight, hang on for one second.
The jury returned to the deliberation room, and Ms. Knight was then sworn in and questioned by the trial court as follows:
Q Okay. Ms. Knight, let me first assure you that you've done nothing wrong. What went wrong was totally my responsibility, an oversight by me. You were not supposed to be in the deliberation with the jury. What I was supposed to do was to release you prior to deliberations beginning. So what I want to know now is whatwhat happened in the jury deliberation room while you were in there and whether your presence there might have affected the deliberations of the jury. Okay?
A Okay.
Q When you all retired to deliberate, did you participate in the discussions with the other jurors about the case?
A Yes. Um,
Q And I don't want you to
BY THE COURT: Well, let me see counsel just for a second.
BENCH CONFERENCE
BY THE COURT: Ms. Knight, why don't you have a seat in the jury box?
ALTERNATE JUROR COMPLIES WITH REQUEST
BENCH CONFERENCE
THE COURT HAS BEEN ADVISED THAT A VERDICT HAS BEEN REACHED
BY THE COURT: And let's bring them on in.
JURY SEATED
At this time, the jury verdict was read, and each juror was polled.
Next, the trial court addressed the jurors as follows:
BY THE COURT: Okay. Ladies and gentlemen, I'm now going to question you about an error that I made, and that is in sending Ms. Knight, the alternate juror, into the deliberation room before I realized my mistake and had her taken out.
I need to know whether her presence in the deliberation room could have had *634 any possible effect on the ultimate verdict, and in particular, any one of your particular votes.
Is there anyone that feels that Ms. Knight's presence and whatever she might have said during the thirty (30) minutes that she was in there had any effect or could have had any effect on any of your votes? Does anybody feel that way?
ALL JURORS RESPOND NEGATIVELY
BY THE COURT: Can each of you assure me that had you begun the deliberations without the alternate juror, can each of you assure me that the verdict and the vote would have been the same whether she was in there or not? Does anybody feel that it could have been affected in any way, her presence could have affected the vote in any way? If so, please raise your hand and tell me.
NO INDICATION MADE BY JURORS
BY THE COURT: Okay. Let the record show that none have indicated.
And, Ms. Knight, you're here. I'm going to ask you, ma'am, what participation did you have in the deliberation room? Let's go ahead and make a record of the time. The jury retired to deliberate at, I believe, five minutes before five o'clock (5:00). And I addressed the question that the jury had about the exhibits about thirty (30) minutes into your deliberation. And at that point, I removed Ms. Knight.
Ms. Knight, did you participate in discussions during the thirty (30) minutes that you were in there, ma'am?
MS. KNIGHT: I did not participate in any discussion. I only asked a question.
BY THE COURT: And what was it?
MS. KNIGHT: The question I asked was about the picking of the lock, if anybody knew anything about it, anymore than what was said or could make any more sense out of it. And that
BY THE COURT: Okay.
MS. KNIGHT: And that was it.
BY THE COURT: During the thirty (30) minutes that you were in there, did you express any opinion as to the guilt or innocence of the defendant?
MS. KNIGHT: No, none.
BY THE COURT: Okay. All right. Is that consistent with the memory of all of the jurors about the time, the thirty (30) minutes that Ms. Knight was in there?
ALL JURORS RESPONDED AFFIRMATIVELY
BY THE COURT: Okay. Counsel, any questions of the jurors?
MS. BILLEAUD: No, Your Honor. I'd just like the record to reflect that they all nodded.
The Defendant asserts that the above questioning of the jurors was insufficient to make a determination that the legal presumption of prejudice was rebutted. More specifically, the Defendant complains that the trial court addressed the group as a whole as to whether they were affected by Ms. Knight's presence and did not inquire of specific jurors. The Defendant maintains that the mode of inquiry was not an effective way to gather facts from which the court could infer that there was no influence. The Defendant concludes that the trial court, in effect, was asking the jurors to reach a conclusion for the court on the ultimate issue of prejudice. Further, the Defendant asserts that the presumption of prejudice was a matter of law, that the trial court could not defer the issue to the jury, and that the trial court *635 needed compelling facts to find that the presumption of prejudice did not apply.
We agree that the presence of the alternate juror and the fact that she asked a question during jury deliberation triggers the presumption of prejudice; however, we find that said presumption was adequately rebutted at trial. The trial court addressed Ms. Knight's participation in the jury's discussion and ascertained that she asked only one question about the existence of additional evidence; however, she did not express to the jurors an opinion as to the guilt or innocence of the Defendant. Additionally, the trial court questioned the jurors and confirmed that this was the extent of Ms. Knight's participation in jury deliberation. Lastly, the jurors denied that Ms. Knight's presence and question during jury deliberation had any effect on how they voted. Further, the jurors indicated that, had they begun deliberations without Ms. Knight, each juror's vote would have been the same regardless of Ms. Knight's presence and question.
Although given the opportunity at trial, the Defendant did not question the jurors or offer any evidence to dispute the testimony of the jurors. Further, the Defendant does not point to any statute or jurisprudence, nor are we aware of any legal basis, to conclude that the collective questioning of the jurors was inadequate to rebut the presumption of prejudice. Accordingly, we find this alleged error to be without merit.
CONCLUSION
The Defendant's convictions for theft of a firearm and possession of a firearm by a convicted felon are affirmed. The trial court is instructed to amend the minutes of sentencing to correctly reflect that it imposed a $1,000.00 fine rather than a $100.00 fine on the Defendant's conviction of possession of a firearm by a convicted felon. Additionally, because the Defendant received an illegally lenient sentence, we amend and correct said illegal sentence and impose upon the Defendant the $1,000.00 fine mandated by La.R.S. 14:67.15. Finally, we sever the Defendant's misdemeanor conviction from his appeal and instruct the Defendant that he must file an application seeking supervisory review with this court within thirty days of this court's opinion if he chooses to seek review of his misdemeanor conviction.
AFFIRMED AS AMENDED, AND REMANDED.
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345 S.W.3d 800 (2011)
WELLS FARGO BANK, MINNESOTA, N.A., Appellant,
v.
COMMONWEALTH of Kentucky, FINANCE AND ADMINISTRATION, DEPARTMENT OF REVENUE, (f/k/a Revenue Cabinet), Appellee.
Central Bank of Jefferson County, Inc., (f/k/a First Bank, Inc.), Appellant,
v.
Commonwealth of Kentucky, Finance & Administration Cabinet, Department of Revenue, (f/k/a Revenue Cabinet), Appellee.
Nos. 2008-SC-000419-DG, 2008-SC-000427-DG.
Supreme Court of Kentucky.
April 21, 2011.
As corrected August 25, 2011.
Rehearing Denied August 25, 2011.
*802 John W. Wooldridge, Waller & Wooldridge, Shepherdsville, KY, David Eric Johnson, Lerner, Sampson & Rothfuss, Cincinnati, OH, Counsel for Wells Fargo Bank, Minnesota, N.A.
Barbara Curtin Kenney, Department of Revenue, Finance and Administration Cabinet, Frankfort, KY, Counsel for Commonwealth of Kentucky, Finance and Administration, Department of Revenue, (f/k/a Revenue Cabinet).
Thomas Dupont Murphy II, Jennifer Hatcher, Ackerson & Yann, PLLC, Louisville, KY, Counsel for Central Bank of Jefferson County, Inc. (f/k/a First Bank, Inc.).
Opinion of the Court by Special Justice LAWRENCE L. JONES II.
This consolidated appeal presents two key questions for the Court's determination: 1) Are general tax liens created pursuant to the former KRS 134.420(2) (now KRS 131.515) superior to later filed mortgage liens? 2) Does the doctrine of equitable subrogation act to displace the priority of an earlier recorded KRS 134.420(2) general tax lien? The Court resolves that the Commonwealth of Kentucky's prior-recorded KRS 134.420(2) tax liens enjoy priority pursuant to the long established first-to-file doctrine. Moreover, the Court declines to apply the doctrine of equitable subrogation to relieve a professional lender of a negligent title examination. Accordingly, we affirm the ruling of the Court of Appeals.
I. BACKGROUND
This case arises from the consolidated appeal of Commonwealth v. Central Bank of Jeff. Co., Inc., et al., No. 2007-CA-000009-MR, and Commonwealth v. Wells Fargo Bank, Minn., N.A., et al, No. 2007-CA-000833-MR, 2008 WL 1991642. In the underlying cases, the respective property owners failed to satisfy their debt obligations to professional lending institutions, which precipitated foreclosure proceedings. In both cases, the professional lenders assert that their respective mortgages are superior to the general tax liens filed pursuant to KRS 134.420(2).
a. Commonwealth v. Central Bank of Jeff, Co., Inc., et al.
This case arises out of the refinancing of a mortgage. On or about August 17, 1998, Shannon and Steve Foster executed a promissory note and mortgage in favor of Commonwealth Bank 85 Trust Company ("CB & T") as security for the purchase of the subject property (the "Foster Property").
Almost three years later, the Commonwealth of Kentucky's Department of Revenue (the "Commonwealth") filed a tax lien against Steve Foster in the Jefferson County Clerk's Office, pursuant to KRS 134.420(2), on or about July 11, 2001.
On or about July 26, 2001, the Fosters executed a promissory note ("Note I") in the amount of $116,250.00 in favor of Central *803 Bank of Jefferson County, Inc. f/k/a First Bank, Inc. ("Central Bank"). Note I was secured by a Mortgage ("Mortgage I") on the Property, which was recorded on August 17, 2001 in the Jefferson County Clerk's Office. CB & T's mortgage was released on August 20, 2001.
According to Central Bank, the Fosters used $110,738.48 of the proceeds from Note I to satisfy a mortgage on the Property held by CB & T. The Fosters also used $5,704.03 of the proceeds to extinguish certain ad valorem tax liens on the Property consisting of: (1) a 1998 delinquent tax bill in the amount of $1,771.14; (2) a delinquent tax lien for the City of Louisville in the amount of $323.21; and (3) a delinquent tax lien from 1999 and 2000 in the amount of $3,609.68. No proceeds were used to pay the Commonwealth's KRS 134.420(2) lien against the Foster property.
On or about July 26, 2001, the Fosters also executed and delivered a second note to Central Bank evidencing a $15,000.00 revolving line of credit ("Note II"). Note II was secured by a mortgage ("Mortgage II") on the Property and was recorded on August 17, 2001 in the Jefferson County Clerk's Office. According to the Settlement Statement, proceeds were used to satisfy closing costs, title insurance, prepaid taxes and hazard insurance. Additionally, the proceeds of Note II were used to satisfy the Fosters' debts to various credit card companies.
On September 6, 2001, the Commonwealth filed a tax lien against Shannon Foster in the Jefferson County Clerk's Office.
On January 12, 2006, Central Bank initiated a foreclosure action against the Foster Property in Jefferson Circuit Court. Central Bank moved for summary judgment, arguing that the Mortgage I lien should be granted priority over all other liens on the property because the proceeds were used to extinguish CB & T's purchase money mortgage and the ad valorem tax liens filed against the Fosters.
On June 19, 2006, the Jefferson County Master Commissioner issued his recommendation and finding that Mortgage I would be granted priority to the extent the proceeds were used to satisfy the purchase money mortgage and the ad valorem tax liens. The Master Commissioner based his findings on the doctrine of equitable subrogation.
Both parties filed exceptions to the Master Commissioner's report. Notably, the Commonwealth argued that KRS 134.420 granted liens created pursuant to that section a "super priority" and that the doctrine of equitable subrogation was no longer viable under Kentucky law. The Master Commissioner issued a new report on August 28, 2006 recommending denial of the exceptions. Thereafter, on November 30, 2006, the Jefferson Circuit Court entered a judgment and order of sale granting Central Bank's Mortgage I and II liens priority over the other liens.
The Commonwealth appealed the Jefferson Circuit Court's ruling. The Kentucky Court of Appeals resolved that the Jefferson Circuit Court had erred in reordering the priorities and reversed the judgment.
b. Commonwealth v. Wells Fargo Bank, Minn., N.A., et al.
This case arises from the initial purchase and financing of a home by Joseph A. Clark and Janet M. Clark on or about November 16, 2001 (the "Clark Property").
Several years before purchasing their home, the Commonwealth filed a general tax lien against Joseph A. Clark on June 14, 1996 in the Bullitt County Clerk's Office, pursuant to KRS 134.420(2).
*804 Over five years later, at the time of purchase, the Clarks executed a mortgage in favor of The Provident Bank, which was recorded on November 29, 2001 (the "Purchase Money Mortgage"). The Provident Bank assigned the Purchase Money Mortgage to Wells Fargo Bank, Minn., N.A. ("Wells Fargo"), by an assignment recorded on February 14, 2003 (the "Assignment").
After the Assignment, the Commonwealth filed two additional liens against Mr. Clark, one on August 24, 2004 and another on October 20, 2004.
On November 9, 2004, Wells Fargo initiated foreclosure proceedings against the Clark Property. Wells Fargo subsequently moved for summary judgment and an order of sale granting its Purchase Money Mortgage priority over the Commonwealth's KRS 134.420(2) liens. Relying upon Kentucky Legal Systems Corp. v. Dunn, 205 S.W.3d 235 (Ky.App.2006), the Bullitt Circuit Court ruled that a purchase money mortgage takes priority over all other recorded liens and judgments unless otherwise agreed or specified by statute. The Bullitt Circuit Court held that KRS 134.420(2) provides no such exception.
The Commonwealth appealed the Bullitt Circuit Court's ruling. The Kentucky Court of Appeals resolved that the Bullitt Circuit Court had erred in reordering the priorities and reversed the judgment.
II. ANALYSIS
a. Kentucky's Recording Statutes
No mortgage, deed or deed of trust conveying real property is valid against a purchaser for a valuable consideration, without notice thereof, or creditors until it is properly filed. KRS 382.270. A mortgage, deed or deed of trust shall take effect at the time it is filed. KRS 382.280. The combined effect of these statutes is known as the "race-notice" rule. In other words, one must not only be the first to file the mortgage, deed or deed of trust, but the filer must also lack actual or constructive knowledge of any other mortgages, deeds or deeds of trust related to the property.
The common law as it relates to lien creditors is slightly different. This Court has long held that that the first creditor to file its lien enjoys the first right to the debtor's property. This general rule of lien preference has become known as "first in time, first in right." Truck Corp. of Ky. v. Hurry Up Broadway Co., 222 Ky. 521, 1 S.W.2d 990 (1928). It is without question, however, that the Kentucky General Assembly is empowered to create statutory liens and establish their priorities; but, absent a statute giving precedence to a statutory lien, its rank is determined under the principle of first in time, first in right. Midland-Guardian Co. v. McElroy, 563 S.W.2d 752 (Ky.App. 1978).
b. Kentucky's Tax Lien Statute
"The power to tax is inherent in the sovereignty of the state, and is essential to its existence." Reynolds Metal Co. v. Martin, 269 Ky. 378, 382, 107 S.W.2d 251, 253 (1937). Except to the extent that the Commonwealth's taxing power may be prohibited or limited by the State's Constitution, or that of the United States, it may be exercised without limit. See id.
Every citizen of the Commonwealth of Kentucky has an enforceable duty to pay taxes properly levied. In an effort to protect its tax base and to aid in the collection of past due tax revenue, the Kentucky General Assembly created certain "tax liens" with the passage of KRS 134.420.
*805 Prior to its amendment during the 2009 legislative session, KRS 134.420 contained five subsections. Subsection 1, which is the current version of KRS 134.420, related to ad valorem taxes, or taxes based upon the value of real or personal property. Because this case does not involve ad valorem taxes, this provision is inapplicable to this case. The remaining subsections of the old KRS 134.420 addressed general tax liens.
For purposes of resolving this case, subsections 2 and 4 are particularly applicable. The prior version of subsection 2, which is now contained in KRS 131.515, provided that:
(2) If any person liable to pay any tax administered by the Department of Revenue, other than a tax subject to the provisions of subsection (1) of this section, neglects or refuses to pay the tax after demand, the tax ... shall be a lien in favor of the Commonwealth. The lien shall attach to all property and rights to property owned or subsequently acquired by the person neglecting or refusing to pay the tax.
The prior version of subsection 4, now KRS 131.515(3), provided that the lien created by the statute "shall not be valid as against any purchaser, judgment lien creditor, or holder of a security interest or mechanic's lien until notice of the tax lien has been filed ... with the county clerk...." Id. Moreover, "[t]he recording of the tax lien shall constitute notice of both the original assessment and all subsequent assessments of liability against the same taxpayer." Id.
Both lenders in this case argue that the old KRS 134.420(1) provided a super priority[1] for ad valorem taxes, but that the general tax lien provision enjoys no special priority. We disagree.
Subsection 4 fixes the priority of general tax liens. See Liberty Nat'l Bank & Trust Co. of Lou. v. Vanderkraats, 899 S.W.2d 511 (Ky.App.1995) ("[C]onsidering section (4) in light of section (2), we see that section (4) is indeed a priority statute.") (emphasis in original). See also Commonwealth v. Hall, 941 S.W.2d 481, 483 (Ky. App.1997). Indeed, subsection 4 clearly and explicitly states that a properly filed tax lien shall be valid against any purchaser, judgment lien creditor, or holder of a security interest. It is undisputed that a mortgage is a security interest and that the professional lenders in this case are holders of those security interests. Allen v. Shepherd, 162 Ky. 756, 760, 173 S.W. 135, 136 (Ky.1915) ("The rule in this State in reference to mortgages, whether on personal or real estate, is, that they are mere securities for the debt.")
Wells Fargo relies upon Kentucky Legal Systems Corp. v. Dunn, 205 S.W.3d 235 (Ky.App.2006) for the proposition that a "purchase money mortgage" enjoys an absolute priority over all liens. The holding in Dunn, however, was much narrower.
In Dunn, the Kentucky Legal Systems ("KLS") argued that its judgment lien was senior to the lender's purchase money mortgage pursuant to the "first in time, first in right" doctrine. Id. at 236. KLS also argued that the lender was on "constructive notice" of the judgment lien and that the lender "failed to exercise due care" before making the loan. Id. After concluding that neither KRS 382.270 nor *806 KRS 382.280 "foreclose the possibility of an exception for purchase money mortgages to the ordinary rules of priority" the court of appeals held that Kentucky should adopt the Restatement (Third) view that "third parties who lend money used to purchase real estate in exchange for a mortgage hold special priority over all other recorded liens and judgments except where agreed otherwise by the parties or specified by statute." Id. at 237 (emphasis added). Further, the Dunn court held that the lending institution as a "purchase money lender, did not need to search for judgment liens, as they should be given a first priority over a judgment lien regardless of whether they had notice of any kind of interest." Id.
Judgment liens and tax liens are two different creatures, created by two different statutes. They also serve different public policy purposes, one favors collecting on civil judgments, the other favors collecting tax revenue that is necessary to fund our government. Judgment liens are created by KRS 426.720, which does not create a special priority for such liens. KRS 134.420, however, specifically establishes a priority for the tax liens created therein. Accordingly, because Dunn addressed judgment liens, not KRS 134.420(2) tax liens, we find it to be inapposite to this case.
In the case sub judice, we hold that the Kentucky General Assembly acted within its power to enact a law that serves a very important public policy purpose. Without tax revenue, our government would screech to a grinding halt. It is imperative that the citizens of this Commonwealth pay their fair share to provide the Commonwealth with the means to provide essential government services. Without tax revenue, our schools, our roads, and indeed even our public safety would be seriously jeopardized. Therefore, it is equally imperative that the Commonwealth has the means to effectively enforce its tax liens.
With this underlying policy in mind, the legislature created the machinery for collection of its taxesKRS 134.420(2)and provided those tax liens priority over subsequent holders of security interests, including purchase money lenders. As the Vanderkraats court noted, lenders can protect themselves against what they consider to be an unjust result by requiring that the tax liens are satisfied before lending money for the purchase of the property. See Vanderkraats, 899 S.W.2d at 511. Alternatively, the lender can choose not to lend.
Accordingly, we hold that the plain language of KRS 134.420(2) and (4) establishes that a tax lien created and filed in accordance with those sections enjoys a priority over all subsequent purchasers, judgment lien creditors, security interest holders, and mechanic's lien creditors.
c. Equitable Subrogation
Kentucky common law recognizes an equitable "exception" to the "first in time, first in right" rule, known as the doctrine of equitable subrogation. This Court's predecessor long ago recognized the doctrine of equitable subrogation. Louisville Joint Stock Land Bank v. Bank of Pembroke, 225 Ky. 375, 9 S.W.2d 113 (1928). However, Kentucky courts have rarely addressed the specifics of the doctrine, and we therefore draw upon cases from other jurisdictions. Equitable subrogation permits a creditor who pays the debt of another to stand in the shoes of the original creditor, enjoying all rights and remedies of the original creditor. In essence, "[t]he doctrine allows a later-filed lienholder to leap-frog over an intervening lien and take a priority position." Hicks v. Londre, 125 P.3d 452 (Colo.2005). This *807 doctrine, however, "is a creature of equity, and rests upon principles of natural justice." Id. at 114.
A party seeking to invoke the doctrine of equitable subrogation bears the burden of proving the applicability of the doctrine. "Although [equitable] subrogation is a highly favored doctrine, it is not an absolute right, but rather, one that depends on the equities and attending facts and circumstances of each case." Universal Title Ins. Co. v. U.S., 942 F.2d 1311, 1315 (8th Cir.1991). "Subrogation cannot be invoked where it would violate sound public policy, or result in harm to innocent third parties." Ripley v. Piehl, 700 N.W.2d 540, 545 (Minn.App.2005) (citing Universal Title, 942 F.2d at 1315). "It is axiomatic that as an equitable doctrine, subrogation `aids the vigilant, and not the negligent.'" Ripley, 700 N.W.2d at 545 (quoting Sinell v. Sharon, 206 Minn. 437, 289 N.W. 44, 46 (1939)).
Courts across the United States have developed three approaches for determining whether to apply equitable subrogation when a third party holds a lien on the property at the time a second lender pays off the principal encumbrance. See Louisville/Jefferson Co. Office for Econ. Develop, v. Manufacturers and Traders Trust Co., 2004 WL 259083, *2 (Feb. 13, 2004) (Ky.App.) (hereinafter, "LEDCO") (citing Houston v. Bank of America Fed. Savings Bank, 119 Nev. 485, 78 P.3d 71 (2003)).
The majority of courts addressing the issue find that actual knowledge of an existing lien precludes the application of the doctrine of equitable subrogation, but constructive knowledge does not. See, e.g., United Carolina Bank v. Beesley, 663 A.2d 574 (Me.1995); United States v. Baran, 996 F.2d 25 (2d Cir.1993) (applying New York law); Dietrich Indus., Inc. v. United States, 988 F.2d 568, 572 (5th Cir.1993) (applying Texas law); Brooks v. Resolution Trust Corp., 599 So.2d 1163, 1165 (Ala.1992). Critics of the majority approach contend that it fosters deliberate ignorance by encouraging lenders to forego title searches so that they might later claim the absence of actual knowledge of existing liens.
Under the second approach, equitable subrogation is barred where the subsequent lienholder has actual or constructive knowledge of an existing lien. See, e.g. Harms v. Burt, 30 Kan.App.2d 263, 40 P.3d 329, 332 (2002). Some have criticized this approach as obviating the doctrine completely.
The final approach, which has been adopted by the Restatement (Third) of Property, allows a court the discretion to disregard both actual and constructive knowledge of a prior lien if the junior lien-holder is not prejudiced by the court's reordering of priorities. See East Boston Savings Bank v. Ogan, 428 Mass. 327, 701 N.E.2d 331 (1998). The rationale for the Restatement's approach "is that the junior lienholder suffers no actual prejudice (i.e., no change in position) by the mere substitution of the first lienholderexcept to the extent that more money is borrowed and the security raised." LEDCO, 2004 WL 259083 at *2.
As it relates to mortgage lenders, this Court concludes that a balancing of the equities favors the second approach. In doing so, the Court observes that equity demands that sophisticated businesses, like professional mortgage lenders, should be held to a higher standard for purposes of determining whether the lender acted under a justifiable or excusable mistake of fact in failing to duly investigate prior liens. Ripley v. Piehl, 700 N.W.2d 540, 545 (Minn.App.2005), review denied, 2005 Minn. LEXIS 630 (Minn. Oct. 18, 2005). See also Universal Title, 942 F.2d at 1317 *808 (8th Circuit Court of Appeals noting that "Minnesota courts impose stricter standards on professionals than lay persons in assessing whether mistakes are `excusable' for purposes of the doctrine of legal subrogation.")
Equity also demands that the responsibility for a defective title examination be allocated to the party who is most culpable. See First Federal Savings Bank of Wabash v. United States, 118 F.3d 532 (7th Cir.1997). In First Federal, the 7th Circuit addressed the question of whether a lender who advances funds for a refinancing, but misses an intervening tax lien because of the negligence of its title insurer, can rely upon the doctrine of equitable subrogation to reorder the priorities of the liens. The court noted that:
It is ... not obvious at first glance where the equities lie. On the one hand, although it may be imprecise to characterize the government's elevation to first lienholder as a windfall, it is true that applying equitable subrogation would not make the government worse off than it was prior to the release of the first mortgage.
Id. at 534. "[A]s a sophisticated lender with no use for the mortgaged property other than as collateral, [the Lender] was able to obtain title insurance to contract against the risk of errors such as the one that occurred here." Thus, "the title insurer, whose negligence apparently caused this mess in the first place, presumably must bear the loss...." Id.
Other courts have also been reluctant to apply the doctrine of equitable subrogation to bail out a negligent title insurer. See Lawyers Title Ins. Corp. v. Capp, 174 Ind. App. 633, 369 N.E.2d 672, 674 (1977). The Lawyers Title court, echoing the Washington Supreme Court, aptly stated its position with regard to title insurance companies: "Either they insure or they don't. It is not the province of the court to relieve a title insurance company of its contractual obligation." Id. (quoting Coy v. Raabe, 69 Wash.2d 346, 418 P.2d 728 (1966) (internal quotations omitted)).
The Court finds this reasoning persuasive. The equities favor holding the most culpable party responsible for the loss. In this case, the most responsible party is not a party to the case. However, the Court presumes that both lending institutions involved in this case have viable claims against their respective title insurance companies. Those title insurers are engaged in the very profitable business of assuring that their lending institution customers receive a clear title by insuring such. If the title insurer's examiners bungle the title search, no matter how innocent the mistake might be, then the title insurers must ultimately be held liable. To parrot the Lawyers Title court, "Either they insure or they don't." Accordingly, this Court holds that the equities weigh against applying the doctrine of equitable subrogation in cases where the title insurers fail to identify properly recorded liens.
In this case, Central Bank's title examiner clearly missed the intervening tax lien that was filed by the Commonwealth before Central Bank lent funds to refinance the Foster Property. Central Bank characterizes the missed lien as an "innocent mistake" for which it should not be punished. See Central Bank's Brief for Appellant (incorrectly styled as Brief for Appellee) at pp. 9, 14 and Central Bank's Reply Brief at p. 4 (incorrectly styled as Reply Brief for Appellee). However, whether something is an "innocent mistake" or "actionable negligence" is usually in the eye of the beholder.
Indeed, the professional lender, not the Commonwealth or other lawful lien holders, chooses its own title examiner and *809 procures "title insurance" (usually at the expense of the borrower no less) to guarantee that the title is free of defects. If the professional lender chooses, by necessity or by mistake, to lend in spite of a cloudy title, the professional lender shall bear the risk that the borrower will default before the end of the loan term. To hold otherwise, would be to ignore the principles of equity upon which the doctrine was constructed.
A purchase money mortgage, like that upon which Wells Fargo seeks recovery, presents a host of different concerns. Simply stated, a purchase money mortgage is different than a refinancing in that the proceeds advanced by the lender are used to purchase the mortgaged property. The Restatement (Third) of Property offers a more thorough explanation:
In real estate transactions, it is common for a vendor of real estate to convey title to the purchaser, receive part of the purchase price in cash, and take back a mortgage on the real estate to secure a promissory note for the balance of the purchase price. Such a mortgage is frequently referred to as a "vendor purchase money mortgage." In an alternative and more common form of the transaction, third party institutional financing is used to "cash out" the vendor. In this situation, the vendor receives part of the purchase price in cash from the purchaser and the balance in cash from a third party lender who takes the purchaser's promissory note secured by a mortgage on the purchaser's newly acquired real estate. This type of mortgage is usually termed a "third party purchase money mortgage." Some land transactions utilize both types of purchase money mortgages. This section focuses on the priority accorded purchase money mortgages of either type over other liens or claims arising through the purchaser that antedate the purchase money transaction, and also on the priority relationship between the two types of purchase money mortgages.
Restatement (Third) of Property: Mortgages, Section 7.2 cmt. a (1997).
It is true that many jurisdictions elevate purchase money mortgage liens to the detriment of all other lien holders. See id. at Reporter's Notes (citing Belland v. O.K. Lumber, Inc., 797 P.2d 638 (Alaska 1990); Sunshine Bank of Fort Walton Beach v. Smith, 631 So.2d 965 (Ala.1994); Garrett Tire Ctr., Inc. v. Herbaugh, 294 Ark. 21, 740 S.W.2d 612 (1987); Mercantile Collection Bureau v. Roach, 195 Cal.App.2d 355, 15 Cal.Rptr. 710 (1961); County of Pinellas v. Clearwater Fed. Sav. & Loan Ass'n, 214 So.2d 525 (Fla.Dist.Ct.App.1968); Associates Discount Corp. v. Gomes, 338 So.2d 552 (Fla.Dist.Ct.App.1976); Aetna Casulaty & Sur. Co. v. Valdosta Fed. Sav. & Loan Ass'n, 333 S.E.2d 849 (Ga.Ct.App. 1985); Liberty Parts Warehouse, Inc. v. Marshall County Bank, 459 N.E.2d 738 (Ind.Ct.App.1984); Midland Savings Bank FSB v. Stewart Group, 533 N.W.2d 191 (Iowa 1995); Resolution Trust Corp. v. Bopp, 18 Kan.App.2d 271, 850 P.2d 939 (1993); Hill v. Hill, 185 Kan. 389, 345 P.2d 1015 (1959); Libby v. Brooks, 653 A.2d 422 (Me.1995); Stewart v. Smith, 36 Minn. 82, 30 N.W. 430 (1886); Commerce Sav. Lincoln, Inc. v. Robinson, 213 Neb. 596, 331 N.W.2d 495 (1983); Fleet Mortgage Corp. v. Stevenson, 241 N.J.Super. 408, 575 A.2d 63 (1990); Slate v. Marion, 104 N.C.App. 132, 408 S.E.2d 189 (1991), review denied, 330 N.C. 442, 412 S.E.2d 75 (1991); Giragosian v. Clement, 199 A.D.2d 656, 604 N.Y.S.2d 983 (1993); Hursey v. Hursey, 284 S.C. 323, 326 S.E.2d 178 (S.C.App. 1985); United States v. Dailey, 749 F.Supp. 218 (D.Ariz.1990); Royal Bank of Canada v. Clarke, 373 F.Supp. 599 (D.Vi. 1974)). Some jurisdictions, however, grant *810 purchase money security interests a super priority via statute. See, e.g., West's Ann. Cal. Civ.Code § 2928; 42 Pa. Stat. § 814(1). Without the advanced funds, the purchaser ordinarily would not be able to acquire the property.
Wells Fargo correctly notes that we have previously allowed a purchase money security interest created pursuant to Kentucky's UCC Article 9 to defeat a prior-filed general tax lien. See Whayne Supply Co., Inc. v. Commonwealth of Kentucky Revenue Cabinet, 925 S.W.2d 185 (Ky. 1996). In Whayne Supply, however, our holding hinged upon the fact that the Kentucky General Assembly had provided a "super-priority" to Article 9 purchase money security interests with the enactment of KRS 355.9-312(4). Yet, there is no specific statute that grants a purchase money mortgage holder a similar super-priority. Therefore, we believe our holding in Whayne Supply is distinguishable from the present case.
Wells Fargo also urges us to adopt the rule contained in the Restatement (Third) of Property: Mortgages, Section 7.2. Subsection (b) provides that: "A purchase money mortgage, whether or not recorded, has priority over any mortgage, lien, or other claim that attaches to the real estate but is created by or arises against the purchaser-mortgagor prior to the purchaser-mortgagor's acquisition of title to the real estate." Such a bright line rule, however, would ignore the equities of each individual case, a rather important consideration when determining whether or not to apply the doctrine of equitable subrogation.
As it relates to Wells Fargo's predecessor in interest, The Provident Bank, it is without dispute that The Provident Bank either missed or ignored the lien altogether. As Wells Fargo admits in its brief, had the lender been required to satisfy the Commonwealth's tax lien, "in all likelihood [the lender] never would have made the loan." Wells Fargo's Brief for Appellant at p. 8. Indeed, these are the sound lending practices that our society deserves, especially in the aftermath of this nation's 2008 financial meltdown.
The liens in both cases could have been easily discovered with due diligence. The Commonwealth's liens would rarely be satisfied if a lender were allowed to overlook the lieneither by inadvertence, negligence or incompetence. Notably, the lenders are not without a remedy in this situation; presumably, the lenders may seek recompense from the title examiner's errors and omissions insurance carrier. Accordingly, we hold today that a professional lender who has actual or constructive knowledge of an earlier recorded general tax lien may not benefit from an equitable reordering of the liens.
III. CONCLUSION
For the foregoing reasons, we affirm the decision of the Court of Appeals, and remand these matters to the respective Circuit Courts for such further proceedings as are consistent with this opinion.
MINTON, C.J.; CUNNINGHAM, SCHRODER, SCOTT and VENTERS, JJ., Special Justice ROBERT L. ELLIOTT, sitting. All concur. ABRAMSON and NOBLE, JJ., not sitting.
NOTES
[1] Both lenders argue that the following language creates the super priority for ad valorem taxes: "This lien shall not be defeated by gift, devise, sale, alienation, or any means except by sale to a bona fide purchaser, but no purchase of property made before final settlement for taxes for a particular assessment date has been made by the sheriff shall preclude the lien covering the taxes."
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238 P.3d 246 (2010)
STATE of Kansas, Appellee,
v.
Carlos J. JACKSON, Appellant.
No. 100,807.
Supreme Court of Kansas.
August 20, 2010.
*248 Christina M. Waugh, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Nicole Romine, assistant district attorney, argued the cause, and Mark A. Simpson, assistant district attorney, and Charles E. Branson, district attorney, and Steve Six, attorney general, were on the brief for appellee.
The opinion of the court was delivered by ROSEN, J.:
Carlos Jackson appeals from an order directing him to register under the Kansas Offender Registration Act following his plea of guilty to three counts of aggravated battery.
Jackson was born on August 17, 1981. On February 1, 1999, he was sentenced as an extended jurisdiction juvenile offender for first degree murder and attempted aggravated robbery in case No. 98JV765. The court sentenced him to a term of life and a concurrent term of 32 months in prison. The court extended jurisdiction over him until his 23rd birthday in 2004.
On February 10, 2008, Jackson visited a club in Lawrence and became involved in a fight. He went to his car and retrieved a gun, which he fired several times in the vicinity of a crowd. Several people were injured as a result. The State charged him with three counts of aggravated battery in violation of K.S.A. 21-3414(a)(2)(A).
Jackson entered a guilty plea, and the court sentenced him from the bench to a term of 120 months' imprisonment for the first count and to consecutive terms of 32 months' imprisonment for the other two counts. The district court subsequently instructed the parties to prepare briefs on the question of whether his juvenile adjudications constituted convictions for purposes of the Kansas Offender Registration Act, K.S.A. 22-4901 et seq. The court then filed a journal entry of sentencing in which it ordered Jackson to maintain lifetime registration under K.S.A. 22-4902(a)(7) because he had a second conviction of a crime committed with a deadly weapon.
The first question before this court is whether the sentencing court had jurisdiction to impose offender registration when it did not include the registration when it pronounced *249 sentence from the bench. Jurisdiction is a question of law over which this court exercises unlimited review. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007).
Sentencing in a criminal proceeding takes place when the trial court pronounces the sentence from the bench. State v. Garcia, 288 Kan. 761, 765, 207 P.3d 251 (2009); Abasolo v. State, 284 Kan. 299, 304, 160 P.3d 471 (2007); State v. Moses, 227 Kan. 400, 402, 607 P.2d 477 (1980). The journal entry is merely a record of the sentence imposed, and the district court has no jurisdiction to change the sentence once the court pronounces the sentence. Garcia, 288 Kan. at 766, 207 P.3d 251; State v. Russell, 36 Kan. App.2d 396, 398, 138 P.3d 1289 rev. denied 282 Kan. 795 (2006); see State v. Anthony, 274 Kan. 998, 1001-02, 58 P.3d 742 (2002). A district court is powerless to vacate a sentence and impose a harsher sentence once it has pronounced sentence. State v. Royse, 252 Kan. 394, 398, 845 P.2d 44 (1993). A journal entry that imposes a sentence varying from the sentence pronounced from the bench is erroneous and must be corrected to show the actual sentence imposed. State v. Branning, 271 Kan. 877, 887, 26 P.3d 673 (2001).
The rule against altering a sentence in a journal entry is not, however, absolute. Clarification is not the same as modification, and a district court retains jurisdiction to file a journal entry of sentencing that clarifies an ambiguous or poorly articulated sentence pronounced from the bench. See State v. Crawford, 253 Kan. 629, 649-50, 861 P.2d 791 (1993). A sentencing court also has jurisdiction to modify a sentence after pronouncing it orally in order to correct an arithmetic or clerical error. Russell, 36 Kan. App.2d at 398, 138 P.3d 1289. And a sentencing court may later set the exact amount of restitution to be paid after it has completed pronouncing sentence from the bench. State v. Cooper, 267 Kan. 15, 18-19, 977 P.2d 960 (1999).
This court has defined what constitutes a sentence:
"Ordinarily, in a legal sense, `sentence' is synonymous with `judgment' and denotes the action of a court of criminal jurisdiction formally declaring to the defendant the legal consequences of the guilt to which he has confessed or of which he has been convicted. Roberts v. State, 197 Kan. 687, Syl. ¶ 1, 421 P.2d 48 (1966). In criminal cases, the judgment must be rendered and sentence imposed in open court. The judgment in a criminal case, whether it imposes confinement, imposes a fine, grants probation, suspends the imposition of sentence, or imposes any combination of those alternatives, is effective upon its pronouncement from the bench." Royse, 252 Kan. at 397, 845 P.2d 44.
The Kansas Court of Appeals has held that conditions of probation forming the basis for a defendant's liberty are considered part of the sentence. State v. Baldwin, 37 Kan. App.2d 140, 143, 150 P.3d 325 (2007). Assignment of a defendant to Labette Correctional Conservation Camp, for example, was a special condition of probation that had to be articulated at sentencing from the bench and could not be added as a condition in the journal entry. See 37 Kan.App.2d at 141-43, 150 P.3d 325.
In reaching this conclusion, the Court of Appeals looked to other jurisdictions that have held that conditions of probation stated in a journal entry but not imposed in open court are of no effect. 37 Kan.App.2d at 143-44, 150 P.3d 325; see United States v. Bigelow, 462 F.3d 378, 383 (5th Cir.2006); United States v. Alburay, 415 F.3d 782, 788 (7th Cir.2005); State v. Bailey, 782 So.2d 22, 26 (La.App.2001); State v. Malloy, 325 Mont. 86, 90, 103 P.3d 1064 (2004); see also United States v. Handakas, 329 F.3d 115, 117-18 (2d Cir.2003) (including occupational restriction as condition of supervised release in the written judgment of conviction and sentence when that restriction was not mentioned in oral pronouncement of sentence violated defendant's right to be present at sentencing).
The Court of Appeals noted, however, that the rule is typically restricted to special conditions of probation. Standard conditions of probation imposed by statute in every case are excluded because the defendant has constructive notice of them and the conditions are implicit in the grant of every probation. *250 37 Kan.App.2d at 144, 150 P.3d 325; see United States v. Napier, 463 F.3d 1040, 1042-43 (9th Cir.2006); State v. Williams, 712 So.2d 762, 764 (Fla.1998); Bailey, 782 So.2d at 26; State v. Kroll, 322 Mont. 294, 301-02, 95 P.3d 717 (2004).
We find that the statutorily required imposition of lifetime registration is an incident of sentencing, akin to restitution. K.S.A. 22-4906 speaks of persons who are "required to register" and of a "registration requirement." Because registration is a mandatory, not a discretionary, act, the order of registration is the same kind of standard order of probation cited by our Court of Appeals in Baldwin. Because the defendant has constructive notice of the registration requirement, it is implicit in every sentence that falls within the scope of K.S.A. 22-4906. The journal entry did not modify the sentence but simply carried out a statutory imperative. The sentencing court had jurisdiction to include the registration requirement in the journal entry without making it part of the sentence imposed from the bench.
We must now determine whether the district court properly relied on a prior extended jurisdiction juvenile conviction when it ordered Jackson to maintain lifetime violent offender registration.
Lifetime registration under K.S.A. 22-4906 requires at least one previous conviction of a violent crime. Jackson argued to the district court and reasserts on appeal that his prior extended jurisdiction juvenile adjudication was not a conviction under K.S.A. 22-4906. Because this issue involves the interpretation of a statute, it is a question of law over which this court has unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).
K.S.A. 22-4902(a)(7) defines an "offender" to be "any person who, on or after July 1, 2006, is convicted of any person felony and the court makes a finding on the record that a deadly weapon was used in the commission of such person felony." K.S.A. 22-4906(a) provides for a 10-year registration period following a conviction of one of the offenses described under K.S.A. 22-4902(a), and a lifetime registration period "upon a second or subsequent conviction."
Jackson's offenses in the present proceeding were person felonies committed with a deadly weapon. He was therefore required to register under the Kansas Offender Registration Act, K.S.A. 22-4901 et seq. The district court further found the current case constituted his second conviction, and it ordered him to maintain lifetime registration. The issue presented is whether the earlier extended jurisdiction juvenile proceeding for first-degree murder and attempted aggravated robbery were "convictions" for purposes of K.S.A. 22-4906(a)(2).
K.S.A.2009 Supp. 38-2347(a)(3) authorizes the State to file a motion requesting that the court designate the proceedings to be an extended jurisdiction juvenile prosecution. K.S.A.2009 Supp. 38-2347(f)(4) provides that a juvenile who is the subject of an extended jurisdiction prosecution "shall have the right to a trial by jury, to the effective assistance of counsel and to all other rights of a defendant pursuant to the Kansas code of criminal procedure."
K.S.A.2009 Supp. 38-2364(a) sets out proceedings under extended juvenile jurisdiction and provides that the sentence in an extended jurisdiction juvenile prosecution shall include both a juvenile sentence and an adult sentence, but the adult sentence "shall be stayed on the condition that the juvenile offender not violate the provisions of the juvenile sentence and not commit a new offense." K.S.A.2009 Supp. 38-2364(b) provides that once the district court finds that the conditions of the juvenile sentence have been violated, "the court shall revoke the juvenile sentence and order the imposition of the adult sentence" and terminate the extended juvenile jurisdiction.
In State v. Boyer, 289 Kan. 108, 209 P.3d 705 (2009), this court considered whether juvenile adjudications should be considered in the determination of persistent sex offender status. The court concluded that Kansas appellate courts "have repeatedly held that the legislature not only knows how to distinguish between juvenile adjudications and adult convictions, but it has done so in several statutes." 289 Kan. at 116, 209 P.3d 705. *251 The court held that there is no statutory basis for including juvenile adjudications in the history necessary for finding a defendant to be a persistent sex offender. 289 Kan. at 116, 209 P.3d 705.
Having found in Boyer that standard jurisdiction juvenile adjudications are not convictions for registration purposes, this court is now asked to determine whether extended jurisdiction juvenile proceedings are convictions under the registration statute.
In In re E.F., 41 Kan.App.2d 860, 205 P.3d 787 (2009), the Court of Appeals noted that extended jurisdiction juvenile proceedings have been used since 1997 so that some juveniles who might otherwise have been waived up to adult court may remain within the juvenile sentencing system. The basic outline of the system calls for an adult sentence that is imposed only if the juvenile fails to satisfactorily complete an initial juvenile sentence:
"`In an extended jurisdiction juvenile prosecution, the court imposes both a juvenile and an adult sentence. The adult sentence is stayed as long as the juvenile complies with and completes the conditions of the juvenile sentence. If, however, the juvenile violates the conditions of the juvenile sentence, the juvenile sentence is revoked, the adult sentence is imposed, and the juvenile court transfers jurisdiction of the case to the adult court.'" 41 Kan.App.2d at 862-63 [205 P.3d 787] (quoting In re L.M., 286 Kan. 460, 485, 186 P.3d 164 [2008] [McFarland, C.J., dissenting]).
The statutory scheme makes passing reference to prosecution and conviction as an adult or under extended juvenile jurisdiction. K.S.A.2009 Supp. 38-2366(a). It also exposes the juvenile to an adult sentence, which would require a conviction under K.S.A.2009 Supp. 21-4603d(a)(1). The statutory scheme stays the adult conviction, however, and retains a distinction between trial of the juvenile as an adult or trial as extended jurisdiction juvenile offender. See K.S.A.2009 Supp. 38-2347.
As a general rule, we strictly construe criminal statutes in favor of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the accused, subject to the qualification that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Trautloff, 289 Kan. 793, 796-97, 217 P.3d 15 (2009).
Because the legislature maintains a distinction between adult prosecutions and extended juvenile jurisdiction prosecutions and did not expressly extend the registration requirement to prosecutions carried out under the extended jurisdiction scheme, we must construe the registration statute to apply only to convictions arising from adult prosecutions.
The lifetime registration requirement is vacated, with directions to impose a 10-year registration period.
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780 F.Supp.2d 839 (2011)
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff,
v.
John KLINE, Michelle Kline, and First Bank, Defendants.
John Kline, Michelle Kline, and First Bank, Plaintiffs,
v.
American Family Mutual Insurance Company, Defendant.
Case Nos. 4:10-cv-00321 RP-RAW, No. 4:10-cv-00371.
United States District Court, S.D. Iowa, Central Division.
April 25, 2011.
*840 David N. May, David J.W. Proctor, Bradshaw Fowler Proctor & Fairgrove, Des Moines, IA, for American Family Mutual Insurance Company.
Donald G. Beattie, Beattie Law Firm PC, Des Moines, IA, for John Kline and Michelle Kline.
Bernard L. Spaeth, Jr., Jonathan Edward Kramer, John H. Moorlach, Whitfield & Eddy PLC, Des Moines, IA, for First Bank.
ORDER
ROBERT W. PRATT, Chief Judge.
Currently before the Court is a "Motion to Limit Testimony of David Mariasy," filed by American Family Mutual Insurance Company ("American Family") on April 1, 2011. Clerk's No. 23. John and Michelle Kline (collectively the "Klines") filed a response in opposition to the motion on April 18, 2011. Clerk's No. 39. A reply brief is not necessary. See L.R. 7(g). The matter is fully submitted.[1]
I. FACTUAL & PROCEDURAL BACKGROUND
As has been previously and concisely explained by Magistrate Judge Walters,
This case involves a dispute about insurance coverage relating to a house and a 1964 Chevrolet Corvette destroyed by a fire.... The house was insured by a homeowners policy issued by [American Family]. A fire destroyed the insured house as well as the Corvette on February 9, 2009. The Corvette was owned by John Kline and was insured by an American Family auto policy. Following the fire, the Klines made an insurance *841 claim under the homeowners policy for damage to the house and personal property contained in the house. The Klines also made an insurance claim for the Corvette under the auto policy. American Family filed this lawsuit on July 16, 2010, alleging the Klines intentionally started the fire and seeking a declaratory judgment ordering that neither John Kline nor Michelle Kline is entitled to payment under the policies. American Family also seeks a money judgment against the Klines. (Am. Compl. [6] counts 12, 13).
The Klines filed a petition in the Iowa District Court for Polk County on July 30, 2010 against American Family alleging claims for breach of insurance contract. That case was removed to this Court on August 12, 2010 as 4:10-cv-00371-RP-RAW and consolidated with the above-captioned case by Order [9] of Chief Judge Robert W. Pratt on August 19, 2010. Also on July 30, 2010, the Klines brought the same claims asserted in action 4:10-cv-00371-RP-RAW by counter-claim in this case. (Ans. [2] at 9-12.)
Clerk's No. 32 at 1-2.
This case is currently scheduled to go to trial on June 6, 2011. Clerk's No. 17 at 2. At trial, the Klines intend to offer David Mariasy ("Mariasy") as an expert witness. See Pl. Klines' Br. in Supp. of Resistance to Defendant American Family's Mot. to Limit Testimony of David Mariasy (hereinafter "Kline Br.") at 5-7 (Clerk's No. 39-1). At the request of the Klines' counsel, Mariasy listened to an audio file of a 911 call made on February 9, 2009 (the "911 Recording"), both in its original form and in a version enhanced by American Family's expert. See Report of David Mariasy (hereinafter "Mariasy Report") at 2 (Clerk's No. 33-1 at 3). Mariasy then produced his own enhanced version of the 911 Recording "and developed a transcript of conversations contained within the call." Mariasy Report at 2; see also American Family's Br. in Supp. of Mot. to Limit Testimony of David Mariasy Under Daubert and the Fed. Rules of Evid. (hereinafter "Am. Family Br.") at 5 (Clerk's No. 33-3); Kline Br. at 5.
II. LAW AND ANALYSIS
In the instant motion, American Family seeks to preclude Mariasy from testifying about: (1) "the identity of any person whose voice is heard" on the 911 Recording; (2) "the content of the speech heard" on the 911 Recording; (3) "the physical locations in or around the Kline home on February 9, 2009"; and (4) "the mental states of the individuals heard" on the 911 Recording.[2]See Mot. ¶ 6 (emphasis omitted). American Family also seeks to exclude the transcript prepared by Mariasy "because it is little more than a statement of who is saying what on the recording.[3]*842 Id. ¶ 6(c) (emphasis omitted). American Family argues that this testimony and the transcript (hereinafter the "Challenged Evidence") should be excluded because, inter alia, it would not be helpful to the jury. Id. ¶ 8; see also Am. Family Br. at 1-2 (citing Lee v. Andersen, 616 F.3d 803, 809 (8th Cir.2010)).
"Federal Rule of Evidence 702 permits a qualified expert to give opinion testimony if the expert's specialized knowledge would allow the jury to better understand the evidence or decide a fact in issue." Lee, 616 F.3d at 808 (citing United States v. Arenal, 768 F.2d 263, 269 (8th Cir.1985)). However, "[o]pinions that `merely tell the jury what result to reach' are not admissible." Id. at 809 (quoting Fed.R.Evid. 704 advisory committee's note). Thus, if the subject matter of a proffered expert's testimony "is within the jury's knowledge or experience ... the expert testimony [is] subject to exclusion `because the testimony does not then meet the helpfulness criterion of Rule 702.'" See id. (quoting Arenal, 768 F.2d at 269).
In Lee, the Plaintiff "identified Richard Dierks as an expert under Federal Rule of Civil Procedure 26(a)(2)." Id. at 808. As the Eighth Circuit explained:
Dierks used digital video recording and processing technology to increase the contrast of the video images captured by the surveillance camera. He clarified seven individual frames captured by camera 3, covering a period of 1.3 seconds near the end of the foot pursuit. Dierks's expert report opined that "Fong Lee did not have a firearm in his right hand during the moments before the shooting incident on July 22, 2006. Fong Lee did not have any object in his right hand during the moments before the shooting incident." When asked what methods and principles he used to interpret images, Dierks replied that the first method is "simple observation."
Id. On appeal, the Eighth Circuit affirmed the exclusion of Dierks's opinion regarding the handgun, concluding that Dierks's opinion "would not have assisted the jury but rather would have told it what result to reach." Id. at 809. According to the Eighth Circuit, "the jury was entirely capable of analyzing the images and determining whether Fong Lee had anything in his hands." Id.
American Family argues that this case is analogous to Lee, and that "[j]ust as the Lee jury needed no expert guidance to watch a videotape, the jury here can listen to the 911 [R]ecording and reach its own conclusions." Am. Family Br. at 2-3 (internal citation omitted). The Court agrees. Like the expert in Lee, Mariasy did not use any specialized knowledge or methodology to interpret the 911 Recording, but simply relied on his own sensory observations. See, e.g., Mariasy Dep. Tr. 27:25-28:7 (Clerk's No. 33-3) (testifying that "somebody with good hearing" would be able to identify the voices of the Kline children on the 911 Recording); id. at 49:21-50:18 (indicating Mariasy's opinions regarding how many male voices were on the 911 Recording were based on Mariasy's hearing). The jury in this case will be capable of listening to the 911 Recording and interpreting it for themselves.[4] Thus, *843 the Challenged Evidence will not "assist[] the jury but rather [will tell] it what result to reach." See Lee, 616 F.3d at 809. Therefore, the Challenged Evidence does not meet the helpfulness requirement of Rule 702 and will be excluded.[5]
III. CONCLUSION
For the foregoing reasons, American Family's "Motion to Limit Testimony of David Mariasy" (Clerk's No. 33) is GRANTED.
IT IS SO ORDERED.
NOTES
[1] American Family has requested oral argument on its motion; however, the Court does not believe that oral argument will aid it in resolving the present matter. Therefore, American Family's request is denied.
[2] Notably, American Family does not challenge Mariasy's expertise in audio enhancement or seek to exclude Mariasy's enhanced version of the 911 Recording. See Clerk's No. 33-3 at 9, 19.
[3] In their opposition to the instant motion, the Klines argue that if this motion is granted, the Court must also prohibit American Family's audio-enhancement expert from offering similar evidence. See Kline Br. at 15, 17. This argument is, effectively, an independent motion and, therefore, is not properly before the Court. See L.R. 7(e) ("A resistance to a motion may not include a separate motion or a cross-motion by the responding party. Any separate motion or cross-motion must be filed separately as a new motion."). The Klines are, of course, free to raise any objections to the admissibility of particular evidence at trial. Additionally, because American Family has not yet offered any expert testimony, the Court makes no ruling on what evidence might be necessary to rebut such testimony. See Kline Br. at 7 (arguing regarding the hypothetical necessity of rebuttal testimony by Mariasy).
[4] The Klines do not attempt to distinguish and, indeed, do not even mention the Eighth Circuit's opinion in Lee. See Kline Br. at 1-17. Rather, the Klines argue that "the only way for the jury to understand and appreciate what kind of enhancement was necessary at certain parts of the tape is to explain the speaker's distance in general terms from the phone." Id. at 5. According to the Klines, "[w]ithout an explanation as to the general location of the speaker and the corresponding enhancement done to the 911 tape, the jury may wrongly conclude that the various speakers are in one location during the entire call (concluding that since the audio is now audible, the speaker must be in close proximity)." Id. The Klines make similar arguments regarding Mariasy's proposed testimony regarding the emotional status of the speakers, asserting that "[w]ithout an explanation as to the general emotional status (shouting, excited, etc.), the jury may wrongly conclude that the various speakers are monotone or in one location, `staging' the 911 call, as alleged by American Family." Id. at 6. However, even if the Court assumes that the jury may be confused by some of the results of the enhancement of the 911 Recording, the Court cannot agree that it is necessary to allow Mariasy to testify regarding the distance of the speakers and their emotional status. Rather, if the Klines believe that some emotional or spatial content is lost in the enhanced version of the 911 Recording, the Klines may submit the original version for the jury's consideration.
[5] In light of this conclusion, the Court need not and therefore does not consider the other separate bases upon which American Family challenges the admissibility of the Challenged Evidence. See Mot. ¶¶ 9-10.
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50 F.3d 877
Dennis J. D'AGUANNO, John William McVeigh, Christine S.Webster, Wesley Keith Coleman, Plaintiffs-Appellants,v.Walter J. GALLAGHER, individually, Kenneth E. Kinzler, Jr.,individually, Robert A. Pasteur, individually,Miguel A. Vasquez, individually, HectorRamirez, III, Defendants-Appellees.
No. 93-3097.
United States Court of Appeals,Eleventh Circuit.
March 29, 1995.
James M. Russ, Orlando, FL, Nina E. Vinik, Miami, FL, Helaine M. Blum, Legal Aid, Orlando, FL, for appellants.
Jeffrey G. Slater, Eubanks, Hilyard, Rumbley, Meier & Lengauer, Orlando, FL, for appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before EDMONDSON and CARNES, Circuit Judges, and HAND*, Senior District Judge.
EDMONDSON, Circuit Judge:
1
This appeal is from a decision granting defendants' motion for summary judgment in a suit pursuant to 42 U.S.C. Sec. 1983 for alleged civil rights violations. We affirm in part and vacate in part.
FACTS
2
Appellants, Dennis J. D'Aguanno, John W. McVeigh, Christine S. Webster, and Wesley K. Coleman, are four homeless people who lived in shelters they had built in a "homeless campsite" on undeveloped, private property in Orange County, Florida. At the same time, defendant Walter Gallagher was the Sheriff of Orange County, and defendants Kenneth E. Kinzler, Jr., Robert A. Pasteur, Miguel A. Vazquez, and Hector Ramirez were deputy sheriffs. Invoking 42 U.S.C. Sec. 1983, plaintiffs sued each defendant in his individual capacity for alleged civil rights violations. Plaintiffs also alleged that defendants violated state constitutional law.
3
The land upon which plaintiffs had built their shelters was owned by Rhoda Bouzek and managed by Gus Miller. Ms. Bouzek and Mr. Miller both stated that they did not know plaintiffs were living on the property and never gave permission or consent for any person to live on or to use the property. In affidavit, Ms. Bouzek said that she did not want people on her property and that she was grateful that defendants had worked to help keep people ("trespassers" in her view) off her property.1 Although plaintiffs claim they never saw "no trespassing" signs posted on the property, Mr. Miller stated that he had placed "no trespassing" signs on the property many times; but the signs were removed. Throughout the time plaintiffs occupied the property, defendant deputies visited the campsite at least once a month and routinely requested identification from the plaintiffs. Although D'Aguanno claims defendants never told him to leave the campsite, defendants repeatedly told McVeigh, Webster, and Coleman to leave the property. Defendants ultimately entered the campsite and removed plaintiffs' shelters and personal property.
4
Plaintiffs then sued defendants, alleging that defendants violated their rights secured by the United States Constitution. Plaintiffs also asserted claims for violations of the Florida Constitution. Plaintiffs argued that defendants did not have the legal authority to force them to leave; and plaintiffs sought declaratory relief, injunctive relief, monetary damages, attorneys' fees, and litigation costs. Defendants responded that their act of removing plaintiffs' shelters and personal belongings from the property was taken based on their belief that plaintiffs were trespassing on private property.
5
The district court granted defendants' motion for summary judgement on all of plaintiffs' causes of action, 827 F.Supp. 1558. The court concluded that defendants were entitled to qualified immunity on plaintiffs' claims for violations of plaintiffs' rights to peaceable assembly, freedom of association, due process of law, and to be free from unreasonable searches and seizures under both the federal and state constitutions. On the claims that defendants violated plaintiffs' rights to equal protection of the law and to be free from cruel and unusual punishment, the district court concluded that plaintiffs failed to state a claim upon which relief could be granted.2
6
Because qualified immunity is a defense only to federal claims, we hold that the district court erred in concluding that defendants were entitled to qualified immunity on the claims for violations of state law. See Andreu v. Sapp, 919 F.2d 637, 640 (11th Cir.1990). And, because qualified immunity is a defense only to claims for monetary relief, the district court erred in granting summary judgment on plaintiffs' claims for injunctive and declaratory relief. See Fortner v. Thomas, 983 F.2d 1024 (11th Cir.1993). We vacate and remand that portion of the district court's judgment granting defendants summary judgment on these issues. We address in more detail only the issue of whether the district court properly concluded that defendants were entitled to qualified immunity on the federal claims for monetary damages. The district court's decision that defendants were entitled to qualified immunity is reviewed de novo. James v. City of Douglas, 941 F.2d 1539 (11th Cir.1991).
QUALIFIED IMMUNITY
7
Government actors performing discretionary functions are entitled to qualified immunity from civil trials for money damages and may not be held liable in their individual capacity "if their conduct violates no 'clearly established statutory or constitutional rights of which a reasonable person would have known.' " Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1149 (11th Cir.1994) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). No one disputes that defendants were performing discretionary functions when the alleged constitutional violations occurred. Therefore, to overcome defendants' qualified immunity defense, plaintiffs must establish that defendants' conduct violated " 'clearly established statutory or constitutional rights of which a reasonable person would have known.' " Id. Applying this principle, we now consider each of the federal constitutional claims.
8
A. Damage Claim on Right to Peaceable Assembly and Freedom of Association:
9
Plaintiffs allege that, in removing them from the property, defendants violated plaintiffs' rights to peaceable assembly and freedom of association guaranteed in the First Amendment. To show that these rights were clearly established, plaintiffs rely mainly upon the Supreme Court's decisions in Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), and Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). In Roberts, the Court recognized "as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." Id. at 622, 104 S.Ct. at 3252. While those cases recognized a general First Amendment right to peaceable assembly and freedom of association, they did not clearly establish that people have a right to pursue such ends on the property of another without the owner's permission.
10
To overcome the qualified immunity defense, citing precedent which establishes a general right will not do. Because those cases plaintiffs cite do not dictate and compel the conclusion that defendants' acts violated plaintiffs' rights to peaceable assembly and freedom of association, and because plaintiffs have failed to cite other authority which dictates that conclusion, plaintiffs have failed to show defendants violated clearly established federal law of which a reasonable officer would have known. The district court, therefore, properly held defendants were entitled to qualified immunity on plaintiffs' First Amendment claims.3
B. Damage Claim on Right to Privacy:
11
Plaintiffs also allege that, in searching their persons and property without a warrant, defendants violated the right to privacy and the right to be secure from unreasonable searches and seizures guaranteed by the Fourth Amendment. To invoke the protection of the Fourth Amendment, plaintiffs must show that they had a subjective expectation of privacy that society, at the time, was prepared to recognize as reasonable.
12
While the facts establish that plaintiffs might have had a subjective expectation of privacy in their shelters and personal property, no case law is advanced to establish clearly that society recognized plaintiffs' expectation of privacy as reasonable under the facts of this case. Although plaintiffs cite several cases which recognize a general right to privacy, the facts of those cases are too different to show that plaintiffs' right to privacy was clearly established in the context of a case like this one. Those cases address a person's right to privacy and freedom from search and seizure when he resides or stores his belongings at another's residence or on another's property with the landowner's permission or in public places.4 Plaintiffs have cited no authority which recognizes a person's right to privacy when he lives or stores his belongings on private property without the landowner's permission.5 The district court, therefore, properly concluded that defendants were entitled to qualified immunity on this issue.
C. Damages Claim on Due Process of Law:
13
Plaintiffs claim that, in destroying their shelters and personal property without first notifying them and providing them an opportunity for a hearing, defendants violated plaintiffs' right to due process of law guaranteed by the Fifth Amendment. To show that their right to due process was clearly established, plaintiffs rely mainly on Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).6 Fuentes stands for the general proposition that the Fifth Amendment requires notice and an opportunity to be heard before the government deprives a person of his property. Such a general assertion of one's constitutional rights, however, is insufficient to overcome a qualified immunity defense. The Supreme Court explained:
14
[T]he right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of "clearly established law" were to be applied at this level of generality, it would bear no relationship to the "objective legal reasonableness" that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity ... into a rule of virtually unqualified liability simply by alleging [a] violation of extremely abstract rights.
15
Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).
16
Plaintiffs, then, must show that their right to due process was clearly established given the particular facts of this case. Plaintiffs have cited no authority that clearly states the circumstances in which homeless persons retain a property interest in the shelters they erect or whether homeless persons retain a property interest in shelters erected and property stored, without permission, on private property. The district court, therefore, properly concluded that defendants were entitled to qualified immunity on plaintiffs' due process claim.
D. Availability of Costs and Fees:
17
In the light of the complaint's prayers for relief, defendants asserted the qualified immunity defense. A question has been presented in this appeal about whether the monetary damages which the defense of qualified immunity bars include plaintiffs' claims for costs, expenses of litigation, and attorneys' fees.7 The answer is "yes." We hold that, for qualified immunity purposes, the term "damages" includes costs, expenses of litigation, and attorneys' fees claimed by a plaintiff against a defendant in the defendant's personal or individual capacity.
18
In the present case, these kinds of monetary claims might follow from plaintiffs having a successful outcome (if they do) on their federal-law-based demands for injunctive and declaratory relief. Nowadays, such sums can be substantial, often in excess of a plaintiff's other damages. The policy that supports qualified immunity--especially removing for most public officials the fear of personal monetary liability--would be undercut greatly if government officers could be held liable in their personal capacity for a plaintiff's costs, litigation expenses, and attorneys' fees in cases where the applicable law was so unsettled that defendants, in their personal capacity, were protected from liability for other civil damages.
19
Title 42 U.S.C. Sec. 1988, as amended by the Civil Rights Attorneys' Fees Awards Act of 1976, provides in part:In any action or proceeding to enforce section[ ] ... 1983 ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.
20
42 U.S.C. Sec. 1988 (1976).
21
The amended statute was largely a response to Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), a decision which limited judicial power to award attorneys' fees. See S.Rep. No. 94-1011, p. 1, 4 (1976) U.S.Code Cong. & Admin.News 1976 at pp. 5908, 5911, 5912. Still, as the Senate Committee Report shows, Congress did not foresee or require the award of fees against government officers, sued in their individual capacity, when the officers avoided acting in bad faith. The legislative history reveals from whom attorneys' fees may be collected pursuant to section 1988:
22
[I]t is intended that the attorney's fees, like other items of costs, will be collected either directly from the official, in his official capacity,* from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party).
23
Id. at p. 5 U.S.Code Cong. & Admin.News 1976 at pp. 5908, 5913. (emphasis added) (all but one footnote deleted).
24
The footnote adds a lot: "Proof that an official had acted in bad faith could also render him liable for fees in his individual capacity...." Id. at p. 5, n. 7 U.S.Code Cong. & Admin.News 1976 at p. 5913. The significance of these legislative materials is that a defense of good faith was understood by Congress--even when liberalizing the law of fees--to be a valid shield for defendants on awards of attorneys' fees to plaintiffs. And, just two years after section 1988 was amended about fees, the Supreme Court also recognized that "[a]wards against the official in his individual capacity ... were not to be affected by the statute; ... they would continue to be awarded only 'under the traditional bad faith standard recognized ... in Alyeska.' " Hutto v. Finney, 437 U.S. 678, 699-700, 98 S.Ct. 2565, 2578, 57 L.Ed.2d 522 (1978). Again, good faith barred fee awards against individuals. With the Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), decision, good faith became an objective as opposed to a subjective standard. But, under Harlow and its progeny, qualified immunity continues to be good faith immunity. Id. at 815, 102 S.Ct. at 2736 ("Qualified or 'good faith' immunity is an affirmative defense...."). Put differently, if a defendant has qualified immunity for damages, the defendant has good faith immunity for the purposes of fees and so on.
25
Because section 1988, especially when read in the light of its legislative history, requires no award of costs, litigation expenses, or attorneys' fees from defendants in their personal capacity8 and because the policy underlying qualified immunity would in no way be advanced by the award of such costs and fees against defendants in their personal capacity, we hold that such awards, even in actions for injunctive and declaratory relief, are barred when the defendant's conduct meets the objective good faith standard encompassed by the qualified immunity doctrine.9
26
AFFIRMED in part, VACATED in part, and REMANDED.APPENDIX
United States District Court
Middle District of Florida
Orlando Division
DENNIS J. D'AGUANNO, JOHN WILLIAM
MCVEIGH, CHRISTINE S. WEBSTER AND
27
WESLEY KEITH COLEMAN,
28
Plaintiffs,
29
-VS-
30
WALTER J. GALLAGHER, INDIVIDUALLY,
31
KENNETH E. KINZLER, JR., INDIVIDUALLY,
32
ROBERT A. PASTEUR, INDIVIDUALLY,
MIGUEL A. VAZQUEZ, INDIVIDUALLY AND
33
HECTOR RAMIREZ, III, INDIVIDUALLY,
34
Defendants.
Case No: 92-991-CIV-ORL-18
AFFIDAVIT
35
STATE OF FLORIDA,
COUNTY OF ORANGE, SS:
36
BEFORE ME, the undersigned authority, duly authorized to administer oaths, personally appeared RHODA BOUZEK and upon being duly sworn by me deposes and says as follows:
37
1. My name is RHODA BOUZEK and I am over the age of 18 years and have personal knowledge of the information contained herein.
38
2. I reside at 7940 Redwood Lane, Parkland, Florida 33067. I am the owner of the home and real property located at 7940 Redwood Lane, Parkland, Florida.
39
3. In addition to owning the above-described property at Redwood Lane I own other real property in Orange County, Florida. Included in the other real property owned by me and others is a piece of land located in a wooded area west of 1730 Forsyth Road near East Highway 50 in Orange County, Florida. I am one of the owners and act as trustee for all owners of said parcel of land. I have been a partial titleholder and trustee for said property since 1987. The size of that piece of land is approximately 14 acres. That piece of property is unimproved and contains no permanent structures. Neither has there ever been on this land any temporary structures, residential or otherwise, which have been there with my permission and consent as the owner of the property.
40
4. At no time have I ever given my permission or consent for any person(s) to reside, live, establish housekeeping or stay upon my property located off of Forsyth Road near East Highway 50. Nor did I at any time give my permission or consent for any person(s) to use the property. I never gave my permission or consent for any person(s) to erect a home, shelter, shed or other structure on the property.
41
5. I am unaware of ever having met or communicated with Dennis J. D'Aguanno, John William McVeigh, Christine S. Webster or Wesley Keith Coleman. To the extent that any of these persons were on my property at Forsyth Road near East Highway 50 in Orange County, Florida, it was without my consent, permission or knowledge. Any use of the property by Dennis J. D'Aguanno, John William McVeigh, Christine S. Webster or Wesley Keith Coleman for any purpose, including residence or shelter, was without my consent, permission or knowledge.
42
6. I do not wish to have my property occupied and used by persons without my consent or permission and am grateful to law enforcement officers whom have worked to keep people from my property and work to keep people from my property who are upon it without my permission and consent.
43
7. Any persons upon the parcel of land located off Forsyth Road near East Highway 50 in Orange County, Florida, at any time were trespassers upon said property.
44
FURTHER AFFIANT SAYETH NOT.
45
/s/ Rhoda Bouzek
46
Rhoda BouzekNOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
*
Honorable W.B. Hand, Senior U.S. District Judge for the Southern District of Alabama, sitting by designation
1
The full text of the affidavit is set out in an appendix to this opinion
2
Because plaintiffs do not constitute a suspect class and failed to prove that defendants' acts were unrelated to a permissible government objective, we conclude that the district court did not err in granting defendants summary judgement on the claims for violations of the right to equal protection of the laws. Kite v. Marshall, 661 F.2d 1027, 1030 (5th Cir.1981). The cruel and unusual punishment clause only protects people who have been convicted of a crime. Whitley v. Albers, 475 U.S. 312, 317-18, 106 S.Ct. 1078, 1083, 89 L.Ed.2d 251 (1986). We affirm the district court's judgement on these issues without further discussion
3
Plaintiffs also rely upon Wilson v. Taylor, 733 F.2d 1539 (11th Cir.1984), and Sawyer v. Sandstrom, 615 F.2d 311 (5th Cir.1980), to prove their First Amendment rights were clearly established. Those cases, however, are not sufficiently similar to this one to give the defendants notice that plaintiffs retained the rights to peaceable assembly and freedom of association while living on private property without the permission of the owner
4
See Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (overnight house guest had legitimate expectation of privacy in his host's home); U.S. v. Forker, 928 F.2d 365 (11th Cir.1990) (right to privacy of persons living in motel rooms); O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (employee's expectation of privacy in his office); and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (right to privacy in conversations from a public telephone booth)
5
While one district court in Florida has said that society is willing to recognize a homeless person's expectation of privacy in his personal belongings, plaintiffs have cited no authority sufficient to show that expectation of privacy is reasonable in a situation where people and their belongings are on the property of another without the landowner's permission. Moreover, a district court decision cannot establish constitutional rights for qualified immunity purposes. See Muhammad v. Wainwright, 839 F.2d 1422, 1425 (11th Cir.1987)
6
The remaining cases on which plaintiffs rely do not come from the U.S. Supreme Court, the Eleventh Circuit Court of Appeals, or the Florida Supreme Court and, therefore, cannot show that plaintiffs' right to due process was clearly established. See Courson v. McMillian, 939 F.2d 1479, 1498, n. 32 (11th Cir.1991)
7
It bears reiteration that this opinion deals with claims against defendants in their individual capacity. Also, this appeal presents no question about the power of the courts to award fees, expenses of litigation, or costs where the defendants in the conduct of the underlying section 1983 or similar litigation have acted unreasonably, causing the plaintiffs or the courts unnecessary trouble and expense; we, therefore, say nothing about that issue. But, in cases involving the qualified immunity defense, no court should award fees or costs against a defendant in his individual capacity without first making clear with particularity the unreasonable conduct during the litigation that supports the award
8
Rule 54(d) of the Federal Rules of Civil Procedure also is not truly mandatory on the matter of allowing costs
9
Plaintiffs cite Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984) (5 to 4 opinion), for the proposition that qualified immunity provides no defense to claims for costs and attorneys' fees. But Pulliam decided nothing about the qualified immunity doctrine. Pulliam involved a common-law immunity, absolute judicial immunity. These two kinds of immunity are different
Judicial immunity protects even knowingly wicked conduct, so long as it is done in the scope of judicial duties. That members of the Supreme Court and Congress would limit such iron-clad, absolute immunity as much as history would permit is understandable. In contrast, qualified immunity only protects government officials whose conduct was, in the light of federal law, reasonable. As a consequence, we think a judicial officer, in the right case, might be absolutely immune to suit for damages and, also, have qualified immunity on the question of attorneys' fees, although judicial immunity would not have barred the fees.
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12 Ill. App.2d 80 (1956)
138 N.E.2d 707
George Vincent Menagh and Lillian Menagh, Appellees,
v.
Frances Hill, Appellant.
Gen. No. 47,010.
Illinois Appellate Court First District, Third Division.
December 5, 1956.
Released for publication January 2, 1957.
*81 Traeger, Bolger & Traeger and John A. Kahoun, all of Chicago, for appellant.
Bergstrom, Evans & Nelson and Benjamin J. Sachs, all of Chicago, for appellees; Edward H. Nelson, of counsel.
JUDGE LEWE delivered the opinion of the court.
Plaintiffs recovered a judgment before a police magistrate in a forcible entry and detainer suit. On appeal by defendant to the Circuit Court, the judgment was affirmed, whereupon defendant appealed to this court.
The facts are substantially as follows: Since October 1932, defendant has been living at 15005 Chicago Road, Dalton, Illinois. In 1932, these premises were improved with an old building formerly used as a real estate office. At that time, one Jacobson told defendant that she could live in the building if she partitioned it and replaced the doors and windows. About that time, defendant was also told by one Menn that he owned the building but not the land. Menn granted defendant permission to live in the premises in question without paying rent.
Plaintiffs claim ownership of the land and the right of possession under a quitclaim deed from plaintiff George Menagh's father and mother dated in 1945. Over defendant's objection, plaintiffs introduced in evidence a trustee's deed and a contract for the sale of the premises from Union Bank of Chicago to plaintiff's father. These documents were dated in the year 1925.
An attorney testifying in plaintiffs' behalf, said that in 1950, he showed defendant the deeds held by plaintiffs *82 and requested a monthly rent of $10. Two letters, one dated in August and one in September, 1950, were received in evidence, purportedly written to defendant requesting the rent payment and threatening legal action.
Over defendant's objection, plaintiffs also introduced in evidence tax and special assessment receipts, showing payment by plaintiffs as owners of the property, and a survey of the property in question made in 1949.
The first question presented for determination is whether in the absence of a complaint in writing as required by Chapter 57, section 5, Ill. Rev. Stat. 1955 (State Bar Ass'n ed.), the police magistrate had jurisdiction of the subject matter.
The pertinent part of section five reads:
"On complaint in writing by the party or parties entitled to the possession of such premises being filed in any court of record, or with any justice of the peace in the county where such premises are situated, stating that such party is entitled to the possession of such premises (describing the same with reasonable certainty), and that the defendant (naming him) unlawfully withholds the possession thereof from him or them, the clerk of such court or such justice of the peace shall issue a summons.
"No further pleading shall be required in cases before justices of the peace."
[1] Since forcible entry and detainer is a statutory proceeding in derogation of the common law, a court entertaining such an action will be considered as a court of special and limited jurisdiction, and the procedure prescribed by the statute must be strictly followed. (See, 19 Ill. Law and Practice § 7, page 523.)
In the early case of Stolberg v. Ohnmacht, 50 Ill. 442, an action for forcible entry and detainer, it appears that the justice issued a summons without an affidavit having been previously filed, in accordance with the provisions of a statute substantially the same as that *83 involved in the present case. The Court said at page 443:
"The affidavit is the foundation of the jurisdiction, and has been constantly so held in this court. The justice had no jurisdiction when he issued the summons, and could acquire none, for the purposes of that suit, by allowing an affidavit to be filed on the day of trial."
In Abbott v. Kruse, 37 Ill. App. 549, this court held that in a forcible detainer proceeding before a justice, a complaint in writing is jurisdictional (citing Schaumtoeffel v. Belm, 77 Ill. 567, and Center v. Gibney, 71 Ill. 557) and if the justice had no jurisdiction of the case the court on appeal had none.
In Redfern v. Botham, 70 Ill. App. 253, the transcript of the proceedings before the justice disclosed a "complaint filed," but no complaint in writing as required by statute was transmitted by the justice to the Circuit Court. In the Circuit Court, as in the case at bar, no proof was made or offered that a written complaint did exist. The court said at page 254: "A written complaint is necessary to the jurisdiction of the justice in forcible detainer proceedings, and unless the justice has jurisdiction, the Circuit Court on appeal has none."
In the instant case, plaintiffs say "a written complaint was before the court." An examination of the transcript on appeal from the police magistrate fails to disclose such a written complaint.
[2] In any event, plaintiffs say this objection was waived by defendant because she did not raise it in the Circuit Court. No rule of law, statutory or decisional, is cited by plaintiffs to support this proposition. We think plaintiffs' position is untenable, since the law seems well established that the filing of a written complaint before the police magistrate is jurisdictional. It follows, therefore, that the police magistrate and the Circuit Court had no jurisdiction over the subject matter.
*84 We have considered the other points urged and the authorities cited in support thereof, but in the view we take of this case we deem it unnecessary to discuss them.
For the reasons stated, the judgment is reversed.
Judgment reversed.
FEINBERG, P.J. and KILEY, J., concur.
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-360V
UNPUBLISHED
SUSAN LEONE, Chief Special Master Corcoran
Petitioner, Filed: April 13, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
On March 11, 2019, Susan Leone filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that she suffered a SIRVA from a flu vaccination she
received on September 12, 2017. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On April 10, 2020, Respondent filed his Rule 4(c) report in which he concedes
that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report
at 1. Specifically, Respondent concluded that Petitioner’s “alleged injury is consistent
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the
E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the ruling will be available to anyone with access to
the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to
redact medical or other information, the disclosure of which would constitute an unwarranted invasion of
privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such
material from public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
with SIRVA that was caused by the administration of petitioner’s flu vaccine on
September 12, 2017. DICP [Division of Injury Compensation Programs] did not identify
any other cause for petitioner’s SIRVA, the onset of petitioner’s SIRVA occurred within
the time period set forth on the Table, and based on the medical records outlined
above, petitioner meets the statutory requirements by suffering the condition for more
than six months. Therefore, based on the record as it now stands, petitioner has
satisfied all legal prerequisites for compensation under the Vaccine Act.” Id. at 5.
(citations omitted). Respondent further agrees that the “scope of damages to be
awarded are limited to petitioner’s SIRVA and resulting sequela, and her award should
not include damages for any other condition.” Id.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2
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In the United States Court of Federal Claims
No. 13-136C
(Filed: March 1, 2013)
**************************************** *
*
DENISE HOWARD, et al., *
*
*
Plaintiffs, *
*
v. *
*
THE UNITED STATES, *
*
Defendant. *
*
**************************************** *
ORDER
On February 21, 2013, Denise Howard filed in this Court a document
purporting to constitute a complaint against the United States. The case caption lists the
following persons as plaintiffs: “Denise L. Howard/trustee,” “Vicki A.
Kugler/Beneficiary,” “Seirra S. Howard/Rights violated,” and “Trust ancestors and the
generations to follow us.” Compl. at *1. Within this document, Ms. Howard requests
twenty billion dollars “in damages against my Rights, my ancestors and generations yet
to follow. For years of WAR brought upon our unalienable Rights by the municipal State
government.” Compl. at *4. Ms. Howard also requests twenty billion dollars for Vicki
A. Kugler, for the same reason, and one billion dollars for Seirra S. Howard for damages
“on her life, Liberty and pursuit of happiness, from the invasion of the municipal/State on
her unalienable Rights.” Id. The alleged wrongs suffered by the plaintiffs seemingly
stem from a decision from the district court of the first judicial district court of Idaho, in
which the judge found a settlement agreement enforceable and adjudged Ms. Howard
required to pay $60,000.00, plus interest, to another party. See Exs. 32, 35. The
settlement agreement arose from a dispute over allocations of assets under a trust
agreement. See Ex. 32. Ms. Howard refers to this trust agreement as a “sacred contract,”
upon which “years of WAR” were brought, requiring, all told, $41,000,000,000.00 in
compensation. Compl. at *3-4.
Because Ms. Howard is proceeding pro se, the Court must liberally construe her
pleading to “see if [she] has a cause of action somewhere displayed.” Stroughter v.
United States, 89 Fed. Cl. 755, 760 (Fed. Cl. 2009) (internal citation omitted). The Court
takes this duty seriously and has reviewed Ms. Howard’s complaint carefully; however, it
cannot discern a plausible cause of action therein. The Court further finds that any
expenditure of governmental resources in preparing a defense to this complaint would be
a waste of public funds.
Therefore, pursuant to its inherent authority, the Court sua sponte dismisses Ms.
Howard’s complaint for failure to state a claim. See, e.g., Rockefeller v. Chu, 471 F.
App’x 829, 830 (10th Cir. 2012) (“[A] court may sua sponte dismiss a complaint under
[Federal] Rule [of Civil Procedure] 12(b)(6) for failure to state a claim if it is patently
obvious that the plaintiff could not prevail on the facts alleged, and allowing him an
opportunity to amend his complaint would be futile.”) (internal quotation omitted); Shoop
v. Deutsche Bank Nat. Trust Co., 465 F. App’x 646, 647 (9th Cir. 2012) (similar); Chyba
v. BAC Home Loans Servicing, L.P., 460 F. App’x 373, 374 (5th Cir. 2012) (similar);
Arbeleaz v. United States, 94 Fed. Cl. 753, 763 (Fed. Cl. 2010) (similar) (citing Constant
v. United States, 929 F.2d 654, 657 (Fed. Cir. 1991); see also Stroughter, 89 Fed. Cl. at
760 (“Although pro se plaintiffs are given some leniency in presenting their case, their
pro se status does not immunize them from pleading facts upon which a valid claim can
rest[.]) ((Fed. Cl. 2009) (internal citation omitted).
Accordingly, for the foregoing reasons, Plaintiff’s complaint is dismissed for
failure to state a claim upon which relief may be granted. The Clerk is directed to
dismiss Plaintiff’s complaint without prejudice.
IT IS SO ORDERED.
____________________
THOMAS C. WHEELER
Judge
2
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 6 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOSEPH FLEMING, AS NEXT
FRIEND OF TERRY DOUG CLARK,
Petitioner-Appellant, No. 01-2330
(D.C. No. 01-1251 LH/RLP)
v. (D. N.M.)
TIM LEMASTER, Warden of New
Mexico State Penitentiary, and
PATRICIA MADRID, New Mexico
Attorney General,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge, BALDOCK, and KELLY, Circuit Judges.
On November 2, 2001, Joseph Fleming, asserting the legal status of next
friend of Terry Doug Clark, filed in the district court emergency motions for
appointment of counsel and stay of Mr. Clark’s execution, which is scheduled for
November 6, 2001 at 7:00 p.m. Mr. Fleming further requested an evidentiary
hearing to establish his standing to seek habeas corpus relief on behalf of Mr.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Clark, who has expressly abandoned any efforts to forestall his pending
execution. In a Memorandum Opinion and Order issued November 5, 2001, the
district court concluded that Mr. Fleming could not satisfy the conditions for next
friend status and, therefore, lacks standing to pursue these matters, and dismissed
the proceeding for lack of jurisdiction. Mr. Fleming filed a notice of appeal and,
shortly thereafter, the district court issued an order denying a certificate of
appealability (COA). Mr. Fleming has now submitted a lengthy document to this
court entitled “Appeal from Denial of Next Friend Standing and Motion for Stay
of Execution.” Under the circumstances, we will accept this document as a
motion for a COA, which is a prerequisite to appeal from any “final order in a
habeas corpus proceeding . . . aris[ing] out of process issued by a State court.” 28
U.S.C. § 2253(c)(1)(A). For the reasons that follow, we deny a COA and dismiss
this appeal.
“Before granting a stay, . . . federal courts must make certain that an
adequate basis exists for the exercise of federal power.” Demosthenes v. Baal,
495 U.S. 731, 737 (1990). “A grant of a stay is an exercise of judicial power, and
[the federal courts] are not authorized to exercise such power on behalf of a party
who has not first established standing.” Brewer v. Lewis, 989 F.2d 1021, 1025
(9th Cir. 1993). Thus, the focus of the district court’s analysis, as well as our
consideration of COA, properly rests on the jurisdictional issue of next friend
-2-
2
standing, and “[t]his threshold inquiry . . . in no way depends on the merits of the
[underlying habeas issues].” 1 Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)
(quotation omitted).
Next friend standing in the habeas context, including capital cases, has “at
least two firmly rooted prerequisites”:
First, a “next friend” must provide an adequate
explanation–such as inaccessibility, mental incompetence, or other
disability–why the real party in interest cannot appear on his own
behalf to prosecute the action. Second, the “next friend” must be
truly dedicated to the best interests of the person on whose behalf he
seeks to litigate, and it has been further suggested that a “next
friend” must have some significant relationship with the real party in
interest.
Id. at 163-64 (citations omitted). Ultimately, to demonstrate standing “the burden
is on the ‘next friend’ clearly to establish the propriety of his status and thereby
justify the jurisdiction of the court.” Id. at 164. Of course, our present
consideration of the question for stay and COA purposes implicates a broader,
preliminary standard: has Mr. Fleming made “a substantial showing” sufficient to
demonstrate that “reasonable jurists could debate” whether this matter was
properly dismissed for lack of standing? Slack v. McDaniel, 529 U.S. 473,
1
The threshold, jurisdictional nature of this dispositive issue likewise
precedes consideration of traditional rules favoring stays of execution in capital
habeas cases to effectuate the overriding interests of the condemned petitioner,
since, if the putative next friend is found to lack standing, such interests are–by
definition and by the petitioner’s own choice–not before the court. See Brewer ,
989 F.2d at 1024-25 (relying on Baal ).
-3-
3
483-84 (2000); see Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983); Vargas v.
Lambert, 159 F.3d 1161, 1167 (9th Cir. 1998).
The district court held that Mr. Fleming’s case for standing faltered on the
first Whitmore prong. The district court recounted the pertinent averments from
Mr. Fleming’s affidavit:
Mr. Fleming states that he knew who Mr. Clark was in high school,
though they attended different schools, and first made acquaintance
with him after 1979 through his sister’s husband, who knew Mr.
Clark quite well. Additionally, between 1981 and 1982, Mr. Fleming
was married to a woman to whom Mr. Clark was a “step-uncle.”
During this period, Mr. Fleming and Mr. Clark went out to bars and
socialized together with other friends. After 1982, however, Mr.
Fleming lost touch with Mr. Clark. Around Christmas of last year,
Mr. Fleming wrote a card to Mr. Clark and they began a
correspondence. Mr. Fleming attended a court proceeding involving
Mr. Clark this past summer, but was not allowed to speak with him.”
District Court Memorandum Opinion and Order at 2. The court then assessed
these facts in light of Whitmore as follows:
[Mr. Fleming’s] association with Mr. Clark is attenuated, at best, and
the Court cannot find that theirs is a significant relationship. In fact,
Mr. Fleming appears to be nothing more than an intruder and
uninvited meddler. Additionally, Mr. Clark has informed the Court
through his lawyer that he does not want to be transported for a
hearing in this matter. The Court is unable to conclude that Mr.
Fleming is truly dedicated to the best interests of Mr. Clark.
Id. (citations omitted).
-4-
4
Mr. Fleming has not cited any authority in which a comparable relationship
was deemed sufficient to support a determination of next friend standing.
However, this court has not found any authority denying next friend status on this
basis either. All of the case law applying Whitmore has thus far turned, rather, on
the second prong, regarding the real party’s inability to litigate on his own behalf,
which is negated where the real party “has given a knowing, intelligent, and
voluntary waiver of his right to proceed, and his access to court is otherwise
unimpeded.” Whitmore, 495 U.S. at 165. Consequently, while we do not
necessarily gainsay the district court’s reliance on the first prong, we look to
Whitmore’s second prong for a conclusive, undebatable resolution of the standing
issue.
Moreover, as to this waiver question, we may rely on a pertinent state court
factual finding, made after a four-day hearing held less than three months ago,
that “Clark is mentally competent to abandon any and all challenges to his death
sentence, including State post-conviction collateral review and Federal habeas
corpus as he has the mental capacity to understand the choice between life and
death and to make a knowing and intelligent decision not to pursue further
remedies.” Clark v. LeMaster, Order in No. D-0911-CR-0200100057 (Roosevelt
County District Court 2001). This determination is presumptively correct under
28 U.S.C. § 2254(e)(1). See Vargas, 159 F.3d at 1168; see also Baal, 495 U.S. at
-5-
5
735 (pre-AEDPA case applying presumption of correctness under 28 U.S.C.
§ 2254(d)).
Although he addresses the issue of competency/waiver at length, Mr.
Fleming has not offered even a remotely persuasive argument to rebut the
presumption that conclusively undermines his next friend standing. He asks this
court essentially to re-weigh the credibility of the opposing expert witnesses who
appeared in the state court proceeding. Far from providing the “clear and
convincing evidence” necessary to rebut the statutory presumption, such
challenges to witness credibility implicate our “special deference to . . . matters
which the trial court is in the best position to assess.” Johnson v. Gibson, 254
F.3d 1155, 1160 (10th Cir. 2001). Further, Mr. Fleming has not offered any
“meaningful evidence” to suggest that Mr. Clark “might have become
incompetent some time after the State’s evidentiary hearing.” Baal, 495 U.S. at
736.
Instead, Mr. Fleming advances several conclusory legal points, none of
which hold up to scrutiny. We shall briefly address those warranting any
comment. First, he notes that this is a capital case. However, he fails to cite any
authority holding either that the standard for next friend status is broadened, or
that the § 2254(e) presumption is attenuated, in this context.
-6-
6
Second, he argues that the state trial court determination of valid waiver
has not been reviewed on appeal (the state supreme court declined to hear any
appeal in the matter based on Mr. Clark’s own objection thereto). Again,
however, he cites no authority holding that the unqualified reference in § 2254(e)
to any “determination of a factual issue made by a State court” is limited to
determinations made by trial courts which have been affirmed on appeal. See
Duncan v. Morton, 256 F.3d 189, 195 (3d Cir.) (recognizing that § 2254(e)
presumption “applies to the factual determinations of both state trial and appellate
courts”), cert. denied, 122 S. Ct. 269 (2001); see also Sumner v. Mata, 449 U.S.
539, 545 (1981) (noting that earlier version of presumption, in § 2254(d), likewise
“ma[de] no distinction between factual determinations of a state trial court and
those of a state appellate court”). Indeed, to apply such a requirement in the
present context, where the state appeal was dismissed based on the waiver upheld
by the trial court, would mean that the state court’s very effectuation of the
waiver found to be valid would undercut its presumptive validity in a subsequent
federal proceeding brought by a third party (contrary to the real party’s expressed
wishes).
Third, he argues that the waiver has never been “scrutinized” by a federal
court. This argument displays a very basic misunderstanding of § 2254(e): the
whole purpose of the presumption would obviously be lost if it were applicable
-7-
7
only after a federal court first scrutinized the factual determination to which it
applies.
Finally, he insists that Mr. Clark could raise “dead bang winner” challenges
to his conviction and sentence. As already noted, however, the merits of possible
underlying habeas claims is irrelevant to the threshold jurisdictional question
whether Mr. Fleming has standing to assert such issues on Mr. Clark’s behalf.
For the reasons stated above, we deny a certificate of appealability and
dismiss the appeal. The motion for stay is, accordingly, denied as moot.
Entered for the Court
Per Curiam
-8-
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5 Ariz. App. 436 (1967)
427 P.2d 928
The STATE of Arizona, Appellee,
v.
Sandy BOWLING, and Harold Cook, Appellants.
No. 2 CA-CR 79.
Court of Appeals of Arizona.
May 16, 1967.
Rehearing Denied June 12, 1967.
Review Denied September 21, 1967.
*437 Darrell F. Smith, Atty. Gen., Carl Waag and Jordan Green, Asst. Attys. Gen., Phoenix, William J. Schafer, III, County Atty., Pima County, Tucson, for appellee.
Lawrence P. D'Antonio, Tucson, for appellant Bowling.
Joseph H. Soble, Tucson, for appellant Cook.
MOLLOY, Judge.
The defendants in this action appeal from convictions upon two counts of an indictment rendered against them by a grand jury. Both were charged in count one of this indictment with conspiracy to commit an act "* * * injurious to the public morals or unlawfully perverting or obstructing justice or due administration of the laws * * *" and in count two of receiving a bribe, while a member of the Arizona State Legislature, "* * * upon an understanding that their official opinions, judgments and actions should be influenced thereby * * *".
The facts giving rise to these charges are substantially without dispute. A resident of Pima county by the name of Jerry Hanson, the co-proprietor of a tavern, was desirous of obtaining a new liquor license for his business, which would permit the sale of additional types of liquor.[1] He had a conversation with Bowling, one of the defendants, who was at the time a member of the House of Representatives of the Arizona State Legislature, about assistance in obtaining such license. Bowling informed Hanson that he might be able to assist him, and arranged a meeting between Hanson, himself, and the other defendant, Cook, who was also a member of the Arizona House of Representatives. Hanson testified that Cook was introduced to him only as a legislator, while Bowling testified that Cook was introduced as a real estate broker. At this meeting, Hanson was informed that it would cost approximately $5,000 for the license over and above regular *438 license fees and at a subsequent meeting, it was agreed that Hanson would pay $4,200, over and above the normal license fees, if the liquor license was obtained for him.
An application for such a license was duly submitted and a personal conference with Mr. John Duncan, Superintendent of Liquor Licenses and Control for the State of Arizona, followed, with Hanson, Bowling and Cook all speaking in behalf of the issuance of the license. The statements made in support of issuing the license were in the nature of character references for Hanson and his father, who was a partner in the tavern, and included the argument that such a license was needed because two families were to be supported from this one business. There was no showing in the evidence of any inducements being offered to Mr. Duncan to issue the license nor of any improper persuasions advanced. The testimony is undisputed that Hanson was fully qualified under applicable law for the issuance of the license and that the location as to which the license application pertained fulfilled all of the legal requirements for such a license.[2]
About a month after the conversation with Duncan, Cook contacted Hanson to inform him that the license had been issued, and Cook together with Bowling, brought the license to Hanson's home, where Hanson gave them $4,200 in cash. Bowling testified that all of this money was received and retained by Cook; Cook did not take the stand during the trial.
Numerous questions are raised on appeal, but it is our judgment that this proceeding must be disposed of on the basis of the contention that the trial court erred in refusing to direct a verdict of acquittal at the close of the State's case as to both counts of the indictment.
Count one of the indictment charges a crime under A.R.S. § 13-331. This statute, insofar as pertinent here, reads as follows:
"A. It is unlawful for two or more persons to conspire to:
* * * * * *
"5. Commit any act injurious to the public health or public morals.
"6. Pervert or obstruct justice or due administration of laws.
"B. A person who violates any provision of this section shall be punished by imprisonment in the state prison for not to exceed one year, or by a fine not exceeding one thousand dollars.
"C. No conspiracies other than those enumerated in this section are punishable criminally."
From this statute, the following language was selected to charge that the defendants: "* * * did unlawfully conspire with each other to obtain a Series No. 6 Arizona State Liquor License for one JERRY HANSON from JOHN A. DUNCAN, the Superintendent of the Arizona State Department of Liquor Licenses and Control, * * *[3] such act being injurious to the[4] public morals or unlawfully perverting or *439 obstructing justice or due administration of the laws * * *."
Initially, the appellants challenge the language charged in the indictment that they conspired to commit an act "injurious to public morals" on the grounds that it is unconstitutionally indefinite. In State v. Locks, 97 Ariz. 148, 397 P.2d 949 (1964), the Supreme Court of this state struck down as unconstitutionally vague a statute making it a misdemeanor to publish an "obscene or indecent picture." In this decision our Supreme Court said:
"The law must be definite and certain so that the same standard of conduct may be applied by all persons affected. The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes, the mandates of which are so uncertain that they will admit to different constructions. The crime and the elements constituting it must be so clearly expressed that the ordinary person can intelligently choose in advance what course it is lawful for him to pursue."
97 Ariz. at 150, 397 P.2d at 951.
In considering a Utah statute with similar wording,[5] the Supreme Court of the United States said:
"Standing by itself, it would seem to be warrant for conviction for agreement to do almost any act which a judge and jury might find at the moment contrary to his or its notions of what was good for health, morals, trade, commerce, justice or order."
Musser v. State of Utah, 333 U.S. 95, 68 S.Ct. 397, 398, 92 L.Ed. 562 (1948).
The Supreme Court of the United States remanded the Musser case to the Utah Supreme Court to consider whether the language of this statute was unconstitutionally vague. The United States Supreme Court suggested that there was a possibility that under Utah statutory or case law the broad language of the statute might have been limited so as to give the required degree of specificity thereto.
The Supreme Court of Utah, however, was unable to point to any limitations upon the subject language and came to the conclusion that this statute, making it a crime to conspire to commit an act "* * injurious * * * to public morals * *" was unconstitutional:
"No language in this or any other statute of this state or other law thereof or any historical fact or surrounding circumstance connected with the enactment of this statute has been pointed to as indicating that the legislature intended any limitation thereon other than that expressed on the face of the words used. We are therefore unable to place a construction on these words which limits their meaning beyond their general meaning. The conviction of the defendants thereunder cannot be upheld. This part of the statute is therefore void for vagueness and uncertainty under the Fourteenth Amendment to the Federal Constitution."
State v. Musser, 118 Utah 537, 223 P.2d 193, 194 (1950).
Likewise, we know of no statutory or case law in this state which limits the broad sweep of that which is encompassed within the words "* * * injurious to * * * public morals * * *". Common-law crimes have not survived in this state, and unless certain conduct is singled out by criminal statute, conduct is not a crime no matter how reprehensible. Goodman v. State, 96 Ariz. 139, 393 P.2d 148 (1964).
*440 We are aware that if a criminal statute refers by name to a common-law crime, the elements of that common-law crime may give sufficient definitiveness to statutory language. State v. Cota, 99 Ariz. 233, 408 P.2d 23 (1965). However, we know of no common-law crime which bears analogy to the committing of an act "injurious to public morals."
In our view, these key words are even more vague and indefinite than the language "obscene or indecent," which was struck down by our Supreme Court in State v. Locks, supra. We follow the specific holding of State v. Musser, supra, in declaring that this language is not sufficiently definite to satisfy due process requirements.
The State has contended that California, from whence our state adopted the statutory language under which these defendants were charged,[6] has upheld the statute as to constitutionality. The cases cited are: Lorenson v. Superior Court, 35 Cal.2d 49, 216 P.2d 859 (1950); People v. Sullivan, 113 Cal. App.2d 510, 248 P.2d 520 (1952); Calhoun v. Superior Court, 46 Cal.2d 18, 291 P.2d 474 (1955); and Davis v. Superior Court, 175 Cal. App.2d 8, 345 P.2d 513 (1959). An examination of these decisions, however, will disclose no reliance upon that portion of the statute pertaining to acts injurious to the "public morals." These decisions all lean upon the words "to pervert or to obstruct justice or the due administration of the laws", as illustrated in the following language in Lorenson:
"Considering the well-settled meaning at common law of the words `to pervert or obstruct justice, or the due administration of the laws', the other and more specific provisions in the Penal Code concerning `Crimes Against Public Justice', and the relative certainty of words employed in statutes which have been held valid, it cannot be said that subsection 5 of section 182 of the Penal Code is unconstitutional."
216 P.2d at 866.
In each of the four California cases, there was at least one specific criminal statute as to which the charges of conspiracy related. Here the State points to no criminal statute which the defendants are charged to have conspired to violate. Hence, under these California decisions, this charge can be sufficiently specific only if it charges a conspiracy to commit an act which would constitute the common-law crime "to pervert or obstruct justice, or the due administration of laws." Lorenson undertakes to define this common-law misdemeanor in this language:
"Section 182 defines as criminal conspiracy acts committed with the purpose `* * * to pervert or obstruct justice, or the due administration of the laws.' [G]enerally speaking, conduct which constitutes an offense against public justice, or the administration of law includes both malfeasance and nonfeasance by an officer in connection with the administration of his public duties, and also anything done by a person in hindering or obstructing an officer in the performance of his official obligations. Such an offense was recognized at common law and generally punishable as a misdemeanor. Now, quite generally, it has been made a statutory crime and, under some circumstances, a felony. Burdick, Law of Crimes [1946], vol. 1, p. 382, et seq.; 20 Cal.Jur. 347-354." (Emphasis added)
216 P.2d at 865.
In Davis, in rejecting the contention that the "obstruction of justice" statute was unconstitutional on its face, the court said:
"The constitutionality of the California statute, however, rests upon the fact that three cases have charted boundaries to its otherwise limitless sea of criminality."
345 P.2d at 517.
*441 These California decisions leave open the possibility that the remaining language in count one of the subject indictment "unlawfully perverting or obstructing justice or due administration of the laws" properly charges a criminal offense. In this regard, the appellants do not directly attack this charging language upon constitutional grounds, but rather on the basis of lack of proof. In considering this argument, we have concluded that unless the acceptance of $4,200 by the defendants constituted a violation of this law, there was no proof submitted to the jury meriting a conviction on the conspriacy charge.
Applicable law gives to the Superintendent of Liquor Licenses and Control carte blanche discretion in selecting the recipients of the "quota" of new licenses available each year. A.R.S. § 4-206, subsec. G. During the calendar year 1963, the statute permitted, but apparently did not require ("* * * may be issued * * *") additional licenses not to exceed 5 per cent of the total number of each class of such license issued and in effect within the particular county as of December 31, 1961. A.R.S. § 4-206, subsec. G. The statutes do not provide for a hearing at which various applicants may be given the opportunity to establish better entitlement, nor, in fact, do the statutes give any standard upon which the superintendent is to render his decision as to which applicants are to receive any one of the new licenses authorized by law. A.R.S. § 4-205.02. The testimony indicates that for 1963 there was a "quota" allowed by the subject statute of eleven new licenses in Pima county and that there were approximately thirty-five applicants for these eleven licenses.
Under these circumstances, it seems clear that these defendants, Bowling and Cook, or any other person, could have recommended to Mr. Duncan the issuance of a license to any particular applicant, for any legitimate reason, without violating criminal law, and, in fact, this is not disputed by the State in this action. But the State contends that the acceptance of the $4,200 renders that which would otherwise be legal conduct into a perversion or obstruction of justice and/or due administration of laws. No pertinent authority is cited.
We see no justification for characterizing the defendants' conduct as a perversion or obstruction of "justice or due administration of laws," assuming that these concepts are made sufficiently definite by reference to the common law. The act charged as to which there was alleged to have been a conspiracy was the obtaining of the license for Hanson. The selection of Hanson by Duncan for the receipt of one of the quota licenses was not, in and of itself, a "malfeasance" or a "nonfeasance" nor a failure to perform "official obligations." (In the language of Lorenson.) The conduct of the defendants simply does not fit the charging language in count one of the indictment. Any conspiratorial conduct of the defendants, if criminal at all under the then existing law, most closely approached being a conspiracy to violate a bribery statute,[7] a charge not made, nor, as we shall see, supportable in the evidence. The fact that conduct may be highly reprehensible in the eyes of the courts does not justify the court in distorting language of a criminal statute to fit the conduct. A verdict should have been directed for the defendants on count one.
We pass on to the second count, charging the acceptance of a bribe by a legislator as proscribed in A.R.S. § 13-286, reading as follows:
"A member of the legislature who asks, receives or agrees to receive a bribe upon an understanding that his official vote, opinion, judgment or action shall be influenced thereby, or shall be given in any particular manner, or upon any particular side of a question or matter upon which he may be required to act in his official capacity, or casts, or *442 offers or promises to cast, an official vote in consideration that another member of the legislature will cast such vote, either upon the same or another question, shall be punished by imprisonment in the state prison for not less than one nor more than fourteen years." (Emphasis added)
The appellants contend that there is a complete absence of any proof that there was any understanding, that the "official vote, opinion, judgment or action" of these defendants would be influenced by the monies received as established in this record. A leading case in Arizona in this area of our law, State v. Hendricks, 66 Ariz. 235, 186 P.2d 943 (1947), quotes with approval from 1 Burdick, Law of Crime § 291, as follows:
"`The act intended to be influenced must be connected with one's official or public duty, although the duty may possibly arise only in the future, but if the act is associated with official duty, it is immaterial whether the bribed person has, or has not, authority to do that specific thing, since the essence of the crime is the fact that he agreed to do it under color of office.'"
66 Ariz. at 242, 186 P.2d at 947.
The court in Hendricks proceeded to expound on this requirement as follows:
"The rule requiring that the matter in which the bribe is attempted be related to the officer's duty before it can be a crime, is a wise one. The possible perversion of justice is the touchstone and guide. And though it might be morally improper and may well involve some other crime to give or offer money to an officer to do an act totally unrelated to his job, it would not be bribery."
66 Ariz. at 242, 186 P.2d at 948.
In Hendricks, monies paid to induce the highway patrolman to refrain from referring travelers on a state highway to local law-enforcement officers was held to be a bribe. The court examined applicable statutes to conclude that highway patrolmen are "* * * peace officers for the purpose of enforcing the laws relating to the use of highways * * *" (§ 66-701 A.C.A. 1939) and that there is "* * * an actual relation * * *" between the "* * * officer's official duties * * *" (66 Ariz. at 241, 186 P.2d 943) and the referring of travelers on the state highways, who complain of a gambling establishment fronting on the highway, to appropriate law-enforcement officials. We see a "color of office" in Hendricks which is lacking here.
No statute has been called to our attention which in any way suggests that a legislator has a duty to solicit liquor licenses before the Superintendent of Liquor Licenses and Control. Under our statutes, there is little connection between a member of the lower house of our legislature and this licensing agency. The Superintendent is appointed by the Governor of this State with the advice and consent of the State Senate and it is only the Governor who may remove him, subject to review in the court. A.R.S. § 4-111. That there is an inherent impropriety in the defendants' solicitation, however, is apparent when it is remembered that they made no disclosure to the Superintendent that they were appearing before him for remuneration and that as legislators they had some control over his salary, A.R.S. § 4-111, and over all monies expended by his department. Ch. 1, Tit. 35, A.R.S.
We accept the proposition, urged by the State, that the official duties of a public officer need not be prescribed by statute but may be imposed by regulation or by usage and custom. Cited decisions, such as United States v. Birdsall, 233 U.S. 223, 34 S.Ct. 512, 58 L.Ed. 930 (1913), Daniels v. United States, 17 F.2d 339 (9th Cir.1927), Cohen v. United States, 144 F.2d 984 (9th Cir.1944), so hold.
Birdsall and Cohen both involved attempts to influence a recommendation to be made by a government employee, and hence bear the most resemblance to the problem at hand here. In Birdsall it was held that an attorney could be convicted of bribing *443 a special officer of the Office of Indian Affairs to make a recommendation of clemency in regard to the lawyer's clients, who had been convicted of violating criminal law proscribing sale of liquor to Indians. The Court said:
"To constitute it official action, it was not necessary that it should be prescribed by statute; it was sufficient that it was governed by a lawful requirement of the Department under whose authority the officer was acting (Rev.Stat. § 161, U.S. Comp.Stat. 1901, p. 80; Benson v. Henkel, 198 U.S. 1, 12, 49 L.Ed. 919, 922, 25 Sup.Ct.Rep. 569; Haas v. Henkel, 216 U.S. 462, 480, 54 L.Ed. 569, 577, 30 Sup.Ct.Rep. 249, 17 Ann.Cas. 1112). Nor was it necessary that the requirement should be prescribed by a written rule or regulation. It might also be found in an established usage which constituted the common law of the Department and fixed the duties of those engaged in its activities."
34 S.Ct. at 514.
"For this reason, if for no other, it was within the competency of the office [Indian Affairs] to establish regulations, and practices having the force of regulations, that all persons employed in its work should render to the Commissioner whenever requested true reports and give disinterested and honest advice upon the facts known to them with respect to the advisability of showing leniency to convicted violators of the law."
(Emphasis added) 34 S.Ct. at 516.
In Cohen, the Court held that an appeal agent to a local draft board could be bribed to advise the local draft board to recommend to the War Department a furlough for an inductee. The Court referred to memoranda issued by the National Headquarters of Selective Service System indicating that there was a "* * * duty of cooperation between civil and military authorities * *" (144 F.2d at 986-987), to a "* * * history of local board recommendation of such furloughs to the War Department" (144 F.2d at 987) showing that "* * * usages of the Selective Service System required the board to grant its advice in compliance with the army's demand" (144 F.2d at 987), and to the Selective Service Regulations, paragraph 603.71, indicating that the appeal agent had a duty to investigate and report to the local draft board on matters such as the furlough recommendation sought to be influenced (144 F.2d at 987).
In these cases we see proof that is lacking here. In order to satisfy the requirements of these cases, we believe there would have to be substantial proof that there was a custom or usage for legislators to make fair and impartial and hence "official" recommendations to the Superintendent of Liquor Licenses and Control as to which applicants should receive an available license.
Apparently realizing a deficiency in this regard, the prosecuting attorney elicited from the witness Hanson the following testimony:
"Q I believe you testified before the jury went out that you were familiar around 1963 of the habit, custom and tradition here in Pima County for applicants obtaining licenses out of Mr. Duncan's office; is that correct?
"A Yes.
"Q What is that habit, custom and usage, sir? What was it at that time?
"A Going through a legislator to obtain one.
"Q In what capacity did you have to go through a legislator?
"A Money."
The foundation for this testimony was that Mr. Hanson was acquainted with 90 per cent of the bar owners in Tucson; that he had been on a board of directors and a member of the Retail Liquor Dealers Association; and that he knew from "hearsay" that it was customary to go through a legislator to get a liquor license. There was no other evidence of similar import. The proof presented leaves one with the innuendo that it is customary for legislators *444 to accept money to do exactly what the defendants did in this case. However, Hanson was unable to give the name of any other legislator who had ever acted similarly and professed to know, without giving any names, only four other instances when a license had ever been secured through a legislator.
This proof, we hold, fails to close the gap in the establishment of criminality in two respects. First, the proof submitted in no way tends to prove that there was an obligation under any custom or usage for the legislator to make a good faith recommendation on the merits of the issuance of liquor licenses. Absent this, it is our belief that the purported custom only tended to show conduct of other legislators equally unsavory, but equally outside of the "official" duties of legislators.
Secondly, we do not believe that the testimonial qualifications of Hanson were such as to establish in sufficient probative force a custom and usage so as to predicate a conviction in a criminal court thereon. Generally, proof of custom is said to require "clear and satisfactory" evidence. 55 Am.Jur. Usages and Customs § 56, p. 316; 25 C.J.S. Customs and Usages § 33d, pp. 175-181; 32 C.J.S. Evidence § 546(76), p. 298. Also see 2 Wigmore, Evidence § 379 (3d ed. 1940), p. 316. The testimony of Hanson as to this "custom and usage" fails to rise above common gossip. We hold this unsupported testimony to be insufficient to meet the standard above expressed.
In attempting to show the inapplicability of the bribery statute to the subject conduct, the appellants ask in their brief:
"Would they violate the statute by accepting remuneration for a speaking engagement on behalf of a local candidate for office? How about a legislator-attorney who represents a property holder on a variance before a local zoning board? Or a legislator-physician who accepted a free dinner to speak for or against medicare?"
While we can see a distinction in degree of impropriety between these postulated activities of a legislator and that presented here, we are of the opinion that the subject statute draws no discernible line separating this type of concededly noncriminal conduct from that sought to be punished as a felony in this action. That the legislature has the power to delineate for punishment the type of conduct under consideration is not the question before us,[8] but rather whether it had done so at the time of the commission of these acts. We hold that it had not.
The decision reached here we believe to be in accord with all case law called to our attention. The State has cited no decision holding similar "influence peddling" by a legislator to be a violation of a bribery statute. State v. Nadeau, 81 R.I. 505, 105 A.2d 194 (1954), held that a city councilman could not be bribed to favor a particular candidate for appointment to the city police force, because appointments to the city police force under pertinent law were within the authority of a board of police commissioners, of which the city councilman was not a member and over which he had no control. State v. Hibicke, 263 Wis. 213, 56 N.W.2d 818 (1953), holds that a police constable could not be bribed to recommend to a town council the issuance of a trailer-camp license to a particular applicant because the making of such recommendation was not a part of the constable's "duty in law *445 enforcement." (56 N.W.2d at 820). People v. Leve, 309 Mich. 557, 16 N.W.2d 72 (1944), held, under a similar statute, that it was reversible error to instruct a jury that a conviction might lie if the defendant had agreed that "his vote, opinion or judgment or `influence'" (emphasis added) be given in any particular manner. The court said:
"In the instant case the statute provides for vote, opinion or judgment. It does not make it a crime to use influence."
16 N.W.2d at 75.
For the reasons expressed herein the judgment is reversed and judgment of acquittal as to both counts is ordered to be entered as to both defendants.
HATHAWAY, C.J., and KRUCKER, J., concur.
NOTES
[1] Hanson had a "No. 7" license which permitted him to sell wine and beer only to his patrons; he desired to secure a "No. 6" license which would permit him to sell all spirituous liquors. A.R.S. § 4-209, subsec. B.
[2] A.R.S. § 4-207 prohibits the issuance of a liquor license for any building within three hundred feet of a public or parochial school or church, or upon land under the jurisdiction of the state fair commission.
[3] We have deliberately omitted the following language:
"* * * for the sum of $4200.00 above the lawfully set State fees for such a license, such sum of money being paid by the said JERRY HANSON and received by SANDY BOWLING and HAROLD COOK for the said SANDY BOWLING'S and HAROLD COOK'S obtaining said license from the office of the aforesaid JOHN A. DUNCAN * * *"
We consider this to be a statement of the consideration for the act as to which an illegal conspiracy is alleged to have occurred. This allegation is similar to the allegations of consideration in State v. Sullivan, 68 Ariz. 81, 200 P.2d 346 (1948), proof of which was held to be insufficient to establish overt acts of conspiracy.
[4] In the original indictment, the words "public health or" were included here, but these three words were stricken from the indictment at the time of trial on motion of the prosecution.
[5] The defendants were charged in this case with conspiring "* * * to commit acts injurious to public morals * * *" (68 S.Ct. at 397) under a criminal statute which made it a crime "[t]o commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice or the due administration of the laws * * *" (68 S.Ct. at pp. 397-398.)
[6] The historical note following § 13-331 indicates that it was adopted from West's Annotated Penal Code §§ 182 and 183.
[7] A.R.S. § 13-331 makes it a crime to conspire to "commit any crime." (Emphasis added)
[8] We note in passing that the Twenty-eighth Legislature adopted as Ch. 18 of its First Regular Session Laws a new Article 12 to Ch. 7 of Tit. 41, A.R.S., dealing with the subject of "ethics" of members of the legislature. Subsection 4 of new section 41-1291, A.R.S., pertaining to the acceptance of compensation for services rendered in relation to any matter or proceeding pending before a state agency, would appear to pertain to conduct similar to that charged herein. By this new legislation, a violation of this subsection is made punishable by imprisonment for not more than ten years, by a fine of not exceeding $10,000, or both. A.R.S. § 41-1297.
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399 F.2d 214
SAYLES FINISHING PLANTS, INC.v.The UNITED STATES.
No. 5-64.
United States Court of Claims.
July 17, 1968.
Robert E. Jacobson, Providence, R. I., attorney of record for plaintiff; John V. Kean, Edwards & Angell, Providence, R. I., and Philip F. Herrick, Washington, D. C., of counsel.
Edna G. Parker, Washington, D. C., with whom was Asst. Atty. Gen., Mitchell Rogovin, for defendant; Philip R. Miller, Washington, D. C., of counsel.
OPINION
Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.
PER CURIAM:
1
This case was referred to Trial Commissioner Roald A. Hogenson with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 57(a). The commissioner has done so in an opinion and report filed on January 25, 1968. On June 21, 1968 the parties filed a stipulation wherein, among other things, it is stipulated that the court may enter judgment in accordance with the Trial Commissioner's opinion, findings of fact, and recommended conclusion of law which may be adopted by the court. Since the court agrees with the commissioner's opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case without oral argument. Therefore, plaintiff is not entitled to recover and the petition is dismissed.
OPINION OF COMMISSIONER
HOGENSON, Commissioner:
2
This is a suit to recover federal income taxes and assessed interest paid by plaintiff to defendant for calendar years 1955, 1956, and 1957, plus statutory interest. The suit arises as a result of defendant's disallowance in each year of a claimed deduction for interest paid.1 Defendant's contention is that these payments, alleged to be interest on indebtedness, were actually distributions of profits as dividends. Thus this case presents one more variation of the familiar debt-versus-equity controversy. For the reasons hereinafter stated, it is my opinion that plaintiff is not entitled to recover.
3
Plaintiff is a Rhode Island corporation engaged in the textile finishing business, with its principal location in Saylesville, Rhode Island. Plaintiff is the ultimate successor to the business conducted at the same location by Frank A. Sayles some 50 years ago. Upon Mr. Sayles' death in 1920, his executors caused the business to be incorporated as Sayles Finishing Plants, Inc. (referred to herein as "old Sayles"), a separate entity from the plaintiff herein. Two years later in 1922, the executors created plaintiff corporation, then named Remaw Manufacturing and Investments Company (hereinafter "old Remaw"), which was used to hold certain investments. Plaintiff as old Remaw became inactive in 1925 and remained so until May of 1930, when a plan was formulated to reorganize both plaintiff and old Sayles.
4
Under this plan, plaintiff as old Remaw acquired virtually all the assets of old Sayles, and changed its name to Sayles Finishing Plants, Inc., hereinafter referred to as plaintiff or new Sayles. Plaintiff then undertook the active operation of the textile finishing business. Old Sayles changed its name to Remaw Corporation and thereupon became inactive. The conduct of the business by plaintiff after this reorganization was virtually identical to that occurring previously; there were no significant changes in the plant or its operation, nor in its personnel or management, nor in the business activities.
5
The reorganization was essentially in the form of a sale to plaintiff of all the stock of old Sayles, accompanied by a recapitalization of both companies. Neither corporation was in financial difficulty at the time, and the plan did not involve any new investment of money in either company. Prior to the reorganization, the executors of Mr. Sayles' estate (sole stockholders of both old Sayles and old Remaw) had transferred all the stock of both corporations to the trustees of four trusts created under eighth clause of Mr. Sayles' will. Immediately after the reorganization, the eighth clause trustees held all of plaintiff's stock, as well as $7,000,000 in 6 percent demand notes of plaintiff. Plaintiff in turn held all the stock of new Remaw, hereinafter called Remaw.
6
The trustees devised the above-mentioned plan of reorganization and recapitalization as a means of affording greater protection to the trust beneficiaries. This was deemed advisable in light of the financial and economic outlook as of May 1930.
7
One year later, in May of 1931, additional changes were made whereby Remaw authorized and issued an additional 4,998 shares of common stock and an issue of 70,000 shares of preferred stock, both of $100 par value per share. Plaintiff subscribed to the common for $100 per share in cash, and also paid $200 for the two shares of Remaw common it already held (and which had been all of the authorized and issued common stock of Remaw). The preferred stock was issued to the trustees, in exchange for the $7,000,000 in plaintiff's demand notes, which the trustees transferred to Remaw. Thus Remaw became active as a holding company for investments.
8
In June of 1934, another plan of recapitalization and reorganization was conceived and put into effect. Of the 5,000 shares outstanding of common stock of Remaw, 4,500 were retired, and the eighth clause trustees purchased the remaining 500 shares from plaintiff. Then plaintiff issued 6 percent registered bonds having an aggregate face value of $7,050,000 in exchange for all the assets of Remaw (except Remaw's corporate charter and any claims it might have for tax refunds). Remaw's assets at this time consisted of the $7,000,000 in plaintiff's demand notes of 1930, and other assets having a net value of approximately $50,000. Plaintiff's bonds were issued directly to the trustees, upon the surrender to Remaw by the trustees of all the outstanding stock of Remaw (70,000 shares of preferred and 500 shares of common). Remaw promptly canceled this stock and then amended its articles of association to authorize instead capital stock of four shares, par value $100 per share. These four shares were issued to the trustees, whereupon Remaw became completely inactive, remaining so until its dissolution in 1960.
9
In the 1934 transactions, plaintiff acquired from Remaw plaintiff's 1930 demand notes of $7,000,000 face value, which were then canceled. The issue of $7,050,000 in plaintiff's bonds were in registered form, transferable only on the books of the corporation; they provided for interest at the rate of 6 percent per annum (payable quarterly) and were due and payable on June 1, 1939. These bonds are the subject matter of the present suit.
10
The economic depression of the 1930's affected the New England textile industry quite adversely, and plaintiff was no exception, for it suffered losses throughout most of this period. Because of this, the 1934 bonds were modified twice during the 1930's. In 1935, the bondholders (the trustees) and Sayles agreed that, until maturity, interest should be payable annually from net income only (before deduction of that interest and any dividends paid), and that such interest would not be cumulative. Likewise, when the bonds became due, on June 1, 1939, a similar agreement was reached whereby interest on $6,050,000 of the bonds would thereafter be payable (at the rate of 6 percent per annum) from net income only, on the same terms as the 1935 agreement imposed. The remaining $1,000,000 was not affected by the 1939 agreement, and interest on this portion of the bonds became due and payable (also at a 6 percent annual rate) regardless of net income. Neither the 1935 modification nor that of 1939 conferred any additional rights or privileges upon the bondholders, and no consideration was paid in this connection.
11
No payments have been made on the principal of the bonds, and none has been demanded by the bondholders. Plaintiff has made purported interest payments on the bonds in accordance with their terms, as modified, in each of the taxable years involved here, as well as in prior and subsequent years. Income tax returns filed by plaintiff for 1955, 1956, and 1957 claimed a deduction of $423,000 in each year as interest accrued and paid on these bonds. Upon audit of these returns, the Commissioner of Internal Revenue disallowed the claimed deductions for interest paid, on the ground that these payments were actually profit or dividend distributions.
12
On November 12, 1959, deficiencies totaling $656,188.60 (plus interest thereon of $105,405.57) were assessed, and plaintiff paid these amounts that same day. Timely refund claims were filed on October 30, 1961, and these were disallowed on January 8, 1962.
13
Subsequently, on audit of plaintiff's 1958 federal income tax return, the Commissioner determined that a net operating loss existed, which would be carried back to reduce plaintiff's 1955 and 1956 tax liabilities. Accordingly, on April 28, 1961, the District Director tendered to plaintiff checks totaling $998,179.32, representing refunds of income taxes paid for 1955 and 1956, plus interest thereon. Plaintiff accepted the checks by letter dated May 5, 1961, reserving its right to further contest its tax liability for those years.
14
On January 6, 1964, plaintiff filed its petition with this court, seeking (1) a judgment against the defendant in the amount of $349,907.96 (the amount of the rejected refund claims) with interest, and (2) a specific finding by the court that refund of said amount and the above-mentioned refund of April 28, 1961, result in whole or in part from allowance of the disputed interest deduction, and only in part from carryback of the 1958 net operating loss.
15
The sole issue for determination is whether plaintiff's interest payments arose from actual indebtedness to its bondholder-stockholders, as contended by plaintiff, or whether such payments were actually distributions of dividends by way of purported interest payments on instruments which represented capital investment in plaintiff, as defendant insists. As stated by this court in Cuyuna Realty Co. v. United States, 382 F.2d 298, 301, 180 Ct.Cl. 879, 884 (1967), the inquiry in most of the decided cases involving the debt-versus-equity controversy has been whether at the time of issuance of the disputed instruments, the parties intended to create a real debtor-creditor relationship; but such inquiry is not the ultimate test; and the real issue is whether there is "indebtedness" within the taxable year, on which purported interest deductions are allowable. This court further held that the federal income tax law looks to events in each taxable year, so in applying § 163, it is proper for courts to inquire for each taxable year whether there is indebtedness, and interest ceases to be deductible as a real cost of producing income, if with the passage of time it becomes apparent that the parties have no intention of continuing the debtor-creditor relationship.
16
However, as the court recognizes in the Cuyuna case, supra, full consideration must be given to all relevant and material facts in this case, as the law is well established that the debt-versus-equity problem is basically a question of fact, to be determined in the light of all the facts and circumstances of the particular case, with no single factor being determinative. Id. 180 Ct.Cl. at 883, 382 F.2d at 300; Jack Daniel Distillery v. United States, 379 F.2d 569, 580-585, 180 Ct.Cl. 308, 325-334 (1967). In applying this rule in a case involving the distinction between debt and equity on the issue of deductibility of a bad debt, American Processing & Sales Co. v. United States, 371 F.2d 842, 848, 178 Ct.Cl. 353, 362-363 (1967), this court stated:
17
There is no dearth of cases in this province of tax law. So large is their number and disparate their facts, that for every parallel found, a qualification hides in the thicket. At most they offer tentative clues to what is debt and what is equity for tax purposes; but in the final analysis each case must rest and be decided upon its own unique factual flavor, dissimilar from all others, for the intention to create a debt is a compound of many diverse external elements pointing in the end to what is essentially a subjective conclusion. * * *
18
Upon consideration only of the form of the disputed bonds, as originally issued and before their modification by the 1935 and 1939 agreements, it would be concluded that the parties involved intended thereby to create indebtedness. The form of the bonds satisfied the well-stated definition of debt set forth in Gilbert v. Commissioner of Internal Revenue, 248 F.2d 399, 402 (2d Cir. 1957), as follows:
19
The classic debt is an unqualified obligation to pay a sum certain at a reasonably close fixed maturity date along with a fixed percentage in interest payable regardless of the debtor's income or lack thereof. While some variation from this formula is not fatal to the taxpayer's effort to have the advance treated as a debt for tax purposes, * * * too great a variation will of course preclude such treatment. * * * [Citations omitted.]
20
However, the familiar tax principle that substance prevails over form, Higgins v. Smith, 308 U.S. 473, 477, 60 S.Ct. 355, 84 L.Ed. 406 (1940), calls for consideration of the prior, contemporaneous, and subsequent circumstances relating to the execution and issuance of the disputed instruments. Affiliated Research, Inc. v. United States, 351 F.2d 646, 648, 173 Ct.Cl. 338, 341 (1965); Cuyuna Realty Co. v. United States, supra.
21
The textile finishing business as operated by old Sayles was in sound financial condition at the time of the 1930 transactions. It was not in need of new funds. The beneficial owners of this business, both when operated in corporate form of old Sayles and in that of plaintiff, were the beneficiaries of the four trusts under the eighth clause of the will of Frank A. Sayles, even though prior to the reorganization, all of the stock of old Sayles was held by the sole surviving executor, and thereafter by the eighth clause trustees. No new capital was added to the business by the transactions which transferred such going business unchanged in its personnel, assets and operations from old Sayles to plaintiff. The only accomplishment of apparent substance in the reorganization of the two corporations (old Sayles and plaintiff) was the purported conversion of equity interests of the beneficial owners of the business into purported instruments of indebtedness, by the issuance to the trustees as a result of involved paper transactions of the demand notes of plaintiff in the aggregate sum of $7,000,000. The trustees (one of whom was the sole surviving executor) had in mind only one benefit to the business, i.e., the tax advantage of deducting interest payments on the purported indebtedness. From the standpoint of plaintiff corporation, or the business involved, no other substantial business purpose appears from the evidence. The deliberately planned benefits to the stockholders were to afford greater protection to the trust beneficiaries in that in the event of insolvency or bankruptcy of the business, the trusts would have the right to participate with other creditors to the extent of the $7,000,000 demand note obligations of plaintiff; that if the trustees desired to extract capital from the finishing business, they believed that they could retire up to $7,000,000 of the notes without taxation; and that the trustees would be afforded a convenient means of realizing a part or all of their investment in the business, if they so desired, by selling the demand notes to a third party, in which event they would still have retained control of the business.
22
Plaintiff's demand notes were transferred in May of 1931 by the trustees to Remaw (old Sayles) in involved paper transactions concerning creation and issuance of additional Remaw common stock to plaintiff and new Remaw preferred stock to the trustees. As previously, the beneficial owners of both Remaw and plaintiff were the beneficiaries of the four eighth clause trusts. The trustees had complete control of both plaintiff and Remaw, and the officers and directors of both corporations were the same. When the paper work had been completed, plaintiff held all of the common stock of Remaw, just as it had before Remaw was caused to increase its common stock; Remaw held the demand notes ($7,000,000) of plaintiff; and the eighth clause trustees (in addition to the previously held common stock of plaintiff) held the preferred stock of Remaw. While cash was transferred from plaintiff to Remaw, there was no new money involved in the overall transactions.
23
As related above, plaintiff's disputed bonds in the aggregate amount of $7,050,000 were issued to the eighth clause trustees in June of 1934. Here again, mere paper transactions were involved. As before, the ultimate control and ownership of both plaintiff and Remaw were vested in the four eighth clause trusts. In effect, Remaw was caused by the trustees to transfer all of its assets (the $7,000,000 demand notes of plaintiff plus $50,000 in other undefined assets) to plaintiff; all of Remaw's stock (preferred and common) was transferred by plaintiff and the trustees to Remaw and thereupon canceled; Remaw (without assets) issued four shares of common stock to the trustees, but thereafter remained inactive until dissolved in 1960; and plaintiff acquired and canceled its own demand notes, and issued the disputed bonds to the trustees. Thus, the bonds replaced the demand notes as instruments of the purported indebtedness in dispute in this case. Except to the extent of the $50,000 in other undefined assets transferred from Remaw to plaintiff, no additional money was invested in plaintiff in these transactions. No contention is made that to the extent of $50,000, the disputed bonds are a valid indebtedness, but rather is the issue presented here on an all or nothing basis.
24
The parties agree, and it cannot be doubted, that under the facts of a particular case, a stockholder (or stockholders) can also be a creditor (or creditors) holding taxwise a valid indebtedness against their corporation. Plaintiff cites various cases. In Gloucester Ice & Cold Storage Co. v. Commissioner of Internal Revenue, 298 F.2d 183 (1st Cir.1962), a corporation (to acquire the outstanding stock of a competitor) borrowed money from a bank and also issued debenture bonds which were in part exchanged for its outstanding preferred stock and otherwise sold to individuals not stockholders, and the court held that the debentures were evidences of indebtedness in the hands of the non-stockholders and equally so in the hands of the stockholders. In Rowan v. United States, 219 F.2d 51 (5th Cir.1955), the taxpayers had over a period of years made advances in the form of loans to their wholly owned corporation, and the court held that the unpaid portion of such advances was deductible as a worthless debt in the taxable year involved, after a careful review of the evidence on the premise that whether such advances were loans or capital contributions depended on the intent of the parties, to be ascertained from all relevant facts and circumstances. In Wilshire & Western Sandwiches, Inc. v. Commissioner of Internal Revenue, 175 F.2d 718 (9th Cir.1949), taxpayer corporation was incorporated to engage in the restaurant business, and its four incorporators (who became its sole stockholders) advanced $30,000, half of which was to be capital stock contribution and half a loan, and taxpayer's promissory notes were issued for the purported loan to each stockholder accordingly. The court held that the transaction involving the promissory notes was a loan, interest on which was deductible, recognizing, however, that a lending transaction between stockholders and their corporation subjects such transaction to close scrutiny as to the tax effect, but concluding that while there were features both ways as to whether the pertinent advances were loans or stock purchases, those sustaining the loan conclusion greatly preponderated, chief of which was the intent of the parties at the time of entering into the transaction.
25
Obviously, the facts and circumstances in this case do not parallel the facts and circumstances of the cases cited by plaintiff and reviewed in the foregoing paragraph, and considerable doubt exists as to whether the parties here had a bona fide intention to create indebtedness at the time of the issuance of plaintiff's demand notes or its disputed bonds. Moreover, there were no advances made by plaintiff's stockholders to plaintiff for the issuance of either the demand notes or the disputed bonds.
26
Conversion of equity interests into evidence of indebtedness does not necessarily defeat tax treatment of the resulting relationship between a stockholder or stockholders and the corporation as a bona fide indebtedness. Here again, all of the facts and circumstances of the particular case must be considered. Even the fact that no new money was invested in the business does not require a holding that issuance of corporate debentures was a capital transaction, but such debentures are to be allowed tax treatment as indebtedness when the other factors in the case establish a true indebtedness. Kraft Foods Co. v. Commissioner of Internal Revenue, 232 F.2d 118, 126 (2d Cir.1956); Luden's, Inc. v. United States, 196 F. Supp. 526, 530-531 (E.D.Pa.1961). However, in an appropriate case, lack of new money can be a significant factor in holding a purported indebtedness to be a capital transaction, particularly when the facts otherwise show that the purported indebtedness was merely a continuation of the equity interests allegedly converted. Golden Belt Lumber Co., 1 T.C. 741, 746 (1943); Briggs Co., 5 T. C.M. 366, 372 (1946); Wetterau Grocer Co. v. Commissioner of Internal Revenue, 179 F.2d 158, 160 (8th Cir. 1950); R. C. Owen Co. v. United States, 149 Ct.Cl. 96, 101-102, 180 F.Supp. 369, 372 (1960), cert. denied, 363 U.S. 819, 80 S. Ct. 1256, 4 L.Ed.2d 1516. The disputed bonds in this case were clearly a continuation without change of the equity interests of the bondholder-stockholders, without new money contributed to plaintiff, and without any change in the operations of the business, with the only benefit or advantage to plaintiff being the tax deductibility of interest paid on the bonds.
27
Even if the disputed bonds had been valid indebtedness at their inception, subsequent conduct of the parties belie their status as a debt in the taxable years here involved. Though purporting to represent a fixed obligation falling due in 1939, the bonds have remained wholly unpaid up to the present time; at no time have the bondholders even made a demand for payment in whole or in part. While the presence of a maturity date is significant evidence of the presence of debt, this factor loses importance when it is observed in form only. While a reasonable extension of the time for payment is not fatal in itself to plaintiff's contentions, Wilshire & Western Sandwiches, Inc. v. Commissioner of Internal Revenue, supra, 175 F.2d at 720-721, an extension for an inordinate period gravitates against the presence of a debt. Plaintiff has offered explanations as to why it saw fit to retain cash for other purposes rather than retiring these bonds, but these explanations are not convincing.
28
As reasons for nonpayment, plaintiff points to the "adverse business and financial circumstances" at the maturity date, and the "hazardous" nature of its business, necessitating a high degree of liquidity to guard against possible adverse trends. Furthermore, plaintiff asserts that it required large cash balances to enable it to make advances to its subsidiary, American Bleached Goods Company. While the state of the economy in 1939 could conceivably be a valid reason for postponement, plaintiff's explanation for its continuing failure to pay reveals an attitude implying the presence of an equity interest. By leaving this $7,050,000 to the risks of this "hazardous business," the bondholders were playing the role of stockholders rather than creditors, for this is a basic distinction between the two types of investors.
29
In addition, the circumstances surrounding the advances to American Bleached Goods show that plaintiff could act the part of a debtor when such was deemed necessary. On several occasions it borrowed money for this purpose and on each occasion the loan was repaid in full. One such loan in the early 1950's amounted to $2.4 million.
30
Proportionality of bondholdings and stockholdings will not void an otherwise valid debt, but it will render the relationship suspect, George E. Warren Corp. v. United States, 135 Ct.Cl. 305, 312, 141 F.Supp. 935, 939 (1956). Here the identity of the bondholders and stockholders appears to be the only substantial factor which would permit such prolonged nonpayment of an alleged debt. Under the circumstances it seems clear that an ordinary creditor would not permit such a prosperous debtor to ignore a $7,000,000 obligation over such a number of years. The evidence shows that from 1939 to 1957 plaintiff had on hand large amounts of cash and liquid assets. While it appears that the needs of the business and principles of sound management required some degree of liquidity, the amounts involved were so large and of such duration as to be inconsistent with an issue of bonds. As with the other factors, nonpayment at maturity is not controlling, but it is effective evidence of an equity interest in situations where no convincing explanation is offered. Thomas Machine Mfg. Co., 23 T.C.M. 1630, 1641-1642 (1964).
31
During the period in which the alleged bonds were overdue plaintiff paid out substantial amounts as dividend distributions (amounting to over $13 million between 1939 and 1957). Yet no demands were ever made for payment of the bonds; again the inference is that this "debt" could not have been regarded as a serious obligation by the parties. Plaintiff contends that it paid these dividends because it feared imposition of an accumulated earnings tax, since (plaintiff argues) the state of the tax law during the World War II period of prosperity raised doubts as to whether such bond retirement would be a proper purpose for accumulation, sufficient to avoid the accumulated earnings tax. There is arguable authority for the proposition that an accumulation to pay off a debt which could be refinanced is not a reasonable accumulation within the meaning of the accumulated earnings tax provisions, Helvering v. Chicago Stock Yards Co., 318 U.S. 693, 63 S.Ct. 843, 87 L.Ed. 502 (1943). Nevertheless, if it had regarded the bonds as a binding obligation, plaintiff would have felt itself compelled to retire them regardless of the tax consequences. Likewise, a true creditor would not normally consider his debtor's unfavorable tax aspects of repayment. Having chosen to cast their relationship in the form of a debt, the parties were required to accept the bad with the good. Their unwillingness to do so suggests that a debt was not really present.
32
Considering the facts as a whole, it is concluded that the "unique factual flavor" of this case is that of equity investment. It is doubtful that plaintiff's bonds were taxwise a valid indebtedness at the time of their issuance, and certainly by the taxable years involved they should be considered equity capital. Thus, there was no indebtedness upon which interest accrued within the taxable years 1955-1957.
Notes:
1
Section 163 of the Internal Revenue Code of 1954, 68A Stat. 46, provides for deduction of all interest paid or accrued within the taxable year on indebtedness
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11 N.Y.3d 711 (2008)
MATTER OF BARASH
v
NORTHERN TRUST CORP.
Court of Appeals of the State of New York.
Decided November 25, 2008
Motion for leave to appeal denied.
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752 So.2d 556 (2000)
PULMOSAN SAFETY EQUIPMENT CORPORATION, Petitioner,
v.
Earl BARNES, et al., Respondents.
No. SC94544.
Supreme Court of Florida.
January 6, 2000.
Robert A. Mercer, Miami, Florida, for Petitioner.
H. Guy Green, Marianna, Florida; Louis K. Rosenbloum, Pensacola, Florida; and Lance P. Bradley of Provost & Umphrey, Beaumont, Texas, for Respondent.
Benjamin H. Hill, III and Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa, Florida; and Hugh F. Young, Jr., Reston, Virginia, for Product Liability Advisory Council, Inc., Amicus Curiae.
Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, Florida, for The Academy of Florida Trial Lawyers, Amicus Curiae.
PARIENTE, J.
We have for review a decision on the following question certified to be of great public importance:
IS THE EXCEPTION ESTABLISHED IN DIAMOND V. E.R. SQUIBB & SONS, INC., 397 So.2d 671 (Fla.1981), STILL VIABLE IN VIEW OF THE COURT'S RECENT DECISIONS HOLDING THE MEDICAL *557 MALPRACTICE STATUTE OF REPOSE CONSTITUTIONAL?
Barnes v. Clark Sand Co., Inc., 721 So.2d 329, 333 (Fla. 1st DCA 1998). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
FACTS
The pertinent facts are set forth in the opinion of the First District in this case:
Earl Barnes (Barnes), formerly employed as a sandblaster, filed a negligence action against appellees (manufacturers), producers of sand used in sandblasting operations.[[1]] He alleged that he had contracted a lung disease (silicosis) from exposure to silica dust emanating from the sand used in sandblasting operations and that appellees' products caused or contributed to his illness. Barnes claimed that he was exposed to the silica dust from 1972 to 1974. The manufacturers denied the material allegations of Barnes' complaint and argued that Barnes' action was barred by the now-repealed products liability statute of repose, section 95.031(2), Florida Statutes (1975).[[2]] The trial court granted the manufacturers' motion for summary judgment. We reverse.
Barnes' left lung was surgically removed on July 16, 1984, and he was informed by his physicians that his lung had been removed because of cancer; however, he was told several weeks later that the lung had been removed because of a fungal infection known as actinomycosis. Barnes testified that he did not know that his lung problems were related to silicosis or exposure to silica dust until 1992, and that the diagnosis of silicosis was not confirmed by tissue analysis until 1995.
Barnes, 721 So.2d at 330. In reversing the trial court's ruling, the First District Court of Appeal relied upon this Court's decision in Diamond, which prevents the statute of repose from extinguishing a products liability cause of action where the plaintiffs injuries are latent and undiscoverable within the repose period. See id. at 330-33. We agree with the district court's conclusion and analysis.
In Diamond, this Court squarely addressed the constitutionality of depriving a plaintiff of her cause of action where her injuries were latent and undiscoverable within the repose period. 397 So.2d at 672. The plaintiff alleged that while unborn, diethylstilbestrol (DES), a drug manufactured by the defendant, was administered to her. See id. DES later was found to be a cause of cancer in girls whose mothers were treated with the drug. See id. The cancerous effects of ingestion of DES did not become "manifest" until the plaintiff reached puberty. See id. at 672 (McDonald, J., specially concurring). The defendant moved for summary judgment based on the statute of repose that existed for products liability suits, which is the same statute applicable to the present case. See id. at 671. The Court held that the statute of repose, as applied in that case, violated the plaintiff's guarantee of access to courts because it *558 barred the plaintiff's cause of action "before it ever existed." Diamond, 397 So.2d at 672.
Justice McDonald explained the necessity for the latent injury exception to the products liability statute of repose in his specially concurring opinion in Diamond:
In this plaintiffs case the claim would have been barred, even though the wrongful act had taken place, before the injury became evident. [Plaintiff] had an accrued cause of action but it was not recognizable, through no fault of hers, because the injury had not manifested itself. This is different from a situation where the injury is not inflicted for more than twelve years from the sale of the product. When an injury has occurred but a cause of action cannot be pursued because the results of the injury could not be discovered, a statute of limitation barring the action does, in my judgment, bar access to the courts and is constitutionally impermissive.
Id. Although in a later opinion the Court upheld the constitutionality of the statute of repose, the majority reiterated the underlying rationale for the latent injury exception as one of constitutional magnitude:
In Diamond, we held that the operation of section 95.031(2) operated to bar a cause of action before it accrued and thereby denied the aggrieved plaintiff access to the courts. But Diamond presents an entirely different factual context than existed in either Battilla or the present case where the product first inflicted injury many years after its sale. In Diamond, the defective product, a drug known as diethylstilbestrol produced by Squibb, was ingested during plaintiff mother's pregnancy shortly after purchase of the drug between 1955-1956. The drug's effects, however, did not become manifest until after plaintiff daughter reached puberty. Under these circumstances, if the statute applied, plaintiffs claim would have been barred even though the injury caused by the product did not become evident until over twelve years after the product had been ingested. The legislature, no doubt, did not contemplate the application of this statute to the facts in Diamond. Were it applicable, there certainly would have been a denial of access to the courts.
Pullum v. Cincinnati, Inc., 476 So.2d 657, 659 n.* (Fla.1985).
As correctly observed by the Third District, "No Supreme Court case post Pullum reverses or recedes from Diamond." Owens-Corning Fiberglass Corp. v. Corcoran, 679 So.2d 291, 293 (Fla. 3d DCA 1996), review denied, 690 So.2d 1300 (Fla. 1997). Indeed, this Court has continued to acknowledge the viability of Diamond by specifically referring to it in other cases that have discussed the statute of repose, including cases that have addressed the medical malpractice statute of repose. See Damiano v. McDaniel, 689 So.2d 1059, 1061 n. 4 (Fla.1997) (distinguishing a medical malpractice case from Diamond, which involved "a products liability action involving an entirely different statute of repose"); Wood v. Eli Lilly & Co., 701 So.2d 344, 346 (Fla.1997) (confirming in a products liability case Diamond's holding "that the products liability statute of repose which was then in effect was unconstitutional as applied in a DES case because the statute operated to bar a cause of action before there was any manifestation of injury"); University of Miami v. Bogorff, 583 So.2d 1000, 1004 (Fla.1991) (distinguishing a case involving claims of medical malpractice and product liability from Diamond, "a case where a drug was ingested and the alleged effects did not manifest themselves until years later"); Conley v. Boyle Drug Co., 570 So.2d 275, 283 (Fla.1990) (recognizing that cases like Diamond involving a delay between ingestion of a drug and the manifestation of an injury "must be accorded different treatment than other products liability actions for statute of repose purposes").
As the Third District explained in Corcoran, a case with facts similar to those *559 here: "[B]ecause a public necessity was never enunciated, demonstrated, or contemplated for application of the now defunct section 95.031(2) to a case such as this one, resulting in a long delay in manifestation of symptoms that will support a medical diagnosis of injury, such application is constitutionally impermissive." 679 So.2d at 294-95. The underlying principle supporting the Diamond exception has not changed since this Court's ruling in Diamond in 1981. Therefore, we hold that in a products liability action where the now-defunct statute of repose is still applicable, the latent injury exception remains viable so that the statute of repose will not extinguish the plaintiffs cause of action if his or her injuries are latent and undiscoverable within the repose period.
Because it would serve no useful purpose to expand further upon the well-reasoned analysis of the district court below, we hereby answer the certified question in the affirmative and approve the First District's decision in this case. It is so ordered.
HARDING, C.J., and SHAW, WELLS, ANSTEAD, LEWIS and QUINCE, JJ., concur.
NOTES
[1] The appellees below and petitioners in this Court were manufacturers and producers of sand used in sandblasting operations. After this Court accepted jurisdiction and the parties completed briefing, petitioner Minnesota Mining & Manufacturing Company settled its portion of the case and was voluntarily dismissed as a party to the proceedings in this Court. Because Clark Sand Company, Inc., did not petition for review, the only remaining petitioner in this case is Pulmosan Safety Equipment Corporation.
[2] Section 95.031, Florida Statutes (1975), providing for a twelve-year statute of repose for products liability actions, became effective January 1, 1975, and was later repealed on July 1, 1986. See § 95.031, Fla. Stat. (1975), repealed by ch. 86-272, Laws of Fla. However, the Court held in Firestone Tire & Rubber Co. v. Acosta, 612 So.2d 1361 (Fla.1992), that the products liability statute of repose gave manufacturers a "vested right" not to be sued for an accident that occurred after the statute of repose was repealed if the completed product was delivered to the actual purchaser prior to the date the statute was repealed.
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Affirmed as Modified and Opinion Filed May 17, 2016
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-01157-CR
No. 05-15-01158-CR
DADRIAN NAKIA AYERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause Nos. F13-1352291-J and F12-72313-J
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Bridges, and Justice Lang
Opinion by Chief Justice Wright
Appellant Dadrian Nakia Ayers pleaded guilty to charges of robbery and aggravated
assault involving family violence and a deadly weapon. Appellant received deferred
adjudication community supervision in each case for four years. Approximately two years later,
the State moved to revoke appellant’s probation and to proceed with adjudication of his guilt,
alleging he had violated conditions of his community supervision by exhibiting a firearm during
the commission of assaults upon Cedric Washington and Shateera Washington and by failing to
pay certain required fees. Following a hearing, the trial court found that appellant had violated
his community supervision and sentenced him to twenty years’ incarceration. In this Court,
appellant contends the trial court abused its discretion by overruling appellant’s objection to a
series of photographs of his tattoos. Appellant also asks us to modify both judgments to reflect
the trial court’s ruling on his probation violation. We agree the judgments should be modified,
but—as modified—we affirm the trial court’s judgment.
Admission of the Photographs
In his first issue, appellant contends the trial court abused its discretion by overruling his
relevance objection to nine photographs, which depicted appellant’s tattoos. The photographs
were offered during the sentencing hearing while Lekira Green, the mother of appellant’s
children, was on the stand. The State asked Green what each of the photographs pictured. She
identified checkmarks and dates on appellant’s wrists reflecting the birth and death of their first
child and a “D with flames” on his chest reflecting that they were from Dallas. Green also
identified tattoos of the words “lunatic,” “life,” and “trap,” and she described tattoos of money
signs, a face, and a house, but she testified she did not know what any of those words or pictures
meant. Following this discussion of the photographs, the following exchange took place:
Q. [by the Prosecutor] All right. During the time you’ve known him have you
known him to be associated with the Blood street gang?
A. [by witness Green] No, sir.
Q. And, so, it’s your testimony that you have no knowledge that any of these
tattoos are related to gang activity?
A. No, he’s not in a gang.
Appellant argues the State offered the photographs solely to insinuate that he was in a
gang without any competent evidence of such gang affiliation.1 The decision to admit or exclude
photographic evidence is within the discretion of the trial court. Prible v. State, 175 S.W.3d 724,
734 (Tex. Crim. App. 2005). And as to the scope of relevant evidence during the sentencing
hearing, evidence is relevant to a punishment determination if it will assist the fact finder in
1
The State argues appellant did not preserve this error because he did not object to the questions posed by the State after discussion of the
photographs. Appellant timely objected to the photographs and preserved error as to them. We agree he did not preserve error as to the
subsequent questions asking directly about his gang affiliation.
–2–
deciding the appropriate sentence in a particular case. Sims v. State, 273 S.W.3d 291, 295 (Tex.
Crim. App. 2008). At the punishment phase, the factfinder is concerned with evaluating a
defendant’s background and character. Jessop v. State, 368 S.W.3d 653, 693 (Tex. App.—
Austin 2012, no pet.). “A defendant’s choice of tattoos, like his personal drawings, can reflect
his character and/or demonstrate a motive for his crime.” Conner v. State, 67 S.W.3d 192, 201
(Tex. Crim. App. 2001). Accordingly, a number of courts have admitted photographs of tattoos
as evidence of character, background, or motive. See id. We cannot say the trial court abused its
discretion in admitting the photographs of appellant’s tattoos in this case.
Moreover, Green responded to questions concerning the tattoos, but she could attribute
meaning to them in only two instances: she testified one set of tattoos memorialized the couple’s
deceased child and one celebrated their hometown. The State did not succeed in eliciting any
testimony harmful to appellant from the photographs. Accordingly, even if admitting the
photographs was error, the error would not be reversible. See TEX. R. APP. P. 44.2(b).
We overrule appellant’s first issue.
Modification of the Judgments
In his second and third issues, appellant asserts that the trial court’s judgments
inaccurately assert that he violated three conditions of his probation: condition (a), commission
of a new offense; condition (j), failure to pay community service fee; and condition (n), failure to
pay urinalysis fee. Both judgments recite that appellant “violated the terms and conditions of
community supervision as set out in the State’s Amended Motion to Adjudicate Guilt,” and the
attached amended motion asserts that appellant violated conditions (a), (j), and (n). The trial
court, however, found “specifically that the defendant violated Condition A in both these cases.”
The State agrees with appellant that the judgments should be modified to limit the trial court’s
ruling to condition (a).
–3–
This Court has the power to modify the trial court’s judgment when we have the
necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–
28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991,
pet. ref’d). We modify both judgments to reflect that while on community supervision, appellant
violated condition (a) of the terms and conditions of his deferred adjudication community
supervision.2 We sustain appellant’s second and third issues to this extent.
Conclusion
We modify the trial court’s judgments to reflect that the court found appellant violated
condition (a) of the terms and conditions of his deferred adjudication community supervision.
As modified, we affirm both judgments.
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
Do Not Publish
TEX. R. APP. P. 47
151157F.U05
2
Appellant also asks us to modify the judgments to reflect that the trial court found conditions (j) and (n) to be not true in each case.
The record does not support this conclusion: the trial court made no findings on those two conditions.
–4–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DADRIAN NAKIA AYERS, Appellant On Appeal from the Criminal District Court
No. 3, Dallas County, Texas
No. 05-15-01157-CR V. Trial Court Cause No. F13-52291-J.
Opinion delivered by Chief Justice Wright,
THE STATE OF TEXAS, Appellee Justices Bridges and Lang participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows in the recitation of the court’s findings:
(5) While on community supervision, Defendant violated the terms and conditions
of community supervision as set out in the State’s AMENDED Motion to
Adjudicate Guilt as follows:
condition (a).
As MODIFIED, the judgment is AFFIRMED.
Judgment entered May 17, 2016.
–5–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DADRIAN NAKIA AYERS, Appellant On Appeal from the Criminal District Court
No. 3, Dallas County, Texas
No. 05-15-01158-CR V. Trial Court Cause No. F12-72313-J.
Opinion delivered by Chief Justice Wright,
THE STATE OF TEXAS, Appellee Justices Bridges and Lang participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows in the recitation of the court’s findings:
(5) While on community supervision, Defendant violated the terms and conditions
of community supervision as set out in the State’s AMENDED Motion to
Adjudicate Guilt as follows:
condition (a).
As MODIFIED, the judgment is AFFIRMED.
Judgment entered May 17, 2016.
–6–
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187 N.W.2d 753 (1971)
187 Neb. 152
STATE of Nebraska, Appellee,
v.
Erick Richard SMITH, Appellant.
No. 37806.
Supreme Court of Nebraska.
June 18, 1971.
*754 Frank B. Morrison, Public Defender, Stanley A. Krieger, Asst. Public Defender, Omaha, for appellant.
Clarence A. H. Meyer, Atty. Gen., Betsy G. Berger, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.
BOSLAUGH, Justice.
The defendant appeals from a conviction for unlawful possession of one-half pound or more of cannabis. The assignments of error relate to the admissibility of evidence and misconduct of the prosecuting attorney.
There was evidence from which the jury could find that the defendant was observed carrying a sack containing approximately 7 pounds of cannabis from the house at 6611 Franklin Street in Omaha, Nebraska, to the rear of the house at 6607 Franklin Street. About 30 minutes later the defendant was observed removing a part of the contents from the sack which he carried back into the house at 6611 Franklin Street. The defendant testified that the sack had been left in front of the house by a third party and that he had taken it to the rear of the house to place it in a trash container to get rid of it. The defendant denied that he had returned to the sack after placing it in the rear of the house at 6607 Franklin Street. The evidence, although in conflict, was clearly sufficient to sustain the finding of guilty.
*755 William J. Ihm, a chemist employed by the State, was allowed to testify over objection that he had weighed the contents of the sack on a scale in the laboratory and that it weighed 7 pounds 4 ounces. The defendant contends that the foundation for this testimony was inadequate because it was not shown that the scale had been tested and found to be accurate. The contention is without merit.
The defendant obtained leave to cross-examine as to foundation and inquired only as to when the scale had last been licensed. There is no reference to any licensing requirement applicable to laboratory scales, and the defendant made no inquiry as to whether the scale had been tested for accuracy. Another witness had testified previously that he estimated the weight of the sack at around 7 or 8 pounds. The offense was proved if the weight was one-half pound or more. The ruling was within the discretion of the trial court.
The other assignment of error relates to conduct of the county attorney in the trial of the case. The defendant contends that he was prevented from having a fair trial because of the offer of irrelevant evidence and unfair argument to the jury. The items of evidence complained of consisted of questions about the market value of marihuana; a reference to hashish; whether the defendant was the father of a child born out of wedlock who was present in the house at 6611 Franklin Street; and whether the house at 6611 Franklin Street had been under police surveillance. The argument complained of consisted of a statement that the police had not searched the house at 6611 Franklin Street because they were prevented by law from doing so.
Objections by the defendant were sustained to all of the questions except the one relating to hashish and the cross-examination of the defendant as to the market value of marihuana. The answer to the hashish question was conditionally received but there was no subsequent motion to strike. The defendant answered that he did not know the market value of marihuana, that there were many prices.
The defendant's objection to the argument explaining the failure to search was sustained and the jury was instructed to disregard the comments. As we view the record it does not show that the defendant did not have a fair trial.
It is the duty of a prosecuting attorney to conduct the trial in such a manner as will be fair and impartial to the rights of the accused, no matter how guilty he may be. Rules of evidence and conduct are prescribed to insure that the rights of the accused are maintained.
The evidence and the argument complained of in this case had little or no relevance to the issues, but we are satisfied that the defendant received a fair trial. Each case must be determined on its own facts. Where the defendant has been prejudiced, the conviction will be set aside.
The prosecution in this case was under section 28-472.03, R.S.Supp., 1969, which has been declared unconstitutional. State v. Greenburg, Neb., 187 N.W.2d 751. The defendant was subject to prosecution under section 28-470, R.S.Supp., 1969, for unlawful possession of any amount of cannabis. By proceeding under section 28-472.03, R.S.Supp., 1969, the State assumed a greater burden than that imposed by section 28-470, R.S.Supp., 1969.
The trial court advised the jury that cannabis was a narcotic drug and that possession of a narcotic drug was unlawful unless otherwise authorized in the act. The information and the evidence are sufficient to sustain a conviction under section 28-470, R.S.Supp., 1969. Thus, the record is sufficient to sustain the conviction under section 28-470, R.S.Supp., 1969.
The judgment of the district court is affirmed.
Affirmed.
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757 F.2d 87
9 Soc.Sec.Rep.Ser. 114, Medicare&Medicaid Gu 34,538BEDFORD COUNTY GENERAL HOSPITAL, et al., Plaintiffs-Appellants,v.Margaret HECKLER, Secretary of Health and Human Services,Defendant-Appellee.
No. 84-5051.
United States Court of Appeals,Sixth Circuit.
Jan. 11, 1985.Decided March 7, 1985.
David S. Neiger, Weissburg & Aronson, Inc., Patric Hooper, argued, Michael Tichon, Los Angeles, Cal., Sarah Y. Sheppeard, Lockridge & Becker, Knoxville, Tenn., for plaintiffs-appellants.
John W. Gill, U.S. Atty., James Michael Haynes, Asst. U.S. Atty., Knoxville, Tenn., Juan A. Del Real, Gen. Counsel, Ann Hunsaker, Dept. of Health & Human Services, Health Care Financing & Human Development Services Div., Washington, D.C., Henry Eigles, argued, Dept. of Health & Human Services, Baltimore, Md., for defendant-appellee.
Before LIVELY, Chief Judge, and MARTIN and KRUPANSKY, Circuit Judges.
KRUPANSKY, Circuit Judge.
1
Plaintiffs (eight nonprofit hospitals providing services to Medicare and other patients) appealed the summary judgment entered in favor of the Secretary and Health and Human Services (Secretary) in an action challenging the validity of a Medicare regulation. 574 F.Supp. 943. Specifically, plaintiffs contended below and on appeal that 42 C.F.R. Sec. 405.310(j), which designated patients' bedside telephones as "personal comfort items" precluded from reimbursement pursuant to 42 U.S.C. Sec. 1395y(a)(6), is invalid because it allegedly: (1) conflicts with the legislative intent of the Medicare Act; (2) fails to comport with 42 U.S.C. Sec. 1395x(b)(2) which provides that the reasonable cost of (reimbursable) inpatient hospital services includes, inter alia, "ordinarily furnished" hospital facilities, appliances and equipment; and (3) was promulgated by the Secretary without consideration of relevant factors. The Secretary counters with the arguments that (1) federal courts do not have subject matter jurisdiction over the instant dispute; and (2) that the regulation is in any event valid.
2
As a threshold issue, the Secretary vigorously argued that Sec. 1395oo(g) precludes judicial review of the validity of the patient telephone regulation, and thus denies subject matter jurisdiction to federal courts over the instant complaint. However, courts which have considered the Secretary's jurisdictional argument have rejected it, holding that 42 U.S.C. Sec. 1395oo(g) does not bar judicial review of the issue. See e.g., Holy Cross Hospital-Mission Hills, et al. v. Heckler, 749 F.2d 1340, 1341 (9th Cir.1984); Fairview Deaconess Hospital v. Heckler, 749 F.2d 1256 (8th Cir.1984); Arlington Hospital v. Heckler, 731 F.2d 171 (4th Cir.1984); Memorial Hospital v. Heckler, 706 F.2d 1130 (11th Cir.1983); Saint Mary of Nazareth Hospital Center v. Department of HHS, 698 F.2d 1337 (7th Cir.1983). This court finds the analysis presented in these opinions pursuasive, and thus concludes that federal courts possess subject matter jurisdiction over disputes involving Medicare regulations.
3
Turning to the validity of the regulation itself, this court's standard of review is set forth at 5 U.S.C. Sec. 706(2) (the Administrative Procedure Act). Section 706(2) mandates that a court
4
hold unlawful and set aside agency action, findings, and conclusions found to be--
5
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
6
* * *
7
* * *
8
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right....
9
This circuit and others have interpreted the above statute as requiring a court to set aside agency action which is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; contrary to a constitutonal right, power, privilege or immunity; or unsupported by substantial evidence where an agency hearing is being reviewed on the record. Shaker Medical Center Hosp. v. Secretary, 686 F.2d 1203, 1207 (6th Cir.1982). Accord, Medical Center of Independence v. Harris, 628 F.2d 1113, 1117 (8th Cir.1980); Fairfax Hosp. Ass'n. v. Califano, 585 F.2d 602 (4th Cir.1978); Pleasantview Convalescent and Nursing Center, Inc. v. Weinberger, 565 F.2d 99, 102 (7th Cir.1976).
10
Where the question is the validity of a regulation or the Secretary's interpretation thereof, the standard is whether the Secretary's decision was arbitrary or capricious. Diplomat Lakewood, Inc. v. Harris, 613 F.2d 1009, 1018 (D.C.Cir.1979). The Supreme Court has defined the term "arbitrary and capricious" with respect to administrative agency rules thusly:
11
Normally, an agency rule would be arbitrary and capricious if the agency relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
12
Motor Vehicle Manufacturers Ass'n v. State Farm, 463 U.S. 29, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983) (holding invalid National Highway Traffic Safety Administration's recission of requirement that new automobiles be equipped with passive restraint devices--airbags or automatic seat belts--due to failure to adequately explain reason for recission).
13
Finally, while regulations promulgated by the Secretary must be granted deferential consideration and courts must therefore exercise caution in overturning them, a court will not "rubber stamp" the Secretary's decision where there is no justification for the promulgation of the regulation and the regulation is obviously inconsistent with the Medicare statute. Michigan Academy of Family Physicians v. Blue Cross, 728 F.2d 326, 332 (6th Cir.1984).
14
Plaintiffs' position in this case is that patient telephone service was incorrectly cast by the Secretary as a "personal comfort item" excluded from Medicare coverage under 42 U.S.C. Secs. 1395y(a)(6), when it should be classified as a service "ordinarily furnished" by hospitals to patients as part of the hospital facility, and thus eligible for reimbursement as an inpatient hospital service under 42 U.S.C. Sec. 1395x(b)(2). The essence of plaintiffs' argument is simply that the Secretary has classified an item as excluded from Medicare coverage which plaintiffs believe is deserving of coverage. While this court might classify patient telephone services differently than did the Secretary if considering the issue de novo, the wide scope of discretion which Congress vested in the Secretary to further define included and excluded costs cannot be disregarded.1 And it cannot be overlooked that six other circuits which have reviewed similar challenges to the patient telephone regulation have sustained its validity. See, e.g., Holy Cross Hospital v. Heckler, 749 F.2d 1340, 1341 (9th Cir.1984); Fairview Deaconess Hospital v. Heckler, 749 F.2d 1256 (8th Cir.1984); Arlington Hospital v. Heckler, 731 F.2d 171 (4th Cir.1984); Memorial Hospital v. Heckler, 706 F.2d 1130 (11th Cir.1983); Saint Mary of Nazareth Hospital Center v. Department of HHS, 698 F.2d 1337 (7th Cir.1983); Presbyterian Hosp. of Dallas v. Harris, 638 F.2d 1381 (5th Cir.1981). And, in addition to the court below, see 574 F.Supp. 943, several other district courts have upheld the patient telephone regulation. See, St. Joseph Hosp. v. Heckler, 570 F.Supp. 434 (N.D.Ind.1983); Greater Cleveland Hospital Ass'n v. Schweiker, 599 F.Supp. 1000 (N.D.Ohio 1984). Again, this court finds compelling the rationales advanced in the above cited opinions for upholding the regulation at issue herein.
15
In view of the foregoing, it is clear that the Secretary's promulgation of the patient telephone regulation neither conflicts with the language or legislative history of the Medicare Act, nor is arbitrary and capricious. However, plaintiffs further challenge the procedure by which the telephone regulation was issued.
16
In accordance with the Administrative Procedure Act (APA), specifically 5 U.S.C. Sec. 553(c),2 an agency must consider "relevant factors" when promulgating a rule. Since no agency record apparently exists as to the 1966 promulgation of the regulation at issue herein, plaintiffs argue that "it is possible that no relevant factors were ever considered by the Secretary in issuing the regulation ...." (emphasis in original). Plaintiffs urge that, at a minimum, the regulation should be remanded to the Secretary for development of an administrative record. This argument has several fatal flaws.
17
First, the Medicare program is a benefit program. The APA specifically excludes rulemaking relating to benefits from its procedural requirements, see 5 U.S.C. Sec. 553(a)(2), and the courts have so recognized. Good Samaritan Hosp. v. Mathews, 609 F.2d 949 (9th Cir.1979); Humana of South Carolina v. Califano, 590 F.2d 1070, 1082-1084 (D.C.Cir.1978). Although the Secretary expressly waived the Sec. 553(a)(2) exemption in 1971, see 36 Fed.Reg. 2531 (1971), the exemption was in effect when the patient telephone regulation was promulgated in 1966.
18
Plaintiffs suggest, however, that there is a constitutional or common law requirement for development of an administrative record. However, in Vermont Yankee Nuclear Power v. Natural Resources Defense Council, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed. 460 (1978), the Supreme Court determined that the APA set forth the maximum procedural requirements imposed upon agencies conducting rule making procedures, and held that in reviewing agency decisions, courts may not impose additional procedural requirements not specified by the APA. As Congress had exempted benefit programs from the APA requirements, this court, in accordance with Vermont Yankee, cannot now mandate that the Secretary produce a complete administrative record of a regulation promulgated in 1966, with the threat of invalidating the regulation if the Secretary fails to comply.
19
In view of the foregoing, the decision of the district court is
20
AFFIRMED.
1
Congress specifically empowered the Secretary to "prescribe such regulations as may be necessary to carry out the administration of the insurance programs under this subchapter." 42 U.S.C. Sec. 1395hh. In addition it is well established that a reviewing court cannot reverse an agency "simply because it would have interpreted the statute in a different manner." Batterton v. Francis, 432 U.S. 416, 425, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977)
2
In pertinent part, 5 U.S.C. Sec. 553(c) provides:
(c) .... After consideration of the relevant matters presented, the Agency shall incorporate in the rules adopted a concise general statement of their basis and purpose....
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Digitally signed by
Reporter of Decisions
Reason: I attest to the
Illinois Official Reports accuracy and
integrity of this
document
Appellate Court Date: 2018.03.15
12:27:47 -05'00'
In re C.H., 2017 IL App (3d) 160729
Appellate Court In re C.H., a Minor (The People of the State of Illinois,
Caption Petitioner-Appellee, v. Ricky H., Respondent-Appellant).
District & No. Third District
Docket No. 3-16-0729
Filed September 15, 2017
Modified upon
denial of rehearing January 30, 2018
Decision Under Appeal from the Circuit Court of Peoria County, No. 16-JA-104; the
Review Hon. Kirk D. Schoenbein, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Linda S. Groezinger, of Peoria, for appellant.
Appeal
Jerry Brady, State’s Attorney, of Peoria (Patrick Delfino, Lawrence
M. Bauer, and Stephanie L. Raymond, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE O’BRIEN delivered the judgment of the court, with
opinion.
Justice Wright concurred in the judgment and opinion.
Justice Schmidt concurred in part and dissented in part, with opinion.
OPINION
¶1 Petitioner, the State of Illinois, filed a neglect petition alleging that the minor, C.H., was
neglected as to medical care and in an injurious environment. The petition named Ricky H. as
C.H.’s father. At a dispositional hearing, the trial court found Ricky H. to be a fit parent but
ordered that C.H. not be returned home. Ricky appealed. We reverse and remand.
¶2 FACTS
¶3 The State filed a two-count neglect petition against C.H.’s mother and her father,
respondent Ricky H. The amended petition alleged that C.H. was medically neglected due to
her parents’ failure to provide sufficient medical care and treatment for C.H.’s multiple
medical issues. The second count alleged that C.H. was in an injurious environment due to her
mother having opiates in her system when she gave birth to C.H.’s sibling in February 2016,
the mother’s drug use while pregnant with C.H.’s sibling, and C.H.’s untreated medical issues.
C.H. was taken into shelter care and placed with Ricky’s parents.
¶4 In March 2016, Ricky signed a voluntary acknowledgement of paternity. He submitted a
mixed answer to the petition in September 2016, stating in part that he lacked legal authority to
obtain or schedule medical care for C.H. until March 2016, when he was named C.H.’s legal
father. Following a hearing on the petition, the trial court found C.H. neglected but that Ricky
did not contribute to the injurious environment.
¶5 In October 2016, a dispositional hearing took place. A dispositional court report, integrated
assessments, and addendums were submitted. The State presented a proffer regarding C.H.’s
lack of medical treatment. The caseworker, C.H.’s mother, and Ricky testified. Evidence
presented established that Ricky complied with his service plan tasks, including attending
visitation. He voluntarily participated in counseling and a parenting class. He performed drug
drops, although he was not ordered to do so, and the results indicated he was not using drugs.
Ricky had a driver’s license and a part-time job. The trial court found Ricky was fit but that
placement was necessary due to the court’s concerns that Ricky minimalized C.H.’s medical
issues. The court wanted a period of time when C.H. was safe and Ricky could have more
visitation with her. The trial court granted the Department of Children and Family Services
(DCFS) the right to allow overnight visitation at its discretion and anticipated the case would
close at the next hearing. Ricky appealed.
¶6 ANALYSIS
¶7 The issue on appeal is whether the trial court abused its discretion when it found Ricky a fit
parent but ordered continued placement of C.H. in foster care. Ricky argues that he did not
contribute to the injurious environment or medical neglect and continued placement is not
authorized because the trial court found him fit.
¶8 Our supreme court has made it abundantly clear that “section 2-27(1) of the [Juvenile
Court Act of 1987 (705 ILCS 405/2-27(1) (West 2012))] does not authorize placing a ward of
the court with a third party absent a finding of parental unfitness, inability, or unwillingness to
care for the minor.” In re M.M., 2016 IL 119932, ¶ 31. We will reverse the trial court’s
dispositional findings when they are against the manifest weight of the evidence or the trial
-2-
court abused its discretion in fashioning an improper dispositional order. In re M.M., 2015 IL
App (3d) 130856, ¶ 11.
¶9 We addressed this issue in In re K.L.S-P., 383 Ill. App. 3d 287 (2008). In that case, the trial
court found the child neglected and the mother “ ‘fit but reserved.’ ” Id. at 291. Like here, the
trial court made the child a ward of the court and granted custody and guardianship to DCFS.
Id. Unlike the instant case, the State in K.L.S-P. did not allege, and the court did not find, that
the parent was unable or unwilling to care for the child. Id. at 295. Here, the trial court
expressed concern with Ricky’s ability to sufficiently tend to C.H.’s medical needs.
Nevertheless, as we determined in K.L.S-P., “a finding of fitness is, necessarily, a finding of
‘fitness *** to care for the minor without endangering the minor’s health or safety.’ ” Id. at 296
(quoting 705 ILCS 405/2-23(1)(a) (West 2006)). There is no statutory requirement that the
trial court make separate findings of fitness and ability to care for the child. Id.
¶ 10 The trial court found Ricky to be a fit parent. The trial court determined Ricky had not
contributed to the injurious environment. He was compliant with all service tasks and had
performed other tasks, such as drug tests and parenting class, without being ordered to do so.
He was welcomed to move into his parents’ home, where C.H. was currently placed, once he
received custody of her. The home was appropriate. Ricky’s other daughter was transitioning
to his care, and the sisters were forming a bond. He was employed. He and C.H.’s mother were
not living together and were no longer in a romantic relationship. Ricky was not legally
determined to be C.H.’s father until March 2016, limiting his ability to be involved in her
medical care after she was in foster care. He would accompany his mother to C.H.’s
appointments when he could but was again limited by placement restrictions. We acknowledge
the trial court’s concerns over Ricky’s ability to address C.H.’s medical needs but find no
evidence that Ricky was unable or unwilling to accept those responsibilities.
¶ 11 Despite the trial court’s concerns, it still determined Ricky to be a fit parent. A parent is
either fit or unfit. In re R.W., 371 Ill. App. 3d 1171, 1174 (2007). Once the trial court made a
finding that Ricky was a fit parent and not otherwise unable or unwilling to care for C.H. it was
not authorized to place C.H. in the custody of DCFS. K.L.S-P., 383 Ill. App. 3d at 295. We find
the trial court abused its discretion when it did not return C.H. to Ricky’s custody after finding
him fit.
¶ 12 For the foregoing reasons, the judgment of the circuit court of Peoria County is reversed
and the cause is remanded.
¶ 13 Reversed and remanded.
¶ 14 JUSTICE SCHMIDT, concurring in part and dissenting in part:
¶ 15 I agree that without specific findings that the respondent was either unfit, unable, or
unwilling to care for C.H., the trial court erred in placing C.H. with a third party. In re M.M.,
2016 IL 119932, ¶ 31. However, it also seems clear that, while the trial judge failed to make a
specific finding that respondent was unable to care for C.H.’s medical needs, it had very
specific concerns in that regard and spent much time discussing them.
¶ 16 The trial judge found C.H. to be medically neglected. He expressed concern over
respondent’s “minimizing of the neglect that happened.” The trial judge noted, “I do find that
placement is necessary because I’m concerned about his minimizing of the neglect that
-3-
happened.” It is clear that C.H. suffers from some complex medical issues. When questioned
about C.H.’s medical appointments, respondent stated that he has to “consult with my mother”
and that “she lets me know when they are and I go with her if I’m available and can.” As in
M.M., I believe the better remedy here would be to reverse and remand to the trial court “ ‘so
that the trial court may enter explicit, specific findings consistent with the requirements of
section 2-27(1).’ ” Id. ¶ 11 (quoting In re M.M., 2015 IL App (3d) 130856, ¶ 16)); see also
In re Madison H., 215 Ill. 2d 364, 377 (2005).
-4-
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877 F.2d 1475
UNITED STATES of America, Plaintiff-Appellee,v.Juan NUNEZ, Defendant-Appellant.
No. 87-1950.
United States Court of Appeals,Tenth Circuit.
June 20, 1989.
Dan B. Fahrney, Lakewood, Colo., for defendant-appellant.
William D. Welch and Kathryn Meyer, Asst. U.S. Attys., Denver, Colo. (Michael J. Norton, Acting U.S. Attorney, D. Colo., with them on the brief), Mountain States Drug Task Force, Denver, Colo., for plaintiff-appellee.
Before McKAY and McWILLIAMS, Circuit Judges, and BROWN, District Judge.*
McWILLIAMS, Circuit Judge.
1
In a thirty-three count superseding indictment, twenty defendants were charged in the first count with conspiring among themselves, and with others, to distribute heroin and to possess heroin with an intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). The objective of their conspiracy was to import heroin from outside the State of Colorado into Colorado and to then distribute and sell it within the state. The points of sale included, but were not limited to, the State Penitentiary at Canon City, Colorado. In the remaining thirty-two counts certain defendants were charged with the actual distribution of heroin, and other defendants were charged with the unlawful use of the telephone to facilitate such distribution and possession of heroin, in violation of 21 U.S.C. Sec. 843(b) and 18 U.S.C. Sec. 2.
2
Thirteen of the original twenty defendants either pled guilty or were dismissed from the case prior to trial, with the remaining seven going to trial. One of these seven pled guilty during the trial. Of the remaining six, the jury acquitted three defendants. The remaining three defendants were convicted on certain of the charges and they now appeal their respective convictions and the sentences imposed thereon.1
3
Each of the three defendant-appellants has prosecuted his or her appeal separately. Each has his or her own counsel who has filed a separate brief raising related, though not completely identical, issues, and each appeal was separately argued. There has been no order of consolidation of these three appeals. Accordingly, each will be addressed by separate opinion, although there will be some cross-reference between the cases.
4
We are here concerned with the appeal of Juan "Blackie" Nunez, hereinafter referred to as Blackie. Blackie, an inmate in the Colorado State Penitentiary at Canon City, Colorado, for the relevant period of time was convicted on Count 1, the conspiracy charge, and sentenced to twelve years imprisonment on that count, with the sentence to commence after Blackie completed the state sentence which he was then serving. He was also convicted on Counts 16, 19, and 24, and sentenced to four years imprisonment on these counts to be served concurrently with the twelve-year sentence imposed on Count 1. Counts 16, 19, and 24, charged Blackie with the use of the telephone to facilitate drug distribution and possession, with each count based on a separate use of the telephone.
5
The principal matter raised on appeal by Blackie is that his constitutional rights were violated when he was banished from the courtroom on the fourth day of a twelve-day trial because of obstreperous and disruptive conduct, and, the somewhat related issue, that he was denied his right to defend, pro se.
6
From the outset Blackie was represented by court-appointed counsel. There is no indication that he was dissatisfied with the services of his appointed counsel prior to trial. On the first day of the trial, Blackie, in the presence of the jury, interrupted the prosecutor who was interrogating one of the government's witnesses by calling the witness a liar. The district judge told Blackie to "stop that," and added that "if there is one more outburst you will be removed from the courtroom." Later, on that same day, the district judge, outside the presence of the jury, advised Blackie that he would "have to control himself," to which Blackie replied, "Excuse me for my unpardonable outburst, your Honor."
7
On the second day of the trial, while the prosecutor was examining a witness, Blackie began talking in a loud voice and gesturing with his hands. The district judge advised Blackie that he was disturbing the proceedings and had him removed from the courtroom.
8
On the third day of the trial Blackie was brought into court outside the presence of the jury and was advised by the district judge that he would be permitted to return to the courtroom for his trial, but that if there was "any further outburst you will be excluded from the courtroom for the rest of the trial." Blackie stated that he "understood." On that occasion Blackie also stated that he didn't think he could "receive an impartial and unbiased trial" because the district judge was prejudiced against him, and, for the first time, he indicated displeasure with the performance of his counsel. The district judge denied any partiality on his part and at the same time refused Blackie's request to discharge his counsel.2 By way of response, Blackie asked to be excused from the courtroom, which he was.
9
At noon on the third day of the trial, the district judge instructed a marshal to inquire of Blackie concerning his desire to return to the courtroom on a promise to not cause any further disruptions. The marshal reported back that Blackie refused to answer.
10
On the fourth day of the trial Blackie was returned to court and in the absence of the jury he reiterated his desire for different counsel. The request was denied. However, Blackie, on his promise to behave, was permitted to remain in the courtroom and the jury was returned to the courtroom. Only moments later, Blackie started to interrupt and the district judge stated, "That's it. You are removed from the courtroom," to which Blackie replied that he didn't want to remain in a courtroom where "burlesque" and "charades" were taking place. Blackie was then removed from the courtroom for the balance of his trial, though his court appointed counsel, with whom he was dissatisfied, remained and participated in the trial to the end.
11
On appeal, Blackie, with counsel other than his trial counsel, argues that his Fifth and Sixth Amendment rights were violated by his banishment from his trial. Specifically, it is argued that by his exclusion from the courtroom, Blackie was denied his Fifth Amendment right to due process of law, and that he was denied his Sixth Amendment right to confront the government's witnesses and to testify in his own behalf. Blackie also asserts that, all things considered, he was denied his Sixth Amendment right to the effective assistance of counsel. We are not persuaded.
12
In removing Blackie from the courtroom, the district court relied on Fed.R.Crim.P. 43(b)(2), which reads as follows:
13
(b) Continued presence not required. The further progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived the right to be present whenever a defendant initially present....
14
....
15
(2) after being warned by the court that disruptive conduct will cause the removal of the defendant from the courtroom, persists in conduct which is such as to justify exclusion from the courtroom.
16
It is agreed that a defendant in a criminal proceeding can lose his right to be present at trial, if, following a judge's warning that he will be removed if his disruptive behavior continues, he thereafter persists in conducting himself in such a disruptive manner that his trial cannot proceed if he remains in the courtroom. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).
17
In Allen, the Supreme Court held that there were three constitutionally permissible avenues for dealing with an obstreperous defendant: (1) have him bound and gagged but remain in open court; (2) civil or criminal contempt; and (3) remove him from the courtroom and continue the trial "until the defendant promises to conduct himself properly." Id. at 344, 90 S.Ct. at 1061. Counsel would read the quoted language to mean that when Blackie was excluded on the fourth day of his trial, he should have thereafter been brought back at least once a day to ascertain whether he would promise to behave properly and if he did so promise, he should then have been allowed to stay in the courtroom unless, and until, his next outbreak, ad infinitum. Allen contains no such requirement.
18
As the Fourth Circuit has observed, "A court should, of course, vigilantly protect a defendant's constitutional rights, but it was never intended that any of these rights be used as a ploy to frustrate the orderly procedures of a court in the administration of justice." United States v. Lawrence, 605 F.2d 1321, 1325 (4th Cir.1979), cert. denied, 444 U.S. 1084, 100 S.Ct. 1041, 62 L.Ed.2d 770 (1980). See also United States v. Gipson, 693 F.2d 109 (10th Cir.1982) ("The right to retain counsel of one's choice may not 'be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same,' "); United States v. Hack, 782 F.2d 862 (10th Cir.1986), cert. denied, Owens v. United States, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986) (general prohibition against use of shackles inappropriate to insure orderly progress of trial).
19
Furthermore, the right to testify is not absolute, United States v. Panza, 612 F.2d 432, 438 (9th Cir.1979), and may be waived by "contumacious conduct." United States v. Ives, 504 F.2d 935, 941 (9th Cir.1974), vacated 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975), reinstated in relevant part and vacated in part, 547 F.2d 1100 (9th Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1130, 51 L.Ed.2d 554 (1977). The right to confront witnesses and the Fifth Amendment right to due process may also be waived. United States v. Rouco, 765 F.2d 983 (11th Cir.1985).
20
In the instant case, Blackie was given a warning on the first day of his trial. On the second day of the trial, when Blackie interrupted the trial with loud talk and gesturing, he was removed from the courtroom. On the third day of the trial, Blackie was returned to the courtroom, and the district judge advised him that he would be permitted to remain, but that if there was any further "outburst," he would be excluded from the courtroom for the rest of the trial. Blackie declined the offer and asked to be excused, and was. At noon on the third day of the trial, the district judge instructed the marshal to inquire whether Blackie wanted to return to the courtroom, and Blackie refused to talk. On the fourth day of the trial, Blackie was allowed to return to the courtroom, but when he interrupted the proceedings again by injecting himself into the proceedings, he was banished for good. And at that time Blackie himself indicated that he did not want to be any part of a "burlesque" or "charade," and he did not thereafter indicate any desire to return or testify. The district judge, in our reading of the record, was slow to anger and we find no error in his handling of this matter. Blackie's constitutional rights were adequately protected. In the final analysis, it boiled down to whether Blackie, or the district judge, was going to conduct the trial.
21
Intertwined with his banishment from the courtroom is Blackie's further argument that he was denied his Sixth Amendment right to have his appointed counsel removed from the case and be allowed to conduct his own defense, pro se, or be given different counsel. The district judge denied his request and, under the circumstances, we find no error.
22
We are not unmindful of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). There the Supreme Court held that the Sixth Amendment, as applied to States by the Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an independent constitutional right of self representation. In Faretta, however, the defendant requested that he be allowed to represent himself "[w]ell before the date of the trial." In our case, the trial was in its third day before Blackie indicated any dissatisfaction with his court appointed counsel. At that juncture, it was too late to bring in new counsel, and if Blackie's request to proceed pro se had been granted, and he had later been removed from the courtroom, as he was, he would have been unrepresented. The district court, confronted with those circumstances, did not err in refusing Blackie's request to discharge his appointed counsel and proceed pro se. See Sapienza v. Vincent, 534 F.2d 1007 (2d Cir.1976) where the Second Circuit, after Faretta, adhered to an earlier decision of that court which held that once a trial had begun and the defendant is represented by counsel, the defendant's right to discharge his lawyer and to represent himself is "sharply curtailed."3 See also Lawrence, 605 F.2d at 1324-25.
23
As stated above, Blackie was convicted on Counts 16, 19, and 24, as well as on the conspiracy charge contained in Count 1. In Count 16 Blackie was charged with using the telephone on or about May 30, 1985, to facilitate a heroin distribution; in Count 19 he was charged with using the telephone on June 1, 1985, to facilitate a heroin distribution; and in Count 24 he was charged with using the telephone on June 9, 1985, to facilitate a drug transaction. Evidence at trial indicated that on each of these three dates Blackie initiated a telephone call from the state penitentiary in Canon City, Colorado, to his brother, Antonio "Pic" Nunez, who resided in Westminster, Colorado.4 On May 30, 1985, Blackie spoke with "Pic"; on June 1, 1985, he spoke with Sharon Nunez, "Pic's" wife; and on June 9, 1985, Blackie spoke with "Pic" and also with his (Blackie's) daughter, Louise Charlettie Nunez Lee.
24
The government had obtained an order to intercept messages coming into the phone at "Pic's" residence in Westminster, and when Blackie called "Pic's" home in Westminster from the state penitentiary his calls were intercepted.
25
In connection with his convictions on Counts 16, 19, and 24, counsel argues here that the order authorizing a wiretap of "Pic's" residence violated Blackie's constitutional rights, and that his conviction on those counts should be reversed. We do not agree. The validity of the wiretap is discussed more fully in the related appeal of Blackie's brother and co-defendant, United States v. Corky Nunez, 877 F.2d 1470 (1989).
26
Additionally, Blackie's contention that error was committed when the district court denied his motion for a severance of counts and defendants on the ground that any conspiracy relating to the state penitentiary was separate and distinct from any conspiracy to distribute heroin outside the penitentiary is without merit. The issue of single conspiracy vis-a-vis two conspiracies is also discussed in the appeal of United States v. Corky Nunez, 877 F.2d 1470 (1989).5
27
Judgment affirmed.
McKAY, Circuit Judge, dissenting in part:
28
I must dissent from that portion of the court's opinion that depends on its conclusion that there was sufficient evidence to prove a single conspiracy. In addition to the reasons set out in my dissents in United States v. Heath, 580 F.2d 1011 (1978); United States v. Watson, 594 F.2d 1330 (1979); and United States v. Dickey, 736 F.2d 571 (1984), I must add my observation that when it comes to the evidence showing the rim that connects the spokes (Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); and United States v. Butler, 494 F.2d 1246 (10th Cir.1974)), in my view we are not faithfully applying the mandate of Anderson v. Liberty Lobby, 477 U.S. 242, 254, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986), to view the evidence "through the prism of the substantive evidentiary burden."
*
Honorable Wesley E. Brown, United States District Judge for the District of Kansas, sitting by designation
1
The seven defendants who stood trial were Juan "Blackie" Nunez, Corky Nunez, Anna Irene Martinez, Richard Nunez, Ellen Nunez, Christine Benavidez, and Charles Nunez. Charles Nunez pled guilty during the trial. Christine Benavidez, Ellen Nunez, and Richard Nunez were acquitted on all counts. Juan "Blackie" Nunez, Corky Nunez, and Anna Irene Martinez were each convicted on several counts, and they now appeal their respective convictions
2
Appointed counsel also advised the district court that he had been instructed by Blackie to present "no defense," and the district court, in turn, instructed counsel to defend "to the best of his ability."
3
We are not persuaded by Blackie's related contention that he was denied his Sixth Amendment right to the effective assistance of counsel. Counsel did about as well as could be expected, given the circumstances. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
4
"Pic" Nunez was the central figure or "hub" in this drug operation
5
Blackie, as well as Martinez, suggests that the indictment failed to provide adequate notice. However, under the standard of United States v. Savaiano, 843 F.2d 1280, 1294 (10th Cir.1988) and United States v. Smith, 692 F.2d 693, 696 (10th Cir.1982), defendants had sufficient notice
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326 F.Supp.2d 794 (2004)
Soila CAMACHO, Sonia Denise Grover, Texas Welfare Reform Organization, El Paso County Hospital District d/b/a R.E. Thomason General Hospital, Plaintiffs,
v.
TEXAS WORKFORCE COMMISSION, Texas Health and Human Services Commission, and Texas Department of Human Services, Defendants.
No. A-04-CA-017SS.
United States District Court, W.D. Texas, Austin Division.
April 12, 2004.
*795 P. M. Schenkkan, Graves, Mary A. Keeney, Graves, Dougherty, Hearon Etal, Austin, TX, Bruce P. Bower, Texas Legal Services Center, Austin, TX, for Soila Comacho, Sonia Denise Grover, Texas Welfare Reform Organization.
Jose R. Rodriguez, El Paso County Atty., El Paso, TX, Kitty Schild, El Paso County Assist. Atty., El Paso, TX, for El Paso County Hosp. Dist.
Robert L. Seibert, Assistant Attorney General, Austin, TX, Raymond Charles Winter, Assistant Attorney General, Administrative Law Division, Austin, TX, Nancy K. Juren, Office of Attorney General, General Litigation Division, Austin, TX, Vijay Shanker, Priti Seksaria Agrawal, William D. Iverson, Covington & Burling, Washington, DC, for Texas Workforce Com'n, Texas Health and Human Services Com'n, Texas Dept. of Human Services.
ORDER
SPARKS, District Judge.
BE IT REMEMBERED on the 31st day of March 2004, the Court called the above-styled cause for hearing on Plaintiffs' Application for Preliminary Injunction [# 9], and the parties appeared through counsel of record. Before the Court are Plaintiffs' Application for Preliminary Injunction [# 9], Defendant's Response to Plaintiffs' Application [# 14]; and Plaintiffs' Reply [# 23]. Having considered the above documents, the evidence and arguments presented at the hearing, the case file as a whole, and the applicable law, the Court enters the following opinion and order.
I. Background
Effective November 18, 2003, the Texas Workforce Commission ("TWC") adopted several new rules limiting eligibility for Medicaid health coverage. These rules apply to poor adults with children who are receiving both cash assistance under the federal Temporary Assistance to Needy Families ("TANF") program and medical assistance under the federal Medicaid program. Separate federal law governs the *796 TANF and Medicaid programs. Plaintiffs contend federal Medicaid law limits termination of Medicaid to only those TANF recipients who are "refusing to work" or refusing to cooperate with enforcement of child support. According to Plaintiffs, the challenged portions of the TWC rules would cut-off TANF recipients' Medicaid for other, non-permitted reasons.
Plaintiffs Soila E. Camacho ("Camacho"), Sonia Denise Grover ("Grover"), Texas Welfare Reform Organization ("TWRO"), and El Paso County Hospital District d/b/a R.E. Thomason General Hospital ("Thomason") filed in state district court an Original Petition and Application for Declaratory Relief, Temporary Injunction and Temporary Restraining Order, complaining of Defendants the TWC, the Texas Health and Human Services Commission ("THHSC"), and the Texas Department of Human Services ("TDHS").
Plaintiff Camacho has been a recipient of TANF and Medicaid and has recently reapplied for these benefits after being terminated from her job. Plaintiff Grover is currently a recipient of TANF and Medicaid subject to the challenged TWC rules. Plaintiff TWRO is an organization that advocates on behalf of its members, including recipients of TANF and Medicaid who are at risk of losing their Medicaid benefits under the challenged rules. Plaintiff Thomason is a county hospital district required by state law to provide indigent care. According to Thomason, it will suffer financial losses in providing health care to those TANF recipients who would lose their Medicaid benefits under the new rules. Thomason argues it will immediately lose capitation[1] payments to its health maintenance organization if the challenged rules are implemented. Defendant TWC is the state agency that adopted the challenged rules. Defendant TDHS is the state agency authorized to cut-off Medicaid assistance under the new TWC rules. Defendant THHSC is the state agency with responsibility for implementing the Texas Medicaid program.
The state district court issued a temporary restraining order that the parties agreed to extend until a state court ruling on the temporary injunction hearing set for January 20, 2004, or March 31, 2004, whichever first occurred. On January 12, 2004, Defendants removed the case to this Court. Plaintiffs filed an Application for Preliminary Injunction with new affidavits, seeking a continuance of the preliminary injunction pending this Court's determination of the merits.
II. Relevant Federal Law
This case concerns two separate federal statutory schemes-Temporary Assistance to Needy Families and Medicaid.
A. Temporary Assistance to Needy Families
The purpose of the TANF program is "to increase the flexibility of States in operating a program designed to" meet certain goals including "end[ing] the dependence of needy parents on government benefits by promoting job preparation, work, and marriage." 42 U.S.C. § 601(a). As a condition of receiving TANF grants, states must ensure certain percentages of families participate in work activities. 42 U.S.C. § 607(a). "Work activities" include:
(1) unsubsidized employment;
(2) subsidized private sector employment;
*797 (3) subsidized public sector employment;
(4) work experience ...;
(5) on-the-job training;
(6) job search and job readiness assistance;
(7) community service programs;
(8) vocational educational training ...;
(9) job skills training directly related to employment;
(10) education directly related to employment, in the case of a recipient who has not received a high school diploma or a certificate of high school equivalency;
(11) satisfactory attendance at a secondary school or in a course or study leading to a certificate of general equivalence ... and
(12) the provision of child care services to an individual who is participating in a community service program.
42 U.S.C. § 607(d). Each of these TANF activities consists of either actual work or education, training, or preparation for work. Federal law also authorizes states to establish other, non-work requirements related to promoting "individual responsibility" as part of their TANF programs. Federal law grants states the option to impose a penalty on TANF recipients who violate these non-work requirements. See 42 U.S.C. §§ 601-608.
B. Medicaid
Under the federal Medicaid program, 42 U.S.C. § 1396, the federal government pays up to 60 percent of the costs of medical care for eligible participants. States and in some cases localities, pay the balance of the costs of services. 42 U.S.C. § 1396a(a)(2). A state's participation in the Medicaid program is voluntary; however, if a state chooses to participate, its Medicaid plan must comply with the federal Medicaid statute. Abbeville Gen. Hosp. v. Ramsey, 3 F.3d 797, 800 (5th Cir.1993), cert. denied, 511 U.S. 1032, 114 S.Ct. 1542, 128 L.Ed.2d 194 (1994). Individuals who qualify for Medicaid include low-income families and children, and low-income aged, blind, or disabled individuals. 42 U.S.C. § 1396; see also Blanchard v. Forrest, 71 F.3d 1163, 1166 (5th Cir.1996).
42 U.S.C. § 1396u-1(b)(3) authorizes states to terminate Medicaid benefits of adult individuals whose TANF benefits are terminated for non-compliance with work requirements:
In the case of an individual who
(i) is receiving cash assistance under a State program funded under part A of subchapter IV of this chapter,
(ii) is eligible for medical assistance under this subchapter on a basis not related to section 1396a(1) of this title, and
(iii) has the cash assistance under such program terminated pursuant to section 607(e)(1)(B) of this title (as in effect on or after the welfare reform effective date) because of refusing to work
the State may terminate such individual's eligibility for medical assistance under this subchapter until such time as there no longer is a basis for the termination of such cash assistance because of such refusal.
42 U.S.C. § 1396u-1(b)(3)(A) (emphasis added). All TANF recipients subject to the work requirement under the TANF program are potentially at risk of losing their Medicaid for "refusing to work" when a state exercises this option.
III. Texas Changes in Temporary Assistance to Needy Families and Medicaid under House Bill 2292
As permitted by federal law, Texas includes both the work and the non-work requirements for the TANF program in a Personal Responsibility Agreement *798 ("PRA") that each adult TANF recipient must agree to and sign. TEX. HUM. RES. CODE § 31.0031. The PRA requires:
(1) the parent of a dependent child cooperate with the department and the Title IV-D agency if necessary to establish the paternity of the dependent child and to establish or enforce child support;
(2) if adequate and accessible providers of the services are available in the geographic area and subject to the availability of funds, each dependent child, as appropriate, complete early and periodic screening, diagnosis, and treatment checkups on schedule and receive the immunization series prescribed by Section 161.004, Health and Safety Code, unless the child is exempt under that section;
(3) each adult recipient, or teen parent recipient who has completed the requirements regarding school attendance in Subdivision (6), not voluntarily terminate paid employment of at least 30 hours each week without good cause in accordance with rules adopted by the department;
(4) each adult recipient for whom a needs assessment is conducted participate in an activity to enable that person to become self-sufficient;
(5) each caretaker relative or parent receiving assistance not use, sell, or possess marihuana or a controlled substance in violation of Chapter 481, Health and Safety Code, or abuse alcohol;
(6) each dependent child younger than 18 years of age or teen parent younger than 19 years of age attend school regularly, unless the child has a high school diploma or high school equivalency certificate or is specifically exempted from school attendance under Section 25.086, Education Code;
(7) each recipient comply with department rules regarding proof of school attendance; and
(8) each recipient attend appropriate parenting skills training classes, as determined by the needs assessment.
TEX. HUM. RES. CODE § 31.0031(d). In short, the PRA requires adult TANF recipients not only to work and cooperate with child support, but also to keep their children in school and up-to-date on their immunizations and health and dental check-ups and, with respect to their own personal conduct, to refrain from drug and alcohol abuse.
Until 2003, Texas, like other states, penalized TANF recipients' failure to comply with non-work requirements by ordering reductions in cash assistance. In the 2003 Regular Session, the Texas Legislature passed House Bill 2292 ("HB 2292"). HB 2292 requires the state to immediately terminate all TANF cash assistance for a recipient's failure to cooperate with PRA requirements. T EX. HUM. RES. CODE §§ 31.0031 & 31.0032. Plaintiffs do not contest this election is authorized under federal law.
In addition, HB 2292 authorizes the state to exercise the option under federal law to terminate Medicaid to adult TANF recipients for "refusing to work." TEX. HUM. RES. CODE § 31.0032(c). This statute provides:
To the extent allowed by federal law, the Health and Human Services Commission or any health and human services agency, as defined by Section 531.001, Government Code, may deny medical assistance for a person who is eligible for financial assistance but to whom that assistance is not paid because of the person's failure to cooperate. Medical assistance to the person's family may not be denied for the person's failure to cooperate. Medical assistance may not *799 be denied to a person receiving assistance under this chapter who is under the age of 19, a pregnant adult, or any other person who may not be denied medical assistance under federal law.
TEX. HUM. RES. CODE § 31.0032(c) (emphasis added). Plaintiffs contend federal law does not permit TWC to cut-off Medicaid benefits to recipients who are not "refusing to work", but who are merely failing to comply with a TANF PRA non-work requirement.
IV. The Challenged Texas Workforce Commission Rules
A. Rule 811.2(11)
Rule 811.2(11) states:
Work Requirement For the purpose of 45 U.S.C. § 607 and 45 CFR § 261.10, a Choices[2] individual is deemed to be engaged in work by cooperating with:
(A) all requirements set forth in the family employment plan, as set forth in this chapter; and
(B) all TANF Core and Non-Core activities, as set forth in this chapter.
40 TEX. ADMIN. CODE § 811.2(11).
B. Rule 811.23
Rule 811.23(e) provides:
A Board shall ensure that mandatory individuals are notified of their responsibility to participate in job readiness activities as set forth in § 811.41(d) of this chapter.
40 TEX. ADMIN. CODE § 811.23(e).
C. Rule 811.41
Rule 811.41 provides:
(d) Job readiness activities are designed to assist Choices individuals with addressing issues that will aid them in obtaining and retaining employment, including:
(3) activities essential to the health, safety, and welfare of their families, as follows:
(A) activities associated with maintenance of their children's health and dental checkups, as required by § 3.301 of this title;
(B) activities associated with maintenance of their children's immunizations, as required by § 3.301 of this title;
(C) activities necessary to ensure their children's school attendance, as required by § 3.301 of this title; and
(D) activities necessary to abstain from the use, possession, or sale of controlled substances, and to abstain from alcohol abuse, including participation in counseling.
40 TEX. ADMIN. CODE § 811.41(d)(3).
D. Rule 811.25(a)(1)(A)
Rule 811.25 states:
(a) Participation hours are subject to the restrictions regarding TANF core and TANF non-core activities as set forth in 45 U.S.C. § 607, 45 C.F.R. §§ 261.10, 261.12, 261.31, 261.32, and 261.33, and as set forth in this section and § 811.26 of this subchapter.
(1) TANF core activities are:
(A) job search and job readiness assistance, as described in § 811.41 of this chapter;
40 TEX. ADMIN. CODE § 811.25(a)(1)(A).
V. Standard for Preliminary Injunction
To obtain a preliminary injunction, a party must show (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm if the injunction is not granted; (3) the threatened injury to plaintiffs outweighs the injury *800 to defendant; and (4) granting the injunction does not disserve the public interest. Guy Carpenter & Co., Inc. v. Provenzale, 334 F.3d 459, 464 (5th Cir.2003). A preliminary injunction is an extraordinary remedy. Thus, a court may grant a preliminary injunction only when the party requesting makes a clear showing of these four factors. Id.
A. Plaintiffs are Likely to Prevail on the Merits
Plaintiffs have shown a strong likelihood of success on the merits. Texas' participation in Medicaid is voluntary, however, once Texas chose to participate, its Medicaid plan must comply with the federal Medicaid statute and regulations. Blanchard v. Forrest, 71 F.3d 1163, 1166 (5th Cir.1996); Alabama Nursing Home Ass'n v. Harris, 617 F.2d 388, 396 (5th Cir.1980); see also Planned Parenthood v. Sanchez, 280 F.Supp.2d 590, 606 (W.D.Tex.2003) ("States are not required to receive federal funding, but when they do, they must follow federal requirements.").
Plaintiffs argue Defendants' attempt to more strictly limit Medicaid benefits fails because Congress deliberately limited the sanction of withdrawal of benefits to adults terminated from TANF only for "refusing to work" under Section 607. This Court agrees. 42 U.S.C. § 1396u-1(b)(3) authorizes states to terminate Medicaid only when the non-pregnant adult's TANF cash assistance is terminated "pursuant to section 607(e)(1)(B) of this title ... because of refusing to work." 42 U.S.C. § 607(e)(1)(B) authorizes a state to terminate a TANF recipient who "refuses to engage in work required in accordance with this section." Congress' reference to Section 607 in the Medicaid statute is a deliberate restriction on a state's authority to terminate Medicaid. The federal TANF statute includes other provisions specifically authorizing a state to impose alternative sanctions if an adult fails to ensure a minor child attends school (42 U.S.C. § 604(i)) and if an individual fails to comply with an individual responsibility plan. 42 U.S.C. § 608(b)(3). Had Congress intended to permit a state to terminate Medicaid based on an adult's failure to ensure a child's school attendance or non-compliance with other non-work requirements of the individual responsibility plan, it would have provided for these penalties. Because Congress carefully limited a state's Medicaid sanction authority to Section 607 for "refusing to work," TWC's rules violate 42 U.S.C. § 1396u-1(b)(3).
Importantly, TWC imposes the PRA requirements, not as an alternative to working, but as additional requirements. Accordingly, a parent who is working, but fails to ensure his or her child is timely immunized, would lose Medicaid assistance. Other courts have enjoined state laws and regulations that add eligibility requirements to federal funding statutes. In Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972), the Supreme Court invalidated a state law preventing children whose fathers were serving in the military from receiving AFDC benefits, finding Congress did not intend to exclude a class of benefit recipients. Carleson, 406 U.S. at 604, 92 S.Ct. 1932. In Jones v. T.H., 425 U.S. 986, 96 S.Ct. 2195, 48 L.Ed.2d 811 (1976), the Supreme Court affirmed a three-judge district court's holding that a Utah regulation was inconsistent with Title XIX. The Utah regulation prohibited health care providers from giving minors federally-funded family planning assistance absent parental consent. See T.H. v. Jones, 425 F.Supp. 873, 875-76 (D.Utah 1975). The court held the Utah regulation conflicted with federal law because "[t]he state's regulations impermissibly engraft upon the federal scheme a condition for eligibility where Congress *801 has undertaken fully to define the class of persons who may receive family planning assistance." T.H., 425 F.Supp. at 878. This conflict, the court found, "constitutes an important disagreement affecting the scope and effect of federal family planning assistance. Under such circumstances, federal law must control." T.H., 425 F.Supp. at 880.
Following the T.H. decision, the Tenth Circuit invalidated a Utah statute prohibiting medical providers from receiving Medicaid reimbursement for providing contraceptive services to minors without parental consent. See Planned Parenthood Ass'n of Utah v. Dandoy, 810 F.2d 984 (10th Cir.1987). The court found the state requirement conflicted with Title XIX because:
The defendant provides the services to some persons eligible under Title XIX but not to others. The defendant thus has excluded some persons from the general group who are eligible for the particular health care here concerned. The result is that care to designated individuals in this large group to whom health care is to be available is refused by the state imposed condition.
Dandoy, 810 F.2d at 988. The court clarified the choice states must make when choosing to received federal funding: "Utah may participate in the program and thereby accept the conditions attached by the federal acts which may be contrary to state law or unwanted or instead choose not to participate and to use its own funds as it wishes." Dandoy, 810 F.2d at 988.
These cases establish a state cannot withhold assistance from individuals who met the federal eligibility requirements, simply because the individuals do not meet the state's additional requirements. Here, Texas is withholding Medicaid benefits from otherwise eligible individuals, based on their failure to meet state imposed conditions.[3]
The invalidity of Defendants' position is further supported by the testimony of Cheryl Camillo, a Health Insurance Specialist with the United States Department of Health and Human Services. She advised:
[A] state cannot terminate the Medicaid eligibility of an individual receiving TANF cash assistance whose TANF assistance is reduced due to the individual's failure to comply with an Individual Responsibility Plan.
So regarding your state's questions, the state cannot terminate a TANF recipient's Medicaid eligibility if the individual refuses to comply with an Individual Responsibility Plan. However, the state can terminate the individual's Medicaid eligibility if the individual's TANF eligibility were terminated due to a failure to engage in one of the work activities listed above [in 42 U.S.C. § 607].
Plaintiffs' Application for Preliminary Injunction [# 9], Exh. F. Moreover, the United States Department of Health and Human Services, which is charged with interpreting and implementing Section 607, has stated "we have no authority to add to the list of 12 work activities" found in Section 607. 64 Fed.Reg. 17720, 17777, 1999 WL 197996 (April 12, 1999). Indeed, Albert Hawkins, Executive Commissioner of Defendant THHSC, has represented to state legislators "any attempt by the State to broaden the definition of `work activities' for purposes of measuring the State's accountability under section 607 would be contrary to federal law." Plaintiffs' Application for Preliminary Injunction [# 9], Exh. M (October 1, 2003 Letter to Texas *802 Legislators) at 3. No state other than Texas terminates Medicaid for non-work program violations. Plaintiffs' Application for Preliminary Injunction [# 9], Exh. F at 6.
Based on the record before the Court at this time, the Court finds Plaintiffs have demonstrated a probability of success on the merits. Congressional intent in Medicaid is clear to protect the working welfare recipient's health. Congress did not authorize states in pursuit of broader social goals, no matter how desirable, to cut-off Medicaid benefits to a welfare recipient who is, in fact, working.
B. Plaintiffs Have Shown Irreparable Harm
Plaintiffs argue, unless enjoined, Defendants will terminate Medicaid coverage pursuant to the disputed TWC rules by not sending out Medicaid cards to TANF recipients who would otherwise receive them TANF recipients who are not refusing to work but who are in sanction status under the disputed TWC rules. If Plaintiffs Camacho and Grover lose their Medicaid coverage, they contend they cannot pay for their own health care needs, and their health and ability to work and to care for their children will be irreparably impaired. Plaintiff TWRO argues its members are at similar immediate risk. Plaintiff Thomason contends it will suffer irreparable financial losses in Medicaid reimbursements and in capitation payments from the Texas Medicaid program. These allegations satisfy Plaintiffs' burden to demonstrate irreparable injury.
C. No Harm to Defendants
Plaintiffs must show their threat of irreparable harm outweighs the potential injury Defendants face if a preliminary injunction is granted. In opposing injunctive relief in the state court Defendants asserted the imposition of these rules was essential to state budgetary savings.[4] Plaintiffs' Application for Preliminary Injunction [# 9], Exh. F at 19. This Court has previously rejected this argument as a matter of law. "[A] state's budget problems cannot serve as an excuse for altering federal eligibility requirements for federal funding; if they could, the federal requirements would become superfluous." Planned Parenthood v. Sanchez, 280 F.Supp.2d 590, 606 (W.D.Tex.2003). The threatened injuries to Plaintiffs outweigh any damage the injunction might cause Defendants. Accordingly, the balance of harms supports the granting of injunctive relief.
D. The Public Interest Favors the Preliminary Injunction
Finally, Plaintiffs must show the public interest is served by granting an injunction. Clearly, the enforcement of these TWC rules will result in a reduction in Medicaid assistance that Congress intended to fund. "[T]he public interest always is served when public officials act within the bounds of the law and respect the rights of the citizens they serve." Finlan v. City of Dallas, 888 F.Supp. 779, 791 (N.D.Tex.1995)(quoting Nobby Lobby, Inc. v. City of Dallas, 767 F.Supp. 801 (N.D.Tex.1991) aff'd, 970 F.2d 82 (5th Cir.1992)). Accordingly, the Court finds the public interest will be served by allowing Plaintiffs to continue receiving Medicaid assistance benefits Congress clearly intended to fund.
*803 VI. Conclusion
In accordance with the foregoing:
IT IS ORDERED that Plaintiffs' Application for Preliminary Injunction [# 9] is GRANTED.
ORDER OF PRELIMINARY INJUNCTION
BE IT REMEMBERED on the 12th day of April 2004 the Court, having entered its order of this date granting Plaintiffs' Application for Preliminary Injunction [# 9], enters the following.
IT IS ORDERED, ADJUDGED, and DECREED that from the date of entry of this order until and to the fourteenth day after entry of final judgment on the merits or until further order of this Court, Defendants Texas Workforce Commission, the Texas Health and Human Services Commission, and the Texas Department of Human Services in this cause be, and hereby are, commanded forthwith to desist and refrain from implementing or in any way making effective Texas Workforce Commission Rules 811.2(11)(A) and (B), 811.25(a)(1)(A), and 811.41(d)(3)(A)-(D), to the extent those rules apply the job readiness activities in Texas Workforce Commission Rule 811.41(d)(3) and the parenting skills training in Texas Workforce Commission Rule 811.52(4), (5), (6), and (7) as grounds for terminating Medicaid, or otherwise redefining by rule "work" or "work requirements" or "work activities" or "job readiness" to include obtaining children's immunizations, check-ups, school attendance, or refraining from drug or alcohol abuse or any other non-work requirements for purposes of Medicaid eligibility. This order does not affect grounds for terminating Temporary Assistance to Needy Families cash assistance.
NOTES
[1] In United States health services, capitation refers to a fixed "per capita" amount that is paid to a hospital, clinic, or doctor for each person served.
[2] "Choices" is the name of the TANF employment program.
[3] It is immaterial whether the restrictions result in a theoretical "good" or the actual intent of the state is to improve upon the Medicaid program.
[4] Indeed, the Legislative Budget Board explained in its fiscal note to HB 2292, the TANF/Medicaid sanctions would result in estimated savings of approximately $14 million per year to be available in state revenues. Plaintiffs' Application for Preliminary Injunction [# 9], Exh. F at 19.
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344 S.W.3d 684 (2009)
2009 Ark. App. 666
Janis A. COSSEY, Appellant,
v.
GARY A. THOMAS RACING STABLE and Union Insurance Company, Appellees.
No. CA 08-1480.
Court of Appeals of Arkansas.
October 7, 2009.
*685 The Law Firm of White & White, PLC, by J. Mark White, Bryant, for appellant.
Frye Law Firm, P.A., by Cynthia E. Rogers, North Little Rock, for appellee.
KAREN R. BAKER, Judge.
Appellant, Janis Cossey, appeals from a decision by the Workers' Compensation Commission, reversing the opinion of the ALJ and denying appellant benefits. On appeal, Cossey argues that substantial evidence does not support the Commission's decision. We affirm.
In February 2005, Janis Cossey was employed by Gary Thomas Racing Stables at Oaklawn Park. Her job duties included walking and grooming racehorses. She testified that on February 2, 2005, at approximately 10 a.m. she was walking a horse down a narrow hallway when another horse leaned out of its stall and bit her on her arm. She testified specifically that the horse "bit [her] and pulled [her] toward him, crushing [her] arm and pulling up the meat of [her] left upper arm, in between the elbow and the shoulder." She described the bite as "open and gaping." She testified that she sought treatment from Dr. Roper at 11 a.m. on February 2, 2005. The record shows, however, that Dr. Roper's report is dated February 15, 2005. Cossey testified that Dr. Roper was "concerned about infection," so he "treated" the bite on her arm and "cleaned it." Dr. Roper's report indicated that he sent *686 claimant for a tetanus shot, prescribed antibiotics, and assessed her condition as a "Horse Bite this AM." Cossey testified that two days later, a second horse bit her on the same area of her arm. She stated, however, that the second bite did not break the skin and that she did not return to the doctor.
Approximately one month later, Cossey was terminated; Cossey testified that the reason she was terminated was "because [she] couldn't do [her] work right," and because she "was complaining." Cossey then began working for a restaurant near Oaklawn Park. She stated that she worked at the restaurant through the summer and while working there, she "had problems with burning the whole time [she] worked at the restaurant." She explained that she "began dropping things" and testified that her horse bite had not healed. Cossey testified, however, that when racing season returned eight months later, she began working for Beverly Fowler, another horse trainer at Oaklawn Park.
One year after the first horse bite, on February 16, 2006, claimant again sought medical treatment. Initially, she sought treatment from the emergency room, where she was diagnosed with "radial palsy." She testified that she was unable to return to work. She was also treated by the Charitable Christian Clinic, which offered her free services. There, she saw Dr. Tucker, whose report noted a "scar" and a "clear indentation" on Cossey's upper arm. Dr. Tucker described her arm as having "clear skin lesions where the horse bite left areas of the skin that did not heal properly." Dr. Tucker prescribed her pain medication and ordered a nerve conduction study and an MRI. The record shows that an MRI of Cossey's shoulder was performed, however, an MRI of Cossey's arm was not. Dr. Tucker's notes indicated that "[t]he patient has suffered a severe injury, with some neurological problems such [as] the atrophy of the muscle related to the horse bite. It is difficult to relate this to anything else." In a post-treatment letter, Dr. Tucker stated "[t]here is no doubt the two horse bites produced some damage to the arm, and one can see the skin lesion still remaining. . . . There is very localized atrophy, possibly related to damage to the circumflex branch of the radial nerve. The horse bite could have produced an injury to the radial nerve, although it would be surprising that the radial nerve palsy did not occur until a year later." Cossey admitted in her testimony that Dr. Tucker's report "does do a lot of speculation"; however, she blamed the speculation on the fact that she did not have the money to have the proper medical tests performed. When asked why Dr. Tucker's report noted the problems with her right hand, she stated that she did not know why the report did not correctly state that she was having problems with her left hand and not her right hand.
Cossey testified that her symptoms began with the first horse bite and have continued since that time. She stated that "her wrist dropped," that her pain had spread to her back and joints, and that her muscles were deteriorating. She also described spasms in her left shoulder and "clear indentations from all the bites." She also testified that she was on medication for depression.
A hearing was held before the Administrative Law Judge (ALJ) on August 8, 2007. Following the hearing, the ALJ awarded the claimant benefits finding that she had suffered a compensable injury. The Commission, however, reversed the ALJ's decision, finding that Cossey failed to prove the following: that she sustained an accidental injury causing physical harm to her body arising out of and in the course of her employment with Gary *687 Thomas Racing Stables; that there was a specific incident identifiable by time and place of occurrence; and that she sustained a compensable injury by medical evidence supported by objective findings.
The sole issue on appeal is whether there is sufficient evidence to support the Commission's decision. When reviewing a decision of the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Liaromatis v. Baxter County Reg'l Hosp., 95 Ark.App. 296, 236 S.W.3d 524 (2006) (citing Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979); Crossett Sch. Dist. v. Gourley, 50 Ark.App. 1, 899 S.W.2d 482 (1995)). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wright v. ABC Air, Inc., 44 Ark.App. 5, 864 S.W.2d 871 (1993). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; even if a preponderance of the evidence might indicate a contrary result, if reasonable minds could reach the Commission's conclusion, we must affirm its decision. St. Vincent Infirmary Med. Ctr. v. Brown, 53 Ark.App. 30, 917 S.W.2d 550 (1996). The Commission is required to weigh the evidence impartially without giving the benefit of the doubt to any party. Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992).
To receive workers' compensation benefits, a claimant must establish (1) that the injury arose out of and in the course of the employment, (2) that the injury caused internal or external harm to the body that required medical services, (3) that there is medical evidence supported by objective findings establishing the injury, and (4) that the injury was caused by a specific incident and is identifiable by the time and place of the occurrence. Ark.Code Ann. § 11-9-102(4) (Supp.2007). As the claimant, appellant bears the burden of proving a compensable injury by a preponderance of the credible evidence. See Ark.Code Ann. § 11-9-102(4)(E)(i) (Supp.2007). Compensation must be denied if the claimant fails to prove any one of these requirements by a preponderance of the evidence. Rippe v. Delbert Hooten Logging, 100 Ark. App. 227, 266 S.W.3d 217 (2007) (citing Mikel v. Engineered Specialty Plastics, 56 Ark.App. 126, 938 S.W.2d 876 (1997)).
The Commission found that there were no objective medical findings to support Cossey's horse bite. We disagree with this particular finding by the Commission. Cossey argues, and we agree, that there were objective medical findings to support the existence of her injury. Cossey was treated by the track doctor with antibiotics and a tetanus shot. Dr. Tucker's report noted that he observed a "scar" and a "clear indentation" on her arm during his initial exam and described her injury as "clear skin lesions where the horse bite left areas of the skin that did not heal properly." Also in his reports, Dr. Tucker opined that "[t]he patient has suffered a severe injury, with some neurological problems such [as] the atrophy of the muscle related to the horse bite." In a posttreatment letter, Dr. Tucker stated "[t]here is no doubt the two horse bites produced some damage to the arm, and one can see the skin lesion still remaining. . . . There is very localized atrophy, possibly related to damage to the circumflex branch of the radial nerve." The findings of skin lesions and muscle atrophy were objective findings. See Smith v. County Market/Southeast Foods, 73 Ark. App. 333, 44 S.W.3d 737 (2001) (where doctor observed muscle spasm and muscle atrophy supporting claimant's injury, this *688 court found that involuntary muscle contraction or tension and shortness in the muscles has been held to be an "objective finding" and reversed the Commission).
While we disagree with the Commission's finding that there was no objective medical evidence to support Cossey's horse bite, and hold that in this case objective findings did exist, this does not require reversal. The Commission also found that Cossey failed to establish a causal connection between the horse bite and her current need for benefits. "In order to prove a compensable injury [the claimant] must prove, among other things, a causal relationship between his employment and the injury." Searcy Indust. Laundry, Inc. v. Ferren, 82 Ark.App. 69, 72, 110 S.W.3d 306, 308 (2003) (quoting Wal-Mart Stores, Inc. v. Westbrook, 77 Ark.App. 167, 171, 72 S.W.3d 889, 892 (2002)). The determination of whether a causal connection exists is a question of fact for the Commission to determine. Jeter v. B.R. McGinty Meck, 62 Ark.App. 53, 968 S.W.2d 645 (1998). The Commission acknowledged that the doctors who treated Cossey more than a year after her horse bite noted "scars," "indentations," and "muscle atrophy." The Commission further acknowledged the 2006 assessment of "neuropathy" and "radial palsy." Nevertheless, the Commission found that the record showed no causal connection between the noted physical scars and the horse bites from a year earlier. Nor did the record demonstrate a causal connection between the February 2005 horse bites and the March 2006 assessment of radial palsy or the March 2006 electromyo graphic abnormality of a "decreased recruitment in radial innervated musculature of the left upper extremity."
Moreover, the Commission found Cossey's testimony as to the details of her injury to be not credible. The Commission recognized Dr. Crenshaw's assessment of the claimant and his statement that "Janis Cossey has left shoulder & arm injury from horse bite & cannot lift or be active with left arm." However, the Commission gave Dr. Crenshaw's opinion minimal weight because his opinion was based on Cossey's statement of her history, and her testimony was not credible. The Commission also addressed Dr. Tucker's assessment and treatment of Cossey; however, the Commission found that Dr. Tucker's opinion, which was also based solely on Cossey's explanation of her injury, was not supported by the record. Nor did the record show that the "downsloping acromion" in claimant's left shoulder was in any way related to the bite.
The determination of the credibility and weight to be given a witness's testimony is within the sole province of the Workers' Compensation Commission; the Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Farmers Coop. v. Biles, 77 Ark.App. 1, 69 S.W.3d 899 (2002). The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Homes v. Beard, 82 Ark.App. 607, 120 S.W.3d 160 (2003) (citing Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000)). Moreover, and importantly, the Commission is not bound by a doctor's opinion that is based largely on facts related to him by the claimant where there is no sufficient independent knowledge upon which to corroborate the claimant's claim. Roberts v. Leo Hosp., 8 Ark. App. 184, 649 S.W.2d 402 (1983).
Here, the Commission's decision as to the causal connection between the horse bite and her need for benefits turned on the credibility and interpretation of Cossey's *689 testimony, the medical testimony, and the evidence. Deferring to the Commission on credibility determinations, as we must, we find that there is substantial evidence to support the Commission's finding that Cossey failed to prove that a causal relationship existed between the horse bite and her need for benefits.
Affirmed.
ROBBINS and MARSHALL, JJ., agree.
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836 F.2d 1341
U.S.v.Tracey (Francis P.)
NO. 87-1297
United States Court of Appeals,First Circuit.
DEC 10, 1987
1
Appeal From: D.Mass.
2
AFFIRMED.
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1 F.Supp.2d 268 (1998)
Robert STROUGO, on Behalf of THE BRAZILIAN EQUITY FUND, INC., Plaintiff,
v.
Emilio BASSINI, Richard Watt, Daniel Sigg, Dr. Enqieue R. Arzac, James J. Cattano, Peter A. Gordon, George W. Landau, Martin M. Torino and BEA Associates, Defendants,
and
The Brazilial Equity Fund, Inc., Nominal Defendant.
Robert STROUGO, on behalf of himself and all others similarly situated, Plaintiff,
v.
Emilio BASSINI, Richard Watt, Daniel Sigg, Dr. Enrique R. Arzac, James J. Cattano, Peter A. Gordon, George W. Landau, Martin M. Torino and BEA Associates, Defendants.
No. 97 Civ. 3579(RWS).
United States District Court, S.D. New York.
April 6, 1998.
*269 *270 Wechsler Harwood Halebian & Feffer, New York City, Stuart D. Wechsleer, Richard B. Brualdi, of counsel, for Plaintiff.
Willkie Farr & Gallagher, New York City, Lawrence O. Kamin, of counsel, for Defendants BEA Associates, Emilio Bassini, Richard Watt and Daniel Sigg.
Morrison & Foerster, New York City, Jack C. Auspitz, David S. Berg, of counsel, for Defendants Dr. Enrique R. Arzac, James T. Cattano, Peter A. Gordon, George W. Landau and Martin M. Torino.
OPINION
SWEET, District Judge.
Defendants BEA Associates ("BEA"), the investment adviser to the Brazilian Equity Fund, Inc. (the "Fund") and Emilio Bassini, Richard Watt and Daniel Sigg, at all relevant times directors of the Fund and employees of BEA (together with BEA, the "BEA Defendants") have moved to dismiss the complaint of plaintiff Robert Strougo ("Strougo") pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim and Fed.R.Civ.P. 23.1 for failure to make a pre-litigation demand upon the Fund's board of directors prior to commencing this derivative action; or, in the alternative, to certify a question to the Maryland Court of Appeals pursuant to Maryland Courts and Judicial Proceedings § 12-603. Defendants Enrique R. Arzac, James J. Cattano, Peter A. Gordon, George W. Landau, and Martin M. Torino (the "Outside Director Defendants"), at all relevant times directors of the Fund who are not employees of BEA, have filed a similar motion. For the reasons set forth below, the motions to dismiss will be granted as to the class action claims and denied as to all other claims.
Prior Proceedings
Strougo filed the complaint in this action on May 16, 1997, repeating similar allegations to those he set forth in an action involving a rights offering against a different fund that invested in Brazilian securities. See Strougo v. Scudder, Stevens & Clark, Inc., 96 Civ. 2136(RWS) (the "Scudder Action").
This action arises from a 1996 rights offering (the "Rights Offering") by the Fund, a closed-end investment company, under which the Fund's existing shareholders were given the opportunity to purchase additional shares of newly issued Fund stock at a discount from market value. Strougo, a shareholder of the Fund, alleges that the Rights Offering constituted a breach of duty by BEA (the Fund adviser) and the Fund's directors because the offering purportedly diluted the shareholders' investments, imposed transaction costs on the Fund (such as investment banking fees), and was allegedly motivated by a desire to increase BEA's investment advisory fee. Strougo does not allege making a demand on the Fund's board of directors prior to initiating this derivative action.
The complaint contains the same six causes of action alleged in the Scudder Action; (1) a claim under the section 36(b) of the Investment Company Act of 1940, as amended (the "ICA"), for excessive fees;[1] (2) a "control person" claim under section 48(a) of the ICA; (3) two derivative claims alleging breach of fiduciary duty under section 36(a) of the ICA and under Maryland law; and (4) two direct class action claims alleging breach of duty under section 36(a) of the ICA and under Maryland law. The futility of demand upon the Board is alleged based upon the interest of the directors.
The instant motion by the Outside Director Defendants was filed on September 15, 1997, and the motion by the BEA Defendants was filed on September 16, 1997. The motions seek (1) dismissal of the derivative claims for failure to make a demand upon the board of directors of the Fund (the "Board"); (2) certification *271 of the futility question to the Maryland Court of Appeals; and (3) dismissal of the class action claims. The motions were considered fully submitted after argument on December 17, 1997.
The Facts
On a motion to dismiss under rule 12(b)(6), the facts alleged I the complaint are presumed to be true, and all factual inferences are drawn in the plaintiff's favor. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993). Accordingly, the facts p-resented here are primarily from the allegations of the Complaint and do not constitute findings of fact by the Court.
Strougo has alleged that he purchased 1,000 shares of the Fund on January 11, 1993 and has held shares ever since.
The Fund is a non-diversified, publicly traded, closed-end investment company registered under the ICA and incorporated under the laws of Maryland that invests primarily in the securities of Brazilian companies. The Fund's shares are traded on the New York Stock Exchange.
BEA is the investment adviser of the Fund and manages the Fund's operations and investments subject to the governance of an eight member board of directors, made up of Emilio Bassini, Richard Watt and Daniel Sigg who, at all relevant times, were also BEA employees and Dr. Enrique R. Arzac, James J. Cattano, Peter A. Gordon, George W. Landau and Martin M. Torino, who are not employed by BEA but serve on the boards of BEA advised funds as follows:
Compensation From
Director Number of BEA Funds All BEA Funds
Dr. Enrique Arzac 9 No figure in complaint
James J. Cattano 6 $49,000
Peter A. Gordon 5 $39,000
George W. Landau 6 $49,000
Martin M. Torino 5 $42,000
The distinctions between an open-end and closed-end investment company, and the different ways in which they can raise additional capital has been described as follows:
Unlike a traditional mutual fund in which investors purchase and redeem shares directly from and with the mutual fund, a closed-end fund has a fixed number of shares and (after the initial public offering) investors may only purchase shares from an existing shareholder through a stock exchange on which such shares are listed. Thus, shares in a closed-end fund are traded exactly like the shares of any other publicly-owned corporation. By contrast with an "open-end" mutual fund, in which the number of shares is not fixed and investors can purchase or redeem shares at current net asset value ("NAV") (calculated by dividing the fund's total assets by the number of shares outstanding), a closed-end fund has a fixed number of shares that originally were sold in a public offering. Per-share trading prices may be at either a premium or a discount to NAV, but more often are at a discount.
Because closed-end funds operate with a fixed number of shares, they have limited options for obtaining capital to make new investments. Once a fund's initial capital has been fully invested, new investments generally can be made only if the fund sells existing portfolio holdings. Other options for raising capital include secondary public offerings at net asset value, or rights offerings to current investors at or below NAV.
Strougo v. Scudder, Stevens & Clark, Inc., 964 F.Supp. 783, 788 (S.D.N.Y.1997) (hereinafter Scudder I). Here, the Fund determined that it would raise additional capital by means of a non-transferable rights offering to current investors.
After the close of trading on June 6, 1996, the Fund announced that it would issue nontransferable *272 rights to its shareholders, and that it expected to raise approximately $20 million thereby. The Rights Offering would provide one right per share to each shareholder and the rights were to expire on August 16, 1996. A holder of three rights could subscribe to one new share, at the subscription price, during a subscription period that would begin on July 17 and end on August 16.
The subscription price per share for the Rights Offering was set as follows: "90% of the lower of (I) the average of the last reported sales price of a share of the Fund's Common Stock on the New York Stock Exchange on the Pricing Date and on the four preceding business days thereof and (ii) the net asset value per share as of the close of business on the Pricing Date."
The prospectus for the Rights Offering stated that the Fund's board of directors had determined that the Rights Offering:
would be in the best interests of the Fund and its shareholders to increase the assets of the Fund available for investment, thereby enabling the Fund to more fully take advantage of available investment opportunities consistent with the Fund's investment objective of long-term capital appreciation. In reaching its decision, the Board of Directors was advised by BEA Associates that the availability of new funds would provide the Fund with additional investment flexibility as well as increase the Fund's ability to take advantage of what BEA Associates believes to be timely opportunities in the Brazilian market as a result of recent economic and political events and stock market developments. In evaluating such investment opportunities, the Board considered, among other things, the impact that Brazil's reform process would have on the country's stock prices, the future prospects for Brazil's growth and the likelihood of future privatizations.
The Board of Directors also considered that a well-subscribed rights offering may reduce the fund's expense ratio, which may be of a long-term benefit to shareholders. In addition, the Board of Directors considered that such a rights offering could result in an improvement in the liquidity of the trading market for shares of the Fund's common stock ("Common Stock") on the New York Stock Exchange, where the shares are listed and traded. The Board of Directors also considered the proposed terms of the Offer ... including the expenses of the Offer, and its dilutive effect, including the effect on non-exercising shareholders of the Fund. After careful consideration, the Fund's Board of Directors unanimously voted to approve the Offer.
On the day the Rights Offering was announced the stock had closed at 13-1/2. On June 7, a day later, the stock closed up 1/8 to 13-5/8. On June 24, 1996, just over two weeks after the announcement of the Rights Offering, the shares closed at 14-3/4. Within the month following the announcement, the stock never closed lower than 13-3/8. However, before the announcement of the Rights Offering on May 30, 1996, shares of the Fund were trading at a 7.7% discount to net asset value ("NAV"). At the close of business on June 6, 1996, that discount was 13%. By July 18, 1996, it was 22.7%
Discussion
A. Standard For Motion to Dismiss
In deciding the merits of a motion to dismiss for failure to state a claim, all material allegations composing the factual predicate of the action are taken as true, for the court's task is to "assess the legal feasibility of the complaint, not assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir.1984) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980)). Thus, where it is clear that plaintiff can prove no set of facts in support of his or her claim which would warrant relief, the motion to dismiss must be granted. See H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989) (on motion under Rule 12(b)(6), Fed. R.Civ.P., affirmation of dismissal of the complaint requires it to be "`clear that no relief could be granted under any set of facts that could be proved consistent with the allegations'") *273 (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)).
B. Futility of Demand Has Been Established
Despite the positions taken by the defendants, the issue of demand futility is controlled by the decision in Scudder I. It is established that the demand requirement under Fed.R.Civ.P. 23.1 is analyzed under the laws of the state of incorporation of the derivative defendant, in this case Maryland. See Kamen v. Kemper Fin. Servs., 500 U.S. 90, 100-01, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991). It is also established that Maryland law excuses demand only when the directors are interested in the transaction or insufficiently capable of exercising independent judgment. See Grill v. Hoblitzell, 771 F.Supp. 709, 711 & n. 2 (D.Md.1991) (holding that demand is excused where directors are "dominated and controlled" by the wrongdoer); see also Eisler v. Eastern States Corp., 182 Md. 329, 35 A.2d 118, 119-20 (1943) (setting forth the Maryland demand requirement).
Certain of the grounds alleged in the complaint to excuse demand are legally insufficient to do so. For example, the allegation that the Board "participated or acquiesced in the wrongful acts at issue," has consistently been held to be an insufficient ground for alleged futility. See, e.g., Pogostin v. Rice, 480 A.2d 619, 625 (Del.1984); Aronson v. Lewis, 473 A.2d 805, 817 (Del. 1984); Blasband v. Rales, 971 F.2d 1034, 1048-49 (3d Cir.1992) (Delaware Law); Mendelovitz v. Vosicky, 1993 WL 367091, at *2 (N.D.Ill. Sept.16, 1993), aff'd, 40 F.3d 182 (7th Cir.1994). Similarly, contentions that the entire board is responsible for the conduct or that there are allegations of securities law violations have also been held insufficient to excuse demand. See Grobow v. Perot, 526 A.2d 914, 924-25 (Del.Ch.1987), aff'd, 539 A.2d 180 (Del.1988); Levine v. Prudential Bache Properties, Inc., 855 F.Supp. 924, 941 (N.D.Ill.1994) (Delaware law).
In addition, receipt of directors' fees, in and of itself, does not constitute a disqualifying interest or render demand on a board directors to sue other directors futile. For example, the Seventh Circuit, interpreting Maryland law, held that if such allegations were sufficient, "the demand rule would be negated for almost all directors receive fees." Kamen v. Kemper Fin. Servs., 939 F.2d 458, 460 (7th Cir.1991); see also Langner v. Brown, 913 F.Supp. 260, 265 (S.D.N.Y. 1996); Grobow, 526 A.2d at 924-25.
The decision in Scudder I was the subject of a motion for reargument and certification to the Court of Appeals which were disposed of in Strougo v. Scudder, Stevens & Clark, Inc., No. 96 Civ. 2136, 1997 WL 473566 (S.D.N.Y. August 18, 1997) (hereinafter Scudder II).
Both Scudder I and Scudder II concluded that in addition to receiving compensation from Scudder, the Scudder directors served on multiple funds for which Scudder was the investment adviser and that "well-compensated service on multiple boards of funds managed by a single fund adviser can, in some circumstances, be indistinguishable in all relevant respects from employment by the fund manager, which admittedly renders a director interested." Scudder II, 1997 WL 473566, at *5.
The memorandum in support of the BEA Defendants' motion states:
[A] different result is required here because 1) the combination of modest compensation and multiple directorships in this matter should not raise questions about independence; 2) there is no particular logic to support the conclusion that multiple directorships, rather than merely compensation, is indicative of being "interested"; 3) a number of other cases have rejected the notion that demand on directors can be excused because of their multiple directorships; 4) in the mutual fund industry, there are already statutory safeguards assuring the independence of directors in their dealings with the investment adviser; and 5) the result in Scudder I will essentially necessitate a restructuring of governance in the mutual fund industry for no particularly good reason and result in a potential flood of lawsuits *274 against fund directors in light of their newly-held "dominance" by fund advisers.
As to the first grounds for distinction, it is urged in effect that it is a question of the amount of money derived from the multiple directorships and that the amount is sufficiently less than that involved in the Scudder Action, to eliminate the question of "interest." A distinction is sought to be made between the $54,000 in fees in Scudder I and the $39,000 and $49,000 in this instance. In the terms of the old saw, "now we are just talking about money." The principle set forth in Scudder I remains intact: the receipt of fees from multiple directors from funds which BEA serve as an adviser constitutes interest.
The remaining positions taken by the defendants were dealt with in Scudder I and the rationale there set forth applies here.
Indeed here the issue of interest is more significant since as defined in Scudder I there are no disinterested directors to whom an independent inquiry could be directed. Demand futility has been established under the determination reached in the Scudder Action.
C. Certification is Not Appropriate
Under the recently enacted Maryland statute, § 12-603, certification of a question of law to the Court of Appeals is permitted whenever the question may be determinative of an issue in a pending federal case and there is no controlling authority:
The Court of Appeals of this State may answer a question of law certified to it by a court of the United States or by an appellate court of another State or of a tribe, if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling appellate decision, constitutional provision or statute of this State.
As stated in Scudder II, no controlling appellate decision exists on this issue. See Scudder II, 1997 WL 473566, at *5.
The most authoritative guidance on when such certification should be sought comes from the Honorable Jose A. Cabranes sitting in the District Court before his elevation to the Court of Appeals, in L. Cohen & Co., Inc. v. Dun & Bradstreet, Inc., 629 F.Supp. 1419 (D.Conn.1986). Given a similar request under a similar provision in Connecticut law, Judge Cabranes reviewed the law of abstention and the authorities relating to certification and concluded that the certification issue would be best left to "`the sound discretion' of the individual federal judge." Id. at 1421-23 (quoting Justice Rehnquist in Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974)). Certification may be appropriate to avoid the premature decision of federal constitutional claims or the unnecessary disruption of state governmental functions, Id. at 1423. The factors to be considered include: (1) the extent to which the issue is unsettled (here it has not been considered); (2) the availability of resources (diligent counsel have given the court all there is); (3) the familiarity of the judge with the state law at issue (this factor weighs on the scale towards certification); (4) the age and urgency to the litigation and the cost and delay of certification (this factor would appear to be in equipoise); (5) the frequency of the issue in the future (only Strougo seems to have grasped this particular nettle); and (6) docket demands. Id. at 1423-24. As concluded by Judge Cabranes, concerns of restraint, discretion and distinction should be paramount.
This is not an exceptional case requiring certification but rather a routine action which raises an unsettled issue of state law requiring the federal court "to exercise our best judgment and conscientiously to perform our duty," Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 403, 5 L.Ed. 257 (1821) (Marshall, C.J.). Accordingly, the motions for certification are denied.
D. The Class Action Claims Are Dismissed
As in the Scudder Action, the claims allege harm which applied to the shareholders as a whole. The injury alleged is dilution resulting from the Rights Offering and its transaction costs and the breach of fiduciary duty arising out of the motivation to increase fees of BEA.
*275 Strougo has asserted that the Rights Offering disproportionately affected those shareholders who chose not to exercise their rights or that the Rights Offering here is distinguishable because the rights were not transferable. However, "[s]o long as the defendants' action toward all shareholders was the same, and any disproportionate effect was the result of the various shareholders' responses to the action, the shareholders have no direct action." Scudder I, 964 F.Supp. at 792 (citing In re Nuveen Fund Litig., 855 F.Supp. 950, 955 (N.D.Ill.1994)).
The non-transferability of the rights does not alter the applicability of the Rights Offering to all shareholders, thus requiring the dismissal of the class action claims.
E. The Motions To Dismiss Fiduciary Duty Claims Are Denied
The issue of the adequacy of the fiduciary duty claims was presented in similar circumstances in Scudder I. There the Court stated:
Here, as discussed above, all of the Scudder defendants are interested in the Rights Offering and three of the four purportedly "independent" directors are alleged to be Scudder's "house" directors, receiving substantial compensation for service given to other Scudder managed funds. This close and financially rewarding relationship with Scudder is sufficient to call into question the independence and disinterestedness of these directors with respect to a Rights Offering that would admittedly benefit Scudder, and dilute non-participating shareholders' interests.
Accordingly, the motion to dismiss the Maryland breach of fiduciary duty claims will be denied.
Scudder I, 964 F.Supp. at 801-02.
Here, Strougo alleges that all of the directors are either BEA employees, or BEA "house" directors, receiving substantial compensation for service given to other BEA managed funds.
Similarly, the defendants here contend that because rights offerings are allowed by the Securities and Exchange Commission ("SEC"), their conduct in authorizing and implementing the Fund's rights offering cannot constitute a breach of fiduciary duty. In so doing, defendants blend and confuse two distinct issues. The first is whether the SEC has prohibited rights offerings in all instances clearly the answer is no. Scudder I determined that an allegation that a rights offering can be implemented for reasons not in the best interest of the Fund and its shareholders, and thus may constitute a breach of fiduciary duty setting forth a viable cause of action. Id. at 798-802.
F. The Motions to Dismiss the Claim for Control Person Liability Are Denied
The Control Person claim was presented and its adequacy determined in Scudder I, 964 F.Supp. at 806. No meaningful distinction can be drawn between the issue presented here. As set forth in Scudder I:
[T]he `control person' provision of the Securities Exchange Act `is remedial and is to be construed liberally. It has been interpreted as requiring only some indirect means of discipline or influence short of actual direction.' Such indirect means of discipline or influence may include `business relationships [other than stock ownership], interlocking directors, family, relationships and a myriad of other factors'.
* * * * * *
The allegation that, through their control of the substantial payments made for service on the boards of multiple Scudder funds, the Scudder defendants had the means to indirectly discipline or influence [the outside directors] is sufficient to survive a motion to dismiss.
964 F.Supp. at 806 (citations omitted). Therefore, the motions to dismiss this claim is denied.
Conclusion
For the reasons set forth above, the motions to dismiss will be granted as to the class action claims and denied as to all other claims. Discovery will be completed in 120 *276 days and the pretrial order filed 20 days thereafter.
NOTES
[1] This claim was withdrawn after the making of the instant motions.
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961 F.2d 1567
Hofmann (Elsa Ostergaard)v.Marino Group, Inc., Marino Games, Inc., Marino (Mr.), MarinoGust Enterprises, Inc., Arpin (Jeanette M.), a/k/aKildea, Marino Graphics, Designosaurus
NO. 91-6004
United States Court of Appeals,Third Circuit.
Apr 13, 1992
Appeal From: D.N.J.,
Politan, J.
1
AFFIRMED.
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_____________
No. 95-1177EM
_____________
Dimitri Yannacopoulos, *
*
Appellant, * On Appeal from the United
* States District Court
v. * for the Eastern District
* of Missouri.
General Dynamics Corporation, *
*
Appellee. *
___________
Submitted: November 16, 1995
Filed: February 9, 1996
___________
Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit
Judge, and FAGG, Circuit Judge.
___________
RICHARD S. ARNOLD, Chief Judge.
General Dynamics Corp. (GD) and Dimitri Yannacopoulos, a Greek
citizen, entered into a consulting agreement under which
Yannacopoulos worked as a consultant on the sale of defense and
non-defense GD products outside the United States. A dispute
regarding the amount and type of payment due Yannacopoulos arose,
and he filed this six-count lawsuit in the United States District
Court for the Eastern District of Missouri.1 GD filed a three-
count counterclaim alleging, inter alia, that Yannacopoulos had
broken his contract. The jury returned a verdict in favor of GD on
1
The Hon. Donald J. Stohr, United States District Judge for
the Eastern District of Missouri.
each of Yannacopoulos's six claims, and on GD's breach of contract
claim. (The jury, however, awarded no damages to GD on this last
claim.) On appeal, Yannacopoulos challenges numerous evidentiary
rulings, the instructions given to the jury, and the failure of the
Court to investigate alleged juror misconduct. We affirm.
I.
Yannacopoulos's relationship with GD spanned several years
beginning in June of 1977. Initially, Yannacopoulos helped GD's
telecommunications subsidiary, Stromberg-Carlson, market its
commercial telephone equipment in Greece. In return, Stromberg-
Carlson agreed to pay Yannacopoulos a monthly consulting fee and
commissions based on the sale of equipment.
In 1979, Yannacopoulos expanded his consulting services to
include the shipbuilding division of GD. As a result, GD and
Yannacopoulos executed a written contract effective from November
1, 1979, through October 31, 1981. Under the terms of this
contract, GD would pay Yannacopoulos $10,000 per month, and
Yannacopoulos would provide consulting services relating to
telecommunications and shipbuilding. Beginning in October of 1981,
GD began to extend Yannacopoulos's contract on a month-to-month
basis. This practice continued until March of 1982, when GD
extended Yannacopoulos' contract to October of 1983 with a $4000.00
per month pay increase.
In June of 1992, GD found its F-16 fighter plane on a short
list of military equipment being considered for purchase by the
Greek government. Greece eventually agreed to purchase 40 F-16's
from GD for $616,497,013. The Greek government also purchased the
Stinger and Phalanx from the United States in 1986 and 1987. Based
on these military sales, Yannacopoulos asserted a right to over
$39,000,000 in commissions. GD refused to pay.
-2-
The amount and form of payment GD agreed to pay Yannacopoulos
for his expanded duties as a consultant are the subject of this
litigation. Yannacopoulos contends that GD, through a series of
oral and written promises, agreed to pay him commissions for his
services. He also contends that he was active in the marketing of
the F-16, Phalanx, and Stinger to the Greek government; and that
his contract extended beyond October of 1983. GD, on the other
hand, contends that Yannacopoulos was never promised commissions
for his work as a consultant beyond those associated with his
Stromberg-Carlson contract; that he was not a member of the F-16,
Phalanx, or Stinger marketing teams; and that his contract expired
in October of 1983.
The dispute led Yannacopoulos to file this action against GD
in December of 1989. He claimed that GD was liable for: 1) breach
of contract; 2) unjust enrichment; 3) promissory estoppel; 4)
fraud; and 5) tortious interference. GD counterclaimed alleging:
1) breach of contract; 2) fraud; and 3) violations of the Racketeer
Influenced & Corrupt Organizations Act, 18 U.S.C. §§ 1961-68
(RICO). After a six-week trial, the jury returned a verdict
against Yannacopoulos on each of his claims, and in favor of GD on
its breach-of-contract claim. Yannacopoulos appeals and requests
that the judgment be reversed and a new trial granted due to errors
made by the Court.
II.
First, Yannacopoulos argues that the District Court committed
numerous evidentiary errors, including the exclusion of certain
evidence offered by him in support of his claims. We review a
district court's decision to exclude evidence for abuse of
discretion. Banghart v. Origoverken, A.B., 49 F.3d 1302, 1304 (8th
Cir. 1995). We will reverse only if the abuse is clear, and if the
parties' substantive rights are affected. Ibid.
-3-
A.
Yannacopoulos alleges that two pieces of evidence critical to
his tortious-interference claim were erroneously excluded. First,
he cites the Court's failure to admit the 1982 legal opinion2 of a
Greek lawyer, Gregory Mourgelas, who was employed by GD. He
alleges that a letter from Mourgelas to Veliotis, a GD executive,
demonstrates that GD "repudiated its promises to pay [him]
commissions or commission-equivalents knowing full well that it was
legally obligated to do so."
We do not see how the exclusion of this evidence could be
considered an abuse of discretion given the posture of this case.
The key issue during the trial was whether or not a contract,
express or implied, existed between Yannacopoulos and GD which
required GD to pay Yannacopoulos commissions or commission
equivalents. Contrary to Yannacopoulos's claims, the letter which
was excluded was not evidence that a contract for commissions
existed. Rather, the letter was a conclusory statement of a legal
opinion by Mourgelas.
It was the role of the jury to consider the evidence presented
and draw its own conclusions regarding the existence of a contract
2
In May of 1982, P.T. "Taki" Veliotis obtained a legal opinion
from a Greek lawyer, Gregory Mourgelas. Yannacopoulos points to
the following language in Mourgelas's letter to Veliotis:
6. Indeed, . . . a side agreement
exists . . . and has been concluded by two
telexes . . . these two telexes exchanged in
the form of an agreement stipulated that a
commission should be paid to [DIMITRI] in any
case, as long as one of its active projects
would be finalized; the commission schedules
however would be negotiated on a step by step
basis with the competent Divisions of GD.
Appellant's brief at 40-41.
-4-
for commission. The letter, which addressed the ultimate issue
regarding Yannacopoulos's compensation, would have served only to
usurp the jury's role as factfinder. Given these circumstances,
the letter was properly excluded.
Second, Yannacopoulos argues that it was error for the Court
to exclude evidence of an alleged "bait-and-switch" scheme employed
by GD.3 To establish the existence of this scheme, Yannacopoulos
sought to introduce evidence regarding the make-up of an offset
plan which was essential to the sale of F-16's to the Greek
government. ("Offset," in this context, means a reciprocal
obligation assumed by GD - for example, to do a certain amount of
business in Greece.) He also sought to introduce evidence
demonstrating that an investment plan was later substituted for the
original offset plan; and that the substitute plan was of de
minimis value when compared with the original plan. This evidence,
he claims, would have established that his discharge was necessary
for the scheme's success.
It is unlikely that the admission of this evidence would have
had a substantial positive effect on Yannacopoulos's case. In
order to succeed on his tortious interference claim, Yannacopoulos
had to demonstrate that he had a contract for commissions or a
business expectancy of the same. See Rolscreen Co. v. Pella
Products of St. Louis, Inc., 64 F.3d 1202, 1207 (8th Cir. 1995)
3
The bait, Yannacopoulos alleges, was a multi-billion dollar
offset package which he helped to negotiate designed to induce the
Greek government to purchase F-16's from GD. The switch,
Yannacopoulos claims, was the substitution of a valueless plan for
an "offset development company" instead of the original offset
plan. According to Yannacopoulos, in order for the bait-and-switch
scheme to succeed, it was necessary for GD to remove him from the
negotiation. Yannacopoulos cites his knowledge that the offset
development company was valueless to the Greek government and his
commitment, as a Greek patriot, to a plan that would help the Greek
people as the basis for GD's desire to exclude him from
negotiations.
-5-
(noting that a contract or valid business expectancy is an
essential element of a tortious-interference claim under Missouri
law). Evidence related to the bait-and-switch scheme allegedly
employed by GD does not support Yannacopoulos's claim that a
contract for commissions existed, or that he had an expectation of
receiving commissions.
Establishing that a bait-and-switch scheme was employed could
suggest only that, if a contract existed, GD needed to break its
contract with Yannacopoulos in order to carry out its scheme. The
jury, however, concluded that no contract for commissions existed,
making evidence of attempts to break a contract irrelevant.
Exclusion of evidence which is substantively irrelevant is not an
abuse of discretion. Fleming v. Harris, 39 F.3d 905, 908 (8th Cir.
1994).
III.
Yannacopoulos also argues that the District Court's denial of
his motion for judgment as a matter of law on GD's contract, RICO,
and fraud counterclaims was error. A motion for judgment as a
matter of law is a challenge to the sufficiency of the evidence.
Commercial Property Invs., Inc. v. Quality Inns Intern., Inc., 61
F.3d 639, 644 (8th Cir. 1995). On appeal, we review the the
evidence in the light most favorable to the prevailing party.
Ibid. After a careful review of the record, we are persuaded that
sufficient evidence was presented by GD on each of its
counterclaims to sustain the District Court's denial of
Yannacopoulos's motion for judgment as a matter of law. And in any
event the jury ruled for Yannacopoulos on GD's RICO and fraud
claims.
IV.
Next, Yannacopoulos claims that the District Court erred by
-6-
failing to instruct the jury properly in two instances. First, he
argues that the Court erred by refusing to instruct the jury that
no United States law barred GD from paying him commissions.4
Yannacopoulos claims that this instruction was necessary to prevent
the jury from being misled by GD into thinking that payment of
commissions was illegal. The District Court chose not to give the
proposed instruction, stating that it was "confusing," and that
"the plaintiff has done a pretty good job of establishing" that
payment of commissions was not illegal. We believe the District
Court committed no error in this respect.
Second, Yannacopoulos claims it was error for the District
Court to refuse to instruct the jury on the definition of
4
Yannacopoulos proposed the following instruction:
You have heard testimony and other
evidence with respect to various provisions of
United States law that deal with the payment
of commissions on sales of military products
by United States companies to foreign
companies.
There is no provision of United States
law, nor has there been any such law at any
time relevant to this case, that prohibits the
payment of such commissions. Instead, United
States law requires only that commission
payments be disclosed to the United States
Government and that no payment in excess of
$50,000 be made out of funds provided by the
United States Government under its "Foreign
Military Sales" program.
Thus, General Dynamics was free to agree
to pay Mr. Yannacopoulos out of its own funds
any commission it saw fit, and no United
States law bars, or has ever barred, the
enforcement of such an agreement.
D.Y. App. at Ex. 114.
-7-
"procuring cause."5 According to Yannacopoulos, this instruction
was necessary to establish that he was entitled to commissions
despite the fact that he "did not sell anything in Greece" while
working as a consultant for GD. He argues that although he was not
the seller, he was the procuring cause of later sales by GD in
Greece.
We reverse a district court's decision not to give a
particular instruction only in cases where "`the requested
instruction is correct, not adequately covered by the charge given,
and involves a point so important that failure to give the
instruction seriously impaired the party's ability to present an
effective case.'" Thomlison v. City of Omaha, 63 F.3d 786, 791
(8th Cir. 1995) (quoting Wood v. President & Trustees of Spring
Hill College, 978 F.2d 1214, 1221 (11th Cir. 1992)). This is not
such a case.
The instruction proffered by Yannacopoulos was not a correct
statement of Missouri law. Under Missouri's law, a party is a
procuring cause if that party's efforts of bringing together
purchasers "`have set in motion a series of events which, without
break in the continuity and without interruption in negotiations,
eventually culminates in the sale.'" Williams v. Enochs, 742
5
Yannacopoulos proposed the following instruction:
Absent a written agreement to the contrary, a party
may be entitled to commissions on sales even if made
after the termination of a contract, if that party
procured the sales through its activities prior to
termination, notwithstanding the fact that the sale was
consummated by the principal personally or through
another agent.
A party is the procuring cause of a sale if he
brings a seller together with a buyer under circumstances
conducive to a sale, and the sale actually occurs.
D.Y. App. at Ex. 45.
-8-
S.W.2d 165, 167 (Mo. 1987) (en banc) (quoting Staubus v. Reid, 652
S.W.2d 293, 296 (Mo. App. 1983)). The instruction proffered by
Yannacopoulos simply stated that "[a] party is a procuring cause of
a sale if he brings a seller together with a buyer under
circumstances conducive to a sale, and the sale actually occurs."
Because this is a misstatement of the law, the instruction was
properly refused.
V.
In his final argument, Yannacopoulos maintains that the
District Court erred by refusing to allow him to investigate
alleged juror misconduct. This claim stems from the jury's written
request for a dictionary during deliberation. In response to the
request, the jurors were returned to the jury box and instructed
that the Court could not provide a dictionary.
As the judge spoke with the jury, however, the court reporter
overheard and recorded a juror stating: "I'll look up that word in
the dictionary tonight." GD App. at 841. Following this statement
by the juror, the judge admonished the jury as follows:
The other thing that I want you to be sure, be
careful and remember my earlier instructions,
and that is not to do any investigation on
your own, not to do any independent research
or anything like that because that could
basically cause a problem with the whole jury.
Just what you're confined to, basically, is
what you have in front of you and your own
common sense.
Id. at 842. The jury was then excused until the following morning
and the judge informed the attorneys of the statement made by the
juror. Yannacopoulos made no objection.
The next morning, the Court again admonished the jurors
-9-
against the use of extrinsic reference materials:
With respect, as I explained to you about
the dictionary thing yesterday, I probably
should have expanded a little bit on that.
The reason that the Court doesn't allow
dictionaries and so forth in jury rooms is
because frequently the terms that appear in a
regular dictionary have different definitions
from the legal terms. It's kind of like, you
know, lawyers have a way of defining certain
things, just like the government does and it's
usually a lot longer and a lot more
complicated than what appears in the standard
dictionary and the lawyers, unfortunately,
it's the Court's law that you must be bound by
as opposed to whatever but you can use your
common sense as to words, so that's the
reason, . . ..
Id. at 844-45. Again, Yannacopoulos made no objection, and the
jury was allowed to deliberate until reaching a verdict.
It was not until several days later that Yannacopoulos moved
the Court, pursuant to Local Rule 16(D) of the Local Rules of the
Eastern District of Missouri,6 for leave to interview the jurors in
order to determine whether or not a dictionary had been consulted.
D.Y. App. at Ex. 119. The District Court denied the motion.
Yannacopoulos now claims that the Court was required, under Local
Rule 16(D), to hold a hearing to unearth alleged juror misconduct.
6
Local Rule 16(D)(2) provides in relevant part:
In any case where misconduct of one or more
petit jurors is suspected and supported by
evidence obtained by a lawyer or a party, the
Court shall grant leave to the lawyer, after
such fact is communicated to the Court, to
make such investigation as the Court deems
appropriate to establish the truth or lack of
truth of the suspected misconduct of such
petit juror or jurors.
-10-
As an initial matter, we note that Yannacopoulos failed to
object to the admonitions given by the Court, or to the
continuation of jury deliberation. He made no request to voir dire
the jury panel, or to question the juror who made the statement.
Instead, Yannacopoulos waited until after the verdict was returned
to raise this issue.
When a party waits until the end of a case to complain of
juror misconduct, as Yannacopoulos did, the objection is waived,
Rowe Intern., Inc. v. J-B Enters., Inc., 647 F.2d 830, 836 (8th
Cir. 1981), and we will reverse the District Court only if it has
committed plain error. First Nat. Bank and Trust Co. v.
Hollingsworth, 931 F.2d 1295, 1305 (8th Cir. 1991). Plain error is
error which has a serious effect on the fairness of the
proceedings. Ibid.
This is not the first time we have been confronted by the
issue of jurors consulting a dictionary. In previous cases, we
have held that prejudice to a party could not be presumed from the
use of a dictionary by the jury. Harold v. Corwin, 846 F.2d 1148,
1151 (8th Cir. 1988) (trial judge read requested definition to jury
from dictionary); United States v. Cheyenne, 855 F.2d 566, 568 (8th
Cir. 1988). We then focused our review in each case on the facts
surrounding the incidents to determine whether or not the use was
prejudicial, and whether or not the incident was properly handled
by the District Court. See e.g., Fink v. Foley-Belsaw Co., 983
F.2d 111, 113 (8th Cir. 1993); Cheyenne, 855 F.3d at 568. We think
the same approach is appropriate here.
In this case, the Court admonished the jury twice regarding
the use of extrinsic reference materials, giving specific attention
to the impending infraction of consulting a dictionary.
Yannacopoulos adduced no evidence that the juror actually ignored
the judge's instruction and consulted a dictionary. Given these
facts, we do not view the Court's use of preemptive admonitions as
-11-
plain error. It is certainly reasonable to believe, absent
evidence to the contrary, that the jury adhered to the judge's
instructions. See Hrzenak v. White-Westinghouse Appliance Co., 682
F.2d 714, 720 (8th Cir. 1982).
Further, we cannot agree with Yannacopoulos's claim that a
hearing was required under Local Rule 16(D). We note that "the
`application of local rules is a matter peculiarly within the
district court's province.'" Chrysler Credit Corp. v. Cathey, 977
F.2d 447, 449 (8th Cir. 1992) (per curiam) (quoting Reyher v.
Champion Int'l. Corp., 975 F.2d 483, 489 (8th Cir. 1992)). That is
particularly true in cases involving juror misconduct, since every
allegation of juror misconduct does not require an evidentiary
hearing, see Robinson v. Monsanto Co., 758 F.2d 331, 334-35 (8th
Cir. 1985), and the district court is in the best position to
determine when a hearing is necessary. In this case, the District
Court concluded - on the basis of the evidence presented by
Yannacopoulos and the nature of the alleged misconduct - that it
was not necessary to unsettle the verdict by conducting a hearing.
This decision was not plain error.
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-12-
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905 So.2d 125 (2005)
CHAMBERS v. STATE.
No. SC04-837.
Supreme Court of Florida.
May 23, 2005.
Decision without published opinion. Rev. denied.
| {
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} |
748 F.2d 1308
35 Empl. Prac. Dec. P 34,819, 53 USLW 2312
Paul E. JOHNSON, Plaintiff-Appellee,v.TRANSPORTATION AGENCY, SANTA CLARA COUNTY, CALIFORNIA,Defendant-Appellant,andService Employees International Union Local 715, Intervenor-Appellant.
No. 83-1532.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Feb. 14, 1984.Decided Dec. 4, 1984.
James L. Dawson, Gruber, Dawson & Preefer, San Jose, Cal., for plaintiff-appellee.
Steven Woodside, Deputy County Counsel, San Jose, Cal., for defendant-appellant.
David A. Rosenfeld, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., for intervenor-appellant.
Appeal from the United States District Court for the Northern District of California.
Before WALLACE, FLETCHER, and FERGUSON, Circuit Judges.
FLETCHER, Circuit Judge:
1
Plaintiff alleges that he was denied promotion on account of his sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. The district court rejected defendant's contention that it acted lawfully pursuant to a bona fide affirmative action plan. The district court granted retroactive promotion and pay and enjoined defendant from further discrimination against plaintiff.
2
We conclude that the district court misapprehended the requirements for a bona fide affirmative action plan. Guided by United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), we hold that defendant's affirmative action plan was valid and that defendant acted lawfully pursuant to the plan. We reverse.
3
* Defendant is the Santa Clara County Transportation Agency (Agency). Established and maintained by the County of Santa Clara, California, the Agency is an employer within the meaning of Title VII, 42 U.S.C. Sec. 2000e(b).
4
Plaintiff Paul E. Johnson has been employed by the Agency since 1967. For eleven years, he worked as a road yard clerk. In 1979, when Johnson was a road maintenance worker, the Agency announced an opening for a road dispatcher. A dispatcher allocates crews, equipment, and materials among the various road maintenance jobs in Santa Clara County. Johnson had experience as a temporary road dispatcher for the Agency, as well as with a private company before his employment by the county.
5
Johnson and eight others applied for the dispatcher position. Seven applicants achieved the required 70 or above on an examination given by a two-member oral board. Johnson tied for second with a score of 75. Diane D. Joyce, the only female applicant, placed fourth on the examination with the third highest score of 72.5, rounded to 73. Like Johnson, Joyce was a long-time Agency employee with considerable experience as a road yard clerk, a road maintenance worker, and a part-time road dispatcher.
6
Employees of the Agency's Road Operations Division conducted a second, departmental oral board for the seven applicants who successfully completed the first board. The examiners unanimously recommended Johnson for the dispatcher position. Meanwhile, Joyce informed the County Women's Coordinator that she was ranked fourth on the dispatcher eligibility list. The Women's Coordinator informed the Agency's Affirmative Action Coordinator that Joyce had applied. The Affirmative Action Coordinator recommended to the Agency Director that Joyce be appointed. The Director appointed Joyce to the position of road dispatcher.
7
The Director promoted Joyce under the Agency's voluntary, non-collectively bargained, affirmative action plan dated December 18, 1978 (plan). The plan did not set quotas in any job classification. Rather, the plan established a long-range goal to attain a work force whose composition in all major job classifications approximated the distribution of women, minorities, and handicapped persons in the County labor market. The plan specified no past discriminatory Agency practices; it simply stated that women had been traditionally underrepresented in the relevant job classifications and recognized an extreme difficulty in increasing "significantly the representation of women in certain of those technical and skilled-craft jobs." In 1978, both of the road dispatchers were men. In fact, not one of the Agency's 238 skilled craft positions was held by a woman.
8
Johnson complained to the EEOC. He received a right-to-sue letter from the EEOC in March 1981 and sued the Agency. Johnson challenged the Agency's failure to promote him to the position of road dispatcher, in favor of a less qualified woman, solely as a violation of Title VII.1
9
Neither party denied that the examination process was fair and in accord with Merit System Rules derived from the county charter. Based upon the examination results and the departmental interview, the district court found that Johnson was better qualified for the dispatcher position than Joyce. The court found further that, but for his sex, Johnson would have been promoted to the road dispatcher position, and, but for her sex, Joyce would not have been so promoted. The court concluded that the Agency's refusal to promote Johnson violated Title VII.
10
The district court rejected the Agency's defense that its actions were justified by its adherence to the Agency affirmative action plan. The court held that the Agency had failed to meet its burden of producing evidence that adherence to the plan was justified under United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). Specifically, the court held that the Agency failed to show that its plan was temporary and remedial rather than permanent and designed to maintain a particular balance. As a result, the court concluded, the Agency's actions unnecessarily trammeled Johnson's interests and had the effect of creating an absolute bar to his promotion to the road dispatcher position. While the district court stressed that its decision was based upon the Agency's failure to satisfy the requirement that the plan be temporary, the court also expressed considerable doubt that the plan was appropriately designed to break down entrenched patterns of discrimination.2
11
The district court ordered retroactive promotion of Johnson, awarded him back pay based on the promotion, and enjoined the Agency from further discrimination against him. The Agency appeals from the judgment of unlawful discrimination. We have jurisdiction under 28 U.S.C. Sec. 1291.
II
12
In United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the Supreme Court held that Title VII does not forbid private employers and unions from agreeing to the voluntary adoption of a bona fide affirmative action plan aimed at eliminating racial imbalance in traditionally segregated job categories. The Court observed that the prohibition against racial discrimination in Title VII must be examined in light of the legislative history of the Act and the historical context from which it arose. Id. 443 U.S. at 201, 99 S.Ct. at 2726. The primary goal of Title VII was the integration of blacks into the economic mainstream of American society. Id. at 202, 99 S.Ct. at 2726. Not only was the statute itself intended to be remedial, but Congress also hoped that Title VII would "create an atmosphere conducive to voluntary or local resolution of other forms of discrimination." H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 18 (1963), cited in Weber, 443 U.S. at 204, 99 S.Ct. at 2727. The Court concluded that
13
[i]t would be ironic indeed if a law triggered by a Nation's concern over centuries of racial injustice and intended to improve the lot of those who had "been excluded from the American dream for so long," ... constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.
14
Id. (citation omitted).
15
Although Weber enthusiastically endorsed private-sector affirmative action, the Supreme Court recognized the need for limitations. As the Eighth Circuit has said, courts must "ensure that new forms of invidious discrimination are not approved in the guise of remedial affirmative action." Setser v. Novack Investment Co., 657 F.2d 962, 968 (8th Cir.) (en banc), cert. denied, 454 U.S. 1064, 102 S.Ct. 615, 70 L.Ed.2d 601 (1981). The Court has yet to "define in detail the line of demarcation between permissible and impermissible affirmative action plans," but the Court noted several aspects of the Weber plan that placed it "on the permissible side of the line." Weber, 443 U.S. at 208, 99 S.Ct. at 2730. The plan (1) was designed to break down old patterns of racial segregation and hierarchy, (2) did not unnecessarily trammel the interests of white employees, (3) did not create an absolute bar to the advancement of white employees, and (4) was a temporary measure, "not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance." Id.
16
In La Riviere v. EEOC, 682 F.2d 1275 (9th Cir.1982), we applied Weber to an affirmative action program implemented by a public employer to remedy long-standing male-female imbalance in the work force. We determined that the plan to hire and train women as California Highway Patrol traffic officers satisfied the Weber guidelines. Id. at 1280. Thus, the plan could "be utilized consistently with Title VII without giving rise to liability to applicants who are excluded from the program solely because they belong to the opposite sex." Id.
17
A careful examination of the record in this case and of the opinion below persuades us that the district court adopted an overly restrictive view of Weber. We conclude that the Agency affirmative action plan contains the same characteristics that the Supreme Court relied upon in upholding the Weber plan. The Court observed that "[t]he purposes of the [Weber ] plan mirror those of the statute." 443 U.S. at 208, 99 S.Ct. at 2730. We conclude that the purposes of the Agency plan also mirror those of Title VII.
18
Because the district court based its decision on its perception that the plan was not a temporary measure, we begin there. The district court found that "[t]he Affirmative Action Plan had no end date or other provision which would have the effect of ending preferential treatment to women." The court cited the 1978 Agency plan, the 1979 county plan, and the testimony of James Graebner, the Agency Director.
19
While the Agency plan contains no date certain or other express statement of fixed duration, it also contains no statement that it is intended to be permanent. Moreover, the entire focus of the plan is on "attaining," rather than maintaining, balance. The Agency plan, like the county plan, repeatedly speaks of "attainment." Part IV states: "The Agency long-range goal is to attain a work force whose composition in all job levels and major job classifications approximates the distribution of women, minority and handicapped persons in the Santa Clara County work force." The plan sets forth percentage long-range goals for the "attainment of equitable representation." Unlike the district court, we believe that this emphasis upon the "attainment" of a representative work force does "have the effect of ending preferential treatment to women" once parity is achieved.
20
The district court was persuaded, in part, by Graebner's testimony that affirmative action "is a permanent part of the agency's basic operating philosophy" and even to the effect that the Agency plan will never end. Graebner's testimony must be considered in conjunction with the plan itself, however, with its emphasis on "attainment." Read in context, Graebner's testimony is no more than an expression of the Agency's long-range commitment to affirmative action, and certainly not the expression of an Agency policy to continue the program beyond the point that the law allows. Graebner's own preface, printed at the front of the Agency plan, speaks repeatedly of "attainment" of a representative work force and of the plan's objective "to correct ... deficiencies."
21
Plans like this one are usually voluntarily adopted by employers who wish to express and act upon their commitment to social justice. They should not be rigidly interpreted so as to make their validity depend on technicalities in drafting. To do so would only discourage their adoption and encourage litigation. The district court's assumption that Weber requires an expressed date certain for termination or some other express provision that would trigger the end of an affirmative action plan was erroneous. The Weber Court did not establish a rigid formula for testing the validity of an affirmative action plan. The Court simply noted that one saving aspect of the Weber plan was its temporary nature. Undoubtedly, a plan must end when its remedial function has been served. The fact that the plan must end, however, does not necessitate the inclusion of an explicit ending provision. We read Weber to require that a plan be temporary in the sense that it must end when its goals of parity are met. In that regard, we note a fundamental difference between the Agency plan and the Weber-La Riviere type of plan. In Weber, a fixed percentage (50%) of openings in an in-plant craft-training program was reserved for black employees, in order to hasten achievement of the long-term percentage goal (39%) for black representation in the job category. Similarly, in La Riviere a fixed percentage (50%) of the openings in a pilot study, designed to determine the feasibility of employing female traffic officers, was reserved for women. In both cases, the requirement that a fixed percentage of openings be filled by minorities necessitated a reasonably explicit deadline.3 By contrast, although the goal of the Agency plan here is also to achieve parity, the plan does not establish fixed percentages for hiring, training, or promotion. Rather, the plan allows flexibility in working towards the long-range goals, with special emphasis on recruitment, selection, training, and promotion of minorities, women, and the handicapped.
22
We conclude that the Agency plan is sufficiently temporary. To paraphrase Weber, the plan is not intended to maintain male-female balance, but simply to eliminate a manifest male-female imbalance. Implicit in the plan is the intent to stop taking sex into account once the long-range percentage goals are attained. Nothing in the plan indicates a contrary intent. Nor is there evidence that parity had already been achieved when Joyce was appointed and that the plan was being used improperly to maintain balance in numbers of each sex. Quite the opposite is true. When Joyce was promoted to road dispatcher, the Agency's 237 other skilled craft positions were all held by men.
23
Like the Weber plan, the Agency affirmative action plan is a remedial effort intended to break down entrenched patterns of discrimination. The Agency plan contains extensive statistics illustrating the underrepresentation of women, minorities, and the handicapped in various Agency job categories. The plan acknowledges "entrenched patterns in hiring and promotion" and recognizes the particular difficulty of achieving parity in upper-level positions when discriminated groups have been traditionally excluded from trainee-level jobs.
24
In order to demonstrate that its plan is remedial, an employer need not show its own history of purposeful discrimination.4 It is sufficient for the employer to show a conspicuous imbalance in its work force. See Setser v. Novack Investment Co., 657 F.2d at 968. This is well illustrated by Weber, in which the employer hired as craftworkers only persons who had previous craft experience. Because blacks had historically been excluded from craft unions, few had previous craft experience and, consequently, few were hired. Weber, 443 U.S. at 198-99, 99 S.Ct. at 2724-25. Although the employer did not engage in purposeful discrimination, only 1.83% of the employer's skilled craft workers were black. Because the local work force was 39% black, the employer was justified in adopting an affirmative action plan.
25
Statistics are extremely useful in showing a conspicuous work force imbalance. We note particularly the difficulty that may confront an employer whose plan is intended to remedy discrimination resulting from societal norms. Some forms of discrimination are so subtle or so accepted that they defy proof other than by statistics. In Weber, the exclusion of blacks from craft unions was so pervasive as to warrant judicial notice. Weber, 443 U.S. at 198 n. 1, 99 S.Ct. at 2725 n. 1.
26
The promotion of Joyce to the road dispatcher position aptly served the Agency plan's remedial purpose. Statistics contained in the plan show that not one of the Agency's 238 skilled craft workers was a woman. Included in the skilled craft category are mechanics, body and fender repairers, construction inspectors, road maintenance workers, and road dispatchers. A plethora of proof is hardly necessary to show that women are generally underrepresented in such positions and that strong social pressures weigh against their participation. The promotion of Joyce was a lawful attempt to remedy the conspicuous imbalance.
27
Weber also warns that a plan must not create an absolute bar to the advancement of other employees or unnecessarily trammel the interests of other employees. 443 U.S. at 208, 99 S.Ct. at 2729. The more closely a plan adheres to its remedial purpose, the less likely it is that the plan will unreasonably infringe upon the interests of other employees. See Setser, 657 F.2d at 968.
28
The affirmative action plan in Weber did not deprive white employees of opportunities for advancement, but created additional opportunities by establishing a new training program for both blacks and whites. Weber, 443 U.S. at 198, 99 S.Ct. at 2724. Thus, although black employees received training in preference to senior white employees, the expansion of opportunities previously limited by seniority prevented undue infringement upon non-minority interests. While the La Riviere plan did not necessarily create new openings, it did admit both male and female applicants. As in Weber, the La Riviere plan reserved 50% of the openings in the program for applicants from the discriminated group.
29
While the Agency plan does not establish specific programs for recruitment, hiring, training, or promotion, it does lay a solid foundation for affirmative action. It assigns tasks and presents timetables for achieving long-range and short-range employment goals. The import of the plan, as with any lawful affirmative action plan, is to give preference to members of underrepresented groups. The plan does not indicate, however, that other employees will be barred or that their interests will be unnecessarily infringed. In fact, as in Weber, the plan contemplates the expansion of opportunity for all. Shortly before the plan was adopted, the county approved 734 new Agency positions to support the expansion of the county bus fleet from 236 to 516 buses. The plan notes that "[a]s the County Transit System continues to expand, additional positions will need to be authorized."
30
Johnson argues that the selection of Joyce as road dispatcher served as a complete bar to his selection for the position. We reject this narrow view. The instant case differs markedly from Weber and La Riviere in that it does not involve the admission of numerous applicants into a training program. Rather, it concerns the selection of one applicant for a single opening. When there is but one opening, the selection of one candidate will necessarily result in exclusion of all others. Unless we are shown a distinct pattern of exclusion of non-minority candidates from such positions, we cannot conclude that a single employment decision serves as a bar or unnecessarily trammels the interests of other employees. The record contains no evidence of such a pattern in this case. Pursuant to the Agency plan, Joyce's sex was viewed as an additional positive factor in an otherwise qualified candidate. The fact that her sex may have been the decisive factor in the selection of a woman for this particular opening does not indicate that men will always be excluded.
31
We conclude that the Agency plan, like the Weber plan, "falls on the permissible side of the line." We hold that the Agency's selection of Joyce, pursuant to the plan, was a lawful effort to remedy an entrenched pattern of manifest imbalance. We are not unsympathetic to the complaint of Johnson and others before our court that employers' attempts to remedy past discrimination sometimes visit burdens upon individual members of the non-minority group. As the Agency plan recognizes, however, "the mere existence of an opportunity for members of [discriminated] groups to apply for jobs ... will not by itself result in timely attainment of parity for currently underrepresented groups." Affirmative action is necessary and lawful, within the guidelines of Weber, to remedy long-standing imbalances in the work force.
32
REVERSED.
33
WALLACE, Circuit Judge, concurring in part and dissenting in part:
34
This "reverse discrimination" case presents some difficult questions arising from the application of an affirmative action plan. I conclude that the record before us is insufficient to make broad pronouncements of judicial policy. I would vacate and remand this case for two reasons. First, the record suggests that the district court improperly allocated the burdens of persuasion and production between the parties. Second, the court did not make sufficiently detailed findings on the plan to hold it invalid.
35
* The facts of this case, referred to in part by the majority, are significant. Johnson, a 58 year-old white male, has lived in Santa Clara for many years. After working 17 years for a cement company, including 7 years as a dispatcher and 8 years as a supervisor, he quit rather than accept a transfer that would uproot his family. Instead, he took a job with the Agency. He worked the better part of 11 years in the position of Road Yard Clerk II, requisitioning road materials for operations, processing purchase orders and arranging material provisions in emergencies. Eventually, however, he concluded that the job offered him little chance for advancement. He requested a voluntary demotion to Road Maintenance Worker II, hoping that the Road Maintenance Division would provide better opportunities for promotion to a position such as road dispatcher.
36
Agency road dispatchers assign crews, equipment, and materials to road maintenance job sites. They must keep accurate records on the status and availability of workers, materials, and equipment at those sites and need a working knowledge of all those things as well as of the various roads maintained by Santa Clara county. Job candidates usually have four years of experience in either dispatch or road work, and can operate a radio telephone. In 1974, Johnson applied to be a road dispatcher but placed second and failed to get the job. The position re-opened in December 1979, by which time Johnson had gained more road work experience, including several months work "out of class" as a road dispatcher. He and eight others applied for the position. Seven of them scored over the required 70 on an examination given by a two-member oral board on April 24, 1980.
37
Johnson placed second, with a score of 75. Employees from the Agency's Roads Division then conducted a second oral board for the seven qualifying applicants, and unanimously recommended Johnson for the job. Neither party denied that both the oral boards and the examination process were fair and in accord with Merit System Rules derived from the County charter. Section 7 of that charter prohibits sex discrimination and ensures promotions based on merit and equal opportunity.
38
Diane Joyce, the woman the Agency ultimately hired instead of Johnson, placed fourth on the examination, scoring 72.5, rounded up to a 73. She had worked as a road maintenance worker for five years and before that a bookkeeper, account clerk, and senior account clerk. She wanted to be a road dispatcher in 1974, but lacked the requisite experience for consideration. During the selection process in 1980, she contacted the County's Women's Coordinator, Lee, and told her about the job opening. Joyce reported that she had placed low on the eligibility list, however. Lee told Morton, the Agency's Affirmative Action coordinator, about Joyce and Morton recommended Joyce's promotion to Graebner, the Director of the Agency. Graebner then promoted Joyce. It was the only time he had ever directly made a promotion decision within the Roads Operation Division. Without Morton's recommendation, one of Graebner's subordinates would have made the road dispatcher appointment.
39
Graebner promoted Joyce under a voluntary, noncollectively bargained affirmative action plan dated December 18, 1978 (plan). The plan set no "quotas," per se, in any job classification, but rather had long-range percentage goals aiming at some numerical parity with women available in the local labor market. It specified no past discriminatory Agency practices, identified no history of purposeful exclusion it sought to remedy, and did not follow Equal Employment Opportunity Commission (EEOC) guidelines, see 29 C.F.R. Sec. 1608.1-.12 (1984). It simply stated that the relevant job classifications had traditionally underrepresented women, and recognized an extreme difficulty in increasing "significantly the representation of women in certain of those technical and skilled-craft jobs." When Graebner promoted Joyce under the plan, he did not carefully inspect the applications and related examination records of Joyce and Johnson, as the County's Merit System Rules authorized him to do. He thought he simply retained discretion to pick from among the top candidates who had crossed a certain threshold of ability.
II
40
In Title VII cases, "the ultimate question" is "discrimination vel non." United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983) (Aikens ). The existence of an affirmative action plan does not change this essential inquiry.
41
Title VII plaintiffs may challenge promotion decisions under either disparate treatment or disparate impact theories. Johnson asserts only a disparate treatment claim of the classic Title VII kind: the Agency intentionally and unjustifiably treated him differently only on the basis of his sex. "The 'factual inquiry' in a Title VII case is '[whether] the defendant intentionally discriminated against the plaintiff.' " Aikens, 460 U.S. at 715, 103 S.Ct. at 1482, quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). Of course, the fact that Johnson is a white male is irrelevant to his quantum of protection under Title VII. E.g., McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 280 & n. 8, 96 S.Ct. 2574, 2579 & n. 8, 49 L.Ed.2d 493 (1976). "[A] plaintiff's ultimate burden of persuasion remains the same regardless of race [or sex]: he must prove that the defendant intentionally discriminated against him." Lanphear v. Prokop, 703 F.2d 1311, 1315 (D.C.Cir.1983).
42
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (McDonnell Douglas ), the Supreme Court first comprehensively addressed "the order and allocation of proof in a private, non-class action challenging employment discrimination." Id. at 800, 93 S.Ct. at 1823. At the time, and later, the Court recognized that "[t]he facts necessarily will vary in Title VII cases, and the specification ... of the prima facie proof ... is not necessarily applicable in every respect to differing factual situations." Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13, quoted in Furnco Construction Corp. v. Waters, 438 U.S. 567, 575-76, 98 S.Ct. 2943, 2948-49, 57 L.Ed.2d 957 (1978) (Furnco ). The three stages of proof presentation and burden shifting under McDonnell Douglas entail no trifurcation of trial, but simply provide courts with "a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination." Furnco, 438 U.S. at 577, 98 S.Ct. at 2949; see generally B. Schlei & P. Grossman, Employment Discrimination Law 1321-22 (2d ed. 1983).
43
A Title VII plaintiff carries "the initial burden under the statute of establishing a prima facie case of racial discrimination." McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Johnson had to show that sex was the likely reason for the denial of his job opportunity. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (Burdine ); Hagans v. Andrus, 651 F.2d 622, 625 (9th Cir.), cert. denied, 454 U.S. 859, 102 S.Ct. 313, 70 L.Ed.2d 157 (1981); White v. City of San Diego, 605 F.2d 455, 458 (9th Cir.1979). When this burden is met by the employee, it "creates a rebuttable 'presumption that the employer unlawfully discriminated against' him." Aikens, 460 U.S. at 714, 103 S.Ct. at 1481, quoting Burdine, 450 U.S. at 255, 101 S.Ct. at 1094.
44
At this juncture of the McDonnell Douglas analysis, the question arises whether the use of an affirmative action plan to rebut a charge of employer discrimination is properly part of the plaintiff's prima facie case or whether it should be considered as a separate affirmative defense subsequent to the McDonnell Douglas analysis. If analyzed under the traditional McDonnell Douglas test, once a Title VII plaintiff establishes a prima facie case, "[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason" for the actions that inspired the complaint. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. To rebut the presumption against him, therefore, the employer must "produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, non-discriminatory reason." Burdine, 450 U.S. at 255, 101 S.Ct. at 1094, quoted in Aikens, 460 U.S. at 714, 103 S.Ct. at 1481 (emphasis added). The only burden shifted to the employer is the burden of going forward with evidence that suggests a legitimate defense of his actions. Meeting this burden puts the trier of fact "in a position to decide the ultimate factual issue in the case." Aikens, 460 U.S. at 715, 103 S.Ct. at 1482; see also Knutson v. Boeing Co., 655 F.2d 999, 1001 (9th Cir.1981) (employee retains the ultimate burden of showing intentional discrimination).
45
Under a McDonnell Douglas analysis, one legitimate reason an employer may offer to rebut the discrimination presumption, and fulfill his burden of going forward, is a bona fide affirmative action plan. See, e.g., Hunter v. St. Louis-San Francisco Railway Co., 639 F.2d 424, 426 (8th Cir.1981). The employer must articulate the reasons for rejection clearly, and do so through admissible evidence. See Burdine, 450 U.S. at 255 & n. 9, 257-58, 101 S.Ct. at 1095-96. When the employer has articulated a reason and rebutted the employee's prima facie case, "the factual inquiry proceeds to a new level of specificity." Id. at 255, 101 S.Ct. at 1094. The employee must have an "adequate 'opportunity to demonstrate that the proffered reason was not the true reason for the employment decision,' but rather a pretext." Aikens, 460 U.S. at 716 n. 5, 103 S.Ct. at 1482 n. 5, quoting Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; see McDonnell Douglas, 411 U.S. at 807, 93 S.Ct. at 1826. As long as the employee has this opportunity, the trial court must then decide whether there has been impermissible discrimination.
46
In this case, the Agency offered an affirmative action plan and other evidence to rebut the presumption that its decision was sex-based. Mere presentation or articulation of any plan, of course, will not rebut the presumption. The employer must show sufficient facts suggesting a legal, bona fide affirmative action plan meeting the minima defined in United Steelworkers of America, AFL-CIO-CIC v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979) (Weber ), and the law of our own circuit applying Weber, La Riviere v. EEOC, 682 F.2d 1275 (9th Cir.1982). The plaintiff's only Title VII burden of persuasion is to prove discrimination. He need not prove the illegality of an affirmative action plan merely alleged by his employer, or one for which his employer has not produced evidence to meet the prima facie requirements of a bona fide plan. The employer's burden is to go forward with evidence of a legal plan, and it is in his best interest carefully to present the fullest evidence possible.
47
There is an alternative way to analyze an affirmative action plan: as a separate affirmative defense raised by the employer. This is not a distinction without a difference. The burden of proof under the McDonnell Douglas test never shifts from the plaintiff. The burden of proof to demonstrate the validity of a separate affirmative defense rests with the person asserting it: the employer in Title VII cases. It is logical to require the employer to prove the validity of its plan since it is the employer's plan that has allegedly caused a Title VII injury.
48
The statute already provides a similar type of analysis for one aspect of sex discrimination. Title VII provides a narrow exception that allows classifications or treatment based on sex, but only if sex is "a bona fide occupational qualification reasonably necessary" to an employer's operation. 42 U.S.C. Sec. 2000e-2(e)(1). That statutory exception takes the form of an affirmative defense for the employer: if the court disbelieves his proffered reasons, he may admit discrimination between employees on the basis of sex but argue that the discrimination was justified. See generally K. Davidson, R. Ginsburg & H. Kay, Sex-Based Discrimination 667-95 (1974); Sirota, Sex Discrimination: Title VII and the Bona Fide Occupational Qualification, 55 Tex.L.Rev. 1025 (1977).
49
Thus, if affirmative action plans are presented as affirmative defenses, the burdens of going forward and persuasion dictated by Supreme Court and Ninth Circuit precedent form a simple and logical framework for deciding these difficult issues. This approach seems to me to provide a better means of analyzing affirmative action plans.
50
The majority does not discuss this problem, but concludes without analysis that the employer need only show "some evidence" that the plan was in response to a conspicuous work force imbalance and that the plan is reasonably related to the plan's remedial purposes. (At p. 1310 n. 2.) Then the plaintiff must prove the plan is invalid. I disagree with this analysis. In addition, all that is required by the majority's holding is to vacate the judgment to allow the district judge to apply these new pronouncements on burdens of proof and persuasion. The subsequent broad pronouncements on whether the plan passes muster under Weber are premature.
51
The record does not indicate clearly whether the district court properly allocated the burdens of going forward and persuasion. Therefore, the record is sufficiently suspect that I would have remanded this case for the proper application of those burdens, and for consideration of the Agency plan as an affirmative defense.
III
52
The second reason that I write separately is because the district court made insufficient findings on the Agency's affirmative action plan to justify its rejection of the plan.
53
Title VII embodies a broad legal principle of anti-discrimination. In Weber, the Supreme Court held that Title VII does not necessarily preclude voluntary, private affirmative action, and thus carved out a very narrow exception to that principle: it rejects random discrimination against various minorities or whites or males, but allows planned discrimination under very limited circumstances. See 443 U.S. at 200, 99 S.Ct. at 2725. In La Riviere, we did not address the constitutional issue but applied Weber to a voluntary, public affirmative action plan. In each case the result is to sanction some discrimination not otherwise legally conscionable--because based on race or sex--when it aims to remedy purposeful past discrimination.
54
Courts, however, must be careful to "ensure that new forms of invidious discrimination are not approved in the guise of remedial affirmative action." Setser v. Novack Investment Co., 657 F.2d 962, 968 (8th Cir.), cert. denied, 454 U.S. 1064, 102 S.Ct. 615, 70 L.Ed.2d 601 (1981). The bona fides of affirmative action plans must be evaluated carefully if the employer asserts he has treated plaintiff pursuant to one, because Title VII compels us to consider the rights of individuals, not groups. See, e.g., Connecticut v. Teal, 457 U.S. 440, 453-54, 102 S.Ct. 2525, 2534, 73 L.Ed.2d 130 (1982); City of Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702, 708, 98 S.Ct. 1370, 1375, 55 L.Ed.2d 657 (1978).
55
Two overarching questions guide the analysis of plans: "(1) when is it permissible to initiate an affirmative action plan, and (2) what methods may be employed to prefer one race [or sex] over another." Setser, 657 F.2d at 967 n. 4. Although Weber did not exclusively "define in detail the line of demarcation between permissible and impermissible affirmative action plans," 443 U.S. at 208, 99 S.Ct. at 2729-30, it identified at least four factors which La Riviere adapted to public plans. The plan: (1) must aim at breaking down historic patterns of racial or social segregation and hierarchy; (2) may not unnecessarily trammel the interests or employment opportunities of other employees; (3) must not absolutely bar the advancement of other employees; and (4) must remain only a temporary measure aimed at manifest racial or social imbalances. La Riviere, 682 F.2d at 1279-80, citing Weber, 433 U.S. at 208, 99 S.Ct. at 2729.
56
The majority evaluated the Agency's plan in light of the four factor test and concluded that the plan was valid. Since a plan must pass muster under all four factors, a separate analysis of each factor is necessary.
A.
57
The first question is whether the plan breaks down historic patterns of discrimination. The majority concludes that the Agency's plan was remedial, relying solely on the imbalance in the work force. Although I agree that statistics are useful and probative on this issue, a statistical imbalance should not suffice to satisfy this prong of Weber. An employer should use an affirmative action plan not only for identifying and making whole victims of discrimination, but also to identify and change the discriminatory organizational practices and conditions that initially produce victims. See United States Commission on Civil Rights, Affirmative Action in the 1980s: Dismantling the Process of Discrimination 41 (1981) (Commission Report); cf. Firefighters Local Union No. 1784 v. Stotts, --- U.S. ----, 104 S.Ct. 2576, 2588, 81 L.Ed.2d 483 (1984) (courts can override seniority systems only for each member of minority plaintiff class who was an actual victim of the discriminatory practice and on whom the practice had an individual impact); see generally 29 C.F.R. Sec. 1608.4 (1984). Thus, plans must arise in a remedial context: they must respond to a deep historical problem, rather than to random, insensitive acts of individuals over the years. See, e.g., Weber, 443 U.S. at 198 n. 1, 99 S.Ct. at 2725 n. 1 (citing deliberate racial exclusion as a legitimizing precondition for affirmative action plans in the construction industry, among others).
58
A judicial inquiry demands no official, administrative or judicial determination of discrimination. See Local Union No. 35 v. City of Hartford, 625 F.2d 416, 422 (2d Cir.1980), cert. denied, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981). Nevertheless, the employer must be able to point to past or present discriminatory patterns and practices that created the traditional segregation of the job categories in question. Merely "arguable" violations are not enough. Cf. Weber, 443 U.S. at 211, 99 S.Ct. at 2731 (Blackmun, J., concurring). Past discrimination implies some discriminatory cause for the present underrepresentation in the employer's job category and allows the court to go beyond the effects of socially created, accidental differences. Remedies affect causes; as a remedy, a plan must bear a relationship to the causes of discrimination so that it can change the discriminatory organizational practices that initially created victims. See, e.g., Commission Report, supra, at 41.
59
In this regard, statistics that show a conspicuous work force imbalance help greatly: they function as quantitative clues that "raise questions rather than settle them" and pinpoint areas requiring "further investigations into the factors that produce the statistical profile." Commission Report, supra, at 36. These statistical studies, of course, should adjust for demographically relevant variables in their comparisons between the work force and local labor pool. See, e.g., United States v. City of Miami, 614 F.2d 1322, 1352-53 & n. 5 (5th Cir.1980) (Gee, J., dissenting), modified on other grounds, 664 F.2d 435 (1981) (en banc). Because plans are remedial, however, an employer cannot rely on statistics alone as a short-cut around the critical need for causal evaluation and analysis. See Commission Report, supra, at 36. Therefore, I consider the majority's approach too superficial for the analysis required under the first prong of Weber, and disagree with it.
B.
60
The second inquiry is whether the plan unnecessarily trammels the interests of non-minority employees. A bare affirmation that the more reasonably the plan relates to its remedial purpose in specifics, see, e.g., Ende v. Board of Regents of Northern Illinois University, 565 F.Supp. 501, 507 & n. 3, 509 (N.D.Ill.1983), the less chance it will so invade "the interests of majority workers that it violates Title VII," Parker v. Baltimore & Ohio Railroad Co., 652 F.2d 1012, 1016 (D.C.Cir.1981), is insufficient. We must scrutinize carefully the reasonableness of the plan's measures to prevent the majority employees from having their "rights ... bartered away by the employer in order to buy his private peace." City of Miami, 614 F.2d at 1352 n. 3 (Gee, J., dissenting). At the most obvious level, therefore, a plan may not simply "require the discharge of white workers and their replacement with new black hirees." Weber, 443 U.S. at 208, 99 S.Ct. at 2730; accord La Riviere, 682 F.2d at 1279. More generally, the plan may not unnecessarily close off channels of employment to non-minorities. See Parker, 652 F.2d at 1014. A court's serious evaluation of a plan's measures can settle such questions as whether it in reality uses a "quota" rather than a "goal," and can establish the reasonableness of the plan with respect to non-minority employees. The record does not demonstrate such an inquiry. Therefore, I conclude that the majority is not in a position to pass on this issue.
C.
61
The third issue to be addressed is whether the plan absolutely bars the advancement of non-minority employees. This inquiry is closely related to the one above, and the answer will depend on several factors, including the number and nature of the applicants, the number of contested jobs available, and employee expectations. The affirmative action program in Weber did not deprive white employees of opportunities for advancement, but created new opportunities by establishing a training program for both blacks and whites. Weber, 443 U.S. at 198, 99 S.Ct. at 2724. Thus, although "black employees receiv[ed] training in preference to senior white employees," id. at 199, 99 S.Ct. at 2725, the expansion of opportunities previously limited by seniority prevented any problem. See also La Riviere, 682 F.2d at 1280. Under Weber, the safest plans minimize non-minority employee displacement and do not concentrate the costs of affirmative action "upon a relatively small, ascertainable group of non-minority persons." EEOC v. Local 638, 532 F.2d 821, 828 (2d Cir.1976); cf. Gewirtz, Remedies and Resistance, 92 Yale L.J. 585, 605 (1983) (effective remedies must operate within third-party cost constraints). The district court did not analyze this issue sufficiently, and I would have remanded this case for a more detailed consideration.
D.
62
The final question is whether the plan remains only a temporary measure. The majority concluded that the plan was temporary because it did not state expressly that it would be permanent, and purported to attain rather than to maintain a sexual balance. Thus, the majority concludes that Weber endorses all plans which do not admit to being permanent, but which end when their goals are met. This interpretation of Weber is too broad, and reads the temporary requirement out of the test by making it a hurdle over which any artfully drawn plan can jump. The saving grace of the plans in Weber and La Riviere was their expressly temporary duration. See Weber, 443 U.S. at 208-09, 99 S.Ct. at 2729-30; La Riviere, 682 F.2d at 1280. Moreover, a broad reading of Weber is unnecessary in this case. The disputed facts in the record, particularly Graebner's testimony, does not justify the majority's conclusion that the plan was temporary. An appellate court is not in a position to make this factual determination. The district court should have the opportunity to weigh this evidence properly, and I would remand this case for further factual hearings.
IV
63
In conclusion, the record demonstrates that the district court evaluated the Agency's 1978 plan, although it did consider newer Agency and county-wide plans. The relevant plan, of course, is the one the Agency applied to the allegedly adverse employment decision. I would have remanded this case for the district court to reconsider the plan as an affirmative defense of the Agency under the proper allocation of burdens discussed above. The district court then should have reviewed the aspects of the appropriate plan under a detailed Weber analysis to create an appropriate record for review. See Parker, 652 F.2d at 1020; cf. Pullman-Standard v. Swint, 456 U.S. 273, 291, 102 S.Ct. 1781, 1791, 72 L.Ed.2d 66 (1982) (when "a district court has failed to make a finding because of an erroneous view of the law, ... there should be a remand for further proceedings to permit the trial court to make the missing findings").
64
I concur in the result reached by the majority opinion because I believe that the district court erred by misallocating the burdens of persuasion and proof, and a judgment based on such a record should not stand. I cannot join this opinion, however, because I disagree with the majority's allocation of the burdens of persuasion and production, and because I believe that the district court should have the first opportunity to correct its own errors and conduct the intensive factual analysis necessary to resolve these issues. In order for the majority to uphold the plan, it has taken several unnecessary doctrinal steps that weaken the Supreme Court's test in Weber as interpreted by La Riviere. From these pronouncements, I dissent.
1
Although there is state action in this case, see e.g., Virginia v. Rives, 100 U.S. (10 Otto) 313, 318, 25 L.Ed. 667 (1880), Johnson did not challenge the affirmative action plan on equal protection grounds and we do not reach the issue
2
The district court's opinion is not entirely clear as to whether it inappropriately placed the burden of persuading the court of the plan's validity on the employer. The Supreme Court's decision in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972) explains the order and burdens of proof in a typical Title VII case. First the plaintiff must present a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Then the employer must articulate a legitimate, nondiscriminatory reason for its decision. Id. The plaintiff then must convince the court that the employer's proffered reasons were actually a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825
We agree with the Eighth Circuit's analysis in Setser v. Novack Investment Co., 657 F.2d 962 (8th Cir.) (en banc), cert. denied, 454 U.S. 1064, 102 S.Ct. 615, 70 L.Ed.2d 601 (1981), which applied the McDonnell Douglas formula to an affirmative action case. In order to meet the burden of articulating a nondiscriminatory reason for its hiring decision, the employer need only produce "some evidence that its affirmative action plan was a response to a conspicuous ... imbalance in its work force" and "some evidence that its affirmative action plan is reasonably related to the plan's remedial purpose." Setser, 657 F.2d at 968. Once an employer has produced evidence that its refusal to hire the plaintiff was a consequence of its implementation of the plan, the employer is entitled to judgment unless the plaintiff proves the plan is invalid. Setser, 657 F.2d at 962.
We disagree with the dissent's analysis that the employer's assertion that it made its hiring decision pursuant to its affirmative action plan is an affirmative defense imposing a burden of going forward and persuading (as contrasted to a burden of production). However, in this case, the employer has met the higher burden--the plan is bona fide, meets the tests of Weber, and responds to a need to correct an overwhelming imbalance in the work force (all of the Agency's 238 skilled craft positions were held by men until Joyce was hired, making it 237 to 1).
3
Yet it is not clear that the Weber plan was any more expressly limited than the Agency plan. "The 'Joint Committee' thereafter entered into a 'Memorandum of Understanding' which established a goal of thirty-nine percent as the percentage of minorities that must be represented in each 'craft family' at the Kaiser Gramercy plant." Weber v. Kaiser Aluminum & Chemical Corp., 415 F.Supp. 761, 764 (E.D.La.1976) (footnotes omitted), cited in Weber, 443 U.S. at 199, 99 S.Ct. at 2725
4
Although the district court rejected the Agency plan as a defense on the ground that it was not shown to be temporary, it also expressed doubt as to the plan's remedial intent. This concern hinged upon the court's finding that "[t]he Transportation Agency has not discriminated in the past, and does not discriminate in the present against women in regard to employment opportunities in general and promotions in particular." The district court apparently assumed that an employer must show his own history of purposeful discriminatory patterns or practices
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75 So.3d 1231 (2010)
JAMES CREWS
v.
STATE.
No. CR-08-1906.
Court of Criminal Appeals of Alabama.
January 8, 2010.
DECISION WITHOUT PUBLISHED OPINION
Reh. denied.
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Cite as 2015 Ark. 377
SUPREME COURT OF ARKANSAS
No. CR-15-494
Opinion Delivered October 22, 2015
ALAN RAY EDWARDS APPEAL FROM THE GARLAND
APPELLANT COUNTY CIRCUIT COURT
[NO. 26CR12-539]
V. HONORABLE JOHN HOMER
WRIGHT, JUDGE
STATE OF ARKANSAS AFFIRMED; COURT OF APPEALS
APPELLEE OPINION VACATED.
JOSEPHINE LINKER HART, Associate Justice
A jury found appellant, Alan Ray Edwards, guilty of first-degree murder, attempted
first-degree murder, and a firearm enhancement, and he was sentenced to a total of sixty-five
years’ imprisonment. The Arkansas Court of Appeals affirmed his convictions. Edwards v. State,
2015 Ark. App. 340, 464 S.W.3d 473. Edwards then petitioned this court for review, and we
granted the petition. When we grant a petition for review, we consider the appeal as though
it had been originally filed in this court. See, e.g., Bohannon v. Robinson, 2014 Ark. 458, at 4,
447 S.W.3d 585, 587. On appeal, Edwards argues that the circuit court abused its discretion
in excluding expert-witness testimony concerning his lack of capacity to form intent. The
decision to admit or exclude evidence is within the sound discretion of the circuit court, and
we will not reverse that decision absent a manifest abuse of discretion or absent a showing of
prejudice. Bruner v. State, 2013 Ark. 68, at 11–12, 426 S.W.3d 386, 393. We affirm the circuit
Cite as 2015 Ark. 377
court.
The shootings occurred at Pop-A-Top Club in Hot Springs, Arkansas. A number of
patrons and employees testified at the trial. To summarize, on August 28, 2012, Edwards
offered a $200 tip to Eliza Beth McDaniel, a bartender, which she refused. Edwards
nevertheless slipped the money into her unattended purse. The next day, Edwards returned
to the bar and asked the bartender if she had received the “surprise.” She unsuccessfully tried
to return the money to Edwards. On August 31, 2012, he returned to the bar and asked if she
would go out with him. Because Edwards was married, she declined. Edwards then demanded
the money back and threatened to kill her. She returned $62, which was all the money she had
on her, and offered to return the remainder in a few days. Edwards told her that she had better
return the rest of the money or he would kill her and everyone in the bar. The bartender
reported the incident to the owner and the manager, but rather than reporting it to the police,
the owner and the manager decided that Edwards would no longer be allowed in bar.
On September 3, 2012, at 3:00 p.m., Edwards entered the bar and was told by the
acting manager, Teresa Williams, that he could not enter the bar until he spoke with the
owner. Edwards began arguing, and a customer, Toby Fowlks, told Edwards that he needed
to leave. Edwards told Fowlks that he was not scared and that Fowlks could not “kick” his
“ass.” Fowlks chased Edwards out of the bar. Outside, Fowlks struck Edwards in the face, and
Edwards left in his vehicle.
Less than an hour later, Edwards returned to the bar with a shotgun in his hands, and
asked, “Where’s that son of a bitch that hit me?” After seeing Fowlks, Edwards said, “Oh,
2
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there you are,” and shot Fowlks twice, killing him. Edwards then turned to the bartender and
said, “Fuck you too.” He shot twice at her but she ducked behind a gaming machine, thus
avoiding injury. When Edwards left the bar, other patrons at the bar followed him, and after
a struggle, the patrons were able to disarm Edwards.
Prior to trial, Edwards obtained the services of Dr. Albert Kittrell, an expert in the field
of psychiatry and forensic psychiatry. Doctor Kittrell conducted an evaluation of Edwards in
which he opined in his report that Edwards suffered from a mental disease—a psychotic
disorder not otherwise specified—at the time of the offenses. Doctor Kittrell noted that, at the
time of the offenses, “several factors impacted Mr. Edwards’s capacity for purposeful conduct”
and that he was “experiencing considerable emotional upheaval.” Doctor Kittrell, however,
opined that, even though Edwards was diagnosed with a mental disease and was psychotic at
the time of the offenses, Edwards nonetheless did not lack the capacity to appreciate the
criminality of his conduct and did not lack the capacity to conform his conduct to the
requirements of the law at the time of the offenses. In his summary, Dr. Kittrell noted that
“Edwards had impairment in his capacity to have culpable mental state required to establish
an element of the offenses charged.”
At an in-camera hearing on Edwards’s fitness to proceed, with the circuit court
presiding, Dr. Kittrell was asked on what he “base[d] the fact that [Edwards] had the
impairment of the . . . culpable mental state?” Dr. Kittrell noted the diagnosis of a psychotic
disorder not otherwise specified, meaning that “at some point he had lost contact with reality
and when I saw him he continued to have ongoing impairment.” Doctor Kittrell noted that
3
Cite as 2015 Ark. 377
Edwards told him that he hallucinated and heard voices and was suspicious and paranoid.
Doctor Kittrell noted that Edwards had not received treatment for these conditions.
On the day of the trial, the State argued that Dr. Kittrell should not be allowed to testify
that he did not believe that Edwards “had the ability to do a purposeful mental state.” In
response, Edwards’s attorney asserted that Edwards was entitled to a defense and that the jury
should determine whether he had a culpable mental state. The court took the motion under
advisement, and during the trial, the court ruled that “Dr. Kittrell cannot testify to his opinion
as to whether [Edwards] had the capacity to form a purposeful intent.” The court instructed
Dr. Kittrell that he could render an opinion on Edwards’s “ability to conform his conduct to
the requirements of the law” but could not opine “as to his ability to form the requisite mental
intent for this crime.”
During his testimony, Dr. Kittrell again opined that Edwards suffered from a mental
disease, a psychotic disorder not otherwise specified. He noted that Edwards suffered from
auditory hallucinations. The doctor further noted that Edwards was limited in his ability to
handle stressful situations. On cross-examination, Dr. Kittrell testified that in his report he had
opined that Edwards’s psychotic disorder did not render Edwards unable to appreciate the
criminality of his conduct and did not render him unable to conform his conduct to the
requirements of the law.
On appeal, Edwards asserts that Dr. Kittrell concluded that he lacked the capacity to
form intent and that the circuit court erred in excluding that testimony. He argues that under
Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994), while Dr. Kittrell could not testify as
4
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to whether he actually formed the requisite intent during the commission of the offense, Dr.
Kittrell was permitted to testify that he lacked the capacity to form intent. He asserts that the
jury could have accepted Dr. Kittrell’s testimony on the presence of a mental disease and lack
of capacity to form intent, while rejecting the notion that a person could simultaneously
appreciate the criminality of his conduct and conform that conduct to the requirements of the
law, and thus find him not guilty by reason of mental disease or defect. He concludes that he
was prejudiced by the circuit court’s ruling because his entire defense was that he lacked the
capacity to form intent. He argues that, had the jury heard the testimony, there was a
reasonable probability that the jury would have acquitted on the first-degree charges and given
him a lesser sentence, or have acquitted on the lesser charges as well. He further asserts that the
circuit court denied him due process by depriving him of his only defense.
A person commits murder in the first degree if, with the purpose of causing the death
of another person, the person causes the death of another person. Ark. Code Ann. § 5-10-
102(a)(2) (Repl. 2013). A person acts purposely with respect to his conduct or as a result of his
conduct when it is his conscious object to engage in conduct of that nature or to cause the
result. Ark. Code Ann. § 5-2-202(1) (Repl. 2013).
It is an affirmative defense to a prosecution that at the time the defendant engaged in
the conduct charged he lacked capacity as a result of mental disease or defect to conform his
conduct to the requirements of law or appreciate the criminality of his conduct. Ark. Code
Ann. 5-2-312(a)(1) (Repl. 2013). We note that a report of a criminal-responsibility
examination shall include an opinion as to whether, as the result of a mental disease or defect,
5
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the defendant, at the time of the alleged criminal conduct, lacked the capacity to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law. Ark. Code
Ann. § 5-2-305(d)(3)(A) (Repl. 2013). Further, when directed by the court, the report also
is to contain “an opinion as to the capacity of the defendant to have the culpable mental state
that is required to establish an element of the offense charged.” Ark. Code Ann.
§ 5-2-305(d)(3)(B). “Capacity of the defendant to have the culpable mental state” means a
defendant’s ability to have the culpable mental state necessary to establish an element of the
offense charged. Ark. Code Ann. § 5-2-301(2) (Repl. 2013). Further, our statutes provide that
“[e]vidence that the defendant suffered from a mental disease or defect is admissible to prove
whether the defendant had the kind of culpable mental state required for commission of the
offense charged.” Ark. Code Ann. § 5-2-303 (Repl. 2013).
In Stewart, 316 Ark. 153, 870 S.W.2d 752, the State moved in limine to prevent expert-
witness testimony as to whether the defendant “acted with the purpose to cause” the victim’s
death or whether the defendant “lacked the specific intent to do so at the time of the murder.”
The circuit court granted the motion. At trial, an expert witness testified that the defendant’s
mental defect prevented him from being able to conform his conduct and formulate the
requisite intent at the time he shot the victim. In rebuttal, the State presented expert-witness
testimony that the defendant appreciated the nature of his conduct and was able to conform
his conduct on the day he shot the victim. The court, however, would not allow the defendant
to have the State’s witness read the part of her report that indicated that the defendant’s
behavior did not appear to be premeditated. On appeal, the defendant argued that the circuit
6
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court erred in granting the State’s motion. This court held that expert testimony could be
elicited with respect to the question of whether a defendant could conform his conduct to the
requirements of the law as part of the insanity defense but that the expert witnesses could not
testify regarding whether the defendant formed the required specific intent to murder at the
time the murder was committed. The court noted that expert testimony on whether a
defendant lacked the capacity to form intent is probative, but questioned whether opinion
evidence on whether the defendant actually formed the necessary intent at the time of the
murder is. This court held that whether the defendant killed the victim purposely on a specific
day at least had the potential for being misleading and confusing to the jury. Stewart, 316 Ark.
at 159, 870 S.W.2d at 755–756.1
Stewart precludes an expert witness from testifying whether the defendant formed the
required specific intent at the time the murder was committed. Here, however, Dr. Kittrell
never opined regarding whether Edwards formed the purpose of causing the death of another
person when he caused the death of Fowlks or attempted to cause the death of Williams. Thus,
the limitation on expert testimony set out in Stewart has no application to this case.
Edwards bases his arguments on the assumption that Dr. Kittrell opined that he lacked
the capacity to form intent. Doctor Kittrell’s report, however, only stated that, at the time of
the offenses, “several factors impacted Mr. Edwards’s capacity for purposeful conduct.” In his
1
We have discussed the holding in Stewart in other cases, but in those cases the
defendants did not raise the affirmative defense of mental disease or defect that was raised in
Stewart and in the case at bar. See Bruner v. State, 2013 Ark. 68, 426 S.W.3d 386; Laswell v.
State, 2012 Ark. 201, 404 S.W.3d 818; Bankston v. State, 361 Ark. 123, 205 S.W.3d 138
(2005); Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000); DeGracia v. State, 321 Ark.
530, 906 S.W.2d 278 (1995).
7
Cite as 2015 Ark. 377
summary, Dr. Kittrell noted that Edwards “had impairment in his capacity to have culpable
mental state required to establish an element of the offenses charged.” Thus, Dr. Kittrell never
stated that Edwards lacked the capacity to form intent, only that it was impacted or impaired.
The circuit court instructed Dr. Kittrell that he could not opine “as to his ability to form the
requisite mental intent for this crime.” The circuit court’s instruction can be read to mean that
Dr. Kittrell could not testify regarding whether Edwards formed the required specific intent
to purposely cause death at the time the murder was committed. As expressed in Stewart,
expert-witness testimony on whether a defendant generally lacked the capacity to form intent
is probative. Edwards, however, did not present testimony that he lacked the capacity to form
intent.
Furthermore, Dr. Kittrell did opine that Edwards’s psychotic disorder did not render
him unable to appreciate the criminality of his conduct and did not render him unable to
conform his conduct to the requirements of the law. Thus, despite Edwards’s claim that the
jury could have still found him not guilty by reason of mental disease or defect, there was no
testimony to support these two elements of the affirmative defense. In this sense, Stewart is
even farther afield from the case at bar because in Stewart, the expert witness testified that the
defendant’s mental defect prevented him from being able to conform his conduct and
formulate the requisite intent at the time he shot the victim.
Edwards further contends that was prejudiced because there was a reasonable
probability that the jury might have found him guilty of a lesser offense or given him a lesser
sentence. We again note that Dr. Kittrell never stated that Edwards lacked the capacity to
8
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form intent. Also, there was ample evidence of purposeful conduct. Edwards left the bar,
returned with a shotgun, sought out and addressed Fowlks prior to shooting him, and then
shot him twice. Edwards also addressed Williams and then fired twice in her direction. See
Fink v. State, 2015 Ark. 331 (holding, though not in the context of determining prejudice,
that evidence was sufficient to establish purposeful conduct).
In conclusion, (1) Dr. Kittrell did not testify regarding whether Edwards formed the
specific intent to purposely cause death when he fired his shots at Fowlks and Williams; (2)
Dr. Kittrell did not opine that Edwards lacked the ability to form the requisite intent; (3) Dr.
Kittrell did testify that Edwards did not meet the elements of the affirmative defense; and (4)
there was ample evidence of purposeful conduct. Accordingly, we conclude that, contrary to
Edwards’s argument on appeal, Stewart does not compel this court to hold that the circuit
court abused its discretion or to hold that Edwards suffered prejudice. While Edwards further
asserts that the circuit court denied him due process by depriving him of his only defense, he
did not raise the argument to the circuit court, so it was not preserved for appellate review.
Hinkston v. State, 340 Ark. 530, 534–35, 10 S.W.3d 906, 909 (2000). Accordingly, we affirm
the circuit court.
Affirmed; court of appeals opinion vacated.
DANIELSON and WYNNE, JJ., dissent.
ROBIN F. WYNNE, Justice, dissenting. While I agree with much of the majority’s
analysis, I must dissent because I conclude that this case should be reversed and remanded for
a new trial. I fully agree that Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994), should
9
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not be read to prohibit expert testimony regarding a defendant’s capacity to form the specific
intent to commit murder. Because appellant was charged with first-degree murder and
criminal attempt to commit first-degree murder, the State in this case was required to prove
that appellant acted with the purpose of causing the death of another person. See Ark. Code
Ann. § 5-10-102(a)(2) (Repl. 2013). A person acts purposely with respect to his conduct or
as a result of his conduct when it is his conscious object to engage in conduct of that nature
or to cause the result. Ark. Code Ann. § 5-2-202(1) (Repl. 2013). Evidence that the
defendant suffered from a mental disease or defect is admissible to prove whether the
defendant had the kind of culpable mental state required for commission of the offense
charged. Ark. Code Ann. § 5-2-303 (Repl. 2013). In the present case, Dr. Kittrell opined
in his report that, at the time of the offenses, appellant suffered from a mental disease, namely,
psychotic disorder not otherwise specified. Dr. Kittrell also found that several factors
impacted appellant’s capacity for purposeful conduct with respect to the charged offenses; he
stated that appellant was experiencing considerable emotional upheaval based on several
factors, among them appellant’s untreated psychosis (hallucinations and paranoia). At the
October 7, 2013 competency hearing, Dr. Kittrell testified regarding appellant’s capacity to
form the culpable mental state. The majority notes that Dr. Kittrell never stated that appellant
lacked the capacity to form intent, only that it was impacted or impaired. In my view, this
distinction is not important in deciding whether expert testimony on this point was
admissible; Dr. Kittrell expressed his opinion on the issue of appellant’s capacity to form the
requisite intent, regardless of whether that opinion was definitive.
10
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The evidence regarding whether appellant had the capacity to form the culpable
mental state to commit first-degree murder was relevant and probative, and in my view it was
an abuse of discretion for the trial court to exclude it. Of course, whether appellant had the
required intent to murder Toby Fowlks at the time of the shooting was for the jury to decide.
See Stewart, 316 Ark. at 159, 870 S.W.2d at 755. It is well settled that the jury is not bound
to accept the opinion testimony of any witness as true or conclusive, including the opinion
testimony of experts. Navarro v. State, 371 Ark. 179, 191, 264 S.W.3d 530, 539 (2007) (citing
Davis v. State, 368 Ark. 401, 246 S.W.3d 862 (2007)). In sum, whether appellant had the
culpable mental state to commit first-degree murder was a fact in issue, Dr. Kittrell’s opinion
regarding appellant’s capacity to form that intent was probative, and that evidence was
admissible. Furthermore, its exclusion was not harmless. It was a crucial part of appellant’s
defense, a key corollary to the defense’s evidence that appellant suffered from a mental disease
at the time of the shooting.
I respectfully dissent.
DANIELSON, J., joins.
John Wesley Hall and Sarah M. Pourhosseini, for appellant.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
11
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699 F.Supp. 357 (1988)
Edward DOYLE, Plaintiff,
v.
Michael S. DUKAKIS, Amy Anthony, Marvin Siflinger, Bernard Singer and the Massachusetts Housing Finance Agency, Defendants.
Civ. A. No. 85-100-Y.
United States District Court, D. Massachusetts.
November 4, 1988.
William J. Doyle, Doyle & Doyle, Boston, Mass., for plaintiff.
Wade M. Welch, Boston, Mass., for defendants.
Alexander Gray, Boston, Mass., for Michael Dukakis.
MEMORANDUM OF DECISION
YOUNG, District Judge.
This matter comes before the Court upon the renewed motion of The Massachusetts Housing Finance Agency ("the Agency"), Marvin Siflinger ("Siflinger"), Bernard Singer ("Singer"), and Amy Anthony ("Anthony") for summary judgment.[1] These defendants had already raised the defense of qualified immunity in a prior motion for summary judgment. The Court denied that motion on the record as it then existed. See Doyle v. Dukakis, 634 F.Supp. 1441, 1447 (D.Mass.1986).[2] While the factual record has not changed since the earlier denial, these defendants have moved to renew their motion in light of the virtual explosion of political discharge case law emanating from the First Circuit in the wake of the 1984 Puerto Rican gubernatorial election. The more complete explication of the law in this area by the recent First Circuit decisions makes clear, the defendants argue, that they are immune from liability in the present case. After careful reflection, this Court agrees.
*358 A. First Amendment Protection.
It is now relatively clear in this Circuit that when one claims the protection of the First Amendment right of free association against a politically-motivated discharge, a court must engage in a two-step analysis. The first step is:
A threshold inquiry, which derives from Branti [v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980)], [and] involves examining whether the position at issue, ... relates to "partisan political interests ... [or] concerns." 445 U.S. at 519; 100 S.Ct. at 1295. That is, does the position involve government decisionmaking on issues where there is room for political disagreement on goals or implementation?
Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir.1986) cert. denied, 481 U.S. 1014, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987). If the position itself appears to fall within the scope of the First Amendment's protection,
the next step is to examine the particular responsibilities of the position to determine whether it resembles a policymaker, a privy to confidential information, a communicator, or some other office holder whose function is such that party affiliation is an equally appropriate requirement.
. . . . .
`Among the indicia that locate a job along the spectrum between policymaker and clerk are: relative pay, technical competence, power to control others, authority to speak in the name of policymakers, public perception, influence on programs, contact with elected officials and responsiveness to partisan policies and political leaders.'
Id. at 242 (quoting in part from Ecker v. Cohalan, 542 F.Supp. 896, 901 [E.D.N.Y. 1982] [Weinstein, C.J.]). Implementing this analysis, the First Circuit has acknowledged that the following positions are constitutionally protected: city court bailiff, road grader, bookkeeper, deputy court clerk, deputy sheriff, supervisor of a branch of an auditor's office, waiters, cleaning people, and a director of domestic services. Further, it has recognized that the following positions are beyond the scope of the First Amendment's constitutional protections as of 1985: a county's assistant director of public information, the first deputy commissioner of the department of water, superintendent of employment for the Chicago Park District, an assistant state's attorney, and assistant district attorney, fee agents, the city solicitor and assistant solicitor, and the deputy park commissioner. See Juarbe-Angueira v. Arias, 831 F.2d 11, 16 (1st Cir.1987) cert. denied, ___ U.S. ___, 108 S.Ct. 1222, 99 L.Ed.2d 423 (1988) and cases cited therein.[3] In the present case, the plaintiff Doyle, as the Special Assistant to the Executive Director on Loan to the Financial Department, had the following responsibilities:
1) to serve as liaison with other governmental agencies in both the federal and state governments;
2) to participate in negotiations with investment bankers for debt issues of the Agency;
3) to coordinate the Agency's investor relations program;
4) to serve as the Executive Director's liaison with the Commonwealth's Congressional delegation; and,
5) to perform special assignments as directed by the Executive Director.
See Affidavit of Wade M. Welch, Exhibit 2. Edward Hanley, Secretary of Administration and Finance during the administration of Governor Edward King, hired the plaintiff Doyle for the purpose of improving the *359 image of the Agency's bonds in the various financial markets in which they were traded. In accomplishing this goal, Doyle spoke with Hanley approximately once every two to three weeks while working at the Agency. Further, on occasion he arranged breakfast meetings with the Commonwealth's Congressional delegation and sought to discharge that liaison function. Therefore, on the basis of these undisputed facts,[4] even if the position itself is within the scope of the First Amendment protectioni.e., political affiliation and loyalty is not a proper aspect of Doyle's job qualifications,the particular fulfillment of the position's rather amorphous duties by the plaintiff Doyle would seem necessarily to partake of a political dimension.
B. Qualified Immunity.
The Court need not rest its decision on such a broad determination, however, in light of the qualified immunity from suit available to these defendants. In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court defined the scope of immunity available to government officials performing discretionary functions and adopted an objective standard that the Supreme Court hoped could permit the resolution of many claims through summary judgment. The Supreme Court held that such officials "generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S.Ct. at 2738. The Supreme Court wrote that if a judge, on summary judgment, determines that "the law was clearly established at the time an action occurred, the immunity defense ordinarily should fail since a reasonably competent public official should know the law governing his conduct." Id. at 818-19, 102 S.Ct. at 2738. In Doyle v. Dukakis, 634 F.Supp. 1441, 1447 (D.Mass.1986), this Court reasoned "that the right not to be dismissed from employment at the Agency solely because of lawful political support for and friendship with former Governor King was clearly established at the time of Doyle's alleged constructive discharge." This analysis was and is correctbut it is not complete.
As the defendants now carefully point out, while the right of employees in routine or ministerial functions to be free of politically-motivated discharges was well established at the time of Doyle's job transfer, the scope of that right and the variety of positions to which it applies was anything but clear and, indeed, appears to have contracted as the First Circuit has broadly defined the reach of qualified immunity. In Juarbe-Angueira v. Arias, 831 F.2d 11, 14 (1st Cir.1987), the court stated:
The upshot is that defendants will normally enjoy qualified immunity from damage liability in upper-level, managerial-type job dismissal cases, cases where the jobs in question are not purely technical or scientific in nature. This court said in Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255 (1st Cir.1987) that a defendant enjoys "qualified immunity" as long as the job "potentially concerns matters of partisan political interest and involved at least a modicum of policymaking responsibility, access to confidential information, or official communication."
831 F.2d at 14 (quoting in part Mendez-Palou, 813 F.2d at 1259) (emphasis supplied in Arias). The First Circuit has thus ruled that qualified immunity is appropriate in a broad array of discharge cases. See, e.g., Bonilla v. Nazario, 843 F.2d 34 (1st Cir.1988) (the discharge of regional managers of the Puerto Rico Automobile Accident Compensation Administration); Alvarado-Cordero v. Hernandez, 837 F.2d 26 (1st Cir.1988) (the discharge of the special assistant to the executive director of the Puerto Rico Highway Authority); Nunez v. Izquierdo-Mora, 834 F.2d 19 (1st Cir.1987) (the discharge of the auxiliary director of fiscal resources of the Health Facilities and Services Administration ["HFSA"], the special assistant to the Secretary of Health, and the special assistant *360 to the executive director of the HFSA); Juarbe-Angueira, 831 F.2d at 16 (the discharge of a regional director of the Puerto Rico Building Authority).
Having reviewed this carefully constructed and now extensive body of law, this Court rules as matter of law that, while it was well known at the time of Doyle's job transfer that politically-motivated discharges of lower level employees violated their First Amendment rights, it was not well understood at allnor could it reasonably have beenthat such constitutionally-based job protection extended to one in Mr. Doyle's position as he was striving to carry it out. Indeed, even on this present record, the resolution of that issue is a nicely balanced question. Therefore, because the defendants herein could not reasonably have understood that their conduct, even if politically motivated, violated Doyle's civil rights, they enjoy immunity from liability for damages, and the claims against them under 42 U.S.C. sec. 1983 must be dismissed.
Doyle also seeks a declaration of rights, evidently hoping to establish that his job transfer was politically motivated even if he fails to recover monetarily. Such would be an overbroad interpretation of this Court's limited function under the case or controversy clause of the Constitution. See Green v. Lehman, 744 F.2d 1049, 1052-54 (4th Cir.1984); McKee v. Turner, 491 F.2d 1106, 1107 (9th Cir.1974). The foregoing is the full declaration of rights to which Doyle is entitled. That is, in light of the foregoing analysis and the earlier opinions in this case, the Court concludes that Doyle has no right to recover damages from any of these defendants. That said, the Court need notand therefore should notconcern itself with whether Doyle's job transfer was in fact politically motivated.
The resolution of the federal claims reached herein prior to trial warrants dismissal of the pendant state claims without prejudice. See Clark v. Taylor, 710 F.2d 4, 11-12 (1st Cir.1983).
In view of the foregoing, therefore, this Court declares by way of summary judgment that the defendants are immune from Doyle's action for damages on the ground that, at the time of Doyle's job transfer, it could not reasonably have been ascertained whether his position, in light of the manner in which he exercised it, was protected against politically-motivated job actions by the First Amendment. His claims under federal law against these defendants are therefore dismissed and judgment will enter for the defendants thereon. The pendant state claims are dismissed without prejudice.
NOTES
[1] While the defendant Michael S. Dukakis ("Dukakis") does not himself renew his original motion for summary judgment, he argues these same points in his trial brief and, for purposes of this opinion, is treated as joining in all aspects of this motion.
[2] The Agency then sought summary judgment on the ground that it was an arm of the Commonwealth of Massachusetts. This motion was likewise denied. Doyle v. Dukakis, 687 F.Supp. 18 (D.Mass.1988). The present motion is thus the Agency's third attempt to obtain judgment short of trial.
[3] Doyle suggests that such general cataloging is inapposite in view of the implicit determination by another judge of this Court that the position of Office Manager within this very Agency enjoyed First Amendment protection against politically motivated job actions. See Campana v. Eller, No. 82-2392-MA, slip op. (D.Mass. Nov. 17, 1983), aff'd on other grounds, Campana v. Eller, 755 F.2d 212 (1st Cir.1985). This Court, however, has no basis in this record for comparing the duties of the Agency's Office Manager and its Special Assistant to the Executive Director. Moreover, like this Court's initial opinion herein, the decision of the District Court in Campana preceded the recent First Circuit decisions in this area.
[4] The record of undisputed facts on which this renewed motion is based was developed by the Court at the pre-trial conference held pursuant to Fed.R.Civ.P. 16.
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357 F.2d 62
Grant JENKINS, Appellant,v.John W. MACY, L. J. Andolsec and Robert E. Hampton, constituting the United States Civil Service Commission and the Regional Personnel Officer, General Services Administration, Appellees.
No. 17958.
United States Court of Appeals Eighth Circuit.
February 21, 1966.
Forrest Boecker, St. Louis, Mo., made argument for the appellant and filed typewritten brief.
Lawrence R. Schneider, Atty., Dept. of Justice, Washington, D. C., made argument for the appellee and filed brief with John W. Douglas, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., and Morton Hollander, Chief, Appellate Section, Civil Division, Washington, D. C., and Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo.
Before VOGEL, Chief Judge, BLACKMUN and GIBSON, Circuit Judges.
VOGEL, Chief Judge.
1
This appeal is taken from a summary judgment rendered against plaintiff-appellant, Grant Jenkins, in an action brought under 5 U.S.C.A. §§ 652, 863 and 1009. The judgment upheld a determination by the United States Civil Service Commission that appellant was properly removed from his position as custodial laborer, WC-2, at $2.02 per hour with the federal General Services Administration (GSA) in St. Louis, Missouri. Appellees herein are officers or members of GSA and the Civil Service Commission. Appellant was discharged for "* * * failure to demonstrate a conscientious effort to pay just financial obligations, and to live up to arrangements agreed upon for liquidating indebtedness". We affirm the decision of the District Court.
2
Jenkins, a veterans' preference eligible, was discharged under relevant provisions of the GSA Administrative Manual. GSA Order DOA 5410.1 CHGE 65, dated June 27, 1962, provides that for
3
"Indebtedness: Failure to demonstrate conscientious effort to pay just financial obligations, or to live up to arrangements agreed upon for liquidating indebtedness"
4
an employee could be "warned" for the first offense, "officially reprimanded" for the second offense, and "removed" for the third offense. As stated in GSA Order 6 COM 6240.6, dated February 16, 1960, in pertinent part:
5
"2. POLICY.
6
"a. All employees are expected to pay their debts. When an employee's attention is called by an official of this agency to his neglect in payment of such an obligation, he will be expected to take necessary steps to adjust the complaint in a satisfactory manner and to so inform such official. It is not our intention to act as a collection agency, but employees must understand that just obligations which are allowed to become delinquent reflect adversely on the employee's character and result in embarrassment to GSA.
7
"b. Failure of an employee to demonstrate a conscientious effort to discharge personal obligations resulting in embarrassment to GSA makes him subject to disciplinary action."
8
The records and exhibits herein reveal that eleven different loan companies or persons wrote or sent 40 complaints and/or contracts concerning the indebtedness of appellant to GSA in the three-year period beginning in January of 1960. Through letters of April 27, 1962, and May 14, 1962, appellant was warned by GSA because of his "repeated failure to meet financial obligations". There is no record of any reply to these warnings by appellant, even though he was advised that he had the right to so reply.
9
On January 3, 1963, an official reprimand was sent to appellant for "failure to demonstrate a conscientious effort to pay just financial obligations", including an unsatisfied judgment claim rendered against him. Reference was made to a large number of complaints made to GSA concerning the appellant. In this letter of reprimand appellant was also warned of possible removal from his job. Although notified that he could submit a written statement of explanation or file a formal appeal to the reprimand, there is no record that appellant did either of these things.
10
On February 13, 1963, appellant was notified by letter of his proposed removal from government service. He replied in writing on February 19, 1963, that "* * * some of these bills I have paid off, some I have not paid regular, but I am trying". He stated further that:
11
"* * * I am really trying hard to pay my debts. I know I could have declared myself bankrupted [sic] and cleared my slate clean. But I am not that kind of person, I mean to pay my bills from now on, I may not always pay on time, but I intend to pay all of them. * * * I hope you will reconsider my removal and give me one more chance to prove myself."
12
On March 6, 1963, appellant was notified of the decision to remove him from his job, effective March 11, 1963, and of his right to appeal from said removal.
13
Additional evidence shows that appellant indicated in writing on March 23 and May 10, 1962, to his employer, GSA, that he would make certain specified monthly payments to Al's Loan Service, one of appellant's creditors, which payments were never made as such. Besides issuing appellant the written warnings, official reprimand and notices of removal, representatives of GSA met personally on several occasions with appellant to discuss with him his financial obligations. Appellant apparently did make some payments on some accounts, such as a $12.00 payment to Al's Loan Service on February 6, 1963.
14
Appellant appealed to the Administrator of General Services from his dismissal and a hearing was held before a three-member committee on April 11, 1963. On May 1, 1963, appellant's appeal was denied by the Administrator, who had reviewed the committee's report.
15
On May 16, 1963, appellant was notified by the Ninth Regional Personnel Officer of the United States Civil Service Commission that since appellant had not received 30 days' advance notice of his proposed removal, as required by the Veterans' Preference Act at 5 U.S. C.A. § 863,1 his disciplinary action was cancelled. Appellant was restored to his position and paid in full for his lost time.
16
On May 27, 1963, appellant was again notified in writing that he was to be removed from service, and he was told that he had a right to reply to the charges. Appellant replied in a June 3, 1963, letter, through his attorney that "* * * you cannot discipline me twice for the same things. My restoration to service has wiped out all matters which were referred to in the letters [of March 6, 1963, and May 27, 1963]". Appellant was notified on June 11, 1963, that he would be removed from service effective July 3, 1963. Acting pursuant to regulations set out in the Veterans' Preference Act, supra, f. n. 1, and in 5 CFR § 22 (1961 Rev.), the removal action was sustained on August 23, 1963, by the Ninth Civil Service Region after an appeal was filed by appellant and after a hearing was held before an Appeals Examiner of the Civil Service Commission on August 7, 1963. The Board of Appeals and Review of the Civil Service Commission in Washington, D. C., upheld the decision of the Ninth Region on October 18, 1963. The District Court action here involved followed.
17
Keeping in mind, as we must, that the scope of review in cases involving the removal and discipline of federal employees is very limited (see, e. g., Eberlein v. United States, 1921, 257 U. S. 82, 84, 42 S.Ct. 12, 66 L.Ed. 140; Brown v. Zuckert, 7 Cir., 1965, 349 F. 2d 461, 463), we undertake to deal with the legal points raised by the appellant herein. The general rule is that the appointment and removal of executive employees are matters of discretion left to the executive branch which are not here reviewable on the merits. See, e. g., Keim v. United States, 1900, 177 U.S. 290, 293-294, 20 S.Ct. 574, 44 L.Ed. 774; Brown v. Macy, 5 Cir., 1965, 340 F.2d 115, 116-117.
Appellant's first contention is that:
18
"The order removing appellant from service is invalid because there is no showing that the `Administrative Manual' relied upon [in discharging appellant] was issued by an officer to whom authority was lawfully delegated."
19
While appellant did refer (1) in his complaint to the court below that appellant's dismissal was not based on any valid regulation of the Civil Service Commission or GSA, (2) in his notice of appeal to the Civil Service Commission that appellant did not violate any established GSA or Civil Service Commission rule, and (3) in his appearance before the Appeals Examiner of the Ninth Civil Service Region that the agency state some basis for the validity of the code of conduct used as regulations, this appeal is the first time appellant makes a specific challenge to the issuing authority (the Assistant Administrator for Finance and Administration) of the Administrative Manual. We note that the contention of appellees that
20
"* * * The reason why the record contains no evidence showing the delegation of authority from the GSA Adminstrator — who concededly has authority to prescribe regulations governing employee conduct — to the Assistant Administrator for Finance and Administration is that the latter's authority to issue the `Penalty Guide' was never questioned during the proceedings before the agency or the Civil Service Commission"
21
is entirely correct. We are reluctant to consider and deal with this point at this stage of the proceedings since appellant has himself not pursued it before. However, even if we were to deal with appellant's point on its merits, we are convinced that the Assistant Administrator for Finance and Administration did have the authority to issue the regulation involved. This delegation is evident from GSA Order ADM 5450.3 CHGE 72, dated May 8, 1962, which order is attached as an appendix to the appellees' brief.
Appellant's second contention is that:
22
"Said order is invalid because it penalizes appellant a second time for the same offense.
23
"The case against appellant is res judicata by reason of the first charge and order against him."
24
In other words, appellant feels because he was reinstated on May 16, 1963, after having been discharged, that he could not be discharged again even though his reinstatement was due solely to the fact that he had not been given proper notice of his impending discharge as required by the Veterans' Preference Act set out in f. n. 1, supra. We do not agree.
25
Whether or not the concept of res judicata generally applies to administrative proceedings,2 it clearly does not apply herein. Res judicata refers to the thing adjudicated. The adjudication at the time of both appellant's first and second removals from the government service herein was that he was guilty of the conduct charged. In other words, whether or not we grant appellant's contention, he is not benefitted since the facts never were adjudicated in his favor. His removal was postponed because of procedural fault, but this fault was corrected. Appellant, who in effect got a second chance, cannot now complain. Unlike the typical res judicata situation, appellant never prevailed on the merits. If anything, appellant's contention sounds more of "double jeopardy" rather than of res judicata. But the criminal concept of double jeopardy clearly is not applicable herein. At a minimum, appellant was not being punished twice for the same offense, for he never was punished after his first removal, having been fully reimbursed for his time lost on that occasion. This might be likened to the retrial of a criminal case where error in the first trial necessitates its being tried again. No double jeopardy results.
Appellant's third contention is that:
26
"Said order is invalid because unsupported by any evidence in essential elements of the case."
27
The appellant was ultimately dismissed from his job because, as related to him,
28
"* * * of your failure to demonstrate a conscientious effort to pay just financial obligations, and to live up to arrangements agreed upon for liquidating indebtedness.
29
"Specifically: Al's Loan Service reported that you received a loan on December 21, 1961, with payments to be $6.00 a month. On March 21, 1962, Al's stated in a letter that you had not made a payment on this account. When you were counselled on March 23, 1962 by Mr. Todd Preston, Building Manager, you stated in writing, `Mr. Preston I will send Al $8.00 per month until pay out I will send $8.00 on the 14th of April and $8.00 each month until pay out.' On May 7, 1962, Al's again wrote stating that you still had not made any payments on this account. When you were counselled on May 10, 1962 concerning this letter, you stated in writing, `I no that I owe Al's so i will send him $5.00 May 25 and $5.00 a month until pay out.' On January 25, 1963, Al's again reported that you had never made a payment on this account.
30
In determining the severity of this proposed action, your past record of indebtedness has been considered."
31
It is appellant's contention that the loan from Al's Loan Service was not "a just financial obligation" since said loan was "usurious". Even overlooking the fact that appellant never took the trouble to obtain a legal adjudication that said debt was usurious, it is patently obvious that appellant's warnings, reprimand and dismissal were based on much more than just the debt owed to Al's Loan Service since the dismissal letter referred to "obligations" and to appellant's entire "past record of indebtedness". The debt to Al's was merely used as one illustration of said indebtedness. As already noted, some 40 separate complaints were lodged against appellant over a three-year span. Appellant, though invited to do so, never officially responded to refute the charges against him in the warnings and in the official reprimand. Certainly this court, in its narrow scope of review, cannot say that there was a total lack of evidence to support the issuance of the warnings and reprimand or to uphold the dismissal of appellant. Brown v. Zuckert, supra; Brown v. Macy, supra; Seebach v. Cullen, 9 Cir., 1964, 338 F.2d 663, 665, certiorari denied, 380 U.S. 972, 85 S.Ct. 1331, 14 L.Ed.2d 268.
Appellant's fourth contention is that:
32
"Said order is invalid in that it deprives appellant of his property, conserting [sic] of his means of livelihood, without due process of law, in that he has been denied the right to confront and cross-examine witnesses, and unsworn statements of unidentified declarants as well as hearsay, form the basis of the case."
33
The Supreme Court has indicated that due process should be utilized to protect a public employee's interest in his employment. See, e. g., Slochower v. Board of Higher Education, 1956, 350 U.S. 551, 556, 76 S.Ct. 637, 100 L.Ed. 692, rehearing denied, per curiam, 351 U.S. 944, 76 S.Ct. 843, 100 L.Ed. 1470; Wieman v. Updegraff, 1952, 344 U.S. 183, 191-192, 73 S.Ct. 215, 97 L.Ed. 216. However, in the instant case there is no doubt that proper agency procedures were followed and that appellant was given due process of the law. Appellant was granted two separate hearings and was at all times aware of the charges against him leading to his dismissal. He was allowed to reply to the said charges and to attempt to refute them. Appellant was allowed to call witnesses on his behalf, and, if such was his constitutional right, to confront and cross-examine every witness who appeared at the hearings. It is impossible to say that appellant did not know of the specific creditors and obligations which led to the proceedings to terminate his employment. Minimally, a listing of known creditors of appellant was sent to him in letters from GSA on February 13, 1963, March 6, 1963, and May 27, 1963.
34
There is no evidence of any request made by appellant to GSA or to the Civil Service Commission for permission to make use of the so-called "anonymous" letters mailed by appellant's creditors to GSA which were relied on to show the financial irresponsibility of the appellant. There is also no evidence that appellant tried and failed to procure needed witnesses for his defense or that he requested and was denied the aid of GSA and the Civil Service Commission in obtaining the presence of the said potential witnesses at the hearings. As stated by the Seventh Circuit in the very recent case of Brown v. Zuckert, supra, a case also involving a veterans' preference eligible and hearings before the Civil Service Commission under the same regulations as here involved, at pages 463-464 of 349 F.2d:
35
"There is no statute requiring the production of witnesses at a hearing on a government employee's removal. The basic civil service statute, 5 U. S.C. [§] 652(a) provides: `No examination of witnesses nor any trial or hearing shall be required except in the discretion of the officer or employee directing the removal or suspension without pay.'
36
"The Veterans' Preference Act, 5 U.S.C. § 863, makes no reference to any right of hearing or to the cross-examination of witnesses or to the production of witnesses. However, this Act does authorize the Civil Service Commission to promulgate regulations effectuating the right of appeal. By such regulations, vetterans' preference eligibles are granted a right to present, examine and cross-examine witnesses if certain conditions are met.
37
"The two pertinent regulations are 5 C.F.R. § 22.603 — `Opportunity will be afforded for the introduction of evidence (including testimony and statement by the employee and his designated representative and witnesses, and the representatives of the agency and its witnesses) and for the cross-examination of witnesses.' And, 5 C.F.R., § 22.607 (as hereinbefore stated) `The Commission is not authorized to subpoena witnesses. The employee and his designated representative, and the employing agency, must make their own arrangements for the appearance of witnesses.'
38
"The Supreme Court in Williams v. Zuckert, 371 U.S. 531, 83 S.Ct. 403, 9 L.Ed.2d 486, held that a discharged employee must make his request for the production of witnesses in conformity with the regulations hereinbefore quoted. The Court said at page 532, 83 S.Ct. at page 404: `The request for production of the witnesses, made only at the hearing by petitioner's counsel, was neither timely nor in conformity with the applicable regulations, which contemplate that the party desiring the presence of witnesses, either for direct examination or cross-examination, shall assume the initial burden of producing them.'
39
"The employee would have to do something more than merely notify the agency that he desired certain witnesses to attend a hearing. As indicated in McTiernan, supra [McTiernan v. Gronouski, 2 Cir., 1964, 337 F.2d 31], at page 37, the employee should, at least, make a showing that he attempted to contact such a witness and attempted to arrange for his attendance at the hearing.
40
"It is, therefore, clear that it is only after the employee discharges his initial burden that he is entitled to have the agency, — here, the Air Force, attempt to have the desired witnesses produced.
41
"The plaintiff in the instant case failed to discharge his initial burden. * * *
42
"In view of the clear language of the Civil Service Commission's regulations and the uniform decisions of the courts, we think there is no substance to plaintiff's argument that he was denied the right of cross-examination at the Civil Service Commission hearing and that hence his procedural rights were violated. We think the District Court's dismissal of the action for reinstatement was warranted, and the decision of the District Court in granting defendants' motion for summary judgment was correct."
43
See, also, Hanifan v. United States, Ct. Cl., December 17, 1965, 354 F.2d 358, where the agency therein refused a request by the aggrieved party to produce certain witnesses who were employed by the agency. In the instant case there is not even a suggestion that appellant ever notified the agencies that he desired certain witnesses to attend the hearings, much less a showing that he attempted to contact such witnesses or attempted to arrange for their attendance at the hearings.
44
Two cases cited by appellant, Williams v. Zuckert, 1963, 371 U.S. 531, 83 S.Ct. 403, 9 L.Ed.2d 486, vacated on rehearing (remanded for further factual findings), 372 U.S. 765, 83 S.Ct. 1102, 10 L.Ed.2d 136, and Bridges v. Wixon, 1945, 326 U.S. 135, at 154-156, 65 S.Ct. 1443, 89 L.Ed. 2103, do not change the instant determination. In the Williams case the discharge of a veterans' preference eligible with civil service status was upheld. The Supreme Court stated at page 532 of 371 U.S., at page 404 of 83 S.Ct.:
45
"Although amply notified in advance of the nature of the charges, the names of the witnesses whose affidavits had supplied the factual basis for his dismissal, and the date of the hearing, neither petitioner nor his counsel made any request, prior to the hearing, of the Air Force, of the Commission or its examiner, or of the witnesses themselves, for their appearance for cross-examination. The request for production of the witnesses, made only at the hearing by petitioner's counsel, was neither timely nor in conformity with the applicable regulations, which contemplate that the party desiring the presence of witnesses, either for direct examination or cross-examination, shall assume the initial burden of producing them."
46
Here, also, appellant knew the nature of the charges and was fully aware of the identity of his alleged creditors. However, he never requested GSA or the Civil Service Commission to produce said creditors as witnesses. Such a situation is even stronger than the Williams case, the result of which is itself adverse to appellant's position herein. In that part of the Wixon case cited by appellant, the Supreme Court condemns the use of unsworn statements in a deportation proceeding "which under the governing regulations are inadmissible" (326 U.S. at page 154, 65 S.Ct. at page 1452). In the instant case no such regulation was present. The record confirms that all regulations here involved were observed stringently throughout appellant's efforts to maintain his employment. Furthermore, in Wixon the unsworn and highly prejudicial statements were decisive in determining a close issue. Here, as already indicated, there was sufficient evidence, sworn and unsworn, but not misused in any way, to support the instant result. It is obvious that the Civil Service Commission by its own rules was not required to strictly follow the rules of evidence and could pass on anything that was relevant to appellant's dismissal, including the letters of complaints from appellant's creditors. (5 CFR § 22.604 (1961 Rev.)) There is nothing to prevent the admission of such evidence. Brown v. Macy, supra, at page 117 of 340 F.2d.
47
Appellant's fifth and final contention is that:
48
"Said order is further a denial of the due process in that it amounts to the enforcement of a private debt by administrative procedure and denies appellant the right to a traditional judicial proceeding, with the constitutional safeguard of procedure mentioned in Point IV supra, and moreover, the right to a trial by jury."
49
This is completely without merit. The GSA and Civil Service Commission actions did not enforce a private debt. Both before and after such actions appellant could have and perhaps still can challenge the legality and validity of any or all of his debts. The problem herein was that appellant did not choose to deal with these debts in a manner calculated to avoid embarrassment to GSA despite repeated warnings and opportunities to do so.
50
This case is in all things affirmed.
Notes:
1
§ 14 of the Veterans' Preference Act, 5 U.S.C.A. § 863, provides in pertinent part:
"No permanent or indefinite preference eligible, who has completed a probationary or trial period employed in the civil service, or in any establishment, agency, bureau, administration, project, or department, hereinbefore referred to shall be discharged, suspended for more than thirty days, furloughed without pay, reduced in rank or compensation, or debarred for future appointment except for such cause as will promote the efficiency of the service and for reasons given in writing, and the person whose discharge, suspension for more than thirty days, furlough without pay, or reduction in rank or compensation is sought shall have at least thirty days' advance written notice (except where there is reasonable cause to believe the employee to be guilty of a crime for which a sentence of imprisonment can be imposed), stating any and all reasons, specifically and in detail, for any such proposed action; such preference eligible shall be allowed a reasonable time for answering the same personally and in writing, and for furnishing affidavits in support of such answer, and shall have the right to appeal to the Civil Service Commission from an adverse decision of the administrative officer so acting, such appeal to be made in writing within a reasonable length of time after the date of receipt of notice of such adverse decision: Provided, That such preference eligible shall have the right to make a personal appearance, or an appearance through a designated representative, in accordance with such reasonable rules and regulations as may be issued by the Civil Service Commission; after investigation and consideration of the evidence submitted, the Civil Service Commission shall submit its findings and recommendations to the proper administrative officer and shall send copies of the same to the appellant or to his designated representative, and it shall be mandatory for such administrative officer to take such corrective action as the Commission finally recommends: * * *."
2
See 2 Davis, Administrative Law Treatise, §§ 18.01 to 18.12 (1958, as supplemented) and authorities cited therein
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Case: 12-10099 Date Filed: 07/27/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10099
Non-Argument Calendar
________________________
D.C. Docket No. 7:11-cr-00032-HL-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LOPEZ-CHANG,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(July 27, 2012)
Before BARKETT, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Jose Lopez-Chang appeals his 41-month sentence after he plead guilty to the
Case: 12-10099 Date Filed: 07/27/2012 Page: 2 of 4
charge of re-entry of a removed alien in violation of 8 U.S.C. ' 1326(a) and (b)(2).
Lopez-Chang=s total offense level was 21 which, combined with his criminal history
of category II, yielded an advisory guideline of 41 to 51 months. Despite the fact
that the district court imposed a sentence at the bottom of the advisory guideline,
Lopez-Chang argues that his sentence was procedurally and substantively
unreasonable under Gall v. United States, 552 U.S. 38, 51 (2007). We review a
sentence for reasonableness under an abuse of discretion standard. Gall, 552 U.S. at
41.
Lopez-Chang argues that his sentence was procedurally unreasonable under
18 U.S.C. ' 3553(a) because the court failed to consider the sentencing factors
enumerated therein. 1 In particular, Lopez-Chang argues that the district court erred
when it failed to consider the mitigating evidence presented by his defense counsel. 2
The government argues that the district court need only acknowledge that it
considered the defendant=s arguments and the ' 3553(a) factors. See United States v.
1
See Gall, 552 U.S. at 51 (providing examples of procedural error that could render a
sentence unreasonable which include “failing to calculate (or improperly calculating) the
Sentencing Guidelines range, treating the Guidelines as mandatory, failing to consider the '
3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for any deviations from the Guidelines
range.”)
2
The mitigating evidence presented by Lopez-Chang=s defense counsel included an
assertion that he had not been convicted of any new crimes since illegally re-entering the United
States with the traffic stop that brought him to the attention of authorities being his only run-in
with law enforcement.
2
Case: 12-10099 Date Filed: 07/27/2012 Page: 3 of 4
Talley, 431 F.3d 784, 786 (11th Cir. 2005). Failure to discuss mitigating evidence
does not indicate that the court “erroneously >ignored= or failed to consider this
evidence.” United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007). Although
the district court did not specifically mention the mitigating evidence presented by
Lopez-Chang=s counsel, it stated that it had considered the ' 3553(a) factors in
reaching its decision. Accordingly, we cannot say that the district court’s decision
was procedurally unreasonable.
Lopez-Chang also argues that his sentence was substantively unreasonable.
He notes that a district court must impose a sentence that is “sufficient, but not
greater than necessary, to comply with the purposes” listed in 18 U.S.C. '
3553(a)(2), including reflection of the seriousness of the offense, deterrence of
criminal conduct, and protection of the public. In determining whether a
sentencing decision was substantively unreasonable, this court considers the totality
of the circumstances. Gall, 552 U.S. at 51; United States v. Livesay, 525 F.3d 1081,
1091 (11th Cir. 2008). A sentence that is within the guidelines range is normally
considered substantively reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th
Cir. 2008). We will reverse only if “we are left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing the
' 3553(a) factors by arriving at a sentence that lies outside the range of reasonable
3
Case: 12-10099 Date Filed: 07/27/2012 Page: 4 of 4
sentences dictated by the facts of the case.” United States v. Pugh, 515 F.3d 1179,
1191 (11th Cir. 2008) (quotation omitted). In this case, Lopez-Chang was assigned
a sentence of 41 months, which was the lowest choice in the applicable guidelines
range. Finding nothing in the record that evidences the existence of a mitigating
factor which would allow this court to conclude that the district court erred in not
making a downward departure under ' 3553(b)(1) from the range indicated in the
sentencing guidelines, we conclude that Lopez-Chang=s sentence was also
substantively reasonable.
AFFIRMED.
4
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540 U.S. 1060
WELCHv.JOHNSON, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS.
No. 03-6867.
Supreme Court of United States.
December 1, 2003.
1
Appeal from the C. A. 4th Cir.
2
Certiorari denied. Reported below: 69 Fed. Appx. 195.
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818 F.2d 866
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Ronald BELIC; Guy Bentley; Wayne Furr; Greal Milthaler;Shirley Mitchell; Lionel Penley; Bayless Slone;Henrick Stampfli, and Michael Stockler,Plaintiffs-Appellants,v.GENERAL MOTORS CORPORATION; International Union ofElectrical, Radio and Machine Workers, AFL-CIO-CLC; Local801 of the International Union of Electrical, Radio andMachine Workers, AFL-CIO-CLC, Defendants-Appellees.
No. 86-3246.
United States Court of Appeals, Sixth Circuit.
May 15, 1987.
Before MARTIN and MILBURN, Circuit Judges, and ALDRICH, District Judge*.
PER CURIAM.
1
Plaintiffs-appellants, employees of defendant-appellee General Motors Corporation ("GM"), and members of defendants-appellees International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and Local 801, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, appeal from the district court's entry of a directed verdict in favor of defendants-appellees in this hybrid action brought pursuant to section 301(a) of the Labor Management Relations Act, 29 U.S.C. Sec. 185(a), alleging that General Motors breached the collective bargaining agreement and that the International Union and Local 801 breached their duty of fair representation. For the reasons that follow, we affirm.
I.
2
The GM facility involved in this litigation was originally operated by its then Frigidaire Division in Moraine, Ohio. In 1979, GM decided, for economic reasons, to sell the Frigidaire Division to White Consolidated Industries and convert the plant to the assembly of light trucks and engines under the company's Chevrolet Division. The conversion process was expected to take about two years, during which time all Frigidaire employees would be laid off except for a few skilled craftsmen involved in the conversion. The Unions and GM agreed that laid-off Frigidaire workers would be rehired in the assembly plant.
3
During the summer of 1979, GM and Local 801 negotiated a series of agreements known as the "Local Agreement" for the "Chevrolet-Moraine.Assembly Plant." Chevrolet had fewer Skilled Trades classifications than Frigdaire and also required different skills in some instances. Thus, one of the agreements provided that a new "Welder Equipment Maintenance & Repair" ("WEMR") classification would be established at the assembly plant and would be filled by former Frigidaire workers who had been in analogous classifications at the Frigidaire plant. This agreement further provided that "[t]he priority recall to the Chevrolet Skilled Trades Classifications are all Journeymen first based upon their Skilled Trades Seniority dates, and then a combination of Apprentices and Upgraders based upon their Skilled Trades date of entry."
4
Between August and October of 1980, plaintiffs, all of whom were Journeymen, were recalled on the basis of their Frigidaire Skilled Trades seniority dates, and were assigned to the WEMR classification. After all Journeymen were recalled, Upgraders with Skilled Trades seniority dates earlier than plaintiffs were hired to fill the WEMR classification. When these individuals obtained their Journeymen status, their Skilled Trades seniority date was related back to the date they entered into the skill while employed at the Frigidaire plant. The Upgraders then "passed" plaintiffs on the seniority list.
5
In February 1982, plaintiff Mitchell, who had been bumped to second shift as a result of the Upgraders "passing him" on the seniority list, attempted to file a grievance regarding his seniority rights. Local 801 refused to accept his grievance on the ground that the contract had not been violated. In October 1982, all plaintiffs, including Mitchell, filed a request for a shift preference which was denied by GM. Plaintiffs then submitted grievances challenging their seniority status.
6
Plaintiffs asserted that they should have been given a new seniority date consistent with their reclassification to the WEMR classification. Plaintiffs relied upon Section ii, Paragraph (6) of the "Local Agreement" which provided that "[w]hen a Journeyman is transferred from one skilled trades classification to another, there will be no loss of seniority; however, he will have a date of entry seniority in the classification to which he is transferred and will also retain and accumulate seniority in the classification from which he was transferred." Local 801 withdrew the grievances in December 1982, finding that Section II, Paragraph (6) of the "Local Agreement" was applicable only to Skilled Trades employees after they had been recalled and that the grievances were without merit.
II.
7
Plaintiffs argue that the district court erred by granting a directed verdict in favor of defendants on the breach of the duty of fair representation claim. The district court noted that "[a] breach of the duty of fair representation occurs when the union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith." Further, the district court determined that the only inference that could reasonably be drawn from the evidence was that the grievances were withdrawn because Local 801 believed they were without merit. Finally, the district court determined that, absent a breach of the duty of fair representation, plaintiffs could not maintain an action based upon the alleged breach of the collective bargaining agreement.
8
District Judge Walter Rice's thoughtful analysis was unquestionably correct. The Supreme Court held in Vaca v. Sipes, 386 U.S. 171 (1967), that a union breaches its duty of ' fair representation in the grievance-arbitration process only when its "conduct toward a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith." Id. at 190. The Court recognized that while a union must assess the merits of particular grievances in good faith and in a nonarbitrary manner, the union is not required to process grievances which are without merit. "If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined...." Id. at 191. The Court further recognized that the appropriate judicial inquiry is not whether the particular grievances were meritorious, but whether the union's handling of the grievances was arbitrary or in bad faith. "[I]f a union's decision that a particular grievance lacks sufficient merit to justify arbitration would constitute a breach of the duty of fair representation because a judge or jury later found the grievance meritorious, the union's incentive to settle such grievances short of arbitration would be seriously reduced." Id. at 192-93.
9
Plaintiffs mistakenly attempted to establish that Local 801 and the International Union breached their duty of fair representation by proof that the underlying grievances were meritorious. see Vaca, 386 U.S. at 195. Plaintiffs produced no evidence to show that Local 801's withdrawal of the grievances was arbitrary, discriminatory or in bad faith. On the contrary, plaintiffs' testimony suggests that Local 801 considered plaintiffs' grievances and withdrew them only after determining that the grievances were without merit. In the absence of any evidence of arbitrariness, discrimination or bad faith on the part of Local 801 or the International Union, the district court's entry of a directed verdict in favor of defendants on the breach of the duty of fair representation claim was entirely appropriate. See, e.g., Schultz v. Owens-Illinois Inc., 696 F.2d 505, 517 (7th cir. 1982).1
10
Plaintiffs assert the district court further erred by finding that plaintiff Mitchell's claim was time-barred and by finding that the International Union was not a proper defendant. Because the district court was correct in directing a verdict on the breach of the duty of fair representation claim, we need not reach these issues.
III.
11
Accordingly, the judgment of the district court is AFFIRMED.
*
The Honorable Ann Aldrich, Judge, United States District Court for the Northern District of Ohio, sitting by designation
1
Because a breach of the duty of fair representation was an essential prerequisite to plaintiffs' action under section 301(a), plaintiff's action against GM must also fail. See Schultz, 696 F.2d at 514
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Case: 17-13105 Date Filed: 08/07/2020 Page: 1 of 7 RESTRICTED
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13105
________________________
Agency No. A089-427-907
NIDAL KHALID NASRALLAH,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_______________________
(August 7, 2020)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Case: 17-13105 Date Filed: 08/07/2020 Page: 2 of 7 RESTRICTED
Before WILLIAM PRYOR, Chief Judge; TJOFLAT and GILMAN,* Circuit
Judges.
GILMAN, Circuit Judge:
On February 14, 2019, we denied a petition for review from Nidal Khalid
Nasrallah, a native and citizen of Lebanon. Nasrallah v. United States Attorney
General, 762 F. App’x 638 (11th Cir. 2019), rev’d sub nom. Nasrallah v. Barr, 140
S. Ct. 1683 (2020). Nasrallah, whom the Board of Immigration Appeals (BIA)
determined had committed a “crime involving moral turpitude,” sought
withholding of removal and protection under the Convention Against Torture
(CAT). His petition raised numerous arguments, including that (1) the
immigration judge (IJ) acted with prejudicial bias, (2) the BIA erred in determining
that Nasrallah’s conviction constituted a “crime involving moral turpitude,” (3) the
BIA erred in concluding that Nasrallah committed a “particularly serious crime,”
and (4) the BIA erred in overturning the IJ’s determination that Nasrallah was
eligible under the CAT for a deferral of removal. After we denied in part and
dismissed in part Nasrallah’s petition, the Supreme Court took up only the last of
these issues.
In addressing Nasrallah’s CAT claim, we relied on Cole v. United States
Attorney General, 712 F.3d 517 (11th Cir. 2013), which held that 8 U.S.C.
*
Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
2
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§§ 1252(a)(2)(C) and (D) preclude judicial review of factual challenges to a CAT
order in cases where a noncitizen has committed a crime specified in
§ 1252(a)(2)(C). Because of a circuit split regarding this issue, the Supreme Court
granted Nasrallah’s petition for certiorari.
The Supreme Court resolved the issue in favor of Nasrallah. Nasrallah, 140
S. Ct. at 1694. Most Courts of Appeals had agreed with the holding in Cole, but
the Seventh and Ninth Circuits held to the contrary. Id. at 1689. The Supreme
Court determined that the minority’s interpretation was correct because “[a] CAT
order is distinct from a final order of removal and does not affect the validity of a
final order of removal,” and because §§ 1252(a)(2)(C) and (D) preclude review of
factual challenges only to final orders. Id. at 1694.
Based on the Supreme Court’s ruling, we now need to consider Nasrallah’s
factual challenge to the CAT order. The remaining issue before us is therefore
whether substantial evidence supports the BIA’s determination that Nasrallah
would not likely be singled out for torture if he is removed to Lebanon. For the
reasons set forth below, we conclude that the BIA’s factual determination is
adequately supported by the record.
I. BACKGROUND
The overall facts of this case, as stated in Nasrallah, 762 F. App’x at 640–
42, remain the same. Nasrallah was born in Lebanon in 1989. After becoming a
3
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lawful permanent resident of the United States, he was convicted of receiving
stolen property, in violation of 18 U.S.C. § 2315. The Department of Homeland
Security (DHS) then initiated removal proceedings against Nasrallah, who
responded by applying for withholding of removal and CAT protection.
Nasrallah’s application asserted that he feared torture by members of
Hezbollah and ISIS in Lebanon because he is a member of the Druze religious
minority and because he now has ties to America. He described one past
interaction with Hezbollah in support of this claim. Specifically, Nasrallah alleged
that he and a friend encountered two Hezbollah militants on a mountain in
Lebanon in 2005. The militants had shot their guns in the air and shouted for
Nasrallah and his friend to stop. Nasrallah, in fleeing, jumped off a cliff and
severely injured his back.
Aside from this specific incident, Nasrallah described only a general fear of
torture upon removal to Lebanon. He asserted that residents and citizens of the
United States are “often kidnapped and killed” by Hezbollah and that ISIS and
Hezbollah both posed threats to members of the Druze community. Nasrallah also
contended that the Lebanese government has little power over Hezbollah and ISIS.
Reviewing DHS’s appeal from the IJ’s decision granting Nasrallah deferral
of removal under the CAT, the BIA determined the record did not support a
finding that Nasrallah would more likely than not be tortured if returned to
4
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Lebanon. It therefore ordered Nasrallah removed. Nasrallah then filed a timely
petition for review.
II. ANALYSIS
A. Standard of review
We review administrative factual findings under the deferential substantial-
evidence standard. Rivera v. United States Attorney General, 487 F.3d 815, 820
(11th Cir. 2007). Findings of fact may be reversed only if the record compels a
reversal. Id.
B. Deferral of removal
“An [applicant] is entitled to CAT protection if he is ‘more likely than not to
be tortured in the country of removal.’” Jean-Pierre v. United States Attorney
General, 500 F.3d 1315, 1323 (11th Cir. 2007) (quoting 8 C.F.R. § 208.16(c)(4)).
Torture is defined as:
(1) [A]n act causing severe physical or mental pain or suffering;
(2) [that is] intentionally inflicted; (3) for a proscribed purpose; (4) by
or at the instigation of or with the consent or acquiescence of a public
official who has custody or physical control of the victim; and (5) not
arising from lawful sanctions.
Matter of V-X-, 26 I. & N. Dec. 147, 153 (BIA 2013) (citing 8 C.F.R.
§ 1208.18(a)).
“[T]he tortuous act ‘must be specifically intended to inflict severe physical
or mental pain or suffering.’” Jean-Pierre, 500 F.3d at 1320 (quoting 8 C.F.R.
5
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§ 1208.18(a)(5)) (emphasis removed). Evidence relevant to the possibility of
future torture includes, but is not limited to:
(i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a part of the
country of removal where he or she is not likely to be tortured;
(iii) Evidence of gross, flagrant or mass violations of human rights
within the country of removal, where applicable; and
(iv) Other relevant information regarding conditions in the country
of removal.
8 C.F.R. § 1208.16(c)(3).
The BIA determined as a matter of law that Nasrallah’s prior encounter with
the two Hezbollah militants did not constitute past torture under the CAT due to a
lack of evidence that the militants specifically intended to inflict severe pain or
suffering upon him. We agreed with the BIA’s determination in our prior opinion,
Nasrallah, 762 F. App’x at 644, and we continue to do so here.
Turning to Nasrallah’s other arguments regarding the likelihood of future
harm, the BIA acknowledged the evidence of anti-Western terrorist activity and of
crimes against the Druze community in Hezbollah-controlled areas of Lebanon.
Nasrallah also identifies religious violence against the Druze in nearby Syria and
Iraq. We concur with the BIA’s determination, however, that this evidence does
not support a finding that Nasrallah would likely be singled out for torture in
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Lebanon. See Jean-Pierre, 500 F.3d at 1324 (explaining that evidence of
generalized mistreatment is insufficient to show that a petitioner would more likely
than not be tortured if removed).
Furthermore, Nasrallah returned to Lebanon in 2008 for “a couple of weeks”
to attend a funeral. That Nasrallah voluntarily returned to Lebanon and was not
harmed by Hezbollah or other actors strongly undermines his argument that he
would more likely than not be tortured if removed to that country. See Gomez v.
United States Attorney General, 447 F. App’x 932, 936 n.2 (11th Cir. 2011)
(“[T]he fact that [petitioner] returned to Colombia from the United States on two
occasions after the alleged events took place does not support—indeed, it strongly
undermines—a conclusion that he had a well-founded fear of future persecution.”).
We also note that Nasrallah remained in Lebanon without incident for many
months immediately following his encounter with the two Hezbollah militants. In
sum, there is substantial evidence that Nasrallah would not likely be tortured upon
his return to Lebanon.
PETITION DENIED.
7
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 13, 2013
OTIS MACLIN v. STATE OF TENNESSEE
Appeal from the Criminal Court of Davidson County
No. 2009-B-1361 Monte Watkins, Judge
No. M2012-01238-CCA-R3-PC - Filed February 22, 2013
Otis Maclin (“the Petitioner”) filed a petition for post-conviction relief from his convictions
based upon guilty pleas to the offenses of kidnapping, sexual battery, and aggravated assault.
In accordance with the plea agreement, the Petitioner received an effective ten-year sentence.
In his petition, he argued that he was denied effective assistance of counsel in conjunction
with his guilty plea and that his plea was constitutionally infirm. After an evidentiary
hearing, the post-conviction court denied relief, and this appeal followed. Upon our thorough
review of the record and applicable law, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment
of the Criminal Court Affirmed
J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.
Ashley Preston, Nashville, Tennessee, for the appellant, Otis Maclin.
Robert E. Cooper, Jr., Attorney General & Reporter; Leslie E. Price, Senior Counsel; Victor
S. Johnson, III, District Attorney General; and Hugh Ammerman, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
The Defendant was indicted in May 2009 for especially aggravated kidnapping,
aggravated sexual battery, and aggravated assault. On August 13, 2009, the Defendant
pleaded guilty to kidnapping, sexual battery, and aggravated assault. Pursuant to the plea
agreement, the trial court sentenced the Defendant as a Range I, standard offender to five
years for the kidnapping conviction, one year for the sexual battery conviction, and four years
for the aggravated assault conviction, to be served consecutively, for an effective sentence
of ten years.
Guilty Plea
At the guilty plea hearing, the State recited the factual basis for the Petitioner’s plea
as follows:
[O]n January the 31st, 2009 the victim, . . . and the [Petitioner] . . . – a couple
who formerly had a dating relationship – picked up a Mr. Ricky Butler from
his residence at 2931 Glenmeade and the three of them went out. When they
returned to Mr. Butler’s residence the victim went into a rear bedroom and sat
down on the bed completely clothed. [The Petitioner] followed, undressed
himself and demanded oral sex. The victim refused. She was pushed back by
the [Petitioner] who climbed on top of her and forced his lower body between
her legs. She demanded that he stop. He hit her twice in the face with a closed
fist. And then he hit her in the face with a drinking glass hard enough to
shatter the glass as she tried to escape. This caused very severe lacerations on
her face and required fifty sti[t]ches. He then pulled a knife and threatened her
life. She screamed for help and Mr. Ricky Butler came to investigate. Mr.
Butler stepped in between the two. The [Petitioner] dropped the knife, got
dressed and left. The victim was taken by ambulance to Summit Hospital
where she was treated for her injuries.
The trial court asked the Petitioner whether those facts were basically true, to which
he responded, “No, Sir. . . . Wasn’t no knife involved. I didn’t just walk to her with a glass
and hit her with no glass. She was striking me.” The trial court stated, “I asked were those
facts basically true. I didn’t’ say . . . were they absolutely true.” The Defendant replied that
they were. The trial court then asked the Petitioner, “[W]hat is your plea in Count One,” to
which the Petitioner replied, “I’m not guilty of no kidnapping.” The trial court asked the
Petitioner, “Do you want to do this plea or do you want to go to trial?” The Petitioner stated,
“I’m pleading guilty.”
The Petitioner confirmed at the plea hearing that he had been able to communicate
with his appointed counsel (“Trial Counsel”) and that he was satisfied with Trial Counsel’s
representation. He agreed that he understood the indicted charges and that the range of
punishment for each of those charges was explained to him. He also agreed that he
understood the convictions for which he was pleading guilty and their respective sentences,
as well as the fact that the sentences would run consecutively, for a total effective sentence
-2-
of ten years. The Petitioner stated that Trial Counsel reviewed the plea agreement with him
and that he understood the contents of the plea agreement. The Petitioner acknowledged that
he understood that he was waiving his right to a trial by jury where he could present a
defense and cross-examine the State’s witnesses; his right to have an attorney represent him
at trial; and his right to appeal the jury verdict if convicted. He agreed that he currently was
not under the influence of drugs or alcohol and that he was not suffering from a mental
illness; that he was entering into his plea freely and voluntarily; that no additional promises
were made in the formation of the plea agreement; and that no one was forcing him to enter
into his plea.
The trial court accepted the Petitioner’s guilty plea and entered the judgments against
the Petitioner, sentencing the Petitioner to ten years’ incarceration.
Post-Conviction
The Petitioner subsequently filed for post-conviction relief on August 3, 2010,
alleging that he received ineffective assistance of counsel in conjunction with his guilty plea
and that his plea was constitutionally infirm. Specifically, the Petitioner contended that Trial
Counsel (1) failed to develop and discuss with the Petitioner a reasonable trial defense,
including filing appropriate pre-trial motions; (2) failed to inform the Petitioner of all of the
consequences of a guilty plea; (3) failed to advise the Petitioner of his rights; (4) failed to
render appropriate advice sufficient to allow the Petitioner to make an informed decision as
to whether to enter a guilty plea; and (5) failed to communicate adequately with the Petitioner
at crucial stages of the proceedings. A post-conviction hearing was held on March 28, 2012.
At the post-conviction hearing, the Petitioner testified that he was represented in the
trial court by a female attorney but that he did not know her name. The Petitioner also stated
at the hearing, “I am not a speller. I don’t read and write good.” He testified that Trial
Counsel met with him approximately three times and that one of those three times was at his
arraignment. He stated that his meeting with Trial Counsel at arraignment only lasted
approximately fifteen to twenty minutes. The second time that Trial Counsel met with the
Petitioner was at the jail, and he stated that this meeting did not last long either. During this
meeting, the Petitioner and Trial Counsel discussed the Petitioner’s case, including the
possibility of going to trial or entering a guilty plea. According to the Petitioner, Trial
Counsel told him that if he proceeded to trial, he “probably could get life in prison.” The
Petitioner did not testify about his third meeting with Trial Counsel. He only stated that it
also was not a long meeting. The Petitioner testified that all he received from Trial Counsel
in terms of discovery were two business cards with writing on the back of them.
-3-
Next, the Petitioner testified that, although he recalled pleading guilty in this case, he
did not understand all of the consequences of entering the guilty plea. He stated that the day
before he pleaded guilty he did not speak with anyone. The Petitioner also testified that Trial
Counsel did not review his plea agreement with him. Specifically, he stated,
I didn’t go over that paper with nobody. When I come through that
door there, the paper was there, and they showed me the paper, but I’m not a
reader. I don’t understand. I mean, wasn’t nobody there to tell me this or that.
I mean, I just come through the door.
The Petitioner remembered signing the plea agreement, but he stated that Trial Counsel only
asked him to sign it and did not review the plea agreement with him. The Petitioner initially
told Trial counsel that he would not sign the plea agreement, but then he “waited, and [he]
just went on and signed the paper anyway.” The Petitioner added that, had he understood
the consequences of pleading guilty in this case, he would not have pleaded guilty and would
have insisted on proceeding to trial instead.
The Petitioner indicated that he had only one limited conversation with Trial Counsel
regarding a defense to the charges. Then, later in his testimony, the Petitioner claimed that
he and Trial Counsel never discussed a defense. He acknowledged, however, that they did
discuss the facts of his case. The Petitioner also stated that Trial Counsel discussed with him
the potential sentences for each of his charges. He ultimately decided to plead guilty because
he believed that if he went to trial he could face life in prison.
On cross-examination, the Petitioner stated that at the guilty plea hearing he “couldn’t
exactly hear [the trial judge] good.” The State then asked the Petitioner whether he told the
trial court the truth when it asked him, “Did you go over that [guilty plea] petition with your
attorney[,]” and the Petitioner responded, “Yes, sir.” The Petitioner stated that was true.
Although at the guilty plea hearing the Petitioner told the trial court that he understood the
contents of the plea agreement, at the post-conviction hearing he stated, “I didn’t understand
it, no.” Accordingly, the State asked the Petitioner why he told the trial court that he
understood the plea agreement. He responded that he is “not good at speaking to speakers.”
Later, the State asked the Petitioner whether his defense at trial would have been self-
defense. The Petitioner responded, “Sir, it was a little glass like this that cut her, one of them
kind you can drop, and it just shattered everywhere. . . . The only thing I was trying to do,
sir, was keep her from hurting me.”
-4-
Trial Counsel testified that she had been licensed to practice law in California since
1996 and in Tennessee since 2001. Trial Counsel stated that, at the time of the guilty plea
hearing and the post-conviction hearing, she was employed as a public defender with the
Metropolitan Nashville-Davidson County Office of the Public Defender and had worked in
that capacity for more than nine years. She testified that she did not represent the Petitioner
at his preliminary hearing but that she was appointed to represented the Petitioner in criminal
court. Trial Counsel stated that she obtained the materials from the Petitioner’s preliminary
hearing and that she incorporated those materials into her criminal court file for the
Petitioner. She also obtained discovery in this case from the State. In the discovery, she
received color photographs of the victim and the victim’s injuries. Trial Counsel recalled
that she made color copies of the photographs and gave them to the Petitioner so that he
could have plenty of time to review them during the course of her representation.
Trial Counsel testified that the Petitioner was incarcerated during the entire course of
her representation of him. She recalled meeting with the Petitioner a “number of times.” She
also stated that they communicated through the telephone and mail. Prior to the Petitioner’s
arraignment, she stated that she mailed him a letter informing him that he was indicted on
additional charges. She also mailed him “a copy of [her] summary of what he was charged
with[ and] what the law provided as possible punishment for those indicted charges.” This
summary was attached to the plea agreement and appears in the record on appeal. Because
the Petitioner stated in his testimony that he could not read well, the State asked Trial
Counsel whether she discussed this information with the Petitioner orally on one or more
occasions. Trial Counsel stated that she did.
At the Petitioner’s arraignment, Trial Counsel “took special time to meet with him and
talk to him beforehand” about “the fact that there were some serious additional charges,
beyond what he had originally been arrested on.” Trial Counsel also discussed the potential
sentences for each of the Petitioner’s indicted charges with him at arraignment, although not
in a lot of detail this time. However, during the subsequent discussions that Trial Counsel
had with the Petitioner, she stated that they “spent a lot of time discussing that.”
Trial Counsel believed that she had a “working knowledge of the facts and what the
State’s proof would be” in this case. Given this information, Trial Counsel engaged in plea
negotiations with the State. She testified that the Petitioner had “some reluctance” and that
“[h]e was back and forth about it.” On the Petitioner’s scheduled discussion date for plea
negotiations in the trial court, Trial Counsel spent time with the Petitioner talking to him
about the case. On this date, the prosecutor assigned to the Petitioner’s case was not in court,
but he left a note regarding the case with another prosecutor who was present. According
to Trial Counsel, based on the second prosecutor’s reading of the note, “they understood that
-5-
the total sentence length that would be offered to [the Petitioner] would be eleven years at
thirty percent.”
Trial counsel agreed that the Petitioner’s version of the facts included the victim
starting the fight. She further agreed that she discussed with the Petitioner that “in view of
[the victim’s] injuries and [the] 911 [call], that might be a hard sell[.]” She also discussed
whether Ricky Butler, the third person that was present when the incident occurred, would
be a good witness for the defense. According to Trial Counsel, the investigator from the
Public Defender’s Office attempted to find Butler so that Trial Counsel could talk to him
about what transpired that night, but the investigator was unable to locate him. The
Petitioner told Trial Counsel that Butler did not want to be involved in the case and that he
left the state in order to avoid it.
Trial Counsel recalled that the day before the Petitioner pleaded guilty, she met with
him at the Hill Detention Center where he was housed. The investigator from the Public
Defender’s office accompanied her to this meeting. Trial Counsel testified that she spent
approximately an hour and a half with the Petitioner reviewing the options that the Petitioner
had, including the risks of going to trial or pleading guilty. Trial Counsel also played for the
Petitioner the 911 call, which was made after the incident in this case, and she discussed with
the Petitioner how the tape would be played at trial and how it would fit into the
circumstances of his case. Trial Counsel stated that they also continued the discussion about
whether Butler would be a good witness for the defense when they listened to the 911 call
because Butler was one of the people recorded on the call.
During the meeting that day, the Petitioner and Trial Counsel “had a good deal of
discussions” about whether the Petitioner was willing to accept the State’s offer and plead
guilty. Trial Counsel stated that, by the end of the meeting she had with the Petitioner the
day before he pleaded guilty, the Petitioner “said that he did want to accept the State’s offer
and did want to plead. And at that time, we understood that the plea offer was eleven years
at thirty percent.” That afternoon, Trial Counsel contacted the State to inform it that the
Petitioner would be pleading guilty the following day so that the State could have the victim
present if it wished.
The next morning, Trial Counsel met with the Petitioner at the courthouse. She spoke
to the Petitioner “for a good length of time, again reviewing what the plea offer was and
making sure that he did still indeed want to do that, and he did[.]” She noted that the
Petitioner had a “particular issue about the label ‘kidnapping’” but that the two of them had
repeated discussions about the differences in the legal definition of kidnapping versus the
Petitioner’s understanding of a kidnapping. Trial Counsel then spoke with the prosecutor
assigned to the Petitioner’s case, and the prosecutor confirmed that “the actual offer was a
ten-year thirty-percent offer.” Trial Counsel told the Petitioner that “the State’s offer was
-6-
better than what he had originally told [her] that he was willing to plead to.” Thereafter, they
“revised the plea petition paperwork to reflect that better offer.” The plea then was entered
later that afternoon. During the plea colloquy, Trial Counsel believed that the Petitioner was
listening and paying attention to what transpired. She stated that nothing occurred during the
plea colloquy that gave her any concern that the Petitioner did not know what he was doing.
Although she noted that she did not think that the Petitioner was “particularly happy about
it,” she believed that he wanted to plead guilty instead of facing the risks of going to trial.
On cross-examination, Trial Counsel acknowledged that the Petitioner told her that
he does not read and write very well. Trial Counsel said that, although she gave the
Petitioner a copy of the discovery in this case for him to review, she also sat down with him
and went through the contents of the discovery.
Trial Counsel testified that throughout her meetings with the Petitioner they had very
“content-specific discussion[s]” regarding the facts of the case. According to her, the
Petitioner “would actually engage in discussing the facts,” including “disagree[ing] with
some things that the State’s position was taking.” Trial Counsel testified that on several
different occasions she and the Petitioner discussed the consequences of entering a plea and
the risks of proceeding to trial. She believed that each time they “were having an engaged
discussion,” and she stated that the Petitioner also would ask questions during these
discussions. Trial Counsel also discussed the applicable law with the Petitioner. She stated
that he “would want to shift the conversation to talk about the facts, in order to argue about
the facts,” but she “would bring him back to talk about what the law said and to discuss the
process if [they] had a trial.”
Trial Counsel agreed that the Petitioner, throughout their discussions, maintained that
no knife was involved in the incident. Trial Counsel denied that she ever used the terms “life
imprisonment” when discussing the possible sentences for the Petitioner’s charges, including
his most serious charge, especially aggravated kidnapping, a class A felony. With regard to
this charge, Trial Counsel stated that she discussed the full range of the sentence for a class
A felony, the length that the sentence would be for his classification, and that he would have
to serve that sentence at 100% if he were convicted. She believed that they probably
discussed what impact the sentence would have on his life, taking into account his age, but
that she never used the term “life imprisonment.” Trial Counsel testified that she did not
recall the Petitioner phrasing it that way to her during their discussions either.
The post-conviction court took the matter under advisement and issued its written
ruling denying the Petitioner’s petition for post-conviction relief on May 24, 2012. In
denying relief, the post-conviction court made the following findings:
-7-
A close review of the record and testimony presented, reveals that [Trial
C]ounsel met with the [Petitioner] and informed him of the nature of the
charges against him, the likelihood of and range of punishment, and the nature
and consequences of the plea agreement to the [P]etitioner.
Therefore, [the] Petitioner has failed to demonstrate by clear and
convincing evidence ineffective assistance of counsel and that the plea was a
violation of due process rights in violation of a constitutional right to render
his conviction and sentence void or voidable under the Post Conviction Relief
Act. The [post-conviction court] does not find the [P]etitioner’s testimony to
be credible.
The Petitioner timely appealed, arguing that Trial Counsel was deficient in his
representation of the Petitioner and that his plea was not knowing, intelligent, or voluntary.
Analysis
Standard of Review
Relief pursuant to a post-conviction proceeding is available only where the petitioner
demonstrates that his or her “conviction or sentence is void or voidable because of the
abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of
the United States.” Tenn. Code Ann. § 40-30-103 (2006). To prevail on a post-conviction
claim of a constitutional violation, the petitioner must prove his or her allegations of fact by
“clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2006). See Momon v.
State, 18 S.W.3d 152, 156 (Tenn. 1999). This Court will not overturn a post-conviction
court’s findings of fact unless the preponderance of the evidence is otherwise. Pylant v.
State, 263 S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim.
App. 2004). We will defer to the post-conviction court’s findings with respect to the
witnesses’ credibility, the weight and value of their testimony, and the resolution of factual
issues presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising
mixed questions of law and fact, however, including claims of ineffective assistance of
counsel, our review is de novo with no presumption of correctness. See Pylant, 263 S.W.3d
at 867-68; Sexton, 151 S.W.3d at 531.
Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel
-8-
at trial.1 Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that this right is to “reasonably effective” assistance, which is assistance that falls
“within the range of competence demanded of attorneys in criminal cases.” Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). The deprivation of effective assistance of counsel at trial presents a claim cognizable
under Tennessee’s Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-30-103;
Pylant, 263 S.W.3d at 868.
In this case, the Petitioner asserts that Trial Counsel’s performance was ineffective
because Trial Counsel failed to provide the Petitioner with an adequate explanation of the
State’s evidence against the Petitioner; failed to adequately explain the applicable range of
punishment; and failed to spend adequate time with the Petitioner to ensure his understanding
of all aspects of the case against him, including the consequences of pleading guilty. The
Petitioner claims that he did not understand the range of punishment for his indicted charges
if he proceeded to trial and that he mistakenly believed he would “be facing a life sentence”
if convicted at trial. The Petitioner also claims that Trial Counsel was ineffective in that she
allowed the Petitioner to enter a guilty plea even though she understood the Petitioner’s
reading difficulties and his reluctance to enter a guilty plea.
In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
establish two prongs: (1) that counsel’s performance was deficient; and (2) that the deficient
performance prejudiced the defense. See Strickland, 466 U.S. at 687; Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The petitioner’s failure to establish either prong is fatal to
his or her claim of ineffective assistance of counsel. Goad, 938 S.W.2d at 370. Accordingly,
if we determine that either prong is not satisfied, we need not consider the other prong. Id.
To establish the first prong of deficient performance, the petitioner must demonstrate
that his lawyer’s “acts or omissions were so serious as to fall below an objective standard of
‘reasonableness under prevailing professional norms.’” Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006) (quoting Strickland, 466 U.S. at 688). Our Supreme Court has explained
that:
[T]he assistance of counsel required under the Sixth Amendment is counsel
reasonably likely to render and rendering reasonably effective assistance. It
is a violation of this standard for defense counsel to deprive a criminal
defendant of a substantial defense by his own ineffectiveness or incompetence.
1
The Sixth Amendment right to counsel is applicable to the States through the Fourteenth
Amendment to the United States Constitution. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963); State
v. Howell, 868 S.W.2d 238, 251 (Tenn. 1993).
-9-
Defense counsel must perform at least as well as a lawyer with ordinary
training and skill in the criminal law and must conscientiously protect his
client’s interest, undeflected by conflicting considerations.
Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974)). When a court reviews a lawyer’s performance, it “must make every effort to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
conduct, and to evaluate the conduct from the perspective of counsel at that time.” Howell
v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).
Additionally, a reviewing court “must be highly deferential and ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466
U.S. at 689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to tactical
choices only applies if the choices are informed ones based upon adequate preparation.”
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982)).
As to the prejudice prong, the petitioner must establish a “reasonable probability that
but for counsel’s errors the result of the proceeding would have been different.” Vaughn,
202 S.W.3d at 116 (citing Strickland, 466 U.S. at 694). In the context of a guilty plea, our
analysis of this prong
focuses on whether counsel’s constitutionally ineffective performance affected
the outcome of the plea process. In other words, in order to satisfy the
“prejudice” requirement, the [petitioner] must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Calvert v. State, 342 S.W.3d 477, 486
(Tenn. 2011).
Turning to the Petitioner’s specific allegations, we hold that the Petitioner failed to
establish deficient representation on the part of Trial Counsel. Initially, we note that at the
guilty plea hearing the Petitioner stated that he was satisfied with Trial Counsel’s
representation. He also stated that the range of punishment for each of the indicted charges
was explained to him, that he understood the charges upon which he was indicted, and that
he understood the convictions for which he was pleading guilty, as well as their respective
sentences.
-10-
Trial Counsel testified that she met with the Petitioner numerous times. During her
meetings with the Petitioner, Trial Counsel informed him of the nature of the charges against
him and the range of punishment for each of the indicted offenses. She also mailed him “a
copy of [her] summary of what he was charged with[ and] what the law provided as possible
punishment for those indicted charges.” Trial Counsel also discussed in detail the facts of
the case and the applicable law. Trial Counsel testified that she discussed with the Petitioner
on several occasions the proposed plea offer of eleven years at 30% and the consequences
of entering a guilty plea in this case versus the risks of proceeding to trial. Trial Counsel
testified that she never told the Petitioner that he could face a sentence of life imprisonment
if he proceeded to trial and that the Petitioner never used those terms in his discussions with
her. Although Trial Counsel acknowledged that the Petitioner was not “particularly happy”
about pleading guilty, she believed that the Petitioner wanted to plead guilty instead of facing
the risks of going to trial. Although Trial Counsel acknowledged that the Petitioner told her
he could not read well, she stated that she went over the information with the Petitioner that
she mailed to him, including the discovery in person, and that she reviewed the plea
agreement with him as well. Trial Counsel also met with the Petitioner for approximately
one and a half hours the day before he pleaded guilty to discuss in further detail the proposed
plea and his case. The post-conviction court chose to credit Trial Counsel’s testimony over
the testimony of the Petitioner, holding that it “does not find the [P]etitioner’s testimony to
be credible.” We defer to the post-conviction court on issues of credibility. See Momon, 18
S.W.3d at 156.
Lastly, it is irrelevant that on the day of the guilty plea hearing, after Trial Counsel
spoke to the State, she realized that the offer was actually a ten-year 30% offer. The
evidence established that the Petitioner already had decided that he was going to plead guilty
to an eleven-year 30% offer. Moreover, after learning that the State’s final offer was actually
a ten-year 30% offer, Trial Counsel informed the Petitioner of the offer and that it “was
better” than the proposal they previously had discussed. Trial Counsel and the Petitioner
then revised the plea agreement to reflect the better offer.
For these reasons, the Petitioner has failed to establish by clear and convincing
evidence that Trial Counsel was deficient in any manner. Thus, we need not address the
prejudice prong. See Goad, 938 S.W.2d at 370. Accordingly, the Petitioner is not entitled
to post-conviction relief on the grounds of ineffective assistance of counsel.
Validity of Guilty Plea
The Petitioner also asserts that his pleas were not entered knowingly, voluntarily, and
intelligently. In his appellate brief, the Petitioner claims that he did not understand the
consequences of entering a guilty plea; that he mistakenly believed that he would be facing
-11-
a life sentence if he proceeded to trial; and that he “was pressured into entering this plea
agreement because of [T]rial [C]ounsel’s failures.”2 We agree with the post-conviction court
that the Petitioner has failed to establish by clear and convincing evidence that his plea was
not entered knowingly, voluntarily, and intelligently.
To be valid, a guilty plea must be entered knowingly, voluntarily, and intelligently.
See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); State v. Mackey, 553 S.W.2d 337, 340
(Tenn. 1977) superseded on other grounds by Tenn. R. of Crim. P. 37(b) and Tenn. R. of
App. P. 3(b). A plea meets constitutional muster when the defendant understands both what
the plea connotes and its consequences, Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993) (citing Boykin, 395 U.S. at 244), and makes a voluntary and intelligent choice from
the alternative courses of action available to plead guilty. Jaco v. State, 120 S.W.3d 828, 831
(Tenn. 2003) (citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In Mackey, 553
S.W.2d at 341, our supreme court set forth the procedure that a trial court should follow
when accepting a guilty plea in order to ensure that a defendant’s plea is knowing, voluntary,
and intelligent. See also Tenn. R. Crim. P. 11(b). A trial court must “substantially” comply
with this procedure. State v. Newsome, 778 S.W.2d 34, 38 (Tenn. 1989).
As set forth above, a petitioner in a post-conviction proceeding must establish his right
to relief by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f); Momon,
18 S.W.3d at 156. We have reviewed the transcript of the guilty plea hearing and conclude
that the plea was constitutionally sound. At the guilty plea hearing, the Petitioner
acknowledged that he understood the following: the indicted charges and the range of
punishment for those charges; the convictions for which he was pleading guilty and their
respective sentences; his right to a jury trial, at which he could present a defense and cross-
examine the State’s witnesses; his right to have an attorney represent him at trial; and his
right to an appeal if convicted at trial. The Petitioner also stated that he was entering his plea
freely and voluntarily and that no one was forcing him to enter into his plea. Moreover, at
the post-conviction hearing Trial Counsel testified that she went over the consequences of
pleading guilty with the Petitioner several times. She also never told the Petitioner that he
could face a sentence of life imprisonment if he proceeded to trial, and the Petitioner never
used those terms in his discussions with her. Thus, the Petitioner has failed to establish that
he did not knowingly, intelligently, and voluntarily enter into his plea agreement.
Accordingly, the Petitioner is not entitled to post-conviction relief on this basis.
2
The alleged “failures” that the Petitioner references also includes his complaints that Trial Counsel
rendered ineffective assistance of counsel. Because we previously found that the Petitioner failed to establish
that Trial Counsel was deficient in any manner, we need not address those alleged “failures” already ruled
upon by this Court.
-12-
CONCLUSION
For the foregoing reasons, the Petitioner has failed to establish that he is entitled to
post-conviction relief. Therefore, we affirm the judgment of the post-conviction court
denying relief.
_____________________________
JEFFREY S. BIVINS, JUDGE
-13-
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941 P.2d 616 (1997)
148 Or. App. 560
STATE of Oregon, DEPARTMENT OF HUMAN RESOURCES, Respondent,
v.
Michael SHINALL, Respondent.
Lisa SHIRES, Respondent, and
Johnny Edward BALL, Appellant.
F-626 & F-1006; CA A92497.
Court of Appeals of Oregon.
Argued and Submitted April 14, 1997.
Decided June 25, 1997.
*617 Clayton C. Patrick, Salem, argued the cause for appellant. With him on the brief was Patrick & Meadowbrook.
Carla M. French, Salem, argued the cause for respondent Lisa Shires. With her on the brief was Ferder, Brandt, Casebeer, Cooper, Hoyt & French, LLP.
Jas. Adams, Assistant Attorney General, waived appearance for respondent Department of Human Resources.
No appearance for respondent Michael Shinall.
Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.
De MUNIZ, Judge.
Appellant Ball appeals the judgment in this paternity proceeding. The judgment set aside a 1989 judgment that declared that respondent Shinall was the father of the child of respondent mother, Shires. The judgment also declared that Ball is the father. We reverse.
The child was born October 22, 1988. On October 23, Shires, who was receiving public assistance, filled out and signed a paternity affidavit in which she named Shinall as the child's father.[1] Shinall was served with a copy of the state's Notice and Finding of Financial Responsibility, ORS 416.415, which stated, inter alia, that he had been named as the father of the child. The notice provided the information that, if Shinall did not respond within 30 days, Support Enforcement Division would enter an order establishing him as the father of the child and ordering him to pay support. ORS 416.415(3). Shinall did not respond, an order of default was entered and, in April 1989, judgment was entered declaring Shinall as the father. ORS 416.440.
In July 1993, Shires filed a filiation petition seeking to have Ball declared father of the child. Ball, who had no knowledge of the earlier administrative filiation proceeding, *618 submitted to blood tests. On the basis of the tests, in January 1994, Ball stipulated in open court that he is the father of the child.[2]
In March, before judgment was entered, Ball filed motions for reconsideration, to reopen the hearing and for a new trial because of the newly discovered evidence that there was an existing paternity order for the child.[3] In June, Shires and Shinall moved for relief from the 1989 judgment.[4] By stipulation of the parties, the motion of Shires and Shinall was consolidated with the paternity action against Ball. Following a November hearing, the trial court denied Ball's motions for reconsideration, set aside the 1989 judgment and entered the judgment declaring Ball to be the father. Ball assigns error to those rulings.
The trial court cited ORCP 71 C as authority to set aside the 1989 judgment. That rule
"does not limit the inherent power of a court to modify a judgment within a reasonable time, or the power of a court to entertain an independent action to relieve a party from a judgment, or the power of a court to grant relief to a defendant under Rule 7 D(6)(f), or the power of a court to set aside a judgment for fraud upon the court."
Our review of the setting aside of a judgment is for abuse of discretion. See Braat v. Andrews, 266 Or. 537, 541, 514 P.2d 540 (1973) (although trial court had discretion to modify judgment, question remains whether there were sufficient reasons for its exercise). Ball argues that, in setting aside the 1989 judgment more than five years after entry, the court abused its discretion by ignoring the strong policy for finality of judgments. He contends that ORCP 71 C requires that a motion to set aside be filed within a reasonable time and that here Shinall was aware of the judgment but did nothing. Shires responds[5] that the trial court did not abuse its discretion, because there was no reason for Shinall to do anything until Shires began to see that the child resembled Ball and became concerned that the wrong individual had been named as the father.
The discretion of a court to set aside a judgment under ORCP 71 C is not unlimited. As we summarized in Condliff v. Priest, 82 Or.App. 115, 118, 727 P.2d 175 (1986):
"Rule ORCP 71 C reaffirms a trial court's traditional power to modify a judgment within a reasonable time. Palmateer v. Homestead Development Corp., 67 Or.App. 678, 680 P.2d 695 (1984). Although the boundaries of that authority are not well defined, generally the court's exercise of its inherent authority has been limited to making technical amendments, Palmateer v. Homestead Development Corp., supra, to correcting errors of the court, Stevenson v. U.S. National Bank, 296 Or. 495, 677 P.2d 696 (1984), or to situations in which `extraordinary circumstances' are present. Vinson and Vinson, 57 Or.App. 355, 644 P.2d 635, rev. den. 293 Or. 456 [650 P.2d 928] (1982). Generally, the authority has not been used to allow parties to circumvent res judicata or to assert new substantive arguments. Stevenson v. U.S. National Bank, supra; Far West Landscaping v. Modern Merchandising, 287 Or. 653, 601 P.2d 1237 (1979)."
There is no contention that here the court merely made a technical amendment or corrected an error. Rather, the court appears to have concluded that the circumstances were extraordinary. The trial court found that Shires and Shinall were "nominal parties" to the administrative proceeding:
"Obviously, the moving party behind the administrative matters was the State of Oregon. The motivation was clearly that Lisa Shires was receiving public assistance for [the child] and the State sought to *619 establish financial responsibility by someone. In actuality, this is the first real claim by Lisa Shires to establish paternity. When Lisa Shires was no longer on public assistance, [the state] quickly lost interest in pursuing support from Mr. Shinall.
"[Ball] is not directly impacted by the proceedings to set aside the administrative judgment. He has no stake in those proceedings."
At the outset, we reject the court's conclusion that Ball is not affected by the administrative proceedings. Although that may have been so before Shires brought the filiation proceeding against Ball, Ball's interests were clearly implicated by the prior judgment once Shires sought to have him declared the father of the child. For the same reason, we also reject Shires' position on appeal that Ball's objections "need not be considered" because the earlier filiation proceeding "had no direct bearing" that affected his rights and interests. Furthermore, Shires, Shinall and Ball all stipulated to consolidation of the administrative and filiation proceedings, and, under these circumstances, Shires cannot now be heard to argue that Ball has no standing to challenge setting aside the judgment from the administrative proceeding.
The court erred in holding that the only validity to the 1989 judgment was that it established who would reimburse the state for public assistance. Those administrative proceedings also established Shinall's paternity, and a judgment was entered on the administrative order. Under ORS 416.465,[6] Shires and Shinall had one year to seek relief from the administrative order. They did not do so. What they now seek to do through the filiation action against Ball is to circumvent the res judicata effect of paternity established in the prior judgment. That is not a ground for setting aside the valid 1989 judgment. Condliff, 82 Or.App. at 118, 727 P.2d 175; see Vinson, 57 Or.App. at 360, 644 P.2d 635, ("`Nor are the res judicata consequences of a final, unappealed judgment on the merits altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.'" (quoting Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2427-28, 69 L.Ed.2d 103 (1981))).
The parties have not identified anything in the 1989 proceedings or their roles in them that constitutes "extraordinary circumstances" so as to provide a basis for setting aside the 1989 judgment. See Vinson, 57 Or.App. at 359, 644 P.2d 635 (inherent power to relieve parties from judgments is within court's discretion but does not arise in the absence of extraordinary circumstances such as fraud). Shires argues, however, that the trial court did not err in setting the judgment aside because her motion was also based on ORCP 71 B(1)(e), which provides, in part, that a party may be relieved from a judgment for the reason that "it is no longer equitable that the judgment should have prospective application." However, that rule does not assist Shires. As explained by the staff comment to the Council on Court Procedure:
"Paragraph 71 B(1)(e) is new but simply codifies the common law remedy of audita querela (available in Oregon by motion invoking the inherent power of the court). Herrick v. Wallace, 114 Or. 520, 525, 236 P. 471 (1925). The reference to `no longer equitable' restates the rule that a judgment with prospective operation may be subject to change based upon changed conditions. Farmers' Loan Co. v. Oregon Pac. R. Co., 28 Or. 44, 65-69, 40 P. 1089 (1895)." Reprinted in Kloppenberg, Oregon Rules of Civil Procedure 1995-1996 Handbook 223-24 (1995).
Farmer's was an appeal from an order confirming a sale of railway franchises and property on the foreclosure of a mortgage. The original decree had envisioned a restructuring of the company, giving powers to holders of receiver's certificates and bondholders to bid their securities as part of the purchase money at the sale. The order of the court *620 eliminated those provisions, requiring cash only. The appellants argued that the court was without authority to change the original decree.
The Supreme Court rejected the appellants' position. The court found that changed financial conditions supported modifying the decree, a modification that did not reach the decree's substance:
"[The cited authorities] conclusively show that, while a court cannot, by a subsequent order, modify the essential features of a final decree, it does possess the inherent right of changing the time of its execution. This right being granted, it must, upon principle, be conceded that a court possesses an equal right to modify by a subsequent order the manner of the enforcement of its decrees, for it requires no more power to modify the manner than it does to change the time of executing them." 28 Or. at 67, 40 P. 1089.
See also Silliman v. Silliman, 66 Or. 402, 406, 133 P. 769 (1913) (court does not have power to amend judgment in any matter of substance but may correct clerical errors).
The antecedents of ORCP 71 B(1)(e), thus, do not support setting aside the 1989 judgment here. That action changed the substantive provision of the finding of paternity of Shinall. That result goes beyond altering the manner of enforcing a judgment to modify its substance so as to avoid the effects of res judicata. Consequently, ORCP 71 B(1)(e) is inapposite.
The administrative proceeding gave Shinall notice that he had been named as the father of the child; it gave him an opportunity to be heard on the issue and to appeal the finding. Neither Shires nor Shinall established any ground to set aside the judgment rendered as a result of those proceedings. Consequently, the trial court abused its discretion in setting aside the 1989 judgment. See Watson v. State of Oregon, 71 Or.App. 734, 694 P.2d 560 (1985) (in light of strong policy favoring finality of litigation, intrinsic fraud did not permit setting aside judgment of paternity to which the plaintiff stipulated without seeking to present evidence on the disputed issue).[7] It follows that, because the 1989 judgment that adjudicated Shinall to be the father remained valid, the court also erred in entering the 1994 judgment naming Ball as the father of the child.
Reversed and remanded with instructions to vacate 1994 judgment and to reinstate 1989 judgment.
NOTES
[1] The affidavit stated that Shires had lived with Shinall and was seeing him at the time of conception and that she had not had sexual intercourse with another man within 30 days before or after the time the child was conceived.
[2] The parties do not provide the results of that test. At the hearing on his motions, Ball testified that his understanding of the results of the test was that it did not establish that he was or was not the father but, rather, that it showed the "possibility" that the child could be his, "just by the percentage rate."
[3] Ball's attorney was given that information by an employee of the Support Enforcement Division.
[4] The state declined to join with them but did not object.
[5] Shinall did not appear on appeal.
[6] ORS 416.465 provides:
"The court may, upon such terms as may be just at any time within one year after notice thereof, relieve a parent from an administrative order taken against that parent because of mistake, inadvertence, surprise or excusable neglect." (Emphasis supplied.)
[7] In 1995, the legislature provided for finality of paternity judgments based on administrative orders. ORS 416.443(1) provides:
"No later than one year after an order establishing paternity is docketed under ORS 416.440 and if no genetic parentage test has been completed, a party may apply to the Support Enforcement Division or a district attorney to have the issue of paternity reopened."
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DAVID A. JUNGERS and )
LEISA JUNGERS, husband and wife,
)
Individually and as Trustees of the
)
DAVID A. JUNGERS TRUST, )
Dated May 15, 2001, )
)
Plaintiffs-Appellants, )
)
v. ) No. SD35582
) Filed: June 12, 2019
WEBSTER ELECTRIC COOPERATIVE, )
INC., a Missouri Corporation, )
)
Defendant-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
Honorable Jason Brown, Circuit Judge
AFFIRMED
Plaintiffs David and Leisa Jungers, individually and as trustees of the David A.
Jungers Trust (collectively referred to as the Jungers), filed suit against Defendant Webster
Electric Cooperative, Inc. (Webster) for damages allegedly caused by the negligent
installation of a transformer in the Jungers’ home. Webster paid to repair the damage. At
the time the alleged damage occurred, the Jungers were in the process of selling their home
under a contract for deed, and the buyers later backed out of the sale. The Jungers sought
damages from Webster resulting from the lost sale. Webster moved for summary judgment.
The legal basis for the motion was that the Jungers’ damages were limited to cost of repair.
The trial court agreed. The court decided that the Jungers were barred from recovering the
additional damages they sought, either in the form of diminution of fair market value or for
the loss of the benefit of the bargain from the contract for deed. Because the Jungers were
not entitled to these additional damages and Webster had already paid the cost of repair, the
trial court entered summary judgment in Webster’s favor.
Presenting two points on appeal, the Jungers contend the trial court misapplied the
law in limiting damages to the cost of repair because: (1) they were also entitled to recover
consequential damages, which include loss of the benefit of the bargain under the contract
for deed; and (2) alternatively, they were not precluded from recovering damages for
diminution of value where the repair costs were insufficient to restore the property to its pre-
injury value. Finding no merit to either point, we affirm.
Standard of Review
A summary judgment shall be granted “[i]f the motion, the response, the reply and
the sur-reply show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law[.]” Rule 74.04(c)(6); Schnurbusch v. W.
Plains Reg’l Animal Shelter, 507 S.W.3d 675, 679 (Mo. App. 2017).1 “Facts come into a
summary judgment record only via Rule 74.04(c)’s numbered-paragraphs-and-responses
framework.” Jones v. Union Pac. R.R. Co., 508 S.W.3d 159, 161 (Mo. App. 2016) (italics
in original). Thus, when reviewing a summary judgment, we review the undisputed material
facts established by the process set forth in Rule 74.04(c). Alvis v. Morris, 520 S.W.3d 509,
511-12 (Mo. App. 2017). “We view the record in the light most favorable to the non-moving
1
All references to rules are to Missouri Court Rules (2019).
2
party, drawing all inferences in that party’s favor.” Progressive Max Ins. Co. v. Hopkins,
531 S.W.3d 649, 651 (Mo. App. 2017); see also Lindsay v. Mazzio’s Corp., 136 S.W.3d
915, 920 (Mo. App. 2004).
As a defending party, Webster can establish a right to summary judgment by
showing: (1) facts negating any one of the claimant’s elements facts; (2) the claimant, after
an adequate period of discovery, has been unable, and will not be able, to produce evidence
sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements;
or (3) the undisputed facts support each of the necessary elements of the defending party’s
properly pleaded affirmative defense. ITT Commercial Fin. Corp. v. Mid-Am. Marine
Supply Corp., 854 S.W.2d 371, 381 (Mo. banc 1993). “Each of these three means
establishes a right to judgment as a matter of law.” Lindsay, 136 S.W.3d at 920. Because
the propriety of summary judgment is purely an issue of law, we review the grant of a
summary judgment de novo. Id. at 919.
Factual and Procedural Background
The material facts are not in dispute. Prior to or during construction of the Jungers’
residence at issue in this case, Webster installed a pad-mounted electrical transformer on the
property. Webster ran an 800-amp electrical service from the transformer through
underground conduits to the electrical panel in the basement of the house.
In February 2009, the Jungers agreed to sell the property for $4.45 million under a
contract for deed to the Edwards (hereinafter referred to as the Edwards’ contract). In partial
performance of this contract, the Edwards paid $1.2 million to the Jungers at that time, with
the balance to be paid in installments through November 2009. The Edwards took
possession of the property in March 2009.
3
By early May 2009, water accumulated in the transformer and drained through the
conduits into the electrical panel. Webster paid $4,780.84 to repair the damage to the
property caused by the May water intrusion. In mid-June 2009, Webster lengthened the
conduits within the transformer and filled them with silicone caulking to prevent water from
entering.
In September 2009, the Edwards filed suit against the Jungers to rescind the
Edwards’ contract.2 The suit was later settled, with the Edwards returning the property to
the Jungers, and the Jungers refunding $1 million of the Edwards’ initial payment to them.
The Jungers retained $200,000 of that payment.
Thereafter, the Jungers sold a portion of the property for $670,000. They later
separately sold the house and the remaining property for $2.5 million to the Groves (Groves’
contract).
In April 2014, the Jungers filed a single-count petition alleging that Webster
negligently installed the transformer, which permitted water to invade the property. The
petition further alleged that Webster’s negligence caused: (1) the value of the property to
diminish by more than $1 million; and (2) the Jungers to lose the benefit of the bargain they
had made under the Edwards’ contract and incur other incidental damages.
In February 2018, Webster moved for summary judgment. Webster argued that its
payment of the costs to repair the damage precluded the Jungers from recovering any
additional damages, including damages for diminution of value or the loss of the Edwards’
contract.
2
According to the Jungers, the Edwards sought rescission of their contract “on the
grounds that Jungers failed to disclose prior water leakage in the basement, which allegations
Jungers denied.”
4
In April 2018, the trial court entered an order partially granting and partially denying
summary judgment. With respect to real property damages, the court granted a partial
summary judgment that limited such damages to the previously paid cost of repair:
Court finds no genuine issue of material fact that the repairs to the property
were successful, and the cost thereof constituted a tiny, insignificant fraction
of the alleged diminution of value of the property. The Court also finds, and
[the Jungers] candidly conceded at oral argument, that they cannot recover
both the diminution and the benefit of the bargain of the Edwards contract.
Court finds, based upon the undisputed facts, that as it pertains only to the
damage to the property itself, the proper measure of damages is the cost of
repair, which [Webster] has already paid.
(Italics in original.) However, with respect to the “alleged personal, consequential damages
stemming from the loss of the (rescinded) Edwards’ contract[,]” the court denied summary
judgment. The court found that genuine issues of fact exist as to whether such damages were
“caused by [Webster’s] alleged negligence, and, whether such damages go beyond and are
sufficiently separate from the alleged damage to the property itself.”
In May 2018, the Jungers modified their calculation of damages to total
$1,230,329.69. The new total consisted of the difference between the Edwards’ contract of
$4.45 million and Groves’ contract of $2.5 million, less credit for proceeds retained at
rescission ($200,000) and from the sale of a portion of the property ($670,000), plus interest
paid on a line of credit to repay the Edwards in the amount of $150,329.69. With respect to
repairs to the property, the Jungers also stated that “[a]ll repairs known or believed to be
related to the water intrusion” were paid by Webster.
In June 2018, Webster filed a motion to clarify the ruling on the damages issue. After
hearing argument on the motion, the court clarified that, “to the extent [the Jungers] seek to
recover damages for the difference between the total amount of the Edwards’ contract and
the (combined) amounts for which they later sold the separate parcel of land and house, said
difference is merely a manifestation or alternative form of diminution of value, and given
5
the Court’s prior findings, is not submissible here.” The court further decided that “other,
personal consequences of the rescinded Edwards contract allegedly caused by [Webster’s]
negligence, and not measured by diminution of value, may be sought. Such items might
include interest charges, closing costs, real estate commissions, moving expenses and the
like. It appears MAI 4.01 will apply.”3
Thereafter, the Jungers amended their answer to Webster’s damage interrogatory to
withdraw all claims for damages except those arising from the difference between the
Edwards’ and Groves’ contracts, less applicable credits. In response, Webster moved the
court to reconsider its ruling on Webster’s previously filed summary judgment motion in
light of this amended interrogatory answer.4
In mid-June 2018, the trial court entered a complete summary judgment in Webster’s
favor for the following reasons: (1) there were no compensable property damages potentially
recoverable by the Jungers because the cost-of-repair rule governed the Jungers’ damage
claims and precluded any additional damages for diminution of value; (2) Webster had paid
all such repair costs; and (3) the difference between the Edwards’ and Groves’ contracts for
3
The relevant version of this instruction, MAI 4.01 [2002 Revision] Personal and
Property (7th ed. 2012), provides in relevant part:
If you find in favor of plaintiff, then you must award plaintiff such sum as
you believe will fairly and justly compensate plaintiff for any damages you
believe plaintiff sustained [and is reasonably certain to sustain in the future]
as a direct result of the occurrence mentioned in the evidence.
(Footnotes omitted.) “In general, MAI 4.01 is used when personal and property damage is
involved, whereas MAI 4.02 is used in cases involving property damage only.” St. John’s
Bank & Tr. Co. v. Intag, Inc., 938 S.W.2d 627, 629 (Mo. App. 1997).
4
The Jungers’ counsel stated the Jungers “have no procedural objection (under Rule
74 or otherwise) to the Court reconsidering its Summary Judgment rulings in light of [the
Jungers’] amended interrogatory answer withdrawing all damage claims except the
Edwards/Groves contract differential.”
6
the purchase of the property was “merely a manifestation or alternative form of diminution
in value” damages. This appeal followed.
Discussion and Decision
“The goal of awarding damages is to compensate a party for a legally recognized
loss.” Ameristar Jet Charter, Inc. v. Dodson Int’l Parts, Inc., 155 S.W.3d 50, 54 (Mo. banc
2005); see also First Bank v. Fischer & Frichtel, Inc., 364 S.W.3d 216, 224-25 (Mo. banc
2012) (party should be fully compensated for its loss, but not recover a windfall). “The
particular facts and circumstances of each case dictate which measure of damages is
appropriate.” Gee v. Payne, 939 S.W.2d 383, 385 (Mo. App. 1997). “The proper measure
of damages is a question of law for determination by the trial court.” Id.; Green v. Study,
286 S.W.3d 236, 242 (Mo. App. 2009).5
The Jungers contend the trial court misapplied the law by limiting damages to the
cost of repair. The Jungers argue that they are entitled to recover: (1) consequential damages
that include loss of the benefit of the bargain under the Edwards’ contract (Point 1); or, in
the alternative, property damages for diminution of value (Point 2). For ease of analysis, we
will address these points out of order.
Point 2
The Jungers’ second point contends the trial court misapplied the law by concluding
that Webster’s payment of the cost to repair the damage precluded the Jungers from
5
Damages is an essential element of the Jungers’ claim. See Meyer v. City of
Walnut Grove, 505 S.W.3d 331, 335 (Mo. App. 2016) (to present a cognizable claim of
negligence, a plaintiff is required to show that defendant had a legal duty to plaintiff, that
defendant breached that duty, and plaintiff suffered resulting damages caused by defendant’s
negligence). Webster’s summary judgment motion argued that the Jungers could not
establish damages, including cost-of-repair damages, since Webster had already paid all
costs of repair.
7
recovering additional damages “for diminution in the value of damaged property that has
been repaired where the repair costs are insufficient to restore the property to its pre-injury
value.” We disagree.
“The general rule is that the measure of damages for tortious injury to real property
is the difference in the fair market value of the property before and after the injury or the
cost of restoring the property, whichever is the lesser amount.” Farmer’s Mut. Fire Ins.
Co. v. Farmer, 795 S.W.2d 104, 108 (Mo. App. 1990). The rationale for this long-standing
rule is set out in Curtis v. Fruin-Colnon Contracting Co., 253 S.W.2d 158 (Mo. 1952):
The general rule is that the measure of damages to real estate is the difference
in the value of the land before and after the injury by trespass or negligence.
However, where damaged land or a building thereon can be restored to its
former condition, at a cost less than the diminution in value, the cost of
restoration may be recovered. Thus this restoration rule of recovery is
applicable only to cases where the cost of restoration is less than the
difference in the value of the land before and after the injury and can never
apply in any case where the cost of restoration is greater than the value of the
land or building.
Id. at 164 (italics in original); see Jack L. Baker Companies v. Pasley Mfg. & Distrib. Co.,
413 S.W.2d 268, 273 (Mo. 1967) (“where damaged property can be restored to its former
condition at a cost less than the diminution of value, the cost of restoration is the proper
recovery”); Kelley v. Widener Concrete Const., LLC, 401 S.W.3d 531, 540 (Mo. App. 2013)
(in real property cases, courts generally utilize the “diminution in value” test, turning only
to the “cost of repair” test when it constitutes a lower amount of recovery); Tull v. Hous.
Auth. of City of Columbia, 691 S.W.2d 940, 942-43 (Mo. App. 1985) (in surveying the
cases which applied the cost-of-repair test, it is clear this test is applied “to situations where
repairs amount to a small percent of the diminution in value”); Gulf, M. & O. R. Co. v.
Smith-Brennan Pile Co., 223 S.W.2d 100, 104-05 (Mo. App. 1949) (cost-of-repair damages
8
appropriate “where the amount of damage is insignificant, as compared to the value of the
property as a whole and involves only a small part thereof”).
Here, there is no question that the cost of repair is insignificant as compared to the
value of the property as a whole. Webster paid a total of $4,780.84 for repairs, which
represents less than four-tenths of 1% (i.e., 0.00398403) of the $1.2 million the Jungers
allege was the diminution of fair market value of the residence. This is clearly “a small
percent of the diminution in value.” Tull, 691 S.W.2d at 942-43; see, e.g., Jack L. Baker
Companies, 413 S.W.2d at 273 (repairs $3,000, diminution $13,380 i.e., about 22%); Kirst
v. Clarkson Constr. Co., 395 S.W.2d 487, 493-94 (Mo. App. 1965) (repairs $315,
diminution $5,500 i.e., about 6%); Beaty v. N.W. Elec. Power Coop., 296 S.W.2d 921, 925
(Mo. App. 1956) (repairs $500, diminution $1,500 to $5,000 i.e., 10-30%). The trial court
here relied on undisputed facts that “the repairs to the property were successful, and the cost
thereof constituted a tiny, insignificant fraction of the alleged diminution of value of the
property.” Thus, according to the long-standing general rule, the trial court correctly
determined that the cost of repair is the proper measure of damages in this case.
The Jungers argue the general rule established above “is subject to exception” when
cost of repair is “insufficient to make plaintiffs whole.” To support that argument, they rely
exclusively on Casada v. Hamby Excavating Co., 575 S.W.2d 851 (Mo. App. 1978). The
Jungers’ reliance on that case is misplaced because it is factually distinguishable.
In Casada, plaintiff’s home was damaged by defendant’s blasting operation. Id. at
852. An “engineer testified, in substance, that the only way to restore the Casada residence
to its pre-explosion condition would be to ‘… tear the structure down and redo it.’” Id. at
857. The trial court instructed the jury that “if the jury found for the plaintiffs, then it would
award plaintiffs the diminution in the fair market value of plaintiffs’ residence, contents and
9
automobile before and after they were damaged.” Id. (internal quotation marks omitted).
This damages instruction was properly given because it authorized the recovery of damages
for the diminution in value of the home, if the jury believed the engineer’s testimony. The
defendant’s tendered Instruction B was properly refused because it only authorized the jury
to award the reasonable cost of repair for the residence as damages. Id. This instruction
would not have permitted the jury to award damages for the full diminution of value of the
home, even if the jury believed the engineer’s testimony that the house would have to be
rebuilt. This unusual fact pattern has never recurred, so far as we can tell, in any subsequent
case and certainly is not the fact pattern in the case at bar. Since Casada was decided, it has
been repeatedly cited as supporting the general rule “that the measure of damages for tortious
injury to real property is the difference in fair market value of the property before and after
the injury or the cost of restoring the property, whichever is the lesser amount.” Id. at 858;
see, e.g., Farmer’s Mut. Fire Ins. Co., 795 S.W.2d at 108; Evinger v. McDaniel Title Co.,
726 S.W.2d 468, 475 (Mo. App. 1987); Larabee v. City of Kansas City, 697 S.W.2d 177,
181 (Mo. App. 1985); Culver-Stockton Coll. v. Missouri Power & Light Co., 690 S.W.2d
168, 172 (Mo. App. 1985); DeLisle v. Cape Mut. Ins. Co., 675 S.W.2d 97, 103-04 (Mo.
App. 1984).6 Thus, Casada does not support the Jungers’ contention that they are entitled
6
Since Casada was decided, this general rule of damages for tortious injury to real
property has been well recognized and often cited. See Kelley, 401 S.W.3d at 541; Twin
Chimneys Homeowners Ass’n v. J.E. Jones Constr. Co., 168 S.W.3d 488, 503 (Mo. App.
2005); Ridgway v. TTnT Dev. Corp., 126 S.W.3d 807, 814 (Mo. App. 2004); Leonard
Missionary Baptist Church v. Sears, Roebuck & Co., 42 S.W.3d 833, 836 (Mo. App. 2001);
Smith v. Woodard, 15 S.W.3d 768, 773 (Mo. App. 2000); Jordan v. Stallings, 911 S.W.2d
653, 663 (Mo. App. 1995); Kueffer v. Brown, 879 S.W.2d 658, 666 (Mo. App. 1994); Plunk
v. Hedrick Concrete Prod. Corp., 870 S.W.2d 942, 944 (Mo. App. 1994); Hinkle v.
Emmons, 826 S.W.2d 359, 362 (Mo. App. 1992); Adams v. Orkin Exterminating Co., 763
S.W.2d 318, 320 (Mo. App. 1988).
10
to damages for diminution of value, rather than the cost of repair. Accordingly, the trial
court did not misapply the law in determining that the cost-of-repair damages are the
appropriate measure of property damages in this case. Point 2 is denied.
Point 1
The Jungers’ first point contends the trial court misapplied the law by concluding the
costs to repair the damage precluded the Jungers from recovering “damages for the loss of
the benefit of the Edwards’ purchase contract … in addition to any property damages caused
by [Webster’s] negligence.” According to the Jungers, they are entitled to recover damages
for the loss of the benefit of the Edwards’ contract “as distinct from and in addition to” the
property damage. Based on the unique facts and procedural posture of this case, we disagree.
The purpose in awarding damages is to “make the injured party whole by monetary
compensation.” Turner v. Shalberg, 70 S.W.3d 653, 658 (Mo. App. 2002). A plaintiff may
not, however, be made whole more than once. Cason v. King, 327 S.W.3d 543, 548 (Mo.
App. 2010). “While a single transaction may invade more than one right and an injured
party may sue on more than one theory of recovery, a plaintiff may not receive more than
one full recovery for the same harm.” BMK Corp. v. Clayton Corp., 226 S.W.3d 179, 197
(Mo. App. 2007). Thus, a plaintiff must establish a separate injury on each theory, and may
recover damages proved in two or more causes of action. Id. However, “[i]f the damages
asserted in two causes of action are the same, the damage awards should be merged.” Id.;
see Heckadon v. CFS Enterprises, Inc., 400 S.W.3d 372, 381 (Mo. App. 2013) (merger
prevents a party from being compensated twice for the same injury).
Here, the trial court determined that the Jungers were attempting to recover twice for
the same injury. The court specifically found that the “‘benefit of the bargain’ damages
calculated as the difference between the Edwards’ and Groves’ sales contracts … is merely
11
a manifestation or alternative form of diminution of value, and given the Court’s prior
findings, is not submissible here.” For the following reasons, we agree with the trial court.
We begin by noting that the Jungers conceded to the trial court that they could not
recover both the diminution of value and the benefit of the bargain of the Edwards’ contract.
They recognized that the two types of damages are duplicative. Thereafter, the court
correctly determined that, as to the damage to the property itself, the proper measure of
damages is the cost of repair, which Webster already paid. The court further ruled, however,
that the Jungers could potentially recover “personal, consequential damages stemming from
the loss of the (rescinded) Edwards contract” if those damages “go beyond and are
sufficiently separate from the alleged damage to the property itself.” The court later even
specified “other, personal consequences of the rescinded Edwards contract … not measured
by diminution of value, may be sought. Such items might include interest charges, closing
costs, real estate commissions, moving expenses and the like.” Although the Jungers first
amended their calculation of benefit-of-the-bargain damages to include “interest paid on
loan/line of credit to repay Edwards[,]” they ultimately withdrew that alleged item of
damages and included only “the difference between the Edwards and Groves sales contracts
(less applicable credits),” which total $1,080,000.7 This calculation, as we understand it, is
the same measure of damages as the diminution of value, described in their petition generally
as “an amount in excess of $1,000,000.”
7
A summary of the second-amended damages calculation is as follows:
Original Sale: Jungers to Edwards $4,450,000
Less partial down payment proceeds retained at rescission (200,000)
Less proceeds from separate sale of parcel (670,000)
Less sale to Groves (2,500,000)
Total damages $1,080,000
12
We discern no substantive difference here between damages for diminution of value
of real property and damages for the lost benefit of a contract to sell that real property.
Although the Jungers argue that “[s]eparate and apart from the property damage, Webster’s
negligence contributed to cause the Edwards to renege on their agreement to purchase the
property for $4.45 million, depriving plaintiffs of the economic benefit of that sale of the
property[,]” such damages measure the same loss – the damage to the property in the form
of diminution of value. Here, because damages for diminution of value are not the proper
measure of damages, the Jungers are not entitled to recover such damages by simply
mischaracterizing them as an alternative type of remedy.
Further, “benefit of the bargain” damages are typically the measure of damages in a
breach of contract case. Kincaid Enterprises, Inc. v. Porter, 812 S.W.2d 892, 900 (Mo.
App. 1991); see Turner, 70 S.W.3d at 658 (damages for benefit of the bargain are “the value
of the performance of the contract”). Such damages are also inappropriate here because this
is not a contract case. See, e.g., Keveney v. Missouri Military Acad., 304 S.W.3d 98, 104
(Mo. banc 2010) (breach of contract includes the following elements: “(1) the existence and
terms of a contract; (2) that plaintiff performed or tendered performance pursuant to the
contract; (3) breach of the contract by the defendant; and (4) damages suffered by the
plaintiff”). Webster was not a party to the contract for deed between the Jungers and the
Edwards, and could take no action to breach or rescind that contract. The Jungers have no
direct cause of action for breach of contract against Webster, and they have not attempted to
assert such a claim. Because the Jungers and the Edwards settled their dispute, the Jungers
cannot even establish that the Edwards breached the contract. Consequently, the Jungers
have no claim against the Edwards (or anyone else) for breach of the Edwards’ contract.
See, e.g., Washam v. North, 864 S.W.2d 4, 5 n.1 (Mo. App. 1993) (“[a]ppellant’s arguments
13
appear to confuse theory of damages in a contract action (where a party may be entitled to
the benefit of a bargain) with the theory of damages in tort”).
We are not persuaded by the Jungers’ argument that they are entitled to the benefit
of the bargain of the Edwards’ contract as “consequential damages.” The Jungers rely on
two cases recognizing that consequential damages can include lost profits from a business
operated on property that has been negligently damaged. See Shady Valley Park & Pool,
Inc. v. Fred Weber, Inc., 913 S.W.2d 28 (Mo. App. 1995) (awarding plaintiff consequential
damages from businesses closing as a result of defendant’s negligence because “this was not
damage to real property alone”); Volume Services, Inc. v. C.F. Murphy & Associates, Inc.,
656 S.W.2d 785 (Mo. App. 1983) (plaintiff was entitled to its prospective profits lost as a
result of defendant’s tortious conduct, over and above any related property damages). Here,
however, the Jungers make no claim they were deprived of prospective profits from a
business they were unable to operate using the subject property. In fact, they supplemented
their answers to interrogatories to intentionally exclude every type of potential damage
except for the difference between the purchase price in the sale contracts before and after
the water intrusion. As previously established, the difference in the Edwards’ and Groves’
contracts amounts to nothing more than a measure of diminution of value.
The Jungers cite no other cases in which a Missouri appellate court has ever upheld
an award of money damages for a lost sale – the same measure as the diminution of value –
and for the cost to repair the same damage to real property. Accordingly, the trial court did
not misapply the law in concluding that Webster’s payment of the cost to repair the damage
caused by Webster’s alleged negligence precluded the Jungers from recovering additional
damages for the loss of the benefit of the Edwards’ contract. Point 1 is denied.
14
The judgment granting summary judgment in favor of Webster and against the
Jungers is affirmed.
JEFFREY W. BATES, J. – OPINION AUTHOR
WILLIAM W. FRANCIS, JR., P.J. – CONCUR
DANIEL E. SCOTT, J. – CONCUR
15
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY CLEMENT,
Plaintiff-Appellant,
v.
CITY OF GLENDALE, No. 05-56692
Defendant,
D.C. No.
CV-02-02555-FMC
and
J&E SERVICE INC., d/b/a Monterey OPINION
Tow Service; J. YOUNG, an
individual,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Florence Marie Cooper, District Judge, Presiding
Argued and Submitted
July 11, 2007—Pasadena, California
Filed March 11, 2008
Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld
and Richard C. Tallman, Circuit Judges.
Opinion by Chief Judge Kozinski
2347
2350 CLEMENT v. J&E SERVICE INC.
COUNSEL
Donald E. Chadwick, Northridge, California, for the appel-
lant.
Michael E. Sayer and Damian J. Nassiri, Claims Legal Man-
agement, APC, Irvine, California, for the appellees.
CLEMENT v. J&E SERVICE INC. 2351
OPINION
KOZINSKI, Chief Judge:
We determine the extent to which the Due Process Clause
of the Fourteenth Amendment requires a state to provide
notice before it may tow a vehicle parked in violation of state
registration laws, if the owner has dutifully complied with an
alternate form of registration.
Facts
Virginia Clement1 lived in a residential hotel and parked
her 1981 Cadillac Eldorado Biarritz in the hotel’s parking lot.
The car had not been driven in seven years and Clement did
not keep the car’s registration current. But she did dutifully
complete an alternate form of vehicle registration, she had the
hotel’s permission to park there and the car was in its proper
space. Without so much as a letter, a knock on the door, a
note on her windshield or even a parking ticket, the Glendale
police towed and impounded Clement’s car. They left no clue
to where it had gone. Only later did Clement discover that it
had been towed for allegedly violating California vehicle reg-
istration laws.
The process started when Glendale police officer Young,
on a routine patrol, noticed expired registration stickers on the
car. He ran the plates and learned that Clement had filed a
“planned non-operation” (PNO) certificate with the state DMV.2
A PNO certificate allows vehicle owners to avoid paying for
registration and insurance, so long as they don’t drive on pub-
lic roads or park in publicly accessible parking lots. Cal. Veh.
1
Virginia Clement has been succeeded in this litigation by her daughter,
Mary Clement.
2
As the district court resolved the case on summary judgment, we
assume Clement’s version of events. Meyers v. Redwood City, 400 F.3d
765, 769-70 (9th Cir. 2005).
2352 CLEMENT v. J&E SERVICE INC.
Code § 4000(a)(1). California law authorizes local police to
tow and impound PNO vehicles found in publicly accessible
parking lots, and to release the vehicle only after it has been
properly registered. Cal. Veh. Code § 22651(o). Officer
Young ordered Clement’s car towed because he believed the
car was parked in a public lot in violation of the statute.3
After discovering what happened to her car, Clement did
the American thing: She sued. Among other claims, she
brought a civil rights action under 42 U.S.C. § 1983 against
Officer Young and against the company that executed the
tow, claiming that they violated her constitutional right to due
process by impounding her car without giving her advance
notice, and that they had unconstitutionally seized her car.
The district court granted summary judgment to defendants on
all of her claims. In a prior appeal, we reversed the district
court’s grant of summary judgment on her due process claim.
Clement v. City of Glendale, 132 F. App’x 147, 148 (9th Cir.
2005) (unpublished). On remand, the district court determined
that Clement’s constitutional right to due process required the
police to try to notify her before impounding her car. The dis-
trict court nevertheless granted summary judgment to Officer
Young on the basis of qualified immunity and to the towing
company based on a “good faith” defense. Clement appeals.
Analysis
[1] 1. No state may “deprive any person of life, liberty,
or property, without due process of law.”4 The courts have
3
We need not decide whether the hotel parking lot was “publicly acces-
sible” under the California Vehicle Code, nor whether the tow was proper
under state law. We assume they were.
4
In deciding a motion for summary judgment in a section 1983 action
we are bound to look first to whether there was a constitutional violation
and then to whether defendants have qualified immunity, even if the quali-
fied immunity inquiry would resolve the case more easily. See Saucier v.
Katz, 533 U.S. 194, 201 (2001); Meyers, 400 F.3d at 770. Some have
CLEMENT v. J&E SERVICE INC. 2353
long interpreted this—along with the parallel restriction on
the federal government in the Fifth Amendment—to require
that notice generally be given before the government may
seize property. See Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S. 306, 313 (1950) (“Many controversies have
raged about the cryptic and abstract words of the Due Process
Clause but there can be no doubt that at a minimum they
require that deprivation of life, liberty or property by adjudi-
cation be preceded by notice and opportunity for hearing
appropriate to the nature of the case.”); see also Zinermon v.
Burch, 494 U.S. 113, 132 (1990) (“In situations where the
State feasibly can provide a predeprivation hearing before tak-
ing property, it generally must do so regardless of the ade-
quacy of a postdeprivation tort remedy to compensate for the
taking.”); Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 542 (1985) (“We have described the root requirement of
the Due Process Clause as being that an individual be given
an opportunity for a hearing before he is deprived of any sig-
nificant property interest.” (quotation marks omitted)). In
other words, the government may not take property like a
thief in the night; rather, it must announce its intentions and
give the property owner a chance to argue against the taking.
[2] Of course, there are numerous exceptions to this general
rule: The government need not give notice in an emergency,
questioned the logic of this “rigid ‘order of battle,’ ” Brosseau v. Haugen,
543 U.S. 194, 201-02 (2004) (Breyer, J., concurring), but we are bound
to follow it until further notice. We are free to muse, however, that the
Saucier rule may lead to the publication of a lot of bad constitutional law
that is, effectively, cert-proof. If a court of appeals holds that a constitu-
tional right exists under Saucier in step one, but that the right is not clearly
established (as we do in this case), then neither party will have both the
incentive and the standing to petition for review of the constitutional rul-
ing. It may be many years before another case arises that presents the same
issue in a form ripe for review by the Supreme Court. See generally
Thomas Healy, The Rise of Unnecessary Constitutional Rulings, 83 N.C.
L. Rev. 847 (2005).
2354 CLEMENT v. J&E SERVICE INC.
nor if notice would defeat the entire point of the seizure, nor
when the interest at stake is small relative to the burden that
giving notice would impose. See, e.g., Zinermon, 494 U.S. at
132 (“[I]n situations where a predeprivation hearing is unduly
burdensome in proportion to the liberty interest at stake . . .
postdeprivation remedies might satisfy due process.” (citation
omitted)); Mathews v. Eldridge, 424 U.S. 319, 335 (1976)
(weighing “the fiscal and administrative burdens that [an]
additional or substitute procedural requirement would
entail”). Nevertheless, the default rule is advance notice and
the state must present a strong justification for departing from
the norm. The case here is close. Normally, of course,
removal of an automobile is a big deal, as the absence of
one’s vehicle can cause serious disruption of life in twenty-
first century America. See Scofield v. City of Hillsborough,
862 F.2d 759, 762 (9th Cir. 1988) (“The uninterrupted use of
one’s vehicle [on public roads] is a significant and substantial
private interest.”). But Clement couldn’t legally drive her car
on public roads, nor does it appear that she was making off-
road use of the vehicle.5 The car just sat in the parking lot,
unused. Thus the owner’s normal interest in continued use of
his vehicle—as a means of getting from place to place—has
no force here. Nor does there appear to be a significant risk
of erroneous towing.6
[3] However, having one’s car towed, even one that’s not
operational, imposes significant costs and burdens on the
5
An unregistered car with a PNO certificate can still be operated on pri-
vate roads—such as on a farm or ranch. See Cal. Veh. Code § 360
(“highway” as used in registration law is limited to roads “publicly main-
tained and open to the use of the public”); Meraz v. Farmers Ins. Exch.,
92 Cal. App. 4th 321, 325 (Ct. App. 2001) (a vehicle kept off-street at a
private residence need not be registered).
6
The owner—as here—may contest that the car was legally parked or
properly registered. These disputes are likely rare; there is no evidence
before us that the DMV’s registration information is consistently outdated,
nor is there reason to believe that there are frequent debates over whether
a given parking facility is publicly accessible or not.
CLEMENT v. J&E SERVICE INC. 2355
car’s owner. To begin with, there is no place for the police to
leave notice that the car has been towed, so the owner suffers
some anxiety when he discovers that the vehicle has mysteri-
ously disappeared from its parking spot. Then, after discover-
ing the car’s new whereabouts, the owner will normally have
to travel to the towing garage to retrieve it, which may
involve significant cost for someone who doesn’t have an
operational vehicle to drive. And, of course, the garage won’t
release the car unless the owner pays towing, impound and
storage fees.7
[4] Imposition of these burdens and costs cannot be justi-
fied as a means of deterring illegal parking. The punishment
for illegal parking is a fine, which is normally imposed by
affixing a ticket to the windshield. A ticket can also serve as
notice of the illegality and a warning that the car will be
towed if not moved or properly registered. The costs and bur-
dens on the car owner associated with a tow can only be justi-
fied by conditions that make a tow necessary and appropriate,
such as that the car is parked in the path of traffic, blocking
a driveway, obstructing a fire lane or appears abandoned. A
tow may also be appropriate where there are no current regis-
tration stickers and police can’t be sure that the owner won’t
move or hide the vehicle, rather than pay the fine for illegal
parking. See Scofield, 862 F.2d at 764 (authorizing towing in
cases where the state has no current information on the where-
abouts of the owner because notice in such a case could allow
the owner to abscond with the vehicle); see also Graff v.
Nicholl, 370 F. Supp. 974, 983 (N.D. Ill. 1974) (requiring
7
The owner might also dispute the validity of the tow, in which case
California law provides for a hearing within 48 hours. Cal. Veh. Code
§ 22852(c). If the owner is successful in his challenge, the car will pre-
sumably be released without the payment of any fees. However, we must
assume that the tow was proper under state law. Our concern is whether
resorting to towing in the first instance, rather than ticketing the car first,
or giving the owner some other form of advance notice and an opportunity
to move or register the car before it is impounded, is consistent with the
requirements of due process.
2356 CLEMENT v. J&E SERVICE INC.
notice “only to those owners whose identity may be practica-
bly ascertained”). In such situations the tow provides security
for the payment of the fine—a sort of in rem arrest and bail
procedure.
[5] None of these circumstances are present here. As best
the record reflects, the car was not blocking anyone’s path
and the owner of the parking lot—the hotel where Clement
was staying—had given its consent. Nor was this a situation
where the owner might conceal the car instead of paying the
ticket: As Officer Young knew, Clement had a valid PNO cer-
tificate, which meant the DMV had a current address for her.
And, as Officer Young could have figured out, had he both-
ered to make the effort, the address where the vehicle was
registered was the very hotel in whose parking lot the car was
parked. The chances that the car owner would abscond with-
out paying any ticket the officer left on the windshield were
very small indeed.8
The officer had several options open to him in these cir-
cumstances. He could have gone to the front desk of the hotel,
asked to see the owner of the Eldorado Biarritz and told her
personally that she needed to register the car or move it. This
is what one might have expected from a conscientious public
servant confronted with a car parked at the owner’s dwelling.
Short of that, the officer might have written a ticket and left
it at the front desk of the hotel, with a verbal warning that the
car had to be moved or registered—which the hotel clerk
could have been expected to deliver with the ticket. Or, the
officer could simply have written a ticket and left it on the wind-
shield.9
8
California law calls for a fine of not more than $250 for parking an
unregistered vehicle in a public lot. Cal. Veh. Code § 42001.8. It would
have been a simple task to mail a citation to the address on Clement’s
PNO certificate if she hid the vehicle instead of paying the fine.
9
We do not prescribe a particular procedure for giving notice; it is up
to the government to develop a policy that will result in sufficient notice
CLEMENT v. J&E SERVICE INC. 2357
[6] Had Officer Young followed any of these alternative
courses of action, he might then have had to return to the
property a few days later to determine whether the car had
been moved or registered. But this doesn’t seem like a very
significant burden for an officer whose job it is, after all, to
patrol the neighborhood looking for ways to protect and serve
the public. In short, we see very little by way of a legitimate
government interest in ordering a tow of the vehicle in the
first instance, rather than giving the owner notice and an
opportunity to avoid the cost and hassle of having to deal with
a towed vehicle. Thus, we hold that the government must
attempt to notify the owner of a vehicle parked in violation of
a valid PNO certificate before the government may tow and
impound it.
Our holding today dovetails with Scofield, where we held
that there was a due process requirement that notice be given
—usually in the form of a ticket placed on the windshield—
before police could tow apparently abandoned vehicles that
are otherwise legally parked. Scofield, 862 F.2d at 764. We
reasoned that giving notice would be a minor inconvenience
for the police in the case of an abandoned vehicle, and might
even advance the state’s goal of removing abandoned vehicles
from public places, as an abandoned vehicle may be removed
by its owner after being ticketed. Id. Similarly, leaving notice
on an unregistered vehicle is a relatively light burden that is
consistent with the state’s interest in encouraging removal of
unregistered vehicles from public places.
Officer Young could have avoided years of litigation and
needless hassle for himself, the Glendale Police Department,
being given to car owners before impoundment. See Morrissey v. Brewer,
408 U.S. 471, 481 (1972) (“[D]ue process is flexible and calls for such
procedural protections as the particular situation demands.”); Cafeteria &
Rest. Workers Union v. McElroy, 367 U.S. 886, 895 (1961) (“Due process,
unlike some legal rules, is not a technical conception with a fixed content
unrelated to time, place and circumstances.” (quotation marks omitted)).
2358 CLEMENT v. J&E SERVICE INC.
the towing company, the courts, Ms. Clement and her daugh-
ter, by simply erring on the side of caution and good public
service by letting her know that her vehicle was illegally
parked. Instead, the rush to tow led to this protracted litigation
that, no doubt, has consumed far more city resources than it
would have taken to properly notify Clement.
[7] 2. Officer Young asserts qualified immunity as a
defense to liability. See Wyatt v. Cole, 504 U.S. 158, 167
(1992); Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982); Jen-
sen v. Lane County, 222 F.3d 570, 576 (9th Cir. 2000). Gov-
ernment officials performing discretionary functions “are
shielded from liability for civil damages insofar as their con-
duct does not violate clearly established statutory or constitu-
tional rights of which a reasonable person would have
known.” Harlow, 457 U.S. at 818.
[8] Officer Young did not violate Clement’s clearly estab-
lished right by calling for her car to be towed. The constitu-
tional requirement at issue—that pre-towing notice be given
before a car with a valid PNO certificate may be removed
from a parking lot matching the owner’s address—was not
clearly established at the time of Officer Young’s actions.
Neither the text of the Constitution nor our caselaw clearly
spoke to the balance between the rights of citizens to pre-
deprivation notice and the authority of police to enforce regis-
tration statutes. While due process generally requires notice
before the government may deprive a citizen of his property,
see pp. 2352-54 supra, our caselaw recognizes many excep-
tions. See id.; Hudson v. Palmer, 468 U.S. 517, 533 (1984);
Parratt v. Taylor, 451 U.S. 527, 541 (1981), overruled on
other grounds by Daniels v. Williams, 474 U.S. 327, 328
(1986). We have never held that municipalities must always
notify vehicle owners before towing. In fact, our most recent
decision involving municipal towing of unregistered vehicles
—admittedly in a different context—found there to be no
right to pre-deprivation notice. Scofield, 862 F.2d at 764. It
would not have been unreasonable for Officer Young to have
CLEMENT v. J&E SERVICE INC. 2359
interpreted this caselaw as not requiring that notice be given
before towing an unregistered vehicle with a valid PNO cer-
tificate. We affirm the district court’s grant of summary judg-
ment in favor of defendant Young.
[9] 3. Monterey Tow Service, the private towing com-
pany that actually towed Clement’s vehicle, may not assert
qualified immunity because that defense is generally not
available to private defendants in section 1983 lawsuits. See
Wyatt, 504 U.S. at 168. However, the courts have previously
held open the possibility that private defendants may assert a
“good faith” defense to a section 1983 claim. See, e.g., Rich-
ardson v. McKnight, 521 U.S. 399, 413-14 (1997); Wyatt, 504
U.S. at 169; Jensen, 222 F.3d at 580 n.5.
[10] The facts of this case justify allowing Monterey Tow
Service to assert such a good faith defense. The company did
its best to follow the law and had no reason to suspect that
there would be a constitutional challenge to its actions. The
tow was authorized by the police department, conducted
under close police supervision and appeared to be permissible
under both local ordinance and state law. The constitutional
defect—a lack of notice to the car’s owner—could not have
been observed by the towing company at the time when the
tow was conducted; there would be no easy way for a private
towing company to know whether the owner had been noti-
fied or not. Nor would the towing company be aware of the
other facts and circumstances that would be relevant in deter-
mining whether giving notice was constitutionally required.
The responsibility to give notice falls on the police, thus the
constitutional violation arose from the inactions of the police
rather than from any act or omission by the towing company.
Having acted on instructions from the Glendale Police
Department that specifically called for the tow, Monterey
Tow Service is entitled to invoke the good faith defense.
Monterey Tow Service did not waive its good faith defense.
It asserted—in both its answer and motion for summary
2360 CLEMENT v. J&E SERVICE INC.
judgment—that its employees were acting under the appar-
ently lawful direction and authority of the city and officer.
This was sufficient to put plaintiffs on notice that Monterey
Tow Service intended to raise a good faith defense. As there
is no disputed question of material fact underlying the
defense, we affirm the district court’s grant of summary judg-
ment to Monterey Tow Service.
[11] 4. Clement’s seizure claim should not be reinstated.
Our recent decision in Miranda v. City of Cornelius, 429 F.3d
858, 865 (9th Cir. 2005), held that the government has the
power to seize vehicles if “the driver is unable to remove the
vehicle from a public location without continuing its illegal
operation.” It does not contradict or overrule Scofield.
AFFIRMED.
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738 F.2d 430
Jordanv.Holland
84-6143
United States Court of Appeals,Fourth Circuit.
6/19/84
1
N.D.W.Va.
AFFIRMED
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71 F.3d 879
U.S.v.Gordon*
NO. 95-20358
United States Court of Appeals,Fifth Circuit.
Nov 22, 1995
Appeal From: S.D.Tex., No. CR-H-88-0360
1
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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407 F.Supp. 137 (1976)
George Lee FLYTHE, Plaintiff,
v.
Jack F. DAVIS, etc., et al., Defendants.
Civ. A. No. 75-0488-R.
United States District Court, E. D. Virginia, Richmond Division.
February 10, 1976.
George Lee Flythe, pro se.
M. Stuart Bateman, Asst. Atty. Gen., Richmond, Va., for defendants.
MEMORANDUM
MERHIGE, District Judge.
Plaintiff, a Virginia state inmate, brings this action under 42 U.S.C. § 1983 against various state correctional officials in which he challenges the proceedings through which he was placed in maximum security status. Jurisdiction of the Court is invoked pursuant to 28 U.S.C. § 1342. The matter comes before the Court on defendants' motion for summary judgment and plaintiff's response thereto.
The file reflects that under date of March 30, 1975, Horace Shipp, an inmate, was stabbed by a fellow inmate at the Virginia State Penitentiary. Subsequent thereto an inmate informant contacted prison officials and stated that plaintiff had earlier attempted to hire him to kill Shipp. According to the informant when he refused plaintiff's offer, plaintiff stated he would himself kill Shipp. Prison officials additionally obtained statements from Shipp identifying plaintiff Flythe as his attacker. *138 Moreover, additional inmates informed authorities that they had witnessed the incident and named plaintiff as the attacker. Shortly following the stabbing incident, blood stained clothes and shoes were found in plaintiff's cell and the knife was found adjacent thereto.
On April 1, 1975, after hearing the aforementioned evidence the Adjustment Committee decided to take no action but to refer the matter to the Commonwealth's Attorney. On April 4, 1975, the Institutional Classification Committee (I.C.C.) determined to place plaintiff in maximum security (C Building) pending investigation with review of his status every 120 days. Inmate Shipp's reluctance to testify against Flythe prompted a dismissal of the then pending criminal prosecution. Consequently, plaintiff was afforded another I.C.C. hearing on August 7, 1975 at which time it was decided that Flythe should remain in C Building. The Central Classification Board (C.C. B.), however, disapproved the I.C.C. action because the August 7, 1975 hearing was lacking in due process. The I.C.C., at this time, referred the matter to the Adjustment Committee which conducted full hearings on August 25 and 26, 1975, and concluded that Flythe was guilty of the assault charges. The Adjustment Committee then referred the matter back to the I.C.C. for security recommendations. At this I.C.C. hearing on August 29, 1975, it was decided that plaintiff would remain in C Building with review every 120 days. Plaintiff contends that his due process rights were violated by (1) the use of hearsay evidence at the Adjustment Committee hearings, and (2) the failure of prison officials to call inmate Shipp to testify at Adjustment Committee and I.C.C. hearings as requested by plaintiff.
Plaintiff's first contention merits little discussion. The unique environment of a prison, particularly in the context of a disciplinary hearing relating to inmate violence, justifies a lesser standard of evidentiary requirements than utilized in criminal trials. Cf. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971). The utilization of hearsay evidence did not in this instance work so as to deprive plaintiff of due process of law. There was sworn testimony of several prison officials before the Adjustment Committee to substantiate the charges. Plaintiff was given an opportunity to and did contradict the hearsay testimony. This Court has prior hereto approved of the use of hearsay evidence at an Adjustment Committee proceeding and reiterates that view. Nimmo v. Simpson, C.A. No. 163-73-R (E.D.Va. July 19, 1973).
Additionally, plaintiff complains of the hearing officials' refusal to call inmate Shipp to testify at any Adjustment Committee or I.C.C. hearings. The Court finds no error in this regard. Prison regulations specify procedures by which an inmate may request the production of witnesses at his Adjustment Committee hearing. Records contained in the file indicate that plaintiff was given an opportunity to make such a request but refused to do so pursuant to those regulations. Plaintiff contends however, that he made a request to have inmate Shipp testify at his hearing. The failure to have Shipp testify directly before the hearing board is of little consequence. Plaintiff was permitted to and did submit Shipp's affidavit which unequivocally exonerated plaintiff from participation in the stabbing. Shipp's presence could at the most have subjected him to examination by the prison officials. It is clear that the Adjustment Committee simply did not accept this factual for statements contained by Shipp in his affidavit, and chose instead to accept Shipp's earlier statement and the other evidence previously discussed.
Federal courts will not serve as a reviewing board over the accuracy of a disciplinary committee's findings of fact. Woodard v. Mills, No. 74-2088 (4th Cir. March 17, 1975). Concluding therefore that the plaintiff was afforded due process in the disciplinary proceedings, defendants' motion for summary judgment must be granted.
An appropriate order will issue.
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837 F.Supp. 803 (1993)
Dr. Marie ROOS, Plaintiff,
v.
Dr. Herman B. SMITH, Jr., Individually, as past Interim President of Jackson State University; Dr. James E. Lyons, Sr. in his official capacity as President of Jackson State University, Dr. Johnnie Mills-Jones, individually and in her official capacity as Dean, School of Education, Jackson State University, Dr. Anita H. Hall, individually and in her official capacity as Chair, Department of Curriculum and Instruction, Dr. Everette L. Witherspoon, individually and in his official capacity as Vice-President for Academic Affairs, Jackson State University and Frank Crostwhait, Nan Baker, Will Hickman, Sidney Rushing, Ricki Garrett, J. Marlin Ivey, James Luvene, Diane Miller, Dr. Cass Pennington, J.P. Mills, Carl Nicholson and William Crawford in their official capacities as members of the Board of Trustees of State Institutions of Higher Learning and Jackson State University, Defendants.
Civ. A. No. J92-0663(L)(C).
United States District Court, S.D. Mississippi, Jackson Division.
September 27, 1993.
*804 Dennis Horn, Horn & Payne, Jackson, MS, for plaintiff.
Maudine Eckford, Miss. Atty. Gen.'s Office, Jackson, for defendants.
*805 MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
On October 19, 1992, plaintiff Marie Roos brought this action pursuant to, inter alia, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983, alleging that defendants terminated her employment as a professor at Jackson State University in retaliation for her having exercised her right to free speech under the First Amendment of the United States Constitution.[1] She sought injunctive and declaratory relief, as well as monetary damages. Contemporaneously with the filing of her complaint, Dr. Roos separately moved for a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure requesting that the court enjoin defendants to maintain her employment as a professor at Jackson State at the beginning of this school year, which was scheduled for August 23, 1993. On August 13, 1993, a hearing on Dr. Roos' motion for preliminary injunction was held before the court at which extensive testimony and documentary evidence was presented. Based on the evidence adduced at that hearing, the court entered an order on August 19, 1993 granting plaintiff's motion for preliminary injunction and ordering defendants to maintain her employment.
During the hearing on the preliminary injunction motion, the parties represented to the court that they were at that time presenting most, if not all, of their evidence pertaining to the merits of plaintiff's claim. Consequently, the court advised and the parties agreed that the evidence submitted at that hearing would be considered by the court in reaching its decision on the merits of this case. Subsequently, on September 17, 1993, the case came on for trial on the merits and at that time, the parties were given an opportunity to present any additional evidence they deemed relevant to the issues presented.[2] Based on the evidence adduced at the preliminary injunction hearing and the supplementary proof introduced at the trial on the merits, the court makes the following findings and conclusions.
MOTION TO DISMISS
On August 9, 1993, prior to the referenced hearings, defendants moved to dismiss Dr. Roos' complaint on various grounds. They argued as follows: (1) Plaintiffs action, as well as any relief sought in the action, is barred by the Eleventh Amendment; (2) As to plaintiff's claim for damages against defendants in their individual capacities under § 1983, defendants have qualified immunity; (3) Plaintiff's claim that defendants violated her rights under the First Amendment cannot be maintained against defendants in their individual capacities since the First Amendment proscribes only actions by states and not by private parties; (4) As to plaintiffs Title VII claim, defendants Smith, Mills-Jones, Hall and Witherspoon, in their individual capacities, are not proper defendants as they are not "employers" within the meaning of Title VII; (5) Plaintiff has not alleged a viable claim of conspiracy against defendants under § 1985(3); and (6) Plaintiff is precluded from maintaining a § 1983 based upon the same conduct which is alleged as the basis of her Title VII claim. As to these matters, the court concludes as follows.
The Eleventh Amendment bars judgments under § 1983 against the state, or agencies or instrumentalities of the state, where such judgments would be paid out of the state treasury. Consequently, neither Jackson State, the Board of Trustees for Institutions of Higher Learning (IHL) nor *806 the individual defendants in their official capacities can incur monetary liability under § 1983.[3] However, the Eleventh Amendment does not bar claims for prospective injunctive relief under § 1983. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Nor does it operate to bar a judgment for money damages against the individual defendants in their individual capacities, unless the defendants, in their individual capacities, enjoy qualified immunity. With respect to plaintiff's claim under Title VII, the Supreme Court has held that state defendants are not immune under the Eleventh Amendment from money judgments for back pay. See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (Congress empowered to amend Title VII to require state entities guilty of discrimination to pay back pay).
Defendants Hall, Mills-Jones, Witherspoon and Smith, in their individual capacities, argue that they enjoy qualified immunity from suit, both under § 1983. Qualified immunity arises only where an official's conduct does not violate clearly established federal rights. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). It can hardly be reasonably contended that a state employee's right under the First Amendment to speak on matters of public concern is other than clearly established, and defendants agree that this is the case. Essentially, though, defendants maintain that they had reasonable grounds to believe that their conduct was lawful since they could reasonably have believed that their only consideration in non-renewing Dr. Roos was the need for the School of Education to meet NCATE standards. In other words, defendants reasonably believed their conduct was lawful because they believed they non-renewed Dr. Roos for reasons other than that alleged by Dr. Roos. Patently, defendants' argument goes directly to the merits of plaintiff's allegations in this case. And, if plaintiff were to prove her allegations as to the reason for her non-renewal, defendants would have no qualified immunity.[4] If she were to fail to prove her allegations, defendants would have no liability.
Defendants Smith, Mills-Jones, Hall and Witherspoon, in their individual capacities, contend additionally that they are not "employers" within the meaning of Title VII and that consequently, plaintiff's Title VII claim against them in their individual capacities must be dismissed. The court agrees, see Davis v. State Dept. of Health, 744 F.Supp. 756 (S.D.Miss.1990), and concludes that plaintiff may not proceed against these defendants under Title VII.
Though their argument on this point is not clear, defendants appear to contend that plaintiff's conspiracy claim against them in their official capacities under 42 U.S.C. § 1985(2) must be dismissed since defendants, in their official capacities, are, in effect, the University and since the University, as a single entity cannot conspire with itself. On this issue, defendants' motion is well taken. See, e.g., Hankins v. Dallas Indep. School Dist., 698 F.Supp. 1323 (N.D.Tex.1988) (school administrative officials acting within scope of duties constitute single legal entity which cannot conspire with itself); Barger v. Kansas, 620 F.Supp. 1432 (D.Kan.1985) (university officials could not conspire in their official capacities for purposes of § 1985(3)). The individual defendants *807 further argue that, as to any claim by plaintiff that they, in their individual capacities, conspired in violation of § 1985(2), plaintiffs claim must be dismissed for failure to sufficiently allege facts which would support a finding of conspiracy. To sustain a claim of conspiracy, plaintiff is required to show the following: (1) a possible motive, i.e., shared purpose; (2) minimal contact between defendants; and (3) the actual nature of the information conveyed. As the court's discussion infra of the merits of plaintiffs claim indicates,[5] there has been evidence presented that would substantiate a claim of conspiracy by two of the individual defendants, Dr. Anita Hall and Dr. Mills-Jones.[6] As to the remaining defendants, however, there is proof only that they approved a recommendation that Dr. Roos' contract not be renewed. There is no proof that they knew, or even should have known, of the reason that Dr. Roos was recommended for non-renewal. Consequently, plaintiff has demonstrated no factual basis for a claim of conspiracy by these individuals.
Defendants finally contend that plaintiff's claim under § 1983 claims is precluded by her Title VII claim. The court, however, concludes otherwise. See Wilson v. UT Health Center, 973 F.2d 1263, 1268 (5th Cir.1992) (Title VII does not preempt collateral § 1983 action based on same incident).
Having now addressed defendant's motion to dismiss, the court now proceeds to consider the merits of plaintiffs claims.
ANALYSIS
The plaintiff in this case, Dr. Marie Roos, is a sixty-year-old white female who was hired by Jackson State in August 1990 as a full professor in the Department of Curriculum and Instruction in Jackson State's School of Education. As a non-tenured professor at Jackson State, Dr. Roos' contract of employment was subject to renewal on a yearly basis and, after an initial contract for the 1990-91 school year, Dr. Roos signed two more one-year contracts for the 1991-92 and 1992-93 school years. However, in May 1992, she was notified that her contract would not be renewed for the 1993-94 school year. In this action, Dr. Roos alleges that defendants terminated her employment from Jackson State because of her participation as a witness in a Title VII race discrimination and retaliation lawsuit filed against the University by another white professor, Dr. Bettye R. Langley, Dr. Bettye R. Langley v. Jackson State University, Consolidated Case Nos. J86-0206(L) and J90-0038(B). Dr. Roos testified by deposition in the Langley case in January 1991 and later testified on behalf of Dr. Langley at the trial of the case in January 1992. In her deposition and trial testimony, Dr. Roos identified problems she had encountered during her tenure at Jackson State, and in particular, conflicts with the head of her department, Dr. Anita Hall, which Dr. Roos attributed, at least in part, to her race. Dr. Roos further expressed her general perception that whites were unwelcome at Jackson State. On April 13, 1992, this court rendered its decision in the Langley case. Dr. Roos received notification on May 11, 1993, less than a month later, that her contract of employment would not be renewed and would expire at the conclusion of the 1992-93 school year.[7]
As a non-tenured professor, Dr. Roos had no right or entitlement to continued employment at Jackson State and thus could have been terminated or non-renewed at any time, for any reason or no reason at all, unless the reason for that action infringed *808 her constitutionally protected interests, including her interest in freedom of speech. In this case, the parties agree that Dr. Roos' testimony in the Langley case amounted to free expression, protected under the First Amendment. Consequently, defendants would be liable if, in fact, Dr. Roos' having testified in the Langley case was a "substantial" or "motivating" factor in the decision to terminate her employment or not to renew her contract of employment. See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). As would be expected, however, the parties disagree as to the reason for defendants' decision not to renew Dr. Roos' employment.
Dr. Roos claims, obviously, that the decision to terminate her, which followed closely on the heels of this court's decision in Langley, was made because she gave testimony in favor of Dr. Langley and against Jackson State in that case. The University, on the other hand, insists that there were valid reasons, completely unrelated to Dr. Roos' First Amendment expression, that prompted her termination. Specifically, Jackson State claims that it non-renewed Dr. Roos in order to make room for the School of Education to hire a professor with qualifications that would enable the school to secure accreditation of its doctoral program in Early Childhood Education by the National Council for Accreditation of Teacher Education (NCATE). For a variety of reasons, the court is unable to credit Jackson State's stated reason for Dr. Roos' non-renewal. More to the point, the court is persuaded, based on the totality of the evidence, that Jackson State's decision to terminate Dr. Roos was motivated by her having testified in the Langley case and that its claim that it terminated Dr. Roos to move into a position for securing NCATE accreditation is merely a pretext for its true reason.
The court recognizes that the fact that Dr. Roos was notified only a few months after she testified in Langley and less than a month after this court's decision in Langley that she would not be renewed could be coincidental. The timing of the termination is relevant, but considered alone, proves little. When coupled with other facts, however, it takes on added significance. That is to say, in reaching its conclusion, the court is influenced by a number of factors, only one of which is the fact that Dr. Roos was terminated immediately after the Langley case concluded in this court. This brings the court to consideration of Jackson State's proffered reason for deciding to non-renew Dr. Roos.
The decision to recommend Dr. Roos for non-renewal was made initially by Dr. Anita Hall, a professor of elementary education at Jackson State and who was, from the fall of 1988 to June 11, 1993, Chair of the Department of Curriculum and Instruction in which Dr. Roos was employed. In her testimony before the court during the preliminary injunction hearing, Dr. Hall explained her decision. According to Dr. Hall, her department offered a degree in early childhood education, and was one of very few departments at Jackson State which offered a doctoral degree. Dr. Hall testified that in order to secure accreditation by NCATE for that doctoral program, the department was required to have a specific number of faculty members three with a doctoral degree in early childhood education. Dr. Hall stated that the composition of the faculty in her department did not satisfy this requirement and therefore, when the School of Education began to focus on meeting NCATE accreditation, she had to devise some means by which to acquire faculty members with the requisite degree. Initially, according to her testimony, she attempted to secure approval of additional personnel through Dr. Johnnie Mills-Jones, Dean of the School of Education. In January 1992, Dr. Mills-Jones, consistent with Dr. Hall's request, made a request of Dr. Everette Witherspoon, Vice-President for Academic Affairs, for funding for more faculty members. When that request was ultimately denied in April 1993 due to a lack of money, Dr. Hall was forced to consider alternatives. That is, she had to look internally to find someone to terminate so that the department could hire someone with the appropriate qualifications, i.e., a doctoral degree in early childhood education. The only available "resources," according to Dr. Hall, were professors in the department who were *809 non-tenured, and there were only two: Dr. Roos and Dr. Leroy Kemp.
Dr. Hall explained in her initial testimony that in choosing between these two, she considered the kinds of skills and service each brought to the department and the students, as well as the activities each engaged in with students. Ultimately, she determined that while both professors were proficient in instruction, Dr. Kemp was more valuable to the School of Education. He was involved in preparing students for the National Teacher Examination (NTE),[8] and was active in publishing articles and in securing other faculty members in the School of Education to co-author articles for publication. Because Dr. Kemp had more to offer, Dr. Hall selected Dr. Roos for non-renewal and, in accordance with University policy, recommended to Dr. Mills-Jones that Dr. Roos' contract not be renewed. Dr. Mills-Jones, in turn, made that recommendation to Dr. Witherspoon, who passed it along to Dr. Herman Smith, then president of Jackson State, and the Board of Trustees of Institutions of Higher Learning, which approved the non-renewal of Dr. Roos.
While on its face, this explanation by Dr. Hall seems plausible, when considered and examined more carefully in light of all the evidence presented, it does not withstand scrutiny. The first factor which, in the court's view, tends to undermine Dr. Hall's explanation in her testimony at the preliminary injunction hearing is her deposition testimony in this case. When asked during her deposition why she made the decision to recommend that Dr. Roos' contract not be renewed, Dr. Hall recited, as she did in her testimony at the preliminary injunction hearing, that the decision was made "[f]or the needs of the department at this time and meeting NCATE standards for the early childhood education doctorate degree." However, when asked specifically why Dr. Roos was chosen for non-renewal rather than Dr. Kemp, Dr. Hall responded immediately that the "secondary rationale for [her] decision between the two persons" was that "Dr. Roos is not a very supervisable person."[9] She reiterated this reason throughout her deposition, though she was careful to note that NCATE standards, and not Dr. Roos' lack of supervisability, was the primary rationale for her decision not to renew Dr. Roos' contract. In response to specific questioning in her deposition concerning Dr. Kemp's qualifications as a "team" member, versus those of Dr. Roos, Dr. Hall referred to Dr. Kemp's volunteer work. But the emphasis of her testimony, in marked contrast to her at the preliminary injunction hearing, was firmly on Dr. Roos' shortcomings (her lack of supervisability) rather than on Dr. Kemp's contributions. The contrast between Dr. Hall's deposition testimony and her testimony at the preliminary injunction hearing is all the more interesting in light of her testimony at the September 17 trial. Dr. Hall was, once again, asked to explain the reason for her choice of Dr. Roos for non-renewal rather than Dr. Kemp and at that time, she offered an angle on her non-renewal decision which, despite ample opportunity, had not previously been mentioned. At trial, Dr. Hall again described Dr. Kemp's outstanding contributions to the department and his support of students, and explained that whereas Dr. Kemp's efforts were aimed at promoting the students, the department and the University, Dr. Roos' efforts "were to personally promote Dr. Roos, the person."[10] The divergence in Dr. Hall's statements on each of the *810 occasions that she has testified in this cause place her testimony, on the whole, in doubt.[11]
A further factor which influences the court's decision in this case concerns the testimony of Dr. Hall and Dr. Mills-Jones relating to the "projected needs" of the Department of Curriculum and Instruction which are claimed to have led to the need for Dr. Roos' termination. Under the accreditation standards of NCATE, as read by Dr. Anita Hall and Dr. Johnnie Mills-Jones, a doctoral program must have at least three full-time faculty with doctorate degrees in early childhood education before it can receive accreditation for its doctoral program.[12] It is uncontroverted that at the time the decision was made not to renew Dr. Roos, there were no faculty members in the Department of Curriculum and Instruction holding doctoral degrees in early childhood education. However, Dr. Hall explained that though she needed three persons with doctorates in early childhood education in order to meet NCATE standards, she only needed to open up one position or "line" to fill the Department's needs. The death of another faculty member, Dr. Boyne Coates, in January 1992, had given her one slot which she could fill with someone appropriately qualified. And Dr. Hall hoped to have Dr. Gladys Johnson, a professor in the Special Education Department who had the requisite degree, transferred to her department. According to Dr. Hall, Dr. Roos' position was vacated as the third of the three positions needed to fulfill NCATE standards.
Like Dr. Hall, Dr. Mills-Jones testified that in order for the School of Education to receive NCATE accreditation of its doctoral program in early childhood education, three faculty members with doctorates in early childhood education were needed. There were none on the faculty when she first focused on the NCATE standards so she set about the task of securing the appropriate faculty. However, Dr. Mills-Jones' testimony concerning her specific plans for securing the appropriately degreed faculty differed from that of Dr. Hall. Dr. Mills-Jones explained that while she had requested approval of five new positions for faculty in the School of Education in January 1992, she received approval for only two. Of those two, she planned to use one for an early *811 childhood education professor.[13] That gave her one of the three slots she needed. The second she planned to acquire by transferring Gladys Johnson into the Department of Curriculum and Instruction. But she still needed one more faculty person with a terminal degree in early childhood education and therefore, she instructed Dr. Hall to look within her department at the faculty resources as they currently existed to find a way to meet this need. Ultimately, according to her testimony, Dr. Mills-Jones did not participate in Dr. Hall's decision to recommend Dr. Roos for non-renewal. She simply received and endorsed Dr. Hall's recommendation that Dr. Roos be terminated so that a slot would be available for hiring the needed additional faculty member with a doctorate in early childhood education.
Dr. Hall's testimony that Dr. Boyne Coates' death provided the first needed opening appears to contrast with that of Dr. Mills-Jones, who stated that the first slot came from the approval of a new line which she intended to fill with someone from outside the University with the requisite doctoral degree. Dr. Mills-Jones did not indicate that she considered the opening left by Dr. Coates' death, whereas Dr. Hall, in contrast, indicated that no new lines were approved which could be filled with someone with the needed degree. If, in fact, a new line was approved which was to be utilized for hiring someone with the requisite doctorate, and if, in fact, Dr. Coates' death provided a second open position, and if, in fact, it was planned that Dr. Johnson be transferred into the Department of Curriculum and Instruction, then there would have been no need to terminate Dr. Roos.
The court would observe that both of these witnesses did agree that one of the faculty members that was to count toward meeting the NCATE standards was to be Gladys Johnson, whom Dr. Mills-Jones planned to transfer from the Special Education Department to the Department of Curriculum and Instruction. Yet despite the professed "extreme" and "urgent" need in the Department of Curriculum and Instruction for persons with early childhood education doctorates, Dr. Johnson was not transferred, as allegedly planned, and was instead, at her request, relieved of the obligation to transfer and allowed to remain in special education because she complained to Dr. Mills-Jones of harassment of some sort. Even taking into account that Dr. Johnson may have complained of some perceived harassment, it seems odd, indeed, that Dr. Hall or Dr. Mills-Jones who, because of their urgent need for personnel would deprive one professor of her job altogether, would not insist that another professor simply transfer to another position to fill their need.[14] This, too, tends to suggest that the reason offered for terminating Dr. Roos is contrived.
The fact that Dr. Roos was hired in August 1990, and was terminated less than two years later tends, as well, to cause the court under the circumstances to view with suspicion defendants' contention that Dr. Roos was terminated because of the "projected needs" of the School of Education. That is, the court perceives no rational basis for concluding from the evidence in this case that the projected needs of the department would or should have changed in the short time between the date of Dr. Roos' employment and the date she was informed that her employment was to terminate.
First, there is no question but that Dr. Mills-Jones and Dr. Hall were aware, at the time Dr. Roos was hired in August 1990, that the degree programs offered in the School of Education, including the doctoral degree program in early childhood education, were to be submitted for NCATE accreditation in the not-too-distant future. And it is undisputed that the position which Dr. Roos was hired to fill was a tenure-track position. Yet these witnesses would have this court believe that the needs of the School of Education, and the Department of Curriculum and Instruction in particular, "changed" after she was hired, *812 thus necessitating her termination. It is uncontroverted, however, that there was no "change" in NCATE standards as they pertained to faculty requirements for doctoral degree programs. And though references have been made to "changes" in the composition of the faculty due to deaths, transfers, etc., the court is unable to discern how these "changes" affected the "needs" of the Department or how these "changes" made necessary the termination of Dr. Roos or any other faculty member.
It is the court's recollection that Dr. Mills-Jones testified before this court in the Langley case that one of the primary reasons she was hired by the University to head the School of Education was her experience with NCATE standards and review. The University, when she was hired in 1987, was intent at that time on achieving NCATE accreditation and she was viewed as someone who could help advance that goal. Indeed, there was extensive testimony concerning the fact that the doctoral program in early childhood education, due to perceived deficiencies in the program particularly relating to faculty, had not been "put up" for review by NCATE when NCATE had earlier conducted a review at Jackson State. Thus, as early as 1987, Jackson State was aware that specific efforts would be made to secure NCATE accreditation. In 1992, five years later, even though it appears that no significant progress had otherwise been made toward meeting NCATE's requirements (at least in the area of faculty composition), Dr. Roos was fired, allegedly to open a slot for someone with qualifications that would satisfy NCATE standards. No satisfactory explanation has been provided the court as to why defendants hired Dr. Roos in the first place, if indeed Jackson State wanted to secure the coveted NCATE accreditation and was ultimately willing to fire Dr. Roos to get it.
Dr. Mills-Jones suggested on one hand that she hired Dr. Roos not necessarily to fill a specific need of the department, but rather simply to fill a slot so that she would not lose an open slot to another department. But it is uncontroverted that Dr. Roos' position was a tenure-track position. Furthermore, there is no question but that Dr. Mills-Jones was aware of NCATE's faculty standards in 1990 when she hired Dr. Roos. If the University was motivated by its desire to meet NCATE standards, then it had that motivation in 1990 and nothing in that regard actually changed after that time.[15]
Nor have there been such changes in the composition of the faculty in the Department of the Curriculum and Instruction as would indicate any need to non-renew Dr. Roos. Dr. Mills testified that when the decision was made to non-renew Dr. Roos, the School of Education had a faculty "surplus" in the area of language and reading arts, and she named a number of professors qualified in that area, including Dr. Joyce Harris, Dr. Hall and Dr. Evelyn Leggett. But that surplus must also have existed when Dr. Roos was hired, as the testimony from this trial and the Langley trial shows that each of those professors was on the faculty at Jackson State when Dr. Roos was hired. This would certainly tend to suggest that Dr. Mills-Jones did not consider that Dr. Roos was "surplus" when she was hired. Moreover, Dr. Mills-Jones specifically testified that when she hired Dr. Roos, she considered the fact that "reading [was] coming back to the forefront," and she believed that in hiring Dr. Roos, she was looking to the future. She testified additionally that when she hired Dr. Roos, she believed *813 that Dr. Roos' degree would support the doctoral program in early childhood education because of the content area, i.e., reading and language arts. This testimony clearly belies her suggestion that Dr. Roos was merely hired to keep a slot available for future use.
Furthermore, though in May 1992, well over a year ago, a decision was made that Dr. Roos would no longer be on the faculty of Jackson State after May 1993, as of the date of the preliminary injunction hearing in this cause, no one had been transferred to or hired by the Department of Curriculum and Instruction with a doctoral degree in early childhood education. Again, despite the alleged urgent need for such personnel, Dr. Gladys Johnson was not made to transfer to the department. And the position left open as a result of Dr. Coates' death in January 1992, a year and a half later, remained unfilled. And though Dr. Mills-Jones testified that a new position was allocated to the department in May 1992, still no one was hired for that position. Though two persons from outside the University with doctoral degrees in early childhood education have now been hired, their hiring was not finalized until after the preliminary injunction hearing.[16]
With respect to the present composition of the faculty, it is also of note that a professor who was already on the faculty at Jackson State, Ophelia Kelly, graduated on August 1, 1993 from Jackson State with a doctorate degree in early childhood education. But Dr. Kelly was sent to Southern Illinois University for this 1993-94 academic year for additional training and thus, according to Dr. Mills-Jones, cannot be counted as one of the three faculty persons necessary to fulfill the NCATE standard requirements (even though presumably she will return the following year).[17] Consequently, even though two persons have been hired, the department still has a need for a third professor with a doctoral degree in early childhood education.[18] One must wonder, then, what was accomplished by the non-renewal of Dr. Roos.
In addition to the foregoing, it is of interest that since the decision was made not to renew Dr. Roos, Dr. Leroy Kemp's position was vacated in January 1993 as he was awarded the position of Director of Research in the University's Center for Excellence. And though he no longer holds his teaching position, no consideration has been given to filling his position with Dr. Roos. When first queried at the preliminary injunction hearing concerning the status of Dr. Kemp's former position, Dr. Mills-Jones stated that the position cannot be filled but must be kept open for Dr. Kemp since he has the option of returning to his former position at the conclusion of his directorship, which is a five-year position. On cross-examination, however, she then stated that Dr. Kemp's position can be filled, but that she has decided to "restructure" the position and fill it with someone with a social science degree with an emphasis in multi-culturalism and ethnicity, though she concedes that such restructuring is not required to satisfy NCATE standards. Although the eventuality of Dr. Kemp's vacating his teaching position transpired after Dr. Roos was notified of non-renewal, the court makes reference to this merely to make this point: Had Jackson State non-renewed Dr. Roos to open a position, Dr. Kemp's transfer accomplished that result. And, given that no one had been hired or had joined the Department of Curriculum and Instruction with the required doctoral degree as of the date of Dr. Kemp's transfer, it would certainly have been reasonable, if defendants' proffered reason were the true reason for its actions, to utilize Dr. Kemp's slot, rather *814 than Dr. Roos', for that purpose. Yet no consideration was given to that possibility.
Though all of the foregoing provides substantial support for the court's conclusion that Dr. Roos was not terminated because of any alleged need to meet NCATE standards, there is additional compelling evidence that the basis for her termination or non-renewal was her having testified in the Langley case. This evidence was provided by Dr. ReJohnna Brown, a professor of elementary education in the Department of Curriculum and Instruction at Jackson State. Dr. ReJohnna Brown was and is a close friend of Dr. Bettye Langley and, like Dr. Roos, provided deposition testimony in Dr. Langley's case which was unfavorable to Jackson State. Dr. Brown testified at the preliminary injunction hearing that after Dr. Langley filed her lawsuit against Jackson State, Dr. Brown encountered what she perceived was harassment and intimidation over trivial matters from her superiors. The problems intensified after she gave her deposition, and she perceived that certain actions taken with respect to her by Dr. Mills-Jones, in particular, were "mean-spirited." While Dr. Brown's testimony before the court in this proceeding was confusing in many respects, in one respect it was clear. Dr. Brown testified that in the course of a dispute with the administration concerning the downsizing of her office,[19] she overheard Dr. Hall state to Dr. Mills-Jones on the telephone, "She didn't have to go down there and spill her guts to the court." On this point, Dr. Brown's testimony was credible[20] and, coupled with the remainder of the evidence in this case, supports Dr. Roos' position that her participation as a witness in Dr. Langley's case was a motivating factor in the decision that her contract of employment with the University not be renewed.
The court previously enjoined defendants to maintain Dr. Roos' employment as a full professor in the Department of Curriculum and Instruction and that relief remains appropriate. Additionally, evidence submitted by Dr. Roos at the trial of this cause established that as a result of Jackson State's failure to employ her during the summer session of 1993, she sustained damages in the amount of $2,486.48.[21]
CONCLUSION
Based on the foregoing, it is ordered that plaintiff be reinstated to her job and all its rights and privileges. Further, it is ordered that plaintiff is entitled to recover the sum of $2,486.48.[22]
A separate judgment will be entered in accordance with Rule 58 of the Federal Rules of Civil Procedure.
ORDERED.
NOTES
[1] Plaintiff named as defendants Dr. Herman B. Smith, Jr., individually, as past Interim President of Jackson State University; Dr. James E. Lyons, Sr., in his official capacity as President of Jackson State University; Dr. Johnnie Mills-Jones, individually and in her official capacity as Dean of the School of Education at Jackson State University; Dr. Anita H. Hall, individually and in her official capacity as Chair of the Department of Curriculum and Instruction at Jackson State University; Dr. Everette L. Witherspoon, individually and in his official capacity as Vice-President for Academic Affairs at Jackson State University; Jackson State University; and each of the members of the Board of Trustees of State Institutions of Higher Learning in their official capacities.
[2] On September 21, 1993, the court entered an order consolidating the preliminary injunction hearing with the trial on the merits.
[3] As defendants correctly point out, the Board of Trustees of State Institutions of Higher Learning and Jackson State University are agencies of the state, and their respective officials are officials of the State of Mississippi for Eleventh Amendment purposes. See Jagnandan v. Giles, 538 F.2d 1166 (5th Cir.1976). (Mississippi State University is agency of State of Mississippi and University officials acting in official capacities acted as agents of state); see also Bruner v. University of Southern Mississippi, 501 So.2d 1113 (Miss. 1987) (University of Southern Mississippi is agency of State of Mississippi).
[4] Defendants Smith, Mills-Jones, Hall and Witherspoon, in their individual capacities, also argue that plaintiff's complaint under § 1983, predicated on a violation of the First Amendment, cannot be maintained since the First Amendment applies only to actions by states and not by private parties. And, inasmuch as all actions taken by these defendants were taken in their official capacities as University employees, plaintiffs cannot incur liability under § 1983 in their individual capacities. This argument is, likewise, without merit. Unless they enjoy qualified immunity for their actions, these defendants may be subjected to individual liability under § 1983.
[5] Since the court has received all of the evidence relative to plaintiff's claim, there is no need for the court to confine its analysis of the sufficiency of this claim to the allegations of the complaint.
[6] As to these two defendants, proof of a "conspiracy" avails plaintiff nothing, as the court concludes, infra, that they may be subject to individual liability for their actions in any event.
[7] Under Jackson State's policies, a non-tenured professor who has been employed by the University for two or fewer years must be given at least six months' notice of non-renewal. A professor who has been employed three or more years must receive twelve months' notice. Though she was hired by the University in August 1990 and hence had been with the University less than two years when the decision not to renew her contract was made, she was given twelve, rather than six months' notice of her non-renewal and consequently, she remained on the faculty of Jackson State for a full academic year following notice of her non-renewal.
[8] Dr. Hall maintained on direct examination that Dr. Kemp did this work with students voluntarily. On cross-examination, though, she admitted that this work was actually part of Dr. Kemp's assigned duties. That is, Dr. Kemp was assigned the task of working with students in preparation for the NTE and for this work, he received a one-hour reduction in his course load.
[9] She expounded on this statement in the following way:
Dr. Roos often takes, if recommendations, suggestions are made, it has been my personal experience with her that things are taken out of context, things are distorted, information is half provided when she returns, and just a compatibility within the team framework. I found it very difficult.
[10] Dr. Hall complained that Dr. Roos, unlike Dr. Kemp, did not make herself available for students and instead, came in only to teach her classes and leave.
[11] The court notes that in their brief in opposition to plaintiff's motion for preliminary injunction, defendants asserted that "[a] decision as to which faculty was based on looking at non-tenured Ph.D. positions, with a decision being made as to Dr. Roos because of lack of interpersonal skills and relationships, supervisability, and lack of academic support of students." These were not the reasons given at the preliminary injunction hearing or at the trial. And, in their supplementary proposed findings and conclusions, submitted after the conclusion of the trial, defendants asserted that plaintiff was chosen for non-renewal because "Dr. Kemp was a team player who promoted the Department and the School of Education while plaintiff only promoted herself." Again, this reason was not among those given in Dr. Hall's earlier testimony.
[12] The parties dispute whether NCATE standards actually require that Jackson State have three professors with terminal degrees in early childhood education as a prerequisite for accreditation of its doctoral program in early childhood. NCATE Standard 77 states that there must be:
sufficient numbers of faculty, including cooperating teachers and other field-based supervisors, to support programs offered by the unit. Each advanced degree program leading to the doctorate has at least three full-time faculty who have earned the doctorate in the field of specialization for which the degree is offered.
It would thus seem to impose such a requirement. However, Dr. Roos maintained that NCATE standards do not require doctoral degrees in early childhood education by three faculty members but rather, the standard may be met by faculty persons who have terminal degrees in a related area with an emphasis in early childhood education. And there is evidence to support this position. Testimony was elicited from Dr. Hall that at a time after she made the decision to non-renew Dr. Roos, she received information from an NCATE staff person that a terminal degree in early education was not mandated by NCATE standards. Dr. Hall maintained, though, that at the time she made the decision to non-renew Dr. Roos, she did not have the benefit of this interpretation and that she, in any event, felt she was bound by what the standard said and could not rely on some unofficial interpretation of the standard. While there is certainly evidence to support Dr. Roos' position concerning the requirements of NCATE, the court need not resolve this dispute for, in the court's opinion, even if NCATE did require terminal degrees in early childhood education by faculty members, that was not the basis for the University's decision to discharge Dr. Roos.
[13] The other she intended to use for a position in educational administration.
[14] The court would note that the nature of the "harassment" claimed by Dr. Johnson was not identified and further, that there has been no suggestion that any consideration was given to attempting to address and alleviate the alleged harassment.
[15] There has been testimony, particularly by Dr. Jones-Mills and Dr. Hall, that the School of Education did not actually begin to focus on NCATE accreditation until approximately the 1990-91 school year and was prior to that time involved in attempting to secure accreditation by the Southern Association of Colleges and Schools (SACS) and that SACS standards are different, i.e., less stringent, than NCATE standards. But if, in fact, NCATE standards are as exacting as defendants suggest, then it would seem that a program designed to meet NCATE standards would likewise satisfy SACS requirements. SACS, for example, required that the doctoral faculty include one person with a doctoral degree in the area of the offered degree, and additional faculty members with degrees in related fields. Surely, though, a doctoral degree in the degree field would qualify as a degree in a related field. Thus, it is difficult to conceive how efforts to devise or refine a program for the purpose of meeting NCATE requirements would not have been unavailing in the SACS review. In any event, it is apparent that NCATE was a matter of some concern for the University long before Dr. Roos was hired.
[16] There was testimony at trial that no one was immediately hired to fill the position vacated by the termination of Dr. Roos because until Dr. Roos' position was actually vacated, funding was not available to hire a new professor. However, while this may be so, it still does not explain why other vacancies were not filled when they became open.
[17] NCATE review is scheduled for the 1994-95 school year.
[18] Since Dr. Hall has recently resigned as head of the department, Dr. Mills-Jones testified that she hopes to fill this third position by hiring as the new chair someone with a doctorate in early childhood education.
[19] Dr. Brown felt that her office was being downsized in retribution for her participation in Dr. Langley's case.
[20] Though in their trial testimony, both Dr. Hall and Dr. Mills-Jones denied that this conversation occurred, they did not so testify at the preliminary injunction hearing, despite the clear opportunity to do so.
[21] Dr. Hall testified that had she remained as chair of the department, Dr. Roos would, in all likelihood, have been employed for the summer school session.
[22] Though Dr. Roos has requested damages for emotional distress and punitive damages, in the court's opinion, such an award is not supported by the evidence.
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634 F.Supp.2d 373 (2009)
Edward D. MULLINS, et al., Plaintiffs,
v.
CITY OF NEW YORK and the New York City Police Department, Defendants.
No. 04 Civ. 2979 (SAS).
United States District Court, S.D. New York.
June 9, 2009.
*377 Stephen P. Younger, Esq., Clay J. Pierce, Esq., Patterson Belknap Webb & Tyler LLP, New York, NY, Andrew Quinn, Esq., Quinn & Mellea, White Plains, NY, Gregory K. McGillivary, Esq., Woodley & McGillivary, Washington, DC, for Plaintiffs.
Lorie E. Almon, Esq., Jeremi L. Chylinski, Esq., Robert S. Witman, Esq., Seyfarth Shaw LLP, James M. Lemonedes, Andrez Carberry, Assistant Corporation Counsel, New York, NY, for Defendants.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge:
I. INTRODUCTION
Over 4,300 New York City police sergeants ("plaintiffs") have brought suit against the City of New York and the New York City Police Department ("NYPD") (collectively "defendants"), claiming systematic violation of their overtime rights under the Fair Labor Standards Act ("FLSA").[1] This lawsuit addresses the policies and practices of the nation's largest police department and the applicability of the FLSA to the intermediate ranks of law enforcement.
On March 21, 2008, this Court entered a preliminary injunction ("the March 21 Injunction") restraining defendants from commencing internal affairs investigations of plaintiffs concerning statements made during the course of the litigation.[2] Defendants appealed, and on January 27, 2009, the Second Circuit remanded the case for further proceedings.[3] For the reasons that follow, this Court leaves the March 21 Injunction in place.
II. BACKGROUND
A. Procedural History
Shortly after plaintiffs initiated this case, the parties commenced discovery *378 pursuant to a Joint Discovery Plan, which specifically ordered the parties to conduct discovery into whether plaintiffs are exempt from FLSA overtime protections. The December 2004 Scheduling Order further directed the parties to conduct discovery into plaintiffs' job duties. In light of the large number of plaintiffs, the parties entered into a stipulation in May 2005 agreeing to identify test plaintiffs from sixteen job categoriesorganized into three groupsso that discovery could proceed expeditiously and according to staggered deadlines.
The first group of test plaintiffs consisted of six job categories of sergeants from two departments. Following the close of discovery concerning the first group of sergeants, the parties cross-moved for summary judgment concerning whether plaintiffs are exempt from FLSA protections. On November 6, 2007, this Court denied plaintiffs' motion and granted defendants' motion in part.[4] The Court then conducted a five-day jury trial to resolve the remaining disputed issue of fact, namely whether plaintiff sergeants' "`suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.'"[5] On July 18, 2008, the jury answered in the affirmative. Finally, on October 17, 2008, this Court denied plaintiffs' renewed motion for judgment as a matter of law and motion for a new trial.[6]
Although the July 18 verdict placed the first six categories of sergeants outside the ambit of the FLSA, the claims of numerous categories of sergeants remain unresolved. In order to facilitate appeal, plaintiffs' attorneys are currently seeking the approval of the remaining ten categories of sergeants to a stipulated judgment that would apply the November 6, 2007 Opinion and Order and the July 18, 2008 verdict to all plaintiffs.[7]
B. Collection of Information Concerning Deposition Testimony
In January 2006, defendants' lead outside counselLorie Almon of Seyfarth Shaw LLPmet with Charles Campisi, Chief of the NYPD Internal Affairs Bureau ("LAB"), and several other NYPD officials to discuss deposition testimony. On January 19, Seyfarth Shaw sent transcripts of test plaintiffs' depositions to defendants.[8] The next day, the NYPD sent IAB lieutenants to NYPD commands to collect command logs, memo books, activity reports, overtime slips, and requests for leave reports from the test plaintiffs.[9] Although plaintiffs' counsel had been notified the previous month of defendants' intent to gather documents related to the test plaintiffs,[10] they were not warned of the date of *379 collection or that collection would be carried out by IAB.[11]
Plaintiffs' counsel immediately objected to the use of IAB to collect plaintiffs' documents, writing to defense counsel, "While some plaintiffs figured out after several anxious hours that the document collection pertained to the F.L.S.A. lawsuit, many of these individuals believed, and many are still concerned, that the IAB's involvement means that they are under investigation by the Police Department."[12] Numerous plaintiffs also communicated concerns to officials of the Sergeants Benevolent Association ("SBA"), plaintiffs' union.[13] At least a portion of plaintiffs who were asked for documents were not told why the documents were being collected, leading to speculation and concern.[14] Individual plaintiffs expressed concern that the involvement of IAB indicated that plaintiffs were under investigation or that the City intended to retaliate against them for their participation in this lawsuit.[15]
Document collection from sergeants is generally conducted by administrative lieutenants or integrity control officers ("ICOs") assigned to a particular command.[16] Although IAB officers occasionally collect documents from officers,[17] in most cases IAB only becomes involved if an officer is being arrested or is the subject of a disciplinary investigation.[18] The involvement of IAB led plaintiffs to believe that an investigation was beginning, which could result in severe penalties.[19]
C. Delay of Sergeant Edward Scott's Plea Bargain
As it turns out, plaintiffs' belief that IAB had begun to investigate them was accurate. On March 16, 2006, Sergeant Edward Scott's ICO appeared at Scott's scheduled deposition.[20] Ordinarily, ICOs review integrity issues within a commandsuch as time sheet protocol and report preparationand would not become involved in a civil lawsuit.[21] Although plaintiffs' counsel objected to the presence of an ICO, defendants insisted that Scott's ICO remain at the deposition.[22]
On March 11, 2008, Scott inquired into the status of a plea agreement he had entered concerning an unrelated charge of conducting personal business while on department time.[23] Scott learned that the plea agreement had not been referred to the NYPD Commissioner, a necessary condition to resolution of a patrol guide violation *380 by plea bargain.[24] Scott had been eligible to retire since January 28, 2008, after twenty years of service.[25] Although the NYPD cannot stop an officer from retiring,[26] there are negative consequences to filing a retirement application with pending charges: either the charges will not be addressed and the officer will not retire in good standing or the charges will be addressed via an expedited trial. In either case, the officer loses the possibility of a lenient plea bargain.[27]
The plea agreement had been deliberately delayed because Scott was under IAB investigation for making false statements in his 2006 deposition in this case.[28] As Scott believed that the delay constituted retaliation for participating in the FLSA lawsuit, he contacted an SBA representative to express his desire to drop out of the instant suit.[29] Although the City-Wide Secretary of the SBA convinced Scott to remain in this suit until plaintiffs' attorneys could address the delay, several other plaintiffs spoke with Scott to express their concern. Some sergeants stated that the investigation and delaywhich they viewed as retaliatorymade them consider dropping out of the lawsuit as well.[30] Some time after this Court entered the March 21 Injunction, Scott's plea agreement was forwarded to the NYPD Commissioner, who accepted the plea on May 21.[31] Scott retired that same day.[32] After entry of the preliminary injunction and resolution of the delay in processing his plea bargain, Scott chose to remain in the case.[33]
D. Interrogation of Sergeant Anthony Cioffi
Sergeant Anthony Cioffi gave deposition testimony in connection with this lawsuit on November 15, 2005.[34] Over a year laterin December 2006IAB Lieutenant Patrick Die cidue reviewed the transcript of Cioffi's deposition and concluded that Cioffi had made false statements under oath.[35] Although the allegations were noted in Cioffi's personnel file,[36] no actions were taken at the time, and Cioffi in fact received a promotion to sergeant specialist.[37]
On February 11, 2008fourteen months after the IAB review of Sergeant Cioffi's deposition transcript but a mere two months after this Court held that disputed issues of fact necessitated trialCioffi received a letter summoning him to appear the next day at the office of Chief Charles Campisi of IAB to submit to an interrogation as part of an investigation into "his apparent violations of NYPD rules and regulations."[38] At the interrogation known as a "GO-15"Lieutenant Die cidue *381 informed Cioffi that Seyfarth Shaw LLP had lodged allegations of perjury and false statements, both violations of the NYPD patrol guide.[39] Although Cioffi's attorney objected to the GO-15 as impermissible retaliation under the FLSA, Cioffi proceeded with the interrogation in light of the NYPD policy that any officer refusing to answer IAB questions is subject to immediate suspension and discipline.[40]
During the interrogationwhich lasted approximately four hoursSergeant Cioffi was questioned about specific responses given at his deposition, which the IAB interrogators referenced by page and line number from the deposition transcript.[41] The interrogators asked Sergeant Cioffi to explain his responses,[42] often rephrasing or reiterating the deposition questions,[43] posing hypotheticals,[44] and occasionally commenting on Sergeant Cioffi's responses[45] or informing Cioffi of his duties and obligations before posing questions concerning those same subjects.[46] Among his explanations, Cioffi stated that the difference between certain responses given at his deposition and those given at the GO-15 could be attributed to the distress as well as "duress" that he felt at points during the deposition.[47] Sergeant Cioffi also represented that he did not feel such distress or duress at the interrogation andas a resultthat his responses could now be regarded as more accurate.[48]
*382 Despite his statements during the interrogation, Cioffi told his SBA delegate that he had felt intimidated during his GO-15 and remained concerned that he would be demoted or incur some other penalty.[49] Within days of the interrogation, numerous sergeants had either called union representatives to express concern or discussed the interrogation at meetings.[50] Moreover, union representatives discussed the interrogation with each of the approximately twenty sergeants in Cioffi's unit. Despite Cioffi's unwillingness to express distress during the GO-15, concern quickly spread among NYPD sergeants.[51]
E. Effects of an Internal Affairs Investigation
As a general matter, NYPD officers subject to an IAB investigation face a litany of potential harms to their careers. First, an officer who refuses to "testify or to answer questions relating to the performance of... official duties ... will be subject to department charges, which would result in... dismissal from the Police Department."[52]Second, a finding by IAB that an officer intentionally made false statements subjects the officer "to disciplinary action [up to] and including dismissal."[53]Third, when an officer has reached a plea bargain concerning a violation of the NYPD patrol guide, if the officer is subject to another open investigation, "the processing of the recommended plea agreement may be delayed, withdrawn or amended while there is an independent processing of the open investigation or charges and specifications."[54]Fourth, if an officer with an open investigation files for retirement, the case will be resolved in an expedited manner, which allows the officer to retire but precludes resolution by plea bargain.[55]Fifth, IAB allegations both substantiated and unsubstantiated appear in an officer's Central Personnel Index ("CPI") entry, which affects the officer's level of discipline for future infractions and complicates an officer's request for transfers or promotions.[56]
F. Ongoing Concerns
On March 5, 2008, the Court issued a temporary restraining order enjoining defendants from:
(1) engaging in any further investigation of Sergeant Cioffi relating to his testimony or participation in this case;
(2) using plaintiff Cioffi's February 12, 2008 testimony as the basis for any disciplinary action; and
(3) investigating or disciplining any plaintiff in this matter based on his or her testimony or participation in this lawsuit.[57]
*383 On April 10, 2008, this Court issued a preliminary injunction restraining the same three categories of conduct.[58] After this Court issued the preliminary injunction, several plaintiffs that had previously discussed dropping out of the lawsuit determined that the risk had diminished and no longer sought to withdraw their claims.[59]
Prior to the commencement of the limited trial on July 14, 2008, several plaintiffs who were called to testify expressed renewed concern about the internal affairs investigation and potential repercussions of their testimony.[60] SBA officials specifically described the injunction to those sergeants slated to testify, who in turn expressed relief and testified.[61] Plaintiffs who were not a part of the July 2008 trial have also expressed concern over the IAB investigation of Sergeant Cioffi,[62] and one test plaintiff in a category that has not yet been tried stated that he would "absolutely" consider dropping out of the case if the injunction were lifted.[63]
G. Updated Proceedings
On January 27, 2009, the Second Circuit remanded this case for clarification and further fact-finding. First, the Circuit requested clarification as to whether plaintiffs' speech meets the "public concern" requirement of a public employee's First Amendment retaliation claim.[64]Second, the Circuit requested clarification of this Court's irreparable harm finding concerning the deprivation of First Amendment rights.[65]Third, the Circuit requested clarification of this Court's irreparable harm finding concerning the FLSA bar on witness intimidation.[66]Fourth, the Circuit requested clarification concerning the means by which the preliminary injunction would remedy potential irreparable harm that would occur in the absence of interim relief.[67]Fifth, the Circuit asked this Court to conduct further fact-finding in order to determine whether"in light of developments in the case"the preliminary injunction remains necessary.[68]Sixth, the Circuit asked the Court to consider whether a narrower injunction "would be sufficient to minimize or avoid any irreparable harm."[69]
On April 1 and April 8, 2009, this Court held a hearing concerning the ongoing need for the March 21 Injunction. Over defendants' objection, this Court accepted hearsay statements from sergeants with positions in the SBA with regard to concern voiced by dozens of other individually-named plaintiffs.[70] This Court accepted additional evidence from both parties in the form of declarations from plaintiff Edward Scott and Deputy Commissioner Julie L. Schwartz of the NYPD.[71] This Court *384 had previously accepted declarations when reviewing plaintiffs' initial request for a preliminary injunction as well.[72]
III. APPLICABLE LAW
A. Admission of Hearsay Evidence
"[T]he Court may consider hearsay evidence in a preliminary injunction hearing."[73] Nevertheless, a court may weigh evidence based on whether such evidence would be admissible under the Federal Rules of Evidence.[74]
B. Preliminary Injunction
"`The district court has wide discretion in determining whether to grant a preliminary injunction ....'"[75] Nonetheless, "`[a] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'"[76] "`A party seeking a preliminary injunction in this circuit must show: (1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor.'"[77]
In addressing the merits of the "ultimate case [underlying a motion for a preliminary injunction], a court is not called upon finally to decide the merits of the controversy."[78] "A district court may enter a preliminary injunction staying `government action taken in the public interest pursuant to a statutory or regulatory scheme' only when the moving party has demonstrated that ... there is a likelihood that he will succeed on the merits of *385 his claim."[79] However, courts have "adopted the `serious questions' standard to an injunction directed ... only to compel... defendants' compliance with federal and State law."[80] In such cases, although the government is a litigant, "no party has an exclusive claim on the public interest."[81]
C. FLSA Retaliation
Section 15(a)(3) of the FLSA declares that "it shall be unlawful for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding ...."[82] "To establish a prima facie case for retaliation, a plaintiff must demonstrate `participation in protected activity known to the defendant, an employment action disadvantaging the person engaged in the protected activity, and a causal connection between the protected activity and the adverse employment action.'"[83] Once a plaintiff establish a prima facie case, "the defendant has a burden of production `to articulate some legitimate, [non-retaliatory] reason' for the adverse action."[84]
An employment action disadvantages an employee engaged in a protected activity if a reasonable employee would have found the challenged action materially adverse, "which in this context means it well might have `dissuaded a reasonable worker from making or supporting a charge of discrimination.'"[85] The application of preexisting disciplinary policies to a plaintiff "without more, does not constitute adverse employment action."[86] However, "[a]n employee who knows that, [by pursuing a statutory claim], she risks a formal investigation a work. nd reprimandincluding a threat of `further, more serious discipline'... might well choose not to proceed with the litigation in the first place."[87]
"A plaintiff can establish the causal connection between protected [activities] and an adverse employment determination indirectly `by showing that the protected *386 activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus.'"[88]
D. First Amendment Retaliation
"Whether public employee speech is protected from retaliation under the First Amendment entails two inquiries: (1) `whether the employee spoke as a citizen on a matter of public concern' and, if so, (2) `whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.'"[89] "`Whether an employee's speech addresses a matter of public concern is a question of law for the court to decide, taking into account the content, form, and context of a given statement as revealed by the whole record.'"[90] The adequate justification defense reflects a balancing of "`the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'"[91]
"[Retaliation against the airing of generally personal grievances is not brought within the protection of the First Amendment by `the mere fact that one or two of [a public employee's] comments could be construed broadly to implicate matters of public concern.'"[92] However, the Second Circuit has "repeatedly held that discrimination in a government workplace is a matter of public concern," particularly where "lawsuits concern discrimination problems generally and were not limited to instances affecting only" a single plaintiff.[93]
E. Irreparable Harm
"`To satisfy the irreparable harm requirement, plaintiffs must demonstrate that absent a preliminary injunction they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.'"[94] Moreover, irreparable harm by definition "`cannot be remedied by an *387 award of monetary damages.'"[95] The Second Circuit has applied a "a particularly stringent standard for irreparable injury in government personnel cases."[96]
The Second Circuit has "not consistently presumed irreparable harm in cases involving allegations of the abridgement of First Amendment rights."[97] "Where a plaintiff alleges injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may be presumed."[98] "In contrast, in instances where a plaintiff alleges injury from a rule or regulation that may only potentially affect speech, the plaintiff must establish a causal link between the injunction sought and the alleged injury ...."[99]
Concerning FLSA claims, "[a] retaliatory discharge carries with it the distinct risk that other employees may be deterred from protecting their rights under the Act or from providing testimony for the plaintiff in her effort to protect her own rights. These risks may be found to constitute irreparable injury."[100] There is no presumption of irreparable injury in such cases; rather the Second Circuit has adopted a "case-by-case approach to requests for preliminary relief based on witness intimidation."[101] A preliminary injunction is appropriate when "immediate relief [is] the only form of relief that could mitigate the alleged harm of witness intimidation in the ongoing proceedings."[102]
IV. DISCUSSION
A. Hearsay Evidence
To begin, I again conclude that hearsay is admissible to support or to oppose an application for a preliminary injunction. A preliminary injunction is an interim remedy, and the burdensome requirements of trial testimony are at odds with its provisional purpose. Through affidavits and hearsay testimony, a court may maximize the breadth of evidence without necessitating hearings that span days or weeks.[103] Although exigent circumstances *388 provide an independent and supplemental justification for relaxing hearsay rules, they are not necessary for a court to admit hearsay testimony in a preliminary injunction hearing. In the instant case, the Court received the benefit of evidence of concern expressed by dozens of individually-named sergeants without the burden of a parade of witnesses and the loss of time by busy law enforcement officers.
B. Sufficiently Serious Question Going to the Merits
Before deciding whether plaintiffs face irreparable harm from defendants' continuing investigation of their testimony in this law suit, it is necessary to examine the nature of the claims at the root of the March 21 Injunction. As noted earlier, in order to obtain an injunction, plaintiffs must demonstrate either "a likelihood of success on the merits" or "sufficiently serious questions going to the merits."[104] Although government defendants undoubtedly act in what they perceive to be the public interest, they are not the only litigants who pursue public ends. In this case, NYPD regulations forbid officers from testifying falsely under oath in order to maintain the integrity of the NYPD and public faith in the police.[105] However the federal government expressly forbids employers from retaliating against employees who assert their rights under the FLSA, and the First Amendment protects civic discourse by forbidding retaliation under the color of law against citizens who speak on a matter of public concern. As both parties seek to implement public-minded policies, plaintiffs need only demonstrate sufficiently serious questions going to the merits in order to warrant a preliminary injunction.[106]
1. FLSA
Plaintiffs have not only demonstrated a sufficiently serious question going to the merits of a FLSA retaliation claim; they have also demonstrated a likelihood of success on the merits. By joining this action and providing deposition and trial testimony, plaintiffs undoubtedly engaged in protected activity known to the defendants. Moreover, as IAB specifically investigated the veracity of such testimony, the causal link between plaintiffs' protected activity and the investigations at issue are clear, and there is no need for the indirect proof typically offered in support of retaliation claims.
Whether the IAB investigations disadvantaged plaintiffs is only a marginally more difficult question. The initiation of an official investigation of any plaintiff for false statements or lying under oathwith termination from the NYPD as a possible *389 consequencewould deter a reasonable police officer from vigorously pursuing his or her statutory rights in court. Testimony expressing widespread concern among plaintiffs buttressed a conclusion that could have been reached using common sense alone. Employees who chose to join this lawsuit, were asked to testify, and subsequently were confronted with a line-by-line IAB investigation into their statements faced serious potential consequences, including direct sanctions, the loss of the procedural benefit of a plea bargain in unrelated matters, and a permanent entry in their CPI files. Those who chose not to join the suit faced no such consequences. Therefore, active IAB investigations constituted an adverse action to plaintiffs.[107]
Nor have defendants articulated a non-retaliatory reason for the adverse action.[108] Defendants first argue that plaintiffs were merely subject to existing disciplinary policies that punish NYPD officers for making false statements.[109] However, the deposition testimony at issue is not the type of statement ordinarily subject to a perjury prosecution or analogous administrative proceedings.[110] Sergeant Cioffi was asked questions concerning his mind-set when he carried out certain acts,[111] distinctions between pairs of nearly synonymous terms such as "boss" and "supervisor,"[112] and duties that were not directly linked to his deposition testimony.[113] The transcript of the interrogation reveals lieutenants seeking concessions and modifications of testimony, rather than an investigation of a willful assertion of a material fact known to be false.[114] Nor is it the routine policy of the NYPD to carry out GO-15 interrogations in the office of the head of IAB. Thus it is clear that the investigations at issue went beyond routine application of *390 existing disciplinary policies.[115]
In the alternative, defendants argue that correction of Sergeant Cioffi's deposition testimony was necessary because his statements concerning sergeants' supervisory dutiesif believedwould cause severe disruption to the operation of the NYPD.[116] However, defendants have submitted no evidence concerning Sergeant Cioffi failing to carry out his supervisory duties. Nor have defendants provided evidence that other sergeants took heed of Cioffi's deposition and failed to perform their own duties as a result of the purportedly false testimony. Under the burden-shifting framework applicable to FLSA retaliation claims, the burden to present evidence of a non-retaliatory basis for the adverse action falls on the employer. Defendants have failed to meet this burden.
Therefore, plaintiffs have carried their burden to establish a sufficiently serious question going to the merits of their FLSA retaliation claim. Moreover, plaintiffs have exceeded their legal burden by demonstrating a likelihood of success on the merits.
2. First Amendment
Plaintiffs' FLSA retaliation claim is sufficient to sustain the preliminary injunction; their First Amendment claim simply provides an alternative basis for the provisional relief.[117] Again, although plaintiffs need only demonstrate a sufficiently serious question going to the merits of their First Amendment retaliation claim, they have demonstrated a likelihood of success on the merits of this claim as well.
By testifying in this case, plaintiffs have spoken as citizens on a matter of public concern. Plaintiffs raise claims concerning the department-wide practices of the nation's largest police force. Their complaints are not limited to rogue discrimination by a single supervisor or a single unlawful benefits determination. Rather, plaintiffs assert that one of the largest public sector employers in the United States systemically violates federal labor law. Although plaintiffs are undoubtedly self-interested employees, they also challenge a longstanding employment practice that will affect future generations of NYPD sergeants and may indirectly affect other police departments around the nation.[118] Moreover, the form and context of the speech at issuedescriptions of officers' duties and responsibilities given in depositions and on the witness stand at trialcries out for protection from retaliation by a government defendant in order to secure access to the courts.[119] Allegations of officially-sanctioned and wide-spread *391 public wrongdoing remain within the protection of the First Amendment, even when voiced by a public employee.
Nor have defendants presented an adequate justification for their investigation of plaintiffs. This inquiry parallels defendants' burden to produce a non-retaliatory reason for adverse action taken against an individual who has demonstrated a prima facie case of FLSA retaliation. For the same reasons that defendants have failed to carry their burden to demonstrate a non-retaliatory basis for the interrogation of Sergeant Cioffi or for other interrogations they would carry out if the preliminary injunction were lifted, they have failed to demonstrate that the efficient function of government requires the NYPD to interrogate plaintiffs concerning their deposition and trial testimony.
Therefore, plaintiffs have carried their burden to establish a sufficiently serious question going to the merits of their First Amendment claim. Moreover, plaintiffs have exceeded their legal burden by demonstrating a likelihood of success on the merits.
C. Irreparable Harm
1. FLSA
Absent a preliminary injunction, plaintiffs face actual and imminent harm that cannot be remedied if this Court were to delay injunctive relief until a final judgment is reached. Testimony at the preliminary injunction hearing conclusively demonstrated that an officer summoned to IAB fears for his career. Once under investigation, an officer may lose accrued benefits and possibly his or her job. Even if the officer is acquitted, an IAB investigation is a fair subject of inquiry when an officer seeks a favorable transfer or promotion.
In theory, this Court could provide ex post remedies to a portion of the harm plaintiffs would suffer in the absence of a preliminary injunction. Sergeants could be reinstated, disciplinary records could be expunged, and plaintiffs could be awarded back-pay. But not all direct effects of an IAB investigation can be remedied after the fact. This Court cannot return days, months, or years spent doing police work to a plaintiff like Sergeant Scott who cannot retire absent severe consequences during a pending investigation.[120]
More generally, the evidence presented clearly shows that absent injunctive relief numerous plaintiffs would likely (and reasonably) withdraw from this litigation rather than testify and face a line-by-line IAB interrogation and the possibility of sanction or dismissal. As described above, plaintiffs have presented evidence of substantial coercion and demonstrated a likelihood of success on the underlying claim.[121]*392 The loss of plaintiffs' claims by coerced but "voluntary" dismissal is irreparable. The FLSA anti-retaliation provision guarantees that an employee claiming inadequate compensation may testify without fear of adverse employment actions. Moreover, adjudication without the benefit of testimony that would have been provided by sergeants who have withdrawn from a lawsuit out of fear constitutes irreparable harm to the remaining plaintiffs.
2. First Amendment
This is not a case where government actors have directly limited speech through a prior restraint or even a declaration that particular speech will be criminalized. Nevertheless, a clear causal link exists between defendants' conduct and the deprivation of plaintiffs' First Amendment rights. The threat of investigation is not conjectural. IAB interrogations have occurred, andas demonstrated by defendants' opposition to the March 21 Injunctionthey will be recommenced absent continuing court intervention. Nor have defendants limited their investigations to plaintiffs who made glaring and objectively false statements. Rather IAB collected documents from every test plaintiff, and defendants sent an ICO to Sergeant Scott's pretrial deposition in this case before he had provided any testimony.
If the NYPD were permitted to interrogate each testifying sergeant, plaintiffs would be faced with the choice of modifying their testimony or risking dismissal from the NYPD. This directly harms plaintiffs' ability to speak their own version of the truthas opposed to the government's version of the truthconcerning the employment practices of NYPD. Thus deprivation of First Amendment rights directly results from defendants' actions. In such cases plaintiffs are irreparably harmed as is the public discourse protected by our nation's free speech guarantees. Therefore, plaintiffs have demonstrated irreparable harm to First Amendment interests sufficient to support a preliminary injunction.
D. Balance of Hardships
As described above, recommenced NYPD interrogations would create substantial hardships for plaintiffs in the form of irreparable harms. Defendants assert that without the ability to investigate plaintiffs, they too will face substantial hardship. Defendants argue that allowing purportedly false testimony to stand for the duration of the litigation will disrupt the operations of the NYPD and undermine the public's trust in its police force. However, I decline to credit this argument, as defendants have presented no evidence to support these bald assertions.
Nor does the presentation of purportedly false testimony unreasonably harm defendants in this litigation. Like every other litigant, defendants may use cross-examination to root out false statements. The NYPD cannot assume the role of fact-finder and determine the "truth" to which a juryand thus the publicmay be exposed. It is in "the NYPD's interest to maintain the credibility of the NYPD," and it is in the public's interest to maintain an honest police force.[122] The NYPD may nothowevervouch for its own credibility by prejudging the testimony of its officers. Moreover, selective investigation of the full breadth of testifying plaintiffs' statementsfar beyond what is objectively verifiable or willfully falsefar exceeds the goal of maintaining the integrity of the NYPD. Therefore, the balance of hardships favors continuation of the March 21 Injunction.
*393 E. Continuing Need
Although a trial has occurred, this litigation is by no means over. Two categories of plaintiffs have not yet had their claims heard, and although plaintiffs' attorneys are attempting to convince each plaintiff to join a stipulated judgment, the attorneys' success is by no means guaranteed. Moreover, should the Second Circuit reverse either this Court's summary judgment opinion or its opinion denying plaintiffs' renewed motion for judgment as a matter of law and motion for a new trial, a second trial for the first group of plaintiffs may be necessary. It is entirely possible that new testimony will be required. If this Court were to lift the preliminary injunction now and allow investigations and later find a need for additional testimony, the evidence has shown that numerous plaintiffs would likely abandon this suit rather than testify. Even if the Court were to reinstate the preliminary injunction at a later date, it could not credibly reassure plaintiffs that they would not face retaliation for their testimony. Therefore, the March 21 Injunction remains necessary.
F. Scope of the Injunction
Although the scope of a preliminary injunction is ordinarily a matter of discretion reserved to the district court, the Second Circuit has expressly requested explanation of both the remedial effect of the March 21 Injunction and whether narrower relief would suffice to achieve similar results. I will answer each question in turn.
The nature of the harm describedas well as the individual experience of Sergeant Scottmakes the remedial effect of the March 21 Injunction clear. At the recent hearing, plaintiffs presented substantial evidence that numerous plaintiffs grew extremely concerned about testifying just before the commencement of the trial concerning the first group of sergeants. Only after plaintiffs' attorneys explained that the preliminary injunction protected plaintiffs from retaliatory investigations did those sergeants decide to continue with the lawsuit. Thus the March 21 Injunction countered the witness intimidation that resulted from the pattern of IAB investigations. Should this Court require further testimony in this litigation, the continued presence of an injunction will be needed to reassure plaintiffs that they may testify without fearing for their livelihoods.
Similarly, with the March 21 Injunction in place Sergeant Scott was permitted to receive the benefit of a negotiated plea bargain and retire after more than twenty years of servicealbeit later than he would have retired had he never been investigated. Had IAB been permitted to continue its investigation, Scott would have been unable to resolve his prior patrol manual violation by plea bargain until IAB deemed its investigation complete, forcing him to choose between not retiring or losing the benefit of his plea bargain. Should investigations be allowed to recommence, other sergeants will have open, unsubstantiated investigations pending at the time they wish to retire.
Finally, the injunction has preserved plaintiffs' ability to tell their version of the truth concerning the employment policies of the NYPD, a matter of public concern. Had each plaintiff been subject to investigation by IAB in the same manner as Sergeant Cioffi, the NYPD could have pressured each plaintiff in turn to modify his testimony, just as Sergeant Cioffi agreed to modify his deposition testimony when his job was on the line. Behind closed doors, the NYPD could have established its own version of the truth, effectively binding plaintiffs to present a government-sanctioned story to the public, particularly to a jury. In a lawsuit, such *394 determinations of the truth are left to a jury, and accusations of falsity are levied through cross examination. The imposition of the March 21 Injunction directly prevented the NYPD from imposing its version of the truth prior to plaintiffs' public testimony, preserving plaintiffs' First Amendment rights.
Nor would a narrower injunction afford similar relief. The March 21 Injunction barred all investigation and discipline of plaintiffs concerning their testimony or participation in this lawsuit. At no point would mere participation in this lawsuit be an appropriate basis for investigation or punishment. Such actions would constitute retaliation in its simplest form. While the suit remains pending, permitting investigation of particular testimony would similarly undermine the efficacy of the injunction. Defendants' ability to seek modification of plaintiffs' testimony during such an investigationwith an officer's job hanging in the balancedirectly threatens First Amendment rights. Moreover, plaintiffs have shown that active investigations provide a successful deterrent to participation in this suit, and any narrower injunction permitting IAB investigations would likely lead to plaintiffs abandoning this suit or refusing to testify in order to avoid a risk to their livelihood.[123]
V. CONCLUSION
This ruling does not permanently enjoin defendants. Nor does it provide plaintiffs with carte blanche to lie under oath to this Court or to any other. However given defendants' past behavior in this litigation and the genuine concern expressed by plaintiffs, as long as this litigation continues, this Court will protect plaintiffs from IAB interrogation. Thus plaintiffs can rest assured that they may actively participate in this case without fear of retaliation.
For the reasons set forth above, the April 12, 2008 Preliminary Injunction remains in place. The parties are to inform the Clerk of the United States Court of Appeals for the Second Circuit of this Opinion and Order by letter within ten days.
SO ORDERED.
NOTES
[1] 29 U.S.C. §§ 201-219.
[2] This Court entered an Amended Opinion and Order on April 9, 2008. See Mullins v. City of New York, 554 F.Supp.2d 483 (S.D.N.Y.2008), remanded, 307 Fed.Appx. 585 (2d Cir.2009).
[3] See Mullins v. City of New York, 307 Fed. Appx. 585 (2d Cir.2009).
[4] See Mullins v. City of New York, 523 F.Supp.2d 339 (S.D.N.Y.2007).
[5] Id. at 359 (quoting 29 C.F.R. § 541.100).
[6] See Mullins v. City of New York, No. 04 Civ. 2979, 2008 WL 4620709 (S.D.N.Y. Oct. 17, 2008). On December 18, 2008, this Court granted defendants' motion for reconsideration of the October 17 Opinion and Order but adhered to the original decision. See Mullins v. City of New York, No. 04 Civ. 2979, 2008 WL 5329313 (S.D.N.Y. Dec. 18, 2008).
[7] See 3/27/09 Letter from Gregory K. McGillivary, plaintiffs' attorney, to the Court, Pl. Hearing Ex. 4.
[8] See 3/4/08 Declaration of Lorie E. Almon, defendants' attorney, ¶¶ 2-3.
[9] See April 2009 Preliminary Injunction Hearing Transcript ("Tr.") at 20:14-21:17, 23:12-23:23.
[10] See 1/23/06 Letter from Almon to McGillivary, Def. Hearing Ex. 7.
[11] See 1/20/06 Letter from McGillivary to Almon, PI. Hearing Ex. 1.
[12] Id. at 2.
[13] See Tr. at 27:15-30:2.
[14] See id. at 114:10-115:10.
[15] See id. at 26:25-28:24, 114:10-19, 127:2-15. See also 1/21/06 e-mail from Brian J. Coughlan to Paul Capotosto, SBA City-Wide Secretary (describing the IAB document collection from "active participants in the FLSA suit" as "Goon Tactics").
[16] See Tr. at 113:18-114:4.
[17] See 1/23/06 Letter from Almon to McGillivary.
[18] See Tr. at 132:10-14.
[19] See id. at 115:5-10.
[20] See 4/16/09 Declaration of Edward Scott ("Scott Decl.") ¶¶ 13-14.
[21] See id. ¶ 16.
[22] See 4/4/06 Letter from McGillivary to Almon, Def. Hearing Ex. 12, at 4.
[23] See Scott Decl. ¶¶ 19, 21, 28. See also 4/23/09 Declaration of Julie L. Schwartz ("Schwartz Decl."), Deputy Commissioner, NYPD, ¶ 30 (describing Sergeant Scott's negotiated proposed plea agreement).
[24] See Scott Decl. ¶ 28.
[25] See id. ¶ 25.
[26] See Schwartz Decl. ¶ 32.
[27] See Scott Decl. ¶¶ 23-24, 31; Schwartz Decl. ¶¶ 27, 33.
[28] See Schwartz Decl. ¶ 34.
[29] See Scott Decl. ¶¶ 32-37. But see Schwartz Decl. ¶ 40 (stating that the IAB investigation would not have been closed if Scott had withdrawn from this lawsuit).
[30] See Scott Decl. ¶¶ 39-43.
[31] See id. 147; Schwartz Decl. 141.
[32] See Schwartz Decl. ¶ 42.
[33] See Scott Decl. ¶ 46.
[34] See 3/4/08 Declaration of Patrick Die cidue, IAB Lieutenant, ¶¶ 3-4.
[35] See id.
[36] See Schwartz Decl. ¶ 47.
[37] See Tr. at 99:12-100:1. It is not clear from the record if the promotion occurred before or after Die cidue reviewed the deposition transcript.
[38] 2/12/08 Letter from Andrew C. Quinn, plaintiffs' attorney, to Almon, Pl. Hearing Ex. 24A. This was an unusual and high-profile location for an IAB interrogation. See Tr. at 39:16-40:6.
[39] See Transcript, In the Matter of Sgt. Anthony Cioffi, Case # 8394569 ("GO-15 Tr.") at 6:1-4, PI. Hearing Ex. 53.
[40] See id. at 6:8-21.
[41] See, e.g., id. at 116:21-23 ("LT. DIE CIDUE: [Line] 5: `Your team does not produce results[,] there is absolutely no consequence to you as a sergeant?' [Line] 7: `To me, no. We do what we can.' Would there [be] consequences if your team does not produce?").
[42] See, e.g., id. at 58:6-13 ("LT. DIE CIDUE: Can you explainthis is your testimony, correct? SGT. CIOFFI: Yes. LT. DIE CIDUE: Can you explain what you meant when you responded this way?").
[43] See, e.g., id. at 70:2-5 ("LT. DIE CIDUE: [Line] 21, Question: `Do you review the computer generated reports?' Answer: `Review them? No. At times, I look them over, but I don't review them.' Can you explain what you mean by your statements here? You're asking, you're asked if you review them. Do you review reports?").
[44] See, e.g., id. at 87:1-2 ("LT. DIE CIDUE: Would you tell a cop, a uniformed cop or one of your cops to stand there on that crime scene when you go out and look for the bad guy?").
[45] See, e.g., id. at 94:13-14 ("LT. MICHAEL DORSEY: Okay. Because your answer to me sounds like you're demeaning yourself here and in this whole sense now."); id. at 86:1-4 ("LT. DIE CIDUE: Your answer is saying again, not taking charge of a crime scene. SGT. CIOFFI: Right. LT. DIE CIDUE: Why would you say that?").
[46] See id. at 68:20-69:7 ("LT. DIE CIDUE: Sergeant, as people as police officers we have obligations. As supervisors, as a sergeant, you have obligations[. A]s a lieutenant, I have obligations. All right, feelings and stuff, they don't get in the way too much. Okay? Let's try and make that clear here, all right? The warm and fuzziness, you're a supervisor, I'm asking you a question, how'd you handle something as a supervisor. Not the warm and fuzziness of, well, it's my team and everything else, and we work together, and it's we. It's you're the sergeant, they're the officers.").
[47] See, e.g., id. at 113:3-7 ("SGT. ANTHONY CIOFFI: Again, this was a time when [defendants' attorney] was kind of just firing off questions at me and being a little abrasive.... Again, this answer[,] I was probably under a little bit of duress.").
[48] See id. at 115:20-116:8 ("LT. MICHAEL DORSEY: Sergeant, Sarge, are you under duress right now? Are you giving these answers freely? SGT. ANTHONY CIOFFI: No, I'm giving these answers freely.... LT. MICHAEL DORSEY: So the answers you're giving now are more accurate answers than what you previously gave? SGT. ANTHONY CIOFFI: Obviously, yes.").
[49] See Tr. at 45:7-13, 72:17-24.
[50] See id. at 46:7-48:18.
[51] See id. at 92:10-93:5.
[52] GO-15 Tr. at 4:20-5:1.
[53] Id. at 5:5-8. Accord id. at 5:8-14 ("Intentionally making a false official statement regarding a material matter will result in dismissal from the Department absent exceptional circumstances.... Examples of circumstances in which false statements may arise [include] but are not limited to lying under oath during a civil ... proceeding....").
[54] Schwartz Decl. ¶ 13.
[55] See id. ¶¶ 24-27.
[56] See id. ¶¶ 46-47. Although in some cases an officer will still receive a favorable transfer or promotion despite the presence of allegations in his or her CPI entry, see id. 147; Tr. at 99:12-100:1, an officer whose CPI entry contains charges and specifications must address them during an interview for a transfer or promotion, even if the officer was exonerated. See Tr. at 134:2-13.
[57] Order, Mullins v. City of New York, 04 Civ. 2979, Docket No. 81 (S.D.N.Y. Mar. 5, 2008).
[58] See Mullins, 554 F.Supp.2d at 494.
[59] See Tr. at 139:2-141:14.
[60] See id. at 52:7-22.
[61] See id. at 53:2-15.
[62] See id. at 116:3-24.
[63] Id. at 116:10-12.
[64] Mullins, 307 Fed.Appx. at 586-87 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)).
[65] See id. at 587.
[66] See id.
[67] See id. at 587-88.
[68] Id. at 588
[69] See id.
[70] See Tr. at 10:19-22. See also, e.g., id. at 27:15-29:18 (naming individual sergeants).
[71] This Court received an additional declaration from Andrew C. Quinn, plaintiffs' attorney. See 4/27/09 Declaration of Andrew C. Quinn. Defendants objected to the submission of the Quinn declaration as outside the parties' agreement concerning the submission of declarations, supplementation of a closed record, and a violation of the advocate-witness rule. See Defendants' Proposed Findings of Fact Concerning the Continuation of the Preliminary Injunction at 5 n. 4. As the Quinn Declaration merely provides clarification of information already before the Court, it will not be considered in order to avoid advocate-witness concerns. See Ramey v. District 141, Int'l Assoc. of Machinists & Aerospace Workers, 378 F.3d 269, 283 (2d Cir.2004) (noting that an attorney may be disqualified in either a representational capacity or a testimonial capacity and aiming to avoid any disqualification).
[72] See, e.g., Mullins, 554 F.Supp.2d at 492 n. 50 (citing 3/4/08 Almon Declaration).
[73] Zeneca Inc. v. Eli Lilly & Co., No. 99 Civ. 1452, 1999 WL 509471, at *2 (S.D.N.Y. July 19, 1999). Accord Houdini Inc. v. Goody Baskets LLC, 166 Fed.Appx. 946 (9th Cir.2006) ("[T]he district court did not abuse its discretion in considering hearsay ... because the rules of evidence do not strictly apply to preliminary injunction proceedings." (citing, inter alia, Republic of the Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir.1988))); Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 718 (3d Cir.2004) (collecting several circuit decisions).
[74] See Zeneca, 1999 WL 509471, at *2. See also Securities Exchange Comm'n v. Musella, 578 F.Supp. 425, 427-28 (S.D.N.Y.1984) (noting that a court need not discount hearsay evidence presented in an application for a preliminary injunction hearing if such evidence is found to be "inherently trustworthy").
[75] Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir.2007) (quoting Moore v. Consolidated Edison, 409 F.3d 506, 511 (2d Cir.2005)). Accord Somoza v. New York City Dep't of Educ, 538 F.3d 106, 112 (2d Cir.2008) (noting that a district court decision concerning a preliminary injunction is reviewed for abuse of discretion).
[76] Sussman v. Crawford, 488 F.3d 136, 139-40 (2d Cir.2007) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997)).
[77] County of Nassau, N Y. v. Leavitt, 524 F.3d 408, 414 (2d Cir.2008) (quoting NXIVM Corp. v. Ross Inst., 364 F.3d 471, 476 (2d Cir. 2004)).
[78] Gibson v. U.S. Immigration & Naturalization Serv., 541 F.Supp. 131, 137 (S.D.N.Y. 1982) (citation omitted).
[79] Alleyne v. N.Y. State Educ. Dep't, 516 F.3d 96, 101 (2d Cir.2008) (quoting Mastrovincenzo v. City of New York, 435 F.3d 78, 89 (2d Cir.2006)). Accord Able v. United States, 44 F.3d 128, 131 (2d Cir.1995) ("[W]here the full play of the democratic process involving both the legislative and executive branches has produced a policy in the name of the public interest embodied in a statute and implementing regulations, our role in reviewing that determination for the purpose of deciding whether to apply the `serious questions' or `likelihood of success' standard is severely limited.").
[80] Reynolds v. Giuliani, 35 F.Supp.2d 331, 339 (S.D.N.Y. 1999) (citing, inter alia, Carey v. Klutznick, 637 F.2d 834 (2d Cir.1980)).
[81] Haitian Ctrs. Council v. McNary, 969 F.2d 1326, 1339 (2d Cir.1992) (citing Almonte v. Pierce, 666 F.Supp. 517, 526 (S.D.N.Y. 1987)), vacated as moot, 509 U.S. 918, 113 S.Ct. 3028, 125 L.Ed.2d 716 (1993).
[82] 29 U.S.C. § 215(a)(3).
[83] Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir.2000) (quoting Johnson v. Palma, 931 F.2d 203, 207 (2d Cir.1991)).
[84] Brock v. Casey Truck Sales, Inc., 839 F.2d 872, 876 (2d Cir.1988) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).
[85] Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (interpreting the analogous requirement of a Title VII retaliation claim) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006)).
[86] Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006).
[87] Billings v. Town of Grafton, 515 F.3d 39, 54-55 (1st Cir.2008) (quoting Burlington Northern, 548 U.S. at 73, 126 S.Ct. 2405).
[88] Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2004) (quoting Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999)).
[89] Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (quoting Garcetti, 547 U.S. at 418, 126 S.Ct. 1951). Accord Garcetti, 547 U.S. at 418, 126 S.Ct. 1951 ("A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations."). The Second Circuit had previously framed the inquiry as a three-pronged test. See Skehan v. Village of Mamaroneck, 465 F.3d 96, 106 (2d Cir.2006) ("In order to establish a First Amendment retaliation claim, plaintiffs must prove that: (1) they engaged in constitutionally protected speech because they spoke as citizens on a matter of public concern; (2) they suffered an adverse employment action; and (3) the speech was a `motivating factor' in the adverse employment decision." (citing, inter alia, Gronowski v. Spencer, 424 F.3d 285, 292 (2d Cir.2005))). These tests are intended to be substantively identical. See Ruotolo, 514 F.3d at 188.
[90] Ruotolo, 514 F.3d at 189 (quoting Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir.1999)).
[91] Piscottano v. Murphy, 511 F.3d 247, 269 (2d Cir.2007) (quoting Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)).
[92] Ruotolo, 514 F.3d at 190 (quoting Ezekwo v. New York City Health & Hosp. Corp., 940 F.2d 775, 781 (2d Cir.1991)). Accord id. ("A generalized public interest in the fair or proper treatment of public employees is not enough.").
[93] Cotarelo v. Village of Sleepy Hollow Police Dep't, 460 F.3d 247, 252 (2d Cir.2006) (citing, inter alia, Konits v. Valley Stream Cent. High Sch. Dist., 394 F.3d 121, 125 (2d Cir.2005)). Accord Ruotolo, 514 F.3d at 190 (describing Cotarelo as addressing general problems with a public employer, rather than an incident affecting only a single plaintiff).
[94] Grand River, 481 F.3d at 66 (quoting Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir.2005)).
[95] Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 97 (2d Cir.2005) (quoting Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir.1995)). Accord Jayaraj v. Scappini, 66 F.3d 36, 39 (2d Cir.1995) ("[W]here monetary damages may provide adequate compensation, a preliminary injunction should not issue.").
[96] American Postal Workers Union v. U.S. Postal Serv., 766 F.2d 715, 721 (2d Cir.1985).
[97] Bronx Household of Faith v. Board of Educ., 331 F.3d 342, 349 (2d Cir.2003). But see Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality op.) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.").
[98] Bronx Household of Faith, 331 F.3d at 349. Accord, e.g., Tunick v. Safir, 209 F.3d 67, 70 (2d Cir.2000) (applying a presumption of irreparable harm to a challenge to denial of a permit to conduct a photo shoot).
[99] Bronx Household of Faith, 331 F.3d at 350 (emphasis added). Accord, e.g., Latino Officers Ass'n v. Safir, 170 F.3d 167, 171 (2d Cir.1999) (holding that an alleged chilling effect caused by a policy requiring NYPD officers to notify the department of their intention to speak before a governmental agency or a private organization about department policy and to provide an after-the-fact summary of their comments was too speculative to establish irreparable harm). See generally Laird v. Tatum, 408 U.S. 1, 14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) (holding that a cognizable claim of the chilling of First Amendment rights must articulate a "specific present objective harm or a threat of specific future harm").
[100] Holt v. Continental Group, Inc., 708 F.2d 87, 91 (2d Cir.1983).
[101] Moore, 409 F.3d 506 at n. 6.
[102] Id. (citing Holt, 708 F.2d at 91).
[103] Moreover, concerns at the root of relevancy and hearsay objections apply with far lesser force when a judge serves as fact-finder, rather than a lay jury. See Van Alen v. Dominick & Dominick, Inc., 560 F.2d 547, 552 (2d Cir.1977). See also 11 Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure § 2885 ("In nonjury cases the district court can commit reversible error by excluding evidence but it is almost impossible for it to do so by admitting evidence.").
[104] Leavitt, 524 F.3d at 414.
[105] Notably, this policy does not reflect "the full play of the democratic process involving both the legislative and executive." Able, 44 F.3d at 131. Although the New York City Charter grants general control of the NYPD to the NYPD Commissioner, see N.Y. Charter § 434, the specific policy that defendants wish to promotethe investigation of any police officer's statement made under oath that a complainant asserts was falsedid not result from a formal or democratic process. Cf. Karmel v. City of New York, 200 F.Supp.2d 361, 365 n. 2 (S.D.N.Y.2002) (finding that a provision of the NYPD Administrative Guide "cannot be characterized as a legislative or regulatory rule implemented through a `reasoned democratic process.'" (quoting Able, 44 F.3d at 131)).
[106] As noted below, even if plaintiffs were required to demonstrate a likelihood of success on the merits, their showing would meet that more rigorous standard.
[107] On the other hand, the collection of documents by IAB officerswhile an intimidating prelude to more serious actionwould not have sufficed standing alone to support a preliminary injunction. Although the use of IAB officers to carry out this task raised the specter of full-blown investigations, that threat alone would not have deterred a reasonable plaintiff from participating in a FLSA lawsuit.
[108] Even if defendants had articulated a non-retaliatory reason for the adverse action, plaintiffs have presented many types of evidence of direct retaliatory intent, which together create a sufficiently serious question going to the merits of a FLSA retaliation claim. First, the investigations were triggered by the City's outside counsel in this case. Second, Sergeant Cioffi was called in for a GO-15 only after this Court denied in part defendants' motion for summary judgment. Third, Cioffi's GO-15 was carried out in an atypical location that supports an inference of an atypical investigation. Fourth, the GO-15 transcript reveals an effort to alter the record, rather than merely investigate perjury. See, e.g., GO-15 Tr. at 115:20-116:8 (repeatedly asking whether Cioffi's deposition testimony or GO-15 testimony was more accurate). Fifth, an ICO was sent to Sergeant Scott's deposition even before he had provided testimony, true or false.
[109] See Defendants' Conclusions of Law in Opposition to the Continuation of the Preliminary Injunction ("Def. Mem.") at 8.
[110] Cf. Milkovich v. Lorain Journal Co., 497 U.S. 1, 21, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (noting that a defamation claim addressing a statement that another individual committed perjury would be "sufficiently factual to be susceptible of being proved true or false" and would "be made on a core of objective evidence").
[111] See, e.g., GO-15 Tr. at 75:11-13.
[112] See id. at 53:7-54:11.
[113] See, e.g., id. at 42:15-43:11.
[114] Cf. 18 U.S.C. § 1621(1). The NYPD Patrol Guide provides as its sole example of a false statement "creating a false description of events"an example of objectively verifiable facts. See 1/13/05 NYPD Interim Order, Revision to Patrol Guide 203-08, "Making False Statements", Def. Hearing Ex. 5.
[115] As the finder of fact of fact in this request for provisional equitable relief, I decline to fully credit defendants' hearsay affidavit asserting that the NYPD vigorously investigates each and every allegation of false testimony or perjury. Such a claim is simply not credible to a judge with close to twenty years of experience. My experience and that of my colleagues have been discussed in the media. See, e.g., Benjamin Weiser, Police in Gun Searches Face Disbelief in Court, N.Y. Times, May 12, 2008 (describing the pervasive problem of "testilying" and the lack of NYPD monitoring or investigations); Anemona Hartocollis, Officer Is Cleared in Mass Arrests at 2004 G.O.P. Convention, N.Y. Times, Mar. 1, 2007 (describing an NYPD decision not to prosecute an inspector despite plain contradictions between sworn statements and deposition testimony).
[116] See Def. Mem. at 24.
[117] Although "principles of judicial restraint" caution "to avoid reaching constitutional questions when they are unnecessary to the disposition of a case," see Higazy v. Templeton, 505 F.3d 161, 179 n. 19 (2d Cir.2007) (citing Ehrlich v. Town of Glastonbury, 348 F.3d 48, 57 (2d Cir.2003)), the Second Circuit's request for clarification requires discussion of both bases for the preliminary injunction.
[118] See Tr. at 84:11-19.
[119] See Catletti v. Rampe, 334 F.3d 225, 230 (2d Cir.2003) ("`[T]he foundations of federal justice will be undermined' if witnesses are not able to testify freely.") (quoting United States v. Pacelli, 491 F.2d 1108, 1113 (2d Cir.1974)). Although I "need not decide whether the trial context renders testimony a matter of public concern regardless of its content," id., because the content of the speech alone is sufficient to place it under the protection of the First Amendment, this context buttresses plaintiffs' claim.
[120] Of course a sergeant facing investigation could retire without good standing or after accepting unnecessarily harsh punishment as a result of a refusal by defendants to accept a plea bargain. This Hobson's choice is no choice to a reasonable officer, as a reasonable plaintiff who has spent twenty years as a police officer will not discard the extremely generous pension benefits offered by the NYPD. Thus the harm incurred by plaintiffs nearing retirement is not "speculative," as defendants argue. See Def. Mem. at 12-13.
[121] Cf. Savage v. Gorski, 850 F.2d 64, 67 (2d Cir.1988) (finding that a preliminary injunction is unwarranted absent evidence of actual coercion); American Postal Workers Union, 766 F.2d at 722 (holding that a preliminary injunction to redress witness intimidation is unwarranted absent a substantially strong showing concerning the underlying claim).
[122] Def. Mem. at 23.
[123] That being said, once this litigation has concluded and the record is closed, should plaintiffs prove their retaliation claim it is possible that a narrower injunction would suffice to protect plaintiffs' First Amendment interests. In particular, defendants might reasonably be permitted to investigate objectively false statements made by officers. However, that determination is not yet timely. Nor are plaintiffs immune from perjury charges brought through the ordinary channels of the criminal justice system. Thus even with the March 21 Injunction in place, plaintiffs are not free to lie under oath.
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247 S.C. 347 (1966)
147 S.E.2d 415
T.T. JEFFORDS, as Receiver for Shuler & Smoak, Inc., Respondent,
v.
Andrew BERRY and R. Sumter Williams, Jr., Appellants.
18476
Supreme Court of South Carolina.
March 15, 1966.
*348 Andrew Berry, Esq., of Orangeburg, for Appellants.
R.A. Bowman, Esq., of Orangeburg, for Respondent.
March 15, 1966.
BUSSEY, Justice.
The respondent, as receiver for Shuler & Smoak, Inc., an insolvent corporation, seeks in this action to set aside a certain deed of realty by the said corporation to appellants, on the ground that such was fraudulent. The cause was referred to a special referee and, pursuant to his recommendations and report, the circuit court entered a decree setting aside and canceling said deed, and from that order comes this appeal.
*349 The deed in issue was dated January 3, 1965, and conveyed to appellants certain business property in the City of Orangeburg, found by the special referee to have a market value of $36,000, such finding of fact being fully supported by the evidence. The deed recited a consideration of $1,000, which was actually paid, and that the conveyance was made subject to three mortgages totaling $30,900, more or less, and subject to taxes and other liens of record against the property, it being stipulated in the deed that none of such indebtedness was assumed by the grantees. The appellant Berry is an attorney, who had from time to time represented the insolvent corporation over a period of nearly thirty years, but was not regularly retained by it. The evidence shows without dispute that at the time of the conveyance the corporation was insolvent, and, further, that in either October or November prior to the conveyance, Mr. Berry and an official of the corporation had informed the holders of the two largest mortgages that the corporation was insolvent and did not have any money and could not pay its bills.
While the respondent offered evidence as to the market value of the real property involved, he offered no evidence as to the exact amounts of the various liens against the realty at the time such was sold, and no other evidence as to the market value of the equity purchased by appellants. The only evidence as to the amount of the outstanding liens was the testimony of Berry, which was neither precise nor complete thereabout, but from his testimony it is inferable that the aggregate of the liens was somewhere between thirty-one and thirty-two thousand dollars. The record contains no evidence as to the attitude of the several mortgagees with reference to whether or not foreclosures thereof were immediately threatened. Of significance, we think, however, is the fact that Berry, two days after the date of the deed, paid to the holder of the first mortgage, on behalf of the grantees, the sum of $1,265.88, it being inferential that such amount was delinquent and overdue thereon.
*350 The evidence leaves no doubt, we think, that the corporation was insolvent and that knowledge of its insolvency was either known or imputable to the grantees. While the referee's finding that the fair market value of the realty was $36,000 is supported by the evidence, his conclusion or finding that the value of the property, over the lien indebtedness, was approximately $6,000, is, we think, not supported by evidence. He made no other finding with respect to the value of the equity purchased by appellants, and no specific finding as to the inadequacy of the consideration paid therefor. He made no finding of any fraudulent intent on the part of either the grantor or the grantees, but simply concluded that,
"The aforesaid deed is void as prejudicial to the rights of the unsecured creditors and should be set aside and cancelled of record."
The circuit court overruled exceptions to the report of the referee and entered a decree in conformity with his recommendations. The court concurred in the findings of the referee to the effect that the grantor was insolvent and that such fact was known to the appellant, Berry, and that Berry's knowledge thereabout was imputable to his co-appellant. Additionally, the circuit judge found that the consideration for the deed was inadequate, but did not find that it was grossly inadequate. Like the referee, he made no finding of any fraudulent intent on the part of either the grantor or the grantees. To the contrary, he exonerated the grantees in the following language,
"This contest does not involve the character or competence of Mr. Andrew Berry, individually or as an attorney, or his co-defendant, R. Sumter Williams, Jr., and nothing in this order will or should be construed as a reflection upon the character or competence of either."
His order setting aside the deed appears to be based only on the insolvency of the grantor, knowledge of such insolvency by the grantees, and his finding that the consideration was inadequate.
*351 From the case of Gardner v. Kirven, 184 S.C. 37, 191 S.E. 814, we quote the following applicable general principles of law,
"Under the provisions of the Statute of Elizabeth (section 8696), every conveyance made `for any intent or purpose to delay, hinder, or defraud creditors and others of their just and lawful actions, suits, debts. * * * shall be deemed and taken * * * to be clearly and utterly void, frustrate, and of none effect.'
"Our courts, in interpreting this statute, have held that conveyances shall be set aside under two conditions: First, where the transfer is made by the grantor with the actual intent of defrauding his creditors where that intent is imputable to the grantee, even though there is a valuable consideration; and, second, where a transfer is made without actual intent to defraud the grantor's creditors, but without consideration. Farmers' Bank v. Bradham, 129 S.C. 270, 123 S.E. 835; McInnis v. McRae, 134 S.C. 162, 132 S.E. 473." Section 8696, above referred to, is now Code Section 57-301.
Since the deed here was not without consideration, it does not fall within the second classification above mentioned and may not be set aside as fraudulent without an actual intent on the part of the grantor, imputable to the grantees, to delay, hinder or defraud the creditors of the grantor. The respondent argues that "In fraudulent conveyances the phrase `without consideration' includes grossly inadequate consideration as was the fact in this case." Such argument is, we think, not well founded. There is no finding by either the referee or the court that the consideration was "grossly inadequate", even assuming that the rather scanty evidence offered by the respondent would have warranted such a finding had it been made. Additionally, gross inadequacy of consideration and "without consideration" are not synonymous in the law.
"Although gross inadequacy of consideration is a badge of fraud, see supra § 81, and when combined with other *352 circumstances may amount to proof of actual fraud, mere inadequacy of price, unattended by other circumstances giving color and form to the transaction, is not usually sufficient to establish fraud and invalidate the conveyance, but is only a circumstance tending to show knowledge of fraud or participation in it." 37 C.J.S. Fraudulent Conveyances § 158.
Cited, inter alia, as authority for the foregoing text is the South Carolina case of Taylor v. Heriot, 4 S.C. Eq. 227.
In the case of McPherson v. McPherson, 21 S.C. 261, this court approved, as being in conformity with the settled law, a charge by the trial judge, as follows:
"Another badge of fraud is the inadequacy of the consideration. Well, upon that point my opinion is that a consideration about which persons may differ as to whether it is adequate or otherwise is not such a one as will avoid a deed. The term used is `grossly inadequate consideration', etc. It must be a consideration so far short of the value of the property as to arouse a presumption in the mind that the person who takes that property takes it under some kind of secret trust. When property is conveyed for a grossly inadequate consideration, then that becomes a strong badge of fraud, and one which warrants the jury in setting it aside."
See also on the same point and to the same effect, McGhee v. Wells, 57 S.C. 280, 35 S.E. 529.
While the consideration here has been found by the circuit judge to be inadequate, it has not been found to be grossly inadequate, even assuming that the rather scanty evidence bearing on the value of the equity purchased by the appellants would warrant and support such a finding. Under our decisions, had a finding been made that the consideration was grossly inadequate and such finding supported by the evidence, such would have constituted a badge of fraud which, under the circumstances, may very well have warranted the court in finding an actual fraudulent intent, a prerequisite to setting aside the deed. *353 Rather than finding a grossly inadequate consideration and a fraudulent intent, the circuit judge has found the consideration to be merely "inadequate", made no finding as to the intent of the grantor and exonerated the grantees of any fraudulent intent.
We are convinced that the circuit judge was in error in setting aside the deed under these circumstances. While a conveyance, under the circumstances reflected by the record, is subject to close scrutiny, and, this being an equity case, this court has the authority to make independent findings of fact, we would not be warranted, upon such scant proof as the record affords, in making independent findings that such gross inadequacy of consideration, or fraudulent intent, existed as to require that the deed be set aside.
The judgment of the lower court is, accordingly,
Reversed.
MOSS, Acting C.J., LEWIS, J., and LEGGE, Acting J., concur.
BRAILSFORD, J., did not participate.
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PRESENT: All the Justices
JOSEPH S. CORRIVEAU, BY HIS
MOTHER AND NEXT FRIEND,
TRACEY BALLAGH
OPINION BY
v. Record No. 181533 JUSTICE CLEO E. POWELL
DECEMBER 19, 2019
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
R. Edwin Burnette, Jr., Judge
Joseph S. Corriveau, by his mother and next friend, Tracey Ballagh (collectively,
“Corriveau”), appeals from the dismissal of his declaratory judgment action in the Circuit Court
of the City of Lynchburg (“circuit court”), where he requested a determination that the uninsured
motorist provision in Ballagh’s automobile insurance policy issued by State Farm Mutual
Automobile Insurance Company (“State Farm”) provided coverage for his injuries arising from
an assault that took place on his school bus. The issue presented on appeal is whether
Corriveau’s injuries arose out of the use of the school bus as a means of transportation.
I. BACKGROUND
The relevant facts are not in dispute. 1 In September 2009, Ballagh placed Corriveau on a
Bedford County school bus so he could be transported to school. Corriveau, who was 10 years
1
Disposition of the present declaratory judgment proceeding depends upon certain
factual premises advanced in an underlying lawsuit about the assaults and injuries allegedly
incurred. The parties in the present action stipulated – “[f]or purposes of the [p]arties’ cross-
motions for summary judgment and only for such purposes” – that the factual averments as to
what happened on the day in question set forth in Corriveau’s underlying complaint are true and
would “form part of the factual basis” for deciding the cross-motions for summary judgment. In
this opinion, therefore, we refer to the facts alleged in that light.
old at the time, has autism and was unable to speak. Alice Holland, the bus driver, and Mary
Evans, the bus aide, who were aware of Corriveau’s disability, used a special needs harness to
strap and secure him into his bus seat. They similarly used a special needs harness to secure
another child with disabilities, Timothy Kilpatrick (“Timothy”), who sat directly across from
Corriveau. The purpose of the harnesses, the only two on the bus, was “to aid in the supervision
of special needs children” on the ride to school.
For summary judgment purposes the parties have assumed that, while restrained in his
seat, Corriveau witnessed Holland and Evans physically and verbally abuse Timothy. Holland
and Evans repeatedly kicked Timothy and slapped his head. Holland also choked Timothy to the
point of asphyxiation and made a “conditional death threat.” Evans hit him with a flyswatter,
elbowed him, aggressively covered his mouth with her hand, pushed his head against the side of
the bus, and sprayed a chemical in his face. Evans also struck Corriveau more than once during
the incident.
The State Farm policy’s uninsured motorist provision covers an insured’s damages for
bodily injuries that “arise out of the ownership, maintenance, or use” of the uninsured motor
vehicle.
The parties filed cross-motions for summary judgment in the circuit court. State Farm
argued that coverage under the policy did not apply as a matter of law because Corriveau’s
alleged injuries did not arise from the use of the school bus as a vehicle in the ordinary manner
for which it was designed. State Farm relied on Doe v. State Farm Fire and Cas. Co., 878 F.
Supp. 862, 865-67 (E.D. Va. 1995), in which that court, applying Virginia law, determined that
the injuries suffered by the victim of an abduction and sexual assault within a stolen vehicle did
not arise from the use of that vehicle as a means of transportation. Quoting from Doe, State
2
Farm argued that the vehicle was merely an enclosure for the commission of the criminal acts.
In response, Corriveau asserted that the school bus was being used for its purpose of transporting
children with disabilities to school and that the special duty owed by a common carrier supplied
the causal nexus between Corriveau’s injuries and the use of the bus. Corriveau argued that even
if the bus were not being operated by a common carrier, it was a vehicle that contemplated
contact between Holland and Evans and the children with special needs on the ride to school.
The circuit court granted State Farm’s motion for summary judgment and dismissed the
case. The circuit court found that there was no causal connection between Corriveau’s injuries
and the use of the school bus as a vehicle used to transport children to school. The court
determined that, because the alleged conduct was criminal in nature, it was “not normally
contemplated by the parties to an automobile liability policy” and, therefore, was not a
reasonably foreseeable risk with transporting students to school, “even with the special needs
aspect of that transportation.”
The circuit court found as a factual matter that the “implements” that caused the injury
were “the flyswatter, chemical spray, hands, feet, and elbows.” In doing so, it found that none of
the “implements” that caused the injuries were “implements of the vehicle. They were all
independent of the vehicle itself.”
Specifically addressing the harness, the court stated that while the special needs harnesses
may have made it easier for the incident to occur, they failed to provide the necessary nexus
because “the [incident] could have occurred without the restraints” and Corriveau “would have
witnessed [the assault on Timothy], whether he was restrained or not.” The court concluded that
“the only role the bus played was to provide a location for these acts of assault to occur, and [] I
don’t see that providing the necessary causal connection for the use of the bus . . . as a bus.” The
3
court reasoned that “the causal relationship of the bus being used as a bus is where this falls
short.”
This appeal followed.
II. ANALYSIS
Summary judgment may be granted when no genuine dispute of material fact exists.
Rule 3:20. “A grant of summary judgment must be based upon undisputed facts established by
pleadings, admissions in pleadings, and admissions made in answers to requests for admissions.”
Andrews v. Ring, 266 Va. 311, 318 (2003). The circuit court “must consider inferences from the
facts in the light most favorable to the non-moving party.” Id. On appeal, this case presents a
mixed question of fact and law that the Court reviews de novo. Bratton v. Selective Ins. Co. of
Am., 290 Va. 314, 322 (2015).
In analyzing the application of an insurance policy providing coverage for the
“ownership, maintenance, or use” of an automobile to the facts of a given case, certain principles
established in State Farm Mut. Auto. Ins. Co. v. Powell, 227 Va. 492 (1984), consistently apply.
“[C]onsideration must be given to the intention of the parties to the insurance agreement in
determining the scope of the coverage afforded.” Id. at 500. The “‘ownership, maintenance, or
use’ provision should be construed in the light of the subject matter with which the parties are
dealing; the terms of the policy should be given their natural and ordinary meaning.” Id. “[T]he
critical inquiry is whether there was a causal relationship between the incident and the
employment of the insured vehicle as a vehicle.” Simpson v. Virginia Mun. Liab. Pool, 279 Va.
694, 699 (2010) (citation and internal quotation marks omitted). Although the vehicle’s use
“need not be the direct, proximate cause of the injury,” in the strict legal sense, there must be a
causal connection between the accident and the use of the vehicle as a vehicle. Powell, 227 Va.
4
at 500. It cannot be “merely incidental or tangential.” Erie Ins. Co. Exch. v. Jones, 248 Va. 437,
443 (1994). In assessing the causal relationship, “consideration must be given to what the
injured person was doing when he was injured, as well as his purpose and intent, in determining
whether that person was in such position in relation to the vehicle to be injured in its ‘use.’”
Powell, 227 Va. at 501. Stated another way,
[w]here such a vehicle is employed in a manner foreign to its
designed purpose, e.g., Lexie[ v. State Farm Mut. Auto. Ins. Co.,
251 Va. 390, 396-97 (1996)] (drive-by shooting from moving
vehicle); Travelers Insurance Company v. LaClair, 250 Va. 368
(1995) (shooting from behind door of stopped car, using it as a
shield), there is no coverage under the uninsured motorist
provisions because the resulting injury does not arise out of the
“use” of the uninsured vehicle as a vehicle, but instead arises from
its employment in a manner contemplated neither by its designers,
its manufacturer, nor the parties to the insurance contract.
Fireman’s Fund Ins. Co. v. Sleigh, 267 Va. 768, 771-72 (2004).
Applying these principles to the facts of this case, the circuit court did not err in finding
that Corriveau’s injuries were not covered by the uninsured motorist provision in the State Farm
policy in that the injuries in question did not arise out of the use of the school bus as a school
bus. 2 The State Farm policy’s uninsured motorist coverage provides that State Farm will pay an
2
Virginia has not recognized common carrier liability for school buses which would give
a heightened duty of care and could impose insurance coverage. Code § 46.2-2000 defines
“common carriers” as:
“Common carrier” means any person who undertakes, whether
directly or by a lease or any other arrangement, to transport
passengers for the general public by motor vehicle for
compensation over the highways of the Commonwealth, whether
over regular or irregular routes, including such motor vehicle
operations of carriers by rail or water under this chapter.
“Common carrier” does not include nonemergency medical
transportation carriers, transportation network companies, or TNC
partners as defined in this section.
5
insured’s damages for bodily injuries that “arise out of the ownership, maintenance, or use” of
the uninsured motor vehicle.
When we consider whether there was a causal relationship between the incident and the
employment of the school bus as a school bus we conclude that the injuries to Corriveau did not
“arise out of the ownership, maintenance, or use” of the school bus. To state the obvious, the bus
was to be used as a means of transportation. There was no causal connection between
Corriveau’s injuries and the use of the school bus as a means of transportation. Here, as in Doe,
the school bus was used as a situs for the assault, a use wholly separate from the intended use as
a means of transportation. The following hypothetical noted by the Eastern District in Doe,
applies with equal force to our facts as it aptly demonstrates the limits of the coverage applied to
the “use” of the vehicle:
two passengers who come to blows over an argument in the back
seat of an automobile can hardly claim that their resulting injuries
arose out of the vehicle’s use as a vehicle. In such circumstances,
the only relation of the injury to the vehicle is that the latter served
as [the] situs or enclosure for the assault, no different from an
apartment, an alley, or [an] elevator.
Doe, 878 F. Supp. at 864. Further, the conduct, (i.e., the physical and verbal abuse of Timothy
including, kicking, slapping, choking to the point of asphyxiation, making a “conditional death
threat,” hitting him with a flyswatter, elbowing him, aggressively covering his mouth with a
hand, pushing his head against the side of the bus, and spraying a chemical in his face; as well as
hitting Corriveau more than once) was conduct “not normally contemplated by the parties to an
automobile liability policy.” The alleged actions of Holland and Evans were not reasonably
foreseeable risks associated with transporting students to school, “even with the special needs
Operation of school buses does not meet the “general public” or the “for compensation”
requirement of this definition.
6
aspect of that transportation.” Therefore, these actions could not have been intended to be within
the scope of coverage. Nothing that caused Corriveau’s injuries were “implements of the
vehicle. They were all independent of the vehicle itself.”
Corriveau argues that, because the school bus was designed for the specific purpose of
transporting children with special needs to school, this design supplies the nexus between the
injury and the vehicle, and Corriveau relies on State Farm Mut. Auto. Ins. Co. v. Rice, 239 Va.
646 (1990). In Rice, two men used a Jeep off-road vehicle to take a hunting trip. We stated that
the specific enterprise associated with the use of the Jeep was to transport the men, their rifles,
ammunition and hunting equipment. When one of the men removed his rifle from the Jeep, it
discharged and struck the other man, who had left the vehicle and begun to walk up a nearby
ridge. Id. at 649. The issue before the Court was whether an injury caused by the accidental
discharge of a rifle arose out of the use of the vehicle. In that 1990 decision, we held that “a
sufficient nexus existed” between the passenger and the Jeep itself, which had transported the
men and their equipment to the hunting site, in part because the driver had left his vehicle door
open while placing an object in the back of the vehicle, and thus “had not completed his use of
the Jeep when the rifle discharged.” Id. at 650.
Due to Corriveau’s reliance on Rice, we take this opportunity to reconsider it. “There is a
great deal of litigation arising out of the transportation of firearms in insured vehicles where the
gun discharges injuring passengers or third parties.” 8A Steven Plitt et al., Couch on Insurance
3d § 119.63 (2005). As recognized in Powell, the cases are generally catalogued into five
categories. 227 Va. at 499-500 (quoting Cameron Mut. Ins. Co. v. Ward, 599 S.W.2d 13, 15-17
7
(Mo. Ct. App. 1980)). 3 We conclude that the facts of Rice did not fall within any of the
recognized categories of cases where coverage may be applicable. The most closely analogous
category involves a situation where a gun accidentally discharges while in the process of being
loaded or unloaded from the vehicle. Rice emphasized the fact that the handler was removing his
loaded rifle from the Jeep. 239 Va. at 649. The essence of this category of cases, however, is
that each case relied upon in Ward, from which Powell drew its analysis, included a “loading and
unloading” clause in its policy. Ward, 599 S.W.2d at 15-16. There is no indication that the
policy under which coverage was sought in Rice contained that language. Therefore, the facts of
Rice did not fit within the category of recognized “unloading” cases that provided coverage.
The only other previously recognized category that might have had some application to
Rice found coverage where there was a “‘gun rack[] permanently attached’” to the vehicle.
Powell, 227 Va. at 499-500 (quoting Ward, 599 S.W.2d at 16). In those cases, liability was
sometimes found for injuries “occasioned by the accidental discharge of such weapons while in
or being removed from such permanently attached gun racks.” Ward, 599 S.W.2d at 16.
Contrary to those cases, however, the vehicle in Rice did not have a permanently attached gun
rack in which a firearm was resting or from which it was being removed at the time of the injury.
239 Va. at 647 (rifle was in a case located in the back seat of the vehicle).
3
The five categories of cases are as follows: (1) “accidental discharge of guns inside
moving or motionless vehicles while an occupant of the vehicle was handling or toying with the
weapon[;]” (2) “accidental discharge of firearms during the process of loading them into or
unloading them from vehicles[;]” (3) “‘involving the use of a physical portion of a vehicle as a
‘gun rest’ for the purpose of firing a weapon[;]’” (4) “involving ‘the accidental discharge of guns
resting in or being removed from gun racks permanently attached to vehicles[;]’” and (5)
“accidental discharge of weapons inside the vehicle was caused by the actual movement or
operation of the vehicle.” Powell, 227 Va. 499-500 (quoting Ward, 599 S.W.2d 15, 16).
8
In Rice this Court stated simply that “the accident arose out of the use of the Jeep.” 239
Va. at 649. However, as we have discussed, Rice falls outside of any of the categories
recognized by Powell. 4 Viewed in light of developed case law and analysis in the present case,
the circumstances in Rice merely showed that human conduct wholly independent of the
operation or use of the vehicle caused the rifle to discharge. Ward, 599 S.W.2d at 15-16. Today
we clarify that, under principles applicable in the Commonwealth, if the discharge or incident
could have occurred regardless of the vehicle there is no coverage. See 8A Couch on Insurance
3d § 119:64.
To the extent Rice is inconsistent with the categories recognized in Powell and
inconsistent with the case law that has developed in the Commonwealth since 1990 as explained
and applied in the present opinion, it is overruled. We are mindful of the doctrine of stare
decisis and the critical role it serves in ensuring stability in the law. However, stare decisis “is
not an inexorable command.” Home Paramount Pest Control Cos. v. Shaffer, 282 Va. 412, 419
(2011) (citation and internal quotation marks omitted). “[W]e have not hesitated to reexamine
our precedent in proper cases and overrule such precedent.” Nunnally v. Artis, 254 Va. 247, 253
(1997). UIM coverage does not extend to injuries sustained from an action or actions wholly
separate from the use of a vehicle as a means of transportation.
We are faced with facts alleging that a special needs school bus, with harnesses for the
safety of the children, was the site of physical assaults on two children. The alleged physical
assaults did not result from the use of a bus “as a means of transportation, but from the assault[s],
where the [bus] was used simply as a situs, or enclosure.” Doe, 878 F. Supp. at 868. Corriveau
4
We do not decide in this case whether the involvement of a gun rack, whether
permanent or temporary, provides sufficient circumstances to resolve the question of coverage.
9
argues that the special needs harnesses themselves provide the required causal nexus because
they restrained the children. However, as the circuit court determined, while the special needs
harnesses may have made it easier for the incidents to occur, they failed to provide the necessary
nexus because “the [incident] could have occurred without the restraints” and Corriveau “would
have witnessed [the assault on Timothy], whether he was restrained or not.” The alleged actions
of Holland and Evans within the school bus constituted actions “foreign to its designed purpose.”
Sleigh, 267 Va. at 771. The role the school bus played was to provide a location for the assaults
to occur, thus no causal connection existed between the assaults and “the employment of” the
school bus as a school bus. Simpson, 279 Va. at 699.
III. CONCLUSION
For the foregoing reasons, we will affirm the judgment of the circuit court finding no
nexus existed between Corriveau’s injuries and the use of the school bus as a means of
transportation.
Affirmed.
10
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565 So.2d 611 (1990)
Joseph BURCH
v.
LAKE FOREST PROPERTY OWNERS' ASSOCIATION, INC.
89-403.
Supreme Court of Alabama.
July 13, 1990.
Eason Mitchell, Alabaster, for appellant.
Robert S. Edington, Mobile, for appellee.
ADAMS, Justice.
This is an appeal from a summary judgment in favor of Lake Forest Property Owners' Association, Inc. ("the Association"), in a suit brought by Joseph Burch, who alleged that he was terminated as the Association's general manager and golf professional, without the 45-day notice required by his contract. He alleged that that termination, therefore, resulted in a breach of his contract.
Burch contends that when he negotiated his contract to become the general manager *612 and "golf pro" for the Association, he insisted that a provision for a 45-day notice of termination be included. The contract provided for employment for a period of two years; however, it contained a termination clause. That clause reads as follows:
"Notwithstanding any other provisions of the agreement, the Association reserves the right to terminate [Burch] at any time for any reason, with forty-five days' written notice." (Emphasis added).
Despite the notice clause, which was added pursuant to his wishes, Burch was terminated without notice. The Association, recognizing that the notice provision had been violated, paid Burch for the 45 days that he would have worked if the contract had been complied with and gave him all the benefits to which he would have been entitled during that 45-day period.
Despite the fact that Burch was compensated for the 45 days he would have been employed had the Association complied with the notice provision, Burch contends that he is entitled to payment for the entire contract period of two years.
"It is well established that in contract law the primary duty of the trial court is to put the injured party in the condition he would have occupied if the contract had not been violated, or had been fully performed. Marshall Durbin Farms, Inc. v. Landers, 470 So.2d 1098 (Ala. 1985); Files v. Schaible, 445 So.2d 257 (Ala.1984); Brendle Fire Equipment, Inc. v. Electronic Engineers, Inc., 454 So.2d 1032 (Ala.Civ.App.1984). However, the injured party is not to be put in a better position by a recovery of damages for the breach than he would have been in if there had been performance. 25 C.J.S. Damages § 74 (1955)."
Curacare, Inc. v. Pollack, 501 So.2d 470, 472 (Ala.Civ.App.1986), cert. quashed, 501 So.2d 472 (Ala.1986). If the Association had fully performed the provisions of the contract, Burch would have received compensation for 45 days as well as all of the privileges afforded the general manager and golf pro of the Association. All of these things were given to him, despite the fact that he was not allowed to "remain on the job" for those 45 days.
"The summary discharge of an employee entitled under the employment contract to a specified period of notice ordinarily permits him to recover his compensation for the notice period only and not for the entire balance of the contract period."
Annot., 96 A.L.R.2d 272, 277 (1964). We conclude that the violation of the notice provision does not entitle Burch to compensation for the entire contract period. Because the Association had already compensated him for the notice period provided in the contract, summary judgment was proper. Therefore, that judgment is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur.
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505 F.2d 643
15 UCC Rep.Serv. 1006
HOHENBERG BROS. COMPANY, Plaintiff-Appellee,v.J. A. KILLEBREW, Defendant-Appellant.
No. 74-1274.
United States Court of Appeals, Fifth Circuit.
Dec. 18, 1974, Rehearing and Rehearing En Banc, Denied Jan. 21, 1975.
John W. Barrett, Lexington, Miss., Heber A. Ladner, Jr., Jackson, Miss., for defendant-appellant.
Arnold F. Gwin, Greenwood, Miss., for plaintiff-appellee.
Before CLARK and RONEY, Circuit Judges, and RUSSELL, District Judge.
CLARK, Circuit Judge:
1
This diversity action was brought by Hohenberg Brothers Company (Hohenberg), a Memphis-based cotton merchandiser, against J. A. Killebrew, a Mississippi farmer, for specific performance of a purchase and sales agreement covering Killebrew's cotton crop on approximately 400 acres of land in Holmes County, Mississippi. An unprecedented rise in the price of cotton during the summer months of 1973 best explains why the validity of this seemingly simple contractual transaction is now being contested.
2
The dispute involves a determination of whether either of two purchase and sales agreements, one agreement having been drafted by each party, constitutes a binding, enforceable contract between the parties. The cause was tried to the court without a jury. The following facts found by the district judge are amply supported by the record. Both parties were represented by agents, D. T. Sayle, Jr., acting on behalf of Killebrew, as he had done for approximately 30 years, and E. K. Hyman, a Mississippi-based representative of Hohenberg. In February of 1973, at Sayle's suggestion, Killebrew signed and delivered to Sayle a 1-page purchase and sales agreement form covering the sale of Killebrew's 1973 cotton crop. All of the blanks in this document were completed except for the name and signature of the then unknown purchaser. On the second of March, Sayle secured an oral commitment through Hyman that Hohenberg would purchase Killebrew's crop at the prices set forth in the 1-page contract. Hohenberg immediately sent Sayle its standard form 3-page purchase and sales agreement on which was typed the price quotations, cut-off dates and acreage previously agreed upon and identical to the terms which had been inserted in Sayle's 1-page document. The 3-page document also contained several provisions different from and additional to those found in the 1-page document, but the trial court found no material differences in the two agreements. Upon receipt of the 3-page document, Sayle signed the name of J. A. Killebrew to one copy and returned it to Hohenberg. The trial court concluded, however, that Sayle acted beyond the scope of his agency in signing Killebrew's name. Sayle also mailed a copy to Killebrew.1
3
At a later date, found by the district court to probably be at some time during the month of March, Hyman executed the 1-page agreement for Hohenberg, dating it as of March 5, 1973 in conformity with the date of the 3-page agreement. Killebrew received a copy of the 3-page agreement during the middle of March but did not communicate with either Sayle or Honenberg about it until the first week in August. At that time, in response to an inquiry from Hohenberg concerning the status of Killebrew's crop, Killebrew replied that they did not have a contract. The district court, finding that the 1-page contract was enforceable against Killebrew, granted specific performance pursuant to a stipulation between the parties and awarded attorney's fees as provided in the contract. We affirm.
4
Killebrew was under no compulsion to sign the blank 1-page contract other than his desire, having finally decided upon the terms of sale that would fully satisfy his expectations, to rid himself of involvement in the task of locating a consenting purchaser. Consequently, when he delivered the 1-page document to Sayle, he vested Sayle with full authority to take the necessary measures to close a contractual relationship with a purchaser willing to meet the terms set forth. Having vested such authority in Sayle, Killebrew committed himself to be bound by any seasonable acceptance of the contract terms that Sayle could secure. As an incident of this commitment Killebrew assumed an affirmative duty to notify Sayle of any subsequent retraction of the offer. Absent such notification, Sayle could legally bind Killebrew without the necessity of obtaining any further assent from him. This open-ended offer was orally accepted by Hohenberg on the second of March, prior to any change in the market, and confirmed in writing by delivery to Sayle of the 3-page document.
5
Killebrew's attempted characterization of Hohenberg's 3-page document as a substantially different counteroffer, which constituted an automatic rejection of the 1-page document, collapses under the express provisions of Section 75-2-207 of the Mississippi Code of 1972.2 This section of Mississippi's version of the Uniform Commercial Code dictates that we view delivery of the 3-page document as a written confirmation of Hohenberg's acceptance of the 1-page document. These two documents present a classic opportunity for application of Section 75-2-207(1) which rejects the common law mirror image rule and converts what under the common law would have been a counteroffer into an acceptance or confirmation even though the acceptance or confirmation includes terms additional to or different from those offered or agreed upon. See White & Summers, Uniform Commercial Code 1-2, at 24 (1972). Analysis of the effect of the different and additional terms has been rendered unnecessary by Hohenberg's desire to enforce only those terms found in the 1-page agreement.3
6
Additionally, under the facts of this case, equity demands that Killebrew not be heard to complain of enforcement of the precise agreement to which he signified his unconditional commitment by the execution of the 1-page purchase and sales agreement.
7
Any possible right to reject a seasonable acceptance of the 1-page agreement was forfeited by Killebrew's failure, upon receipt of Hohenberg's executed 3-page agreement, to timely notify a representative of Hohenberg of any objection or dissatisfaction. In a case such as this, where a party receives a writing containing essential terms identical to those expressed in a previously executed contract proposal, that party has a duty to speak out if he does not intend to be bound by the terms he proposed. Failing in this duty, his silence constitutes an estoppel. As recognized by the Mississippi Supreme Court in Resolute Ins. Co. v. State, 290 So.2d 599 (Miss.1974): 'It has long been an established rule of equity (now adopted by courts of law) that where one by his acts or representations (or even by his silence when he ought to speak) intentionally or through culpable negligence induced another to believe that certain facts exist so that he acts on these facts to his hurt and prejudice, such person may invoke the doctrine of estoppel against one who induces or by his negligent acts causes, a person to act to his hurt on such facts.' Id. at 602 (brackets found in original text); accord, Kelso v. Robinson, 172 Miss. 828, 160 So. 135 (1935).
8
The three requirements of estoppel by silence, (1) that the party had a duty to speak, (2) that his failure to speak was either intentional or in negligent disregard of plain dictates of conscience and justice, and (3) that the other party relied on the fact of silence to his detriment, are clearly satisfied under the facts of this case. First, having received an executed 3-page agreement containing terms also found in the 1-page contract offer he had previously signed Killebrew had a duty to promptly notify Hohenberg of his claim that no contract had been finalized. Second, since it was clearly foreseeable that Hohenberg would enter into commitments for either the processing or resale of the cotton, Killebrew's failure to notify Hohenberg of any objections for some six months after receipt of the 3-page document was in obvious disregard of the dictates of good conscience. Third, Hohenberg relied upon the apparent validity of the contract, executing a second contract covering resale of the cotton. The market purchase of other cotton to satisfy this second contract at the time Hohenberg was notified of Killebrew's rejection moreover would have cost Hohenberg almost double the amount contracted for with Killebrew. In sum, Killebrew's March to August silence estopped him to disavow the binding contractual effect of the 1-page contract he had signed after Hohenberg's acceptance of his terms had been so long and clearly evinced.
9
The judgment appealed from is affirmed and the cause is remanded to the district court with directions to fix an additional reasonable appellee's attorney fee on this appeal.
10
Affirmed and remanded.
1
The evidence is in conflict as to whether Sayle sent to Killebrew a copy of the 3-page agreement with Killebrew's name signed by Sayle. In view of the district court's finding that Killebrew was not estopped to deny Sayle's authority to sign his name or the validity of the 3-page agreement, we assume for the purposes of our decision that the copy sent to Killebrew did not purport to show Killebrew's signature
2
Section 75-2-207 provides:
(1) A definite and seasionable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms. (2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: (a) the offer expressly limits acceptance to the terms of the offer; (b) they materially alter it; or (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received. (3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this code.
3
The effect of different or additional terms contained in an acceptance or confirmation are governed by Section 75-2-207(2)
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475 A.2d 211 (1984)
In re Armand PROCACCIANTI.
No. 83-399-Appeal.
Supreme Court of Rhode Island.
May 8, 1984.
*212 Dennis J. Roberts II, Atty. Gen., Thomas H. Caruolo, Sp. Asst. Atty. Gen., Providence, for plaintiff.
Paul J. DiMaio, Providence, for defendant.
OPINION
KELLEHER, Justice.
Armand Procaccianti (Procaccianti) is a bail bondsman whose activities have received the approval of the presiding justice of the Superior Court pursuant to the terms of G.L. 1956 (1981 Reenactment) § 12-13-21. On January 7, 1982, Sergio Fernandes (Fernandes) was arraigned in the Sixth District Court on four charges: one involved the possession of firearms by a fugitive from justice; another, receiving stolen goods; the third, illegal possession of firearms; and the fourth, simple assault. At the arraignment, Fernandes pleaded not guilty to all the charges and was released on $12,000 surety bail. Procaccianti's agent executed an agreement setting forth the bail and the recognizance conditions that led to Fernandes's release. One of the conditions stated that Fernandes would appear before the Superior Court as required upon notice's being sent to his counsel by either the clerk of the court or a representative of the Attorney General.
On three different dates during the period June 1982 through November 1982, the charges against Fernandes were reached for trial. On none of these occasions did Fernandes appear. Consequently, after the third failure, a warrant was issued for his arrest. Although Procaccianti was given and utilized numerous opportunities to produce Fernandes, he was unable to do so. Consequently, on November 29, 1982, the state, acting pursuant to Rule 46(g) of the Superior Court Rules of Criminal Procedure, sought forfeiture of the bail by the bondsman.
At the forfeiture hearing, Procaccianti detailed for a Superior Court justice the efforts he had allegedly expended in attempting to effectuate Fernandes's return to Rhode Island. However, the trial justice, in ordering a full forfeiture of the bond, rejected Procaccianti's testimony, commenting that the "surety has testified with a great deal less than full candor * * *."
There are, in addition to Rule 46(g), two statutory provisions relating to the forfeiture of bail. They are G.L. 1956 (1981 Reenactment) § 12-13-10, as amended by P.L. 1982, ch. 387, § 1, and § 12-13-16.1, as enacted by P.L. 1982, ch. 321, § 1. Section 12-13-10, which permits a party to post in cash 10 percent of the bail set by the court, provides that, upon a default, the court "may * * * order" a forfeiture. This permissive provision has been part of Rhode Island's statutory framework since the early 1900s. See G.L. 1923, ch. 407, sec. 29. However, in 1982 the General Assembly enacted § 12-13-16.1, and in essence this statute provides that the court "shall" order a forfeiture of the bail and/or any security for the bail whenever it has been demonstrated that the defendant has left the jurisdiction or has failed to appear as required or has failed to perform the condition of his recognizance. The language of the 1982 proviso makes it clear that forfeiture of bail for breach of a condition of recognizance is mandatory.
Similar sentiments are to be found in Rule 46(g)(1), which provides that if there is a breach of the condition of recognizance, the court, upon motion of the state's attorney, "shall" declare the forfeiture of bail. However, a court, in determining whether or not to grant relief after *213 declaring a forfeiture, has wide discretion, for Rule 46(g)(2) allows a court, if it appears that justice does not require enforcement of a forfeiture, to set the forfeiture aside on such conditions as it may impose. In exercising that discretion, the court may consider a variety of factors, including the willfulness of the defendant's breach of the bond condition, the participation of the bondsman in apprehending the defendant, the cost, inconvenience and prejudice suffered by the state as a result of the defendant's breach, and any explanation or mitigating factors. Other considerations include whether the surety was provided by a professional or by family and friends of the defendant and the appropriateness of the amount of the bond. United States v. Frias-Ramirez, 670 F.2d 849 (9th Cir.1982).
Here, there is not a shred of anything in the record which would support a finding of an abuse of discretion by the trial justice, who simply didn't believe Procaccianti's testimony. In ordering a full forfeiture, the trial justice obviously was convinced that Procaccianti did nothing in the way of discharging his obligations as a licensed bondsman, and since he had, for a fee, made a promise to produce Fernandes at any time and did not do so, Procaccianti was required to abide by the second part of his promise, which called for the payment in full of the $12,000 amount set forth in the recognizance.
In upholding the trial justice's actions, we would merely repeat what other courts have said when referring to the penalty of forfeiture:
"The sanction of a forfeiture is required not only to vindicate the public interest, but to assure that sureties, whether professional or family and friends, will be vigilant at all times to assure the appearance of defendants if and when required. The failure of a defendant to so appear is an interference with the due, prompt and efficient administration of justice; this is an injury to the public, entirely apart from any expense to which the government is put to apprehend the defendant." United States v. Burnett, 474 F. Supp. 761, 763 (S.D.N.Y. 1979).
See also United States v. Morales, 91 F.R.D. 169 (D.P.R. 1981).
The appeal of Procaccianti is denied and dismissed.
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March 5, 1975
The Honorable Alton R. Griffin Opinion No. H- 546
Criminal District Attorney
Lubbock County Courthouse Re: Inclusion of persons who
Lubbock, Texas 79401 are seventeen years of age
in the composition of the jury
wheel.
Dear Mr. Griffin:
You have requested our opinion concerning whether persons on
the voter registration list of a county who are 17 years of age should be
placed on the jury wheel pursuant to article 2094, V. T. C. S.
Article 2094 provides:
Between the first and fifteenth days of August
of each year, in each county in this State, the tax
collector, sheriff, county clerk, and district clerk
of the county, each in person or represented by one
of his deputies, shall meet at the county courthouse
and recon&ttte the jury wheel, using as the sole
and mandatory source, all names on the voter reg-
istration lists from all precincts in the county.
The voter registration lists of each county are therefore the “sole
and mandatory source” of the jury wheel, and the wheel is to be reconstituted
each year. Shelby v. State, 479 S. W. 2d 31 (Tex. Grim. 1972); Attorney
General Opinions M-911, M-903 (1971). Article 5.10a(2), Election Code,
allows persons to register who will be 18 years of age or older within 30
days after applying for registration. Under ar.ticle 2133, V. T. C. S.,
persons 18 years of age or older are qualified jurors.
p. 2456
. .
The Honorable Alton R. Griffin page 2 (H- 546)
Attorney General Opinion H-82 (1973) dealt with the similar situation
of persons on the voter registration lists who, due to age, would be
ineligible as jurors until the effective date of article 5923b, V. T. C. S.
We stated therein:
[T]he names of all registered voters . . . should
be included in reconstituting the jury wheel . . .
If called to serve before [they become eligible],
[they] should be excused from jury duty.
This principle being equally applicable in this instance, it is our
opinion that persons on the voter registration lists who are not yet 18
years of age are to be placed on the jury wheel. If they are called before
they reach 18 years of age, they should be excused from jury duty.
SUMMARY
Names of persons on the voter registration lists
who are not yet 18 years of age are to be placed on
the jury wheel. If they are called before they reach
18 years of age, they should be excused from jury
duty.
Very truly yours,
Attorney General of Texas
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2457
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Order Michigan Supreme Court
Lansing, Michigan
July 29, 2019 Bridget M. McCormack,
Chief Justice
157056(60) David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
SUNNYBROOK GOLF BOWL & MOTEL, Richard H. Bernstein
INC., Elizabeth T. Clement
Petitioner-Appellant, Megan K. Cavanagh,
Justices
v SC: 157056
COA: 332357
MTT: 00-455797
CITY OF STERLING HEIGHTS,
Respondent-Appellee.
_________________________________________/
On order of the Court, the motion for reconsideration of this Court’s April 19,
2019 order is considered, and it is DENIED, because we are not persuaded that
reconsideration of our previous order is warranted. MCR 7.311(G).
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.
July 29, 2019
a0722
Clerk
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686 F.Supp. 469 (1988)
The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Plaintiff,
v.
S.S. AMERICAN LANCER, S.S. AMERICAN AQUARIUS, S.S. AMERICAN APOLLO, S.S. AMERICAN LYNX and S.S. AMERICAN ASTRONAUT, their engines, tackle apparel, furnishings, equipment and appurtenances, in rem, Defendants.
and
All Related Claims to Vessels and Complaints-in-Intervention.
No. 87 Civ. 5842.
United States District Court, S.D. New York.
June 13, 1988.
Weil, Gotshal & Manges, New York City (Corinne Ball, Judy G.Z. Liu, Kevin P. Hughes, of counsel), McCutchen, Black, Verleger & Shea, Los Angeles, Cal. (Sheldon A. Gebb, of counsel), for plaintiff.
Freehill, Hogan & Mahar, New York City (Nathan J. Bayer, Eugene J. O'Connor, Jr., Alexander F. Vitale, of counsel), Kelley Drye & Warren, New York City (Sandra E. Mayerson, of counsel), for defendants.
MEMORANDUM AND ORDER IN ADMIRALTY
OWEN, District Judge:
General Electric Capital Corporation (GECC) holds a second mortgage on the U.S. Lines Lancer vessels. It moves for partial summary judgment declaring that Prudential Insurance Company's $92,885,000. first mortgage on eight Lancer vessels enjoys preferred status under the Ship Mortgage Act, 46 U.S.C. §§ 911 et seq. only to the extent of $92,885 due to a typographical error in a loan amendment to Prudential's first mortgage omitting the last three "000"s. The loan amendment was recorded and entered by the Coast Guard on the Lancers' documents as part of the Ship Mortgage Act's requirements for acquiring preferred status under 46 U.S.C. § 922. Prudential, by cross motion, seeks summary judgment declaring its preference to be the full $92,885,000.
U.S. Lines is currently the debtor in bankruptcy proceedings under Chapter 11 and is the former owner of the Lancer vessels, all of which have now been sold in foreclosure proceedings in New York and Califoria. GECC and Prudential have been "key lenders" to U.S. Lines for a number of years. Prudential, in 1978, was the sole first lender in the amount of $150 million, and its loan was secured by the Lancer vessels as collateral. By 1983, the amount of this debt had been reduced to approximately $126 million.
In 1983 there was a second mortgage agreement under which both Prudential *470 and GECC lent U.S. Lines approximately $114 million; the mortgage was secured by the Lancer vessels. Clause 40 of this second mortgage agreement, to which GECC was a party, stated expressly that it was subordinate to Prudential's first mortgage (then in the amount of $126 million), and it made numerous references to that document.
Although U.S. Lines did make payments on its Prudential debt between 1983 and 1985, it had incurred additional indebtedness in its Econline venture (for which Prudential and GECC, as well as a bank and a shipbuilder, were lenders) and by 1986 it was experiencing financial difficulties. Consequently, Prudential and U.S. Lines entered into a Corollary Mortgage Agreement in 1986, in which the parties agreed to reduce Prudential's mortgage debt to $92,885,000. It was at this point that the critical "000"s were unintentionally omitted from this document, making the amount of indebtedness to appear to have been reduced to $92,885. This Corollary Mortgage Agreement was duly recorded with the Coast Guard as required to ensure the mortgage's validity under the Ship Mortgage Act, § 921, and the erroneous amount was endorsed on the Lancer vessels' ownership documents. Significantly, however, the Corollary Mortgage Agreement made express reference to a particular Exhibit 1986-1, which was attached to and filed with the Corollary and which listed the correct amount of indebtedness.
U.S. Lines filed a petition in bankruptcy in November of 1986. The typographical error was not discovered until approximately May of 1987, when Prudential moved for a lifting of the automatic stay to allow it to foreclose on its Lancer mortgage. Of further significance is the fact that until that time GECC and the other creditors had been proceeding on the assumption that Prudential's debt was $92 million. As support for this, Prudential cites GECC's attendance at numerous "work-out" meetings prior to the bankruptcy filing during which debt restructuring was discussed and documents listing the correct amount were distributed, and of critical significance, that GECC had actual notice that the amount of the Prudential debt was $92 million.
GECC, however, contends that the figure $92,885, the amount recorded on the Lancer vessel documents, controls. GECC claims that the provisions of 46 U.S.C. § 922 must be strictly construed, and that any deviation leads to the loss of preferred status for a ship mortgage. GECC also attacks the contractual subordination provision of the second mortgage. It asserts that, since the second mortgage refers to the Prudential mortgage as a First Preferred Ship Mortgage, and the preference is only to the extent of $92,885, then the subordination only works to that extent and no more. GECC further argues that the validity of the Prudential mortgage under 46 U.S.C. § 921 is defeated to the extent that the Prudential mortgage is not preferred under 46 U.S.C. § 922.
I cannot accept GECC's strict construction argument and conclude that a mortgagee's failure to comply with every particular of § 922 will not necessarily defeat the preferred status of the mortgage.[1] Prior cases have held that irregularities in recorded mortgage documents or failures to comply with the minutiae of recording do not result in a loss of preferred status of the mortgage, provided that "`there is an honest and substantial compliance with the statutes. A strict construction of the statutory terms should only occur in the face of fraud or, at a minimum, when the complainant can show some injury attributable to [the error].'" Morgan Guaranty Trust Co. v. Hellenic Lines Ltd., 621 F.Supp. 198, 215 (S.D.N.Y.1985), quoting Lake Jackson State Bank v. O/S Kingfish Too, 240 F.Supp. 450, 452 (S.D.Tex.1965). See also In re Alberto, 823 F.2d 712, 719 (3d Cir.1987) (substantial compliance with Ship Mortgage Act adequate to sustain validity of mortgage under 46 U.S.C. § 921); Seattle-First National Bank v. Bluewater Partnership, 772 F.2d 565, 570 (9th Cir. 1985) ("Ship mortgages will not lose their preferred status where minor discrepancies *471 exist. Substantial compliance with the Act's requirements is sufficient."). While ninety million dollars is hardly minutia, one could equally argue that a typographical error in the absence of fraud with no injury to would-be windfall beneficiary GECC, which at all times had a full awareness of the actual figure, is in fact minutia, certainly as to GECC.
In Merchants National Bank v. Ward Rig No. 7, 634 F.2d 952 (5th Cir.1981), the Fifth Circuit upheld the validity and preferred status of ship mortgages in the face of numerous errors.[2] The court there stated: "We underscore that there is not the first breath of fraud or purposeful intent to evade or to mislead anyone extant in this record," id. at 958, and that there were no ambiguities because the parties knew of and intended to adhere to the correct maturity date. Id. at 957.
GECC's actual knowledge of the correct amount of Prudential's debt and the express contractual provision of the second mortgage conferring priority status to the first mortgage, combined with the absence of any showing of either fraud on Prudential's part or prejudice to GECC resulting from the typographical error, compel the clearly equitable conclusion that Prudential's first mortgage enjoys preferred status under the Ship Mortgage Act in the amount of $92,885,000. As stated in Morgan, supra, 621 F.Supp. at 216, in rejecting a challenge to the validity and preference of a ship mortgage based on counsel's failure to procure proper notarization of documents:
While it would be comforting to rail at the casual conduct of counsel which created this issue, such an indulgence would in no way reduce the difficulty presented to the court which must determine whether or not to invalidate substantial rights because of the failure to comply with clearly understood formalities.... The contracting parties intended to create the rights claimed ..., and had the transaction been completed with the appropriate punctilio the [intervenors] would have had no recourse but to accept [plaintiff's position]. The effect of strict enforcement in these circumstances is simply too drastic, given the unwitting nature of the ... failures, despite the reluctance of this court to condone a performance that is less than what is required.
Accordingly, GECC's motion for summary judgment is denied and Prudential's cross motion for summary judgment is granted.
So ordered.
NOTES
[1] I do not reach GECC's other contentions in light of my conclusion on the preference issue.
[2] The facts of the instant case point even more strongly in favor of upholding the preferred status of Prudential's first mortgage, inasmuch as an exhibit listing the correct amount of the mortgage was filed and recorded along with the documents containing the typographical error.
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253 Cal.App.2d 75 (1967)
THE PEOPLE, Plaintiff and Respondent,
v.
JOSEPHINE LOCKWOOD, Defendant and Appellant.
Crim. No. 4328.
California Court of Appeals. Third Dist.
July 31, 1967.
Roy H. Arnold, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, Raymond M. Momboisse and Michael Gessford, Deputy Attorneys General, for Plaintiff and Respondent.
BRAY, J. [fn. *]
Defendant Lockwood appeals [fn. 1] from judgment of conviction, after jury trial, of count I, violation of section 11500, Health and Safety Code (possession of opium) and count II, violation of the same section (possession of codeine).
Questions Presented
1. Were defendant's arrest and the search incidental thereto unlawful?
2. On the motion for consideration under section 3051 of the Welfare and Institutions Code, should the court have stricken portions of the probation report?
3. Should count II of the information have been dismissed?
Record
A jury found defendant and Roland Pitts guilty of two violations of section 11500 of the Health and Safety Code-- possession of opium and possession of codeine. Defendant Lockwood moved that the matter be referred to the probation officer and also that she be considered a subject for commitment under section 3051 of the Welfare and Institutions Code. After reading the probation report, the court denied probation and found defendant unfit for commitment under section 3051. She was then sentenced to the state prison for the term prescribed by law. Defendant Lockwood's appeal alone is before us.
Evidence
In the middle of June the partially decomposed body of one Ronald La Voie was found in the apartment of a woman using the name of Terry Spencer but who was defendant Josephine Lockwood. [fn. 2] The coroner's report indicated that the cause of *78 death was an overdose of dilaudid. Detective Ronald Cole of the Sacramento sheriff's office, the officer investigating the death, knew that defendant used the name of Terry Spencer, having previously arrested her on narcotics charges. Moreover, the manager of the apartment house where the body was found identified defendant from a photograph as a tenant of the apartment in which the body was found. For approximately two weeks prior to June 26, Cole had been looking for defendant to question her about the matter but was unable to locate her. On June 26 he received information that she was at a bar called the "Glass Jungle." Accompanied by his partner, Officer Tobler, he went there. As they approached the bar, they observed defendant and Pitts sitting in a gray Cadillac parked in the parking lot. As the officers approached, Pitts, who was sitting behind the wheel, saw them, got out, went to the passenger side of the car and defendant slid behind the wheel. By the time the officers, now on foot, approached her, defendant had turned on the ignition. Cole asked her to turn off the ignition and to step out of the car as they desired to talk to her. In a very deliberate, drawn out, slow, affected manner, as if she lacked full control of her faculties, she asked what they wanted to talk to her about. They told her about La Voie. After some hesitation, defendant voluntarily and slowly stepped from the car. As she got out, she swayed and leaned against the car, seeming to have difficulty in standing. Fresh needle marks were visible on her inner arm, an area frequently used by addicts to inject narcotics.
Cole had talked to her on prior occasions, both when she was, and when she was not, under the influence of narcotics. From his observations of her, be believed that she was under the influence of narcotics. When he told her of his belief, she pulled off her sunglasses and said, "I am not under the influence. I haven't had a fix for some time." "Look at my eyes." Both officers noted that her eyes were shiny or glassy and the pupils pinpointed, a condition indicating that she was under the influence of narcotics. Cole could smell no alcohol on her breath. Based on the totality of these observations, defendant was arrested for being under the influence of narcotics. Immediately, the officers searched the car.pitts, who was the owner of the car, specifically consented to the search of the trunk. As Cole was opening the trunk, defendant shouted a stream of obscenities at him and attempted to slam the trunk shut on his fingers. In the trunk there was found a small, blue, ladies overnight or cosmetic case, matching *79 the two suitcases Cole had previously seen in defendant's apartment. In this small case were various vials and druggists' bottles, several having prescription labels made out to Terry Spencer. Substantial quantities of codeine and opium were found in some of the bottles.
At the trial, defendant, who had been living with Pitts for the last three or four days, testified, claiming that the officers were overly familiar, that they held her arm, which she didn't appreciate. She admitted having been angry and using rather descriptive language. She denied being under the influence of narcotics, ownership or knowledge of the case and its contents. She said that she had taken a couple of tranquilizers.
Pitts testified that although the Cadillac was not registered in his name, he owned it. As his license had been suspended when defendant moved in with him he had given her its keys, so that she had complete access to the car, and had had possession of it on numerous occasions during the preceding week. He denied knowledge of the contents of the trunk and denied having seen one of the bottles on which his fingerprint was found. He stated that defendant was not under the influence of narcotics.
1. The arrest and search were not unlawful.
Defendant contends that there was not reasonable cause for her arrest and therefore the arrest and the search incident thereto were unlawful.
[1] It is not unreasonable for officers to seek interviews with suspects or witnesses. (People v. Michael, 45 Cal.2d 751, 754 [290 P.2d 852]; People v. Martin, 45 Cal.2d 755, 761 [290 P.2d 855].) [2] It obviously was not unreasonable for the officers to seek to talk to defendant about a dead body found in her room. Although defendant suggested that she could talk sitting in the car, there was nothing unreasonable in their asking that the interview be outside the car. She voluntarily stepped out of the car. Defendant contends that getting her to step out of the car constituted an arrest and that at that moment the officers had no cause to arrest her.
[3] Getting defendant to step out of the car did not restrict her liberty of movement in the sense in which Henry v. United States, 361 U.S. 98 [4 L.Ed.2d 134, 80 S.Ct. 168], cited by defendant, held that restriction of liberty of movement constituted arrest. In People v. Mickelson (1963) 59 Cal.2d 448, 450 [30 Cal.Rptr. 18, 380 P.2d 658], the court pointed out that, while the United States Supreme Court rule *80 seemed to be that an arrest occurs when an automobile is stopped during a police investigation, "[i]n this state, however, we have consistently held that circumstances short of probable cause to make an arrest may still justify an officer's stopping pedestrians or motorists on the streets for questioning." [4] Even though the officers suspected, because of her manner of speaking, that defendant may have been under the influence of narcotics and wanted to see her walk, they had no knowledge of her having committed any crime. Being under the influence of narcotics is a misdemeanor ( 11721, Health & Saf Code), but mere suspicion that she was under the influence would not justify an arrest but would justify an investigation. The request that she step outside the car so that they could talk to her and to see if the officers' suspicions were well based, was a reasonable one. No force was used, and when one of them opened the car for her, she voluntarily stepped out.
[5a] There was no arrest prior to defendant's exit from the car. Her actions thereafter constituted reasonable grounds for her arrest for being under the influence of narcotics, and justified the search thereafter.
[6] "... 'As to what constitutes "reasonable cause," there is no formula for its determination, each case being dependent on its own facts and circumstances [Citations]. "Reasonable cause" is defined by our Supreme Court "to be such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime (citation). ..." ' " (People v. Evans (1966) 240 Cal.App.2d 291, 297 [49 Cal.Rptr. 501].)
In People v. Rios, 46 Cal.2d 297 [294 P.2d 39], an arrest was upheld which was based on the officer's noticing marks resembling hypodermic marks on the arm of the defendant, a known narcotics offender. In People v. Amiotte (1963) 215 Cal.App.2d 176 [30 Cal.Rptr. 102], the arrest, which was based upon the officer's noticing needle marks on the defendant's arms and that defendant's eyes were pinpointed, was upheld. (See also People v. Elliott (1960) 186 Cal.App.2d 178 [8 Cal.Rptr. 795].)
[7] Among other things, Pitts, the professed owner of the car, gave his consent to the search. [fn. 3] And where there is consent, even though the consent to the search was given by only *81 one of the defendants, such consent suffices. (People v. Jackson, 191 Cal.App.2d 296, 301 [12 Cal.Rptr. 748].)
[5b] The facts justifying the arrest by Officer Cole were quite strong: He knew that defendant had previously used narcotics; although there was no odor of alcohol about her, her speech was slow and deliberate and different from when he had talked to her before, and she had difficulty in standing; fresh needle marks appeared on her inner arm; her eyes were glassy and the pupils were pinpointed.
2. The probation report.
In the report of the probation officer which the court considered on her motion for probation and for commitment under section 3051, Welfare and Institutions Code, are certain statements which defendant contended should not have been considered by the trial judge and which she moved to have stricken from the report on the ground that they were hearsay. These statements were to the effect that reports from other public agencies indicated that defendant probably was involved in a burglary of a pharmacy; that some of the drugs taken were those in Pitts' car; that defendant was present at the time La Voie was given the drug taken in that burglary, the overdose of which caused his death; and that she was present when one Tiner died from a heart attack, in which it was suspected that drugs were involved.
[8] A probation report need not be limited to the facts of the particular offense or offenses of which a defendant has been found guilty. [9] "There is no authority that a probation report may not contain extrajudicial material. Such a report is not evidence." (People v. Overton (1961) 190 Cal.App.2d 369, 372 [11 Cal.Rptr. 885].) "Hearsay matter in a probation officer's report is continually accepted and such is contemplated by section 1203 of the Penal Code. [Citations.]" (People v. Ross (1962) 206 Cal.App.2d 542, 547 [24 Cal.Rptr. 1].)
"... the guilt of a defendant is not an issue in a probation officer's report. In this case defendant had pleaded guilty. The purpose of the report is to assist the court in determining whether a defendant should be granted probation and, if so, the terms thereof.penal Code, section 1203, provides that: 'The probation officer must thereupon make an investigation of the circumstances surrounding the crime and of the prior record and history of the defendant, must make a written report to the court of the facts found upon such investigation, and must accompany said report with his written *82 recommendations, including his recommendations as to the granting or withholding of probation to the defendant and as to the conditions of probation if it shall be granted.' A probation officer could not make an investigation and report of the nature required by Penal Code, section 1203, if restricted to the rules of evidence. Much of the prior record and history of a defendant, as well as the circumstances surrounding the crime, are hearsay and can be investigated and reported upon only by the use of hearsay information. It is clear that Penal Code, section 1203, contemplates the inclusion of hearsay matter in the probation officer's report. Had defendant thought the report insufficient or inadequate he could have presented witnesses to counteract or correct any portion of the report." (People v. Valdivia, 182 Cal.App.2d 145, 148 [5 Cal.Rptr. 832].)
The court properly refused to strike any portion of the probation officer's report.
[10] Disregarding the portions of the report objected to, it appears that defendant's police record (although this was her first felony conviction), her attitude towards narcotics and narcotic users, and her general attitude, justified, even compelled, that she neither be given probation nor committed under section 3051.
[11] "[W]here the trial court has exercised its discretion and determined that the defendant does not constitute a fit subject for commitment under the section, its finding will not be upset if it is supported by the record. [Citations.]" (People v. Jolke (1966) 242 Cal.App.2d 132, 143 [51 Cal.Rptr. 171].)
3. Count II.
[12] Defendant moved under section 995, Penal Code, for a dismissal of count II, which charged her with possession of codeine, on the ground that her possession of it was a part of the same transaction as her possession of opium charged in the first count and that to find her guilty of two crimes arising from the same transaction and to punish her therefor would constitute double punishment under section 654, Penal Code, and would deny her due process under both the federal and California Constitutions. There is no merit to her contention.
Defendant's possession of opium is one offense. Her possession of codeine is another and a separate one. Defendant is not being punished two times for a single act within the meaning of section 654. *83
In People v. Lopez (1959) 169 Cal.App.2d 344 [337 P.2d 570], the defendant was charged with and found guilty of three separate violations of section 11500, Health and Safety Code--possession of (1) heroin, (2) amidone, and (3) marijuana. The evidence showed that the three drugs were found at the same time when the officers raided the defendant's apartment. The defendant contended that when given a separate sentence on each count, he was punished three times for a single act. The court said (at p. 351): "Contrary to his contention that defendant's possession of all three was a single act, the possession of each of the three different and distinct types of narcotics, even at the same time, constituted three separate offenses." (See also People v. Mandell (1949) 90 Cal.App2d 93 [202 P.2d 348].)
Judgment affirmed.
Pierce, P. J., and Regan, J., concurred.
NOTES
[fn. *] *. Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.
[fn. 1] 1. Defendant appealed in pro. per. However, on application, this court appointed an attorney to represent her on this appeal. He has briefed the appeal.
[fn. 2] 2. Lockwood is not her true name.
[fn. 3] 3. Although the car was registered in another man's name, Pitts claimed to own it.
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818 F.2d 863
*Rochonv.Privat
86-4442
United States Court of Appeals,Fifth Circuit.
4/29/87
1
W.D.La.
AFFIRMED
2
---------------
* Fed.R.App.P. 34(a); 5th Cir.R. 34.2.
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465 F.Supp. 54 (1979)
Anthony MARCELLO, Plaintiff,
v.
LONG ISLAND RAILROAD, R. K. Pattison, J. C. Valder and Robert Evans, Defendants.
No. 77 Civ. 5206.
United States District Court, S. D. New York.
January 9, 1979.
*55 Pearlman, Gottesman, Apat, Kupillas & Futterman, Kew Gardens, N. Y., for plaintiff; Richard P. Broder, Kew Gardens, N. Y., of counsel.
George M. Onken, Jamaica, N. Y., Cravath, Swaine & Moore, New York City, for defendants; Thomas M. Taranto, Laurence *56 H. Rubin, Jamaica, N. Y., Richard M. Hirsch, New York City, of counsel.
OPINION
GAGLIARDI, District Judge.
The plaintiff, Anthony Marcello, formerly a managerial employee of the Long Island Railroad ("LIRR"), commenced this action pursuant to 42 U.S.C. § 1983 against the LIRR, its former president, R. K. Pattison, and other LIRR employees, alleging a deprivation of his constitutional rights in connection with the termination of his employment.[1] Plaintiff seeks relief in the form of compensatory damages, back pay, and other lost benefits.[2] Defendants have filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. For the reasons discussed below, the defendants' motion is granted.
Statement of Facts[3]
In July 1976, LIRR officials started to investigate the sale of miniature bottles of alcoholic beverages known as "liquor kits" by and to its employees. Robert Evans, the LIRR's Chief of Investigations, contacted the Port Authority Police Department (PAPD) after purchasing a liquor kit that bore the insignia "AA" from railroad employee, Joseph Nitolli. (S¶ 14). The PAPD subsequently advised Evans that the kit may have been stolen from American Airlines (Id.).
On October 25, 1976, Evans and LIRR Superintendent of Transportation, Joseph Valder interviewed Nitolli in the presence of his attorney. Nitolli stated that he purchased liquor kits for resale from the plaintiff, a fellow railroad employee. Nitolli also named other employees who he believed were selling liquor kits (Id.). From October 27, 1976 to November 11, 1976, Evans interviewed the railroad employees that Nitolli mentioned and obtained statements from five of them, verifying that they were engaged in the sale of liquor kits. During this period, PAPD was in contact with Evans regarding the progress of his investigation and on November 12, 1976, Evans, accompanied by a PAPD detective, met with a representative of the Queens District Attorney's Office to discuss the case.
On November 2, 1976, Evans summoned the plaintiff to appear before him, informed the plaintiff of the purpose of the hearing, and read him his constitutional rights (S¶ 3, Complaint ¶ 8). At that time, plaintiff elected to make no statements and the meeting was adjourned so that plaintiff could confer with counsel (Id.). The following day, plaintiff again met with Evans and Valder in the presence of counsel. Plaintiff was advised that the entire matter had already been referred to the Queens County District Attorney's Office and that the plaintiff would be charged with conspiracy and possession of stolen goods. Upon advice of counsel, plaintiff again refused to make any statement (S¶ 7, Complaint ¶ 9). At this point, one of the few factual disputes between the parties arises. Plaintiff alleges that "... Evans thereupon stated, in sum and substance, that the information sought from plaintiff would be obtained from plaintiff at plaintiff's disciplinary hearing wherein plaintiff would be `required' to answer the questions put to him upon penalty of dismissal for refusal to do so" (Complaint ¶ 9). For the purpose of this motion only, the defendants have agreed to regard this allegation as true, *57 "reserving the right to contest at trial what is alleged to have been said at the [November 3rd] meeting ... in the event defendants' motion is denied" (S¶ 7).
On November 10, 1976, plaintiff was suspended from service from the LIRR pending a disciplinary hearing scheduled for November 29, 1976 (S¶ 3, Complaint ¶ 8). He was advised that the charge upon which he would be tried was "conduct unbecoming an employee"; that he could be assisted by a "duly accredited representative of the Brotherhood of Railway Airline and Steamship Clerks" ("BRAC"); and that he would be permitted to summon and cross-examine witnesses (Id.).
The disciplinary hearing began on November 29th and concluded on December 1, 1976. The LIRR produced ten witnesses who testified that they purchased liquor kits from the plaintiff and/or from Nitolli (Tr. 13, 18, 22, 25, 28, 32, 40, 43, 47-8, 50-1). The trial officer reminded the plaintiff that he could summon and cross-examine witnesses (Id. at 8). Marcello, however, remained mute and refused to be represented by a member of BRAC because he claimed that he had a right to be represented by a lawyer particularly because LIRR officials had already referred the liquor kit matter to the Queens County District Attorney (Id. at 3, 6, 9). The plaintiff was never ordered by either the hearing officer or anyone else at the hearing to testify under penalty of automatic dismissal regarding his role in the liquor kit transactions (S¶ 15). The trial officer stated, however, that:
I must advise you at this time that if ... [your position is to remain mute], this does not preclude the carrier from issuing discipline if, as the result of this trial, the charge which has been placed against you has been sustained.
(Tr. ¶ 9). At the end of the hearing, the trial officer again warned the plaintiff of the danger of not putting forth his case:
You stated that it was your desire to remain mute during these proceedings and not to answer any questions poased [sic] to you by the trial officer. Mr. Marcello, I wish to advise you at this time that if you persist in that position of remaining mute and refusing to answer questions that you are placing yourself in a very precarious position. I offer you the opportunity at this time to change that position if you so desire.
(Id. at 58). Plaintiff continued to be silent. On December 13, 1976, plaintiff was discharged from employment with the LIRR for "conduct unbecoming an employee."
The following day, the Queens County District Attorney presented the evidence developed at the disciplinary hearing to a grand jury. Many of the same witnesses who testified at the hearing also testified before the grand jury. For the purpose of this motion only, defendants agree that all of these witnesses testified with transactional immunity (S¶ 8B; Complaint ¶ 16). The plaintiff, however, was not offered any form of immunity from criminal prosecution, and thus was not a witness before the grand jury (S¶ 17, 18). The grand jury returned a ten count felony indictment, against the plaintiff on December 16, 1976 charging grand larceny and criminal possession of stolen property (Id. at ¶ 4). During the trial in Supreme Court, Queens County, plaintiff pleaded guilty to a single count of criminal possession of stolen property in the third degree (Id. at ¶ 19). Plaintiff was subsequently sentenced to three years' probation (Id.).
By letter of December 20, 1976, plaintiff appealed his dismissal from the LIRR to Valder (Id. at ¶ 30). Valder advised plaintiff on February 7, 1977 that his appeal was denied (Id. at ¶ 31). Plaintiff directed a further appeal to LIRR President, Pattison, who granted the appeal, but also issued a denial. Plaintiff was not permitted counsel at either of these appeals since his attorney was not a duly authorized representative of BRAC. BRAC subsequently filed a claim on behalf of plaintiff with the National Railroad Adjustment Board ("NRAB") for reinstatement and back pay (Id. at 34).
*58 Discussion
Plaintiff asserts that the LIRR and its officials, acting under color of state law,[4] deprived him of his constitutional rights guaranteed by (1) the due process clause of the Fourteenth Amendment, (2) the equal protection clause of the Fourteenth Amendment, and (3) the prohibition against cruel and unusual punishment embodied in the Eighth Amendment. After examining each of these alleged violations in seriatim, this court finds that the plaintiff's claims are without merit.
I. Due Process Claim
At the threshold, it is important to note that the successful assertion of plaintiff's due process claims depends upon whether or not his interest in retaining his position as a passenger terminal agent for the LIRR rises to the level of a "property" or "liberty" interest protected by the Fourteenth Amendment. The Supreme Court decisions in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) establish that a pre-termination hearing must be granted to an employee whenever a decision to discharge him will deprive him of either a property interest, such as his continued right to work under an employment contract, or a liberty interest, such as his freedom to protect his "good name, reputation, honor or integrity." Board of Regents v. Roth, supra, 408 U.S. at 573, 576-77, 92 S.Ct. at 2707; Perry v. Sindermann, 408 U.S. at 599-602, 92 S.Ct. 2694. Marcello, as a non-union managerial employee, does not assert any property right to continued employment, but rests his due process claim on his liberty interest to rebut any charges that "might seriously damage his standing and associations in the community" or impose "a stigma or other disability that foreclose[s] his freedom to take advantage of other employment opportunities." Board of Regents v. Roth, supra, 408 U.S. at 573, 92 S.Ct. at 2707; see also Wahba v. New York University, 492 F.2d 96, 98 n.2 (2d Cir.), cert. denied, 419 U.S. 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974); Simard v. Board of Education, 473 F.2d 988, 992 (2d Cir. 1973); Russell v. Hodges, supra, 470 F.2d 212, 216 (2d Cir. 1972). The Roth court noted that mere proof that an employee's discharge from one job "might make him somewhat less attractive to some other employers would [not be sufficient to] establish the kind of foreclosure of opportunities that might amount to a deprivation of `liberty.'" Board of Regents v. Roth, supra, 408 U.S. at 574 n.13, 92 S.Ct. at 2708. Rather, the Court stated that a charge of dishonesty or immorality, for example, might implicate an individual's liberty interest. Id. at 573, 92 S.Ct. 2701.
The LIRR charged the plaintiff with "conduct unbecoming a LIRR employee during an indefinite time in the year 1976 wherein [he was] involved in the sale of alcoholic beverages to various employees of this company" (Exh. A at 2). Although there is nothing in the charge itself that would necessarily seriously damage or stigmatize the plaintiff, evidence was introduced *59 at the hearing that the liquor kits were stolen (See, e. g., Tr. 57). This testimony, coupled with the actual charge, would certainly have a stigmatizing effect upon the plaintiff so long as the reasons for the plaintiff's discharge were publicized. See Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Plaintiff's activities were the subject of a newspaper article appearing in the Long Island Press on January 25, 1977. Although the article focused primarily on Marcello's indictment "for the sale and purchase .. of stolen liquor", it also reported that the plaintiff was disciplined by the LIRR. It is likely that a reader of the article might have inferred that the plaintiff was being disciplined for reasons similar to those for which he was being indicted. Therefore, the stigmatizing information was sufficiently publicized to satisfy Bishop v. Wood.[5]
Having established that the plaintiff has a liberty interest protected by the Fourteenth Amendment, the court must next determine whether or not the form of the hearing that the defendant railroad provided to the plaintiff complied with due process. Board of Regents v. Roth, supra at 570-71, 92 S.Ct. 2701. In this case, prior to the plaintiff's suspension and subsequent discharge, he was (1) advised of the charges against him and given Miranda warnings; and (2) afforded an informal hearing before Evans and Valder, at which time the plaintiff was permitted to have counsel present, again informed of the nature of the charges, and given an opportunity to respond to them. In addition, plaintiff was later afforded a more formal hearing before a LIRR hearing officer at which time he was able to summon and cross-examine witnesses. Plaintiff nevertheless claims that the November 29, 1978 hearing was inherently unfair because (1) he was not permitted to be represented by counsel and because (2) he was not granted any form of immunity from criminal prosecution and therefore was not able to defend himself adequately.
Courts have repeatedly held that the Constitution does not entitle an employee to counsel at an initial disciplinary hearing conducted by his employer. See Edwards v. St. Louis-San Francisco Railroad Co., 361 F.2d 946, 954 n.19 (7th Cir. 1977) citing D'Elia v. New York, New Haven & Hartford R. Co., 230 F.Supp. 912 (D.Conn. 1964); D'Amico v. Pennsylvania Railroad Co., 191 F.Supp. 160 (S.D.N.Y.1961); Butler v. Thompson, 192 F.2d 831 (8th Cir. 1951); Broady v. Illinois Cent. R. Co., 191 F.2d 73 (7th Cir. 1951), cert. den., 342 U.S. 897, 72 S.Ct. 231, 96 L.Ed. 672 (1951); Brooks v. Chicago, R. I. & P.R. Co., 177 F.2d 385 (8th Cir. 1949). See also Carle v. Consolidated Rail Corp., 426 F.Supp. 1045, 1947 (S.D.N.Y. 1977).[6] Plaintiff attempts to distinguish *60 these cases on the ground that they did not involve situations in which an employee was the target of a criminal charge. This distinction, however, was addressed and rejected in Carle. There, an employee of defendant Conrail contended that he was entitled to counsel at his disciplinary hearing because two of the charges brought against him by his employer were essentially criminal charges and that the company proceedings might damage his credibility as a witness in a subsequent criminal action. The court responded in the following manner:
... plaintiff's trial involves only private parties. . . . [A]ny result reached at trial will have no collateral effect upon criminal charges brought against the plaintiff by public law enforcement officials.
Carle v. Consolidated Rail Corp., supra, at 1047. Plaintiff has not shown why any different result is required in the case before this court. Absent such a showing, this court cannot conclude that the disciplinary hearing was inherently unfair because plaintiff was denied the assistance of counsel.[7]
Plaintiff asserts that his due process rights were also violated at the hearing because he was not granted any form of immunity from criminal prosecution. Without the assurance that the statements made at the hearing would not be used against him at his subsequent criminal trial, plaintiff alleges that he was faced with the "constitutionally obnoxious dilemma" of either speaking in his own defense at the risk of incriminating himself in the subsequent criminal prosecution, or remaining silent at the risk of obtaining more stringent discipline from his employer.
The Supreme Court addressed the constitutionality of a procedure that places an individual in such a dilemma in Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). In Baxter, respondent Palmigiano was an inmate at the Rhode Island Correctional Institution. During his incarceration, the prison's disciplinary board charged the plaintiff with "inciting a disturbance and disrupt[ion] of prison operations ..." The disciplinary board informed respondent that, in addition to disciplinary measures instituted by the board, he might be prosecuted for a violation of state law. The board also informed him that he had a right to remain silent, but that his silence could be used against him at the hearing. Palmigiano claimed, as does the plaintiff in the case at bar, that he was denied due process "insofar as he was not provided with use immunity for statements [that] he might have made within the disciplinary hearing." Id. at 314, 96 S.Ct. at 1556. The Supreme Court rejected the respondent's argument and upheld the procedures employed by the Rhode Island prison officials. The Court first stated that the board's drawing of adverse inferences from the respondent's silence did not contravene its earlier decision in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) because that case only prohibited drawing such inferences from the defendant's silence in criminal cases. The critical factor in the Court's reasoning, however, which is also determinative of the issue in the present case, is that "a prison inmate in Rhode Island electing to remain silent during his disciplinary hearing ... is not in consequence of his silence automatically found guilty of the infraction[s] with which he has been charged":
Under Rhode Island law, disciplinary decisions "must be based on substantial evidence manifested in the record of the disciplinary proceeding." It is thus undisputed that an inmate's silence in and of itself is insufficient to support an adverse *61 decision by the Disciplinary Board. In this respect, this case is very different from the circumstances before the Court in the Garrity-Lefkowitz decisions, where refusal to submit to interrogation and to waive the Fifth Amendment privilege, standing alone and without regard to the other evidence, resulted in loss of employment or opportunity to contract with the State. There, failure to respond to interrogation was treated as a final admission of guilt. Here, Palmigiano remained silent at the hearing in the face of evidence that incriminated him; and, as far as this record reveals, his silence was given no more evidentiary value than was warranted by the facts surrounding his case.
Id. 425 U.S. at 317-18, 96 S.Ct. at 1557 (emphasis added) (citation omitted).
In the instant case, the decision by the LIRR to discharge Marcello for "conduct unbecoming a railroad employee" was no more an "automatic consequence" of Marcello's exercise of his right to remain silent than was the prison board's decision to place Palmigiano in punitive segregation for thirty days for "inciting a disturbance." Plaintiff alleges that Evans told the plaintiff, "in sum and substance, that the information sought from [him] would be obtained from plaintiff at plaintiff's disciplinary hearing where plaintiff would be required to answer questions put to him under penalty of dismissal for refusal to do so" (Complaint ¶ 9) (emphasis added). Even assuming that this allegation is true, the transcript of the November 29th hearing indicates that the hearing officer neither ordered plaintiff to testify nor, more importantly, suggested to him that he would be disciplined purely on the basis of his failure to do so. On the contrary, the trial officer stated at the beginning of the hearing that:
"[i]t is historical in the railroad industry that no discipline can be issued unless as a result of said trial, the carrier sustains the charge. . . ."
(Tr. at 7). Furthermore, only after nine witnesses testified that they purchased liquor kits from Marcello, presenting an overwhelming amount of evidence against the plaintiff, did the hearing officer warn Marcello of the "precarious position" that he was placing himself in by not putting forth a defense (Tr. 58). Nor can this case be distinguished from Baxter on the ground that Baxter involved a situation in which there was only a possibility of criminal charges being filed against Palmigiano whereas in the present action adverse inferences were drawn from plaintiff's silence "at a time when he was the target of a pending criminal investigation" (Plaintiff's Brief at 20). Even assuming arguendo that these two situations are factually distinct, this court agrees with the First Circuit when it responded to the same argument by simply noting that "the Court's opinion in Baxter [does not . . .] accord leeway for such distinctions." See Roberts v. Taylor, 540 F.2d 540, 542 (1st Cir. 1976). Thus, the Baxter decision clearly provides that the plaintiff was not denied due process because he was not provided with immunity for statements that he might have made at the disciplinary hearing.
II. Equal Protection and Cruel and Unusual Punishment Claims
Plaintiff also contends that he was denied equal protection under the law as guaranteed by the Fourteenth Amendment because the LIRR, acting under color of state law,[8] chose to pursue disciplinary proceedings against only one employee instead of each employee who possessed liquor kits. This argument, however, is clearly without merit. The record establishes that the railroad employees who were engaged in the purchase or sale of liquor kits were not "similarly situated" and thus, the plaintiff cannot claim that he was denied equal protection based upon his disparate treatment. Of all the employees who were involved in liquor kit transactions, only Nitolli and the plaintiff sold a large number of liquor kits for profit (Exh. A at 16). The LIRR demoted Nitolli from a non-union managerial position to a unionized nonsupervisory job, resulting in a $845 annual reduction in pay, *62 and issued a letter of reprimand (S¶ 23). Although plaintiff was dismissed, rather than demoted, for his part in the liquor kit scheme, there was testimony at the hearing that plaintiff initiated the scheme, brought the kits onto LIRR property, and established their chain of distribution (Exh. A at 15). These facts alone indicate that there was a rational basis on which the LIRR could determine that Marcello should be disciplined more harshly than the other employees. Cf. Allen v. VanCantfort, 436 F.2d 625, 631 (1st Cir.), cert. denied, 402 U.S. 1008, 91 S.Ct. 2189, 29 L.Ed.2d 430 (1971); United States v. Vita, 209 F.Supp. 172 (E.D. N.Y.1962) (no constitutional requirement that co-defendants in criminal case receive the same sentence).
Plaintiff's claim under the constitutional prohibition against cruel and unusual punishment presents no greater merit. Given the degree of plaintiff's participation, and his subsequent admission to the charge of possessing stolen property, the disciplinary measures undertaken by the LIRR cannot be considered so "grossly excessive" as to violate the Eighth Amendment. See, e. g. Furman v. Georgia, 408 U.S. 238, 314, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Marshall, J., concurring).
Conclusion
Accordingly, defendant's motion for summary judgment pursuant to Rule 56, Fed.R. Civ.P. is granted and the Clerk is directed to enter judgment in favor of the defendants dismissing the complaint.
So Ordered.
NOTES
[1] The complaint alleges two causes of action: the first for false arrest and the second for unlawful discharge. Subsequent to the commencement of this action, the plaintiff entered a plea of guilty to a single count of criminal possession of stolen property in the third degree, and consequently has withdrawn his first cause of action.
[2] Plaintiff is not seeking reinstatement in this action since he is presently pursuing this remedy before administrative tribunals pursuant to the Railway Labor Act, 45 U.S.C. § 151 et seq.
[3] The facts set forth in this section are derived from a stipulation entered into between the parties on March 30, 1978 for the limited purpose of defendants' motion for summary judgment. References to the stipulation are indicated as "S¶___."
[4] Both parties agree that the defendant LIRR was acting under color of state law (S¶ 6). As this court stated in Capers v. Long Island Railroad, 429 F.Supp. 1359, 1367 n.11 (S.D.N.Y. 1977):
... it appears that the LIRR as a "subsidiary corporation" of the Metropolitan Transportation Authority (MTA) since 1966, is acting under color of state law and is bound by the requirements of the Fourteenth Amendment. See Quintero v. Long Island Railroad, 55 Misc.2d 813, 286 N.Y.S.2d 748 (S.Ct.Kings Co.1968); see also Taylor v. New York City Transit Authority, 433 F.2d 665 (2d Cir. 1970); Kissinger v. New York City Transit Authority, 274 F.Supp. 438, 441 (S.D.N.Y. 1967). The MTA is a "public benefit corporation" created by the State of New York in 1965. Title 11, Public Authority Law §§ 1263 and 1266 (McKinney 1970). The LIRR as a subsidiary corporation entirely owned and operated by the MTA, enjoys the "privileges, immunities, tax exemptions and other exemptions" of the MTA and is "subject to the restrictions and limitations to which the authority may be subject." Public Authorities Law § 1266(5). Under the circumstances, the LIRR is acting under color of state law. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 726, [81 S.Ct. 856, 6 L.Ed.2d 45] (1961).
[5] Because of the result this court reaches regarding plaintiff's due process claims, it need not decide the applicability of Codd v. Velger, 420 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977). In Codd, the Supreme Court held that a policeman's right to a pre-termination hearing is defeated by his failure to allege falsity of the information that allegedly denies him of due process because of its stigmatizing effect. Id. at 623, 97 S.Ct. 882. Defendants assert that Marcello's due process claims must fall "because he admits that the charges upon which he was discharged were substantially true." (Defendants' Memorandum of Law at 16). Plaintiff did not make such an admission at the hearing; on the contrary, he refused to testify. Further, given that Marcello claims that he remained mute at the disciplinary hearing because he did not want to say anything that might prove damaging in the subsequent criminal action, this may be one of the instances in which plaintiff's right to a hearing should not be negated for failing to plead falsity in his complaint. Id. at 629-30 n.1, 97 S.Ct. 882 n.1. (Brennan, J., dissenting).
[6] Whether or not plaintiff's rights are governed by the collective bargaining agreement entered into between the LIRR and the Brotherhood of Railway Airline Handlers, and Station Employees ("the BRAC agreement") need not concern this court. A collective bargaining agreement clearly cannot lawfully abrogate rights that the Constitution guarantees. Additionally, it is well settled that questions involving the interpretation of collective bargaining agreements implemented in accordance with the Railway Labor Act, 45 U.S.C. § 151 et seq. are within the exclusive jurisdiction of the National Railroad Adjustment Board. Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972); Brotherhood of Locomotive Engineers v. Louisville & Nashville Railroad Co., 373 U.S. 33, 38, 83 S.Ct. 1059, 10 L.Ed.2d 172 (1963); Edwards v. St. Louis-San Francisco Railroad Co., 361 F.2d 946, 954 (7th Cir. 1966); Carle v. Consolidated Rail Corp., 426 F.Supp. 1045 (S.D.N.Y.1977).
[7] In an analogous situation, inmates brought before a prison disciplinary board have been denied the right to be represented by either retained or appointed counsel whether or not the charges involve conduct punishable as a crime under state law. Baxter v. Palmigiano, 425 U.S. 308, 314-15, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976).
[8] See note 4, supra.
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805 N.E.2d 1265 (2004)
Sandra E. BEIKE, Appellant-Petitioner,
v.
Walter C. BEIKE, Appellee-Respondent.
No. 46A05-0311-CV-562.
Court of Appeals of Indiana.
April 12, 2004.
*1266 Craig V. Braje, Elizabeth A. Flynn, Michigan City, IN, Attorneys for Appellant.
Thomas J. Rutkowski, Michigan City, IN, Attorney for Appellee.
OPINION
ROBB, Judge.
Sandra Beike appeals the trial court's order granting Walter Beike's Motion for Relief from Judgment which adjusted the dissolution decree to account for a decline in value of Walter's pension benefits. We affirm.
Issue
Sandra presents one issue for our review which we restate as whether the trial court abused its discretion in granting Walter's Motion for Relief from Judgment.
Discussion and Decision
Walter and Sandra were married August 22, 1978, and on December 28, 1994, they separated. On June 6, 1996, the parties filed a Joint Motion for Partial Final Order which was approved by the trial court. The trial court entered a Partial Final Order on June 6, which stated in pertinent part:
The Parties have agreed that [Sandra's] counsel will draft and process a QDRO reflecting that [Sandra] is entitled to Thirty-Six percent (36%) of the value of [Walter's] vested pension as of the date of their separation, which was December 28, 1994.
Appellant's Appendix at 44. At the time of the Partial Final Order, Walter was receiving $982.00 per month. Based on the calculation of thirty-six percent of the value of Walter's pension on December 28, 1994, Sandra was to receive $353.00 per month. On August 7, 1996, a Qualified Domestic Relations Order ("QDRO") was entered reflecting the distribution of Walter's retirement benefits.[1]
Walter was an employee at National Steel, which declared bankruptcy in March 2002. Subsequently, Walter received his pension benefits from Pension Benefit Guaranty Corporation ("PBGC"). However, the value of his pension plan was reduced from $1,918.77 to $1,195.29 or approximately sixty-two percent of the amount he had anticipated. On August 1, 2003, Walter filed a Motion for Relief from Order, requesting that the trial court modify the QDRO to reflect the change in circumstances brought about by National Steel's bankruptcy. The trial court held a *1267 hearing and took Walter's motion under advisement. On October 2, 2003, the trial court granted Walter's motion and reduced Sandra's monthly payment to $219.46. This appeal ensued.
Discussion and Decision
I. Standard of Review
When reviewing a trial court's determination of whether to grant a motion for relief from judgment, we will not reweigh the evidence. Zwiebel v. Zwiebel, 689 N.E.2d 746, 748 (Ind.Ct.App.1997), trans. denied. We review a trial court's grant or denial of a motion for relief from judgment under an abuse of discretion standard of review. Crafton v. Gibson, 752 N.E.2d 78, 83 (Ind.Ct.App.2001). "An abuse of discretion occurs where the trial court's judgment is clearly against the logic and effect of the facts and inferences supporting the judgment for relief." Weppler v. Stansbury, 694 N.E.2d 1173, 1176 (Ind.Ct.App.1998).
II. Walter's Motion for Relief from Judgment
Sandra maintains that the trial court abused its discretion when it modified the decree. She argues that property settlement agreements incorporated into final dissolution decrees are binding contracts and cannot be modified. For this proposition, she directs our attention to Dusenberry v. Dusenberry, 625 N.E.2d 458 (Ind.Ct. App.1993). In that case, the Dusenberrys, while still married, were involved in an automobile accident in which they were both injured. They filed suit seeking damages for their injuries. Five months later, Carolyn Dusenberry filed a petition for dissolution of marriage. The trial court approved an agreed decree of marriage dissolution in which they stated that they would each receive one half of any proceeds from their personal injury claims after the payment of all medical and legal bills. However, after the dissolution, Carolyn's condition worsened. After the personal injury suit was settled, Carolyn filed a Rule 60(B) motion to modify or rescind that part of the decree concerning division of the personal injury settlement. The trial court granted Carolyn's motion.
Upon appeal, this court first noted that a strong policy favors the finality of marital property division whether the trial court makes the division or approves a division by the parties. However, the court also noted that the trial court could grant Rule 60(B) motions to modify the property settlement. Therefore, the court considered Carolyn's arguments. Carolyn argued that the trial court lacked jurisdiction over the personal injury claim and therefore, that the division of the personal injury settlement was void. We held that Carolyn had failed to show either a lack of either personal or subject matter jurisdiction and therefore, we stated that her argument regarding jurisdiction had failed. Id. at 462. Alternatively, she argued that the settlement was the product of mutual mistake. However, the relief afforded under Rule 60(B)(1) due to a mutual mistake must be claimed within one year of the mistake and Carolyn had waited more than a year to file her petition to modify. She also argued that Rule 60(B)(8) afforded her a reasonable time in which to bring her claim of mutual mistake. However, this court noted that Rule 60(B)(8) specifically noted that the reasonable time allowance was not applicable to any of the reasons set forth in Rule 60(B)(1)-(4). Therefore, we held that Carolyn's argument on mutual mistake failed because the time for such a claim had elapsed. Id.
Sandra relies on Dusenberry for the proposition that dissolution decrees are final and are not subject to modification. However, this court noted that a Rule *1268 60(B) Motion for Relief from Judgment was an appropriate means with which to modify a property settlement. The Dusenberry court merely stated that Carolyn's arguments were not persuasive, not that such a motion could not be used to modify a property settlement. Therefore, Sandra's reliance on Dusenberry is misplaced.
Second, we note that the asset in question in Dusenberry was a personal injury award. Significantly, the Dusenberry court noted that, "As in most personal injury actions, the ultimate value of the suit was uncertain." Id. at 463. The court stated that the agreement was clear and that the Dusenberrys each bargained for one half of the proceeds. Here, however, the asset in question is a pension plan. Although the value of the pension plan was not completely settled, both parties believed they understood the value of the plan at the time of the dissolution decree. Subsequently, a change which neither party could have predicted affected the value of the plan. This is not the same situation as Dusenberry where each party contracted to receive fifty percent of whatever was awarded.
Sandra next cites Myers v. Myers, 560 N.E.2d 39 (Ind.1990), stating that our supreme court in that case refused to modify a property settlement that included a military pension. In Myers, the trial court approved a property settlement agreement written by the parties which allowed the wife to receive a portion of her husband's military pension. Our supreme court noted that divorcing couples are free to divide their property in any way and their agreement is interpreted as any other contract. Sandra specifically directs our attention to the following language: "It is well settled that a property settlement provision in a dissolution decree is final and is not subject to modification by the court regardless of changing circumstances of the parties." Id. at 44. However, this language is not the last word on the matter. Although the decree may be final, in the case of ambiguity, we must interpret the decree as we do any other contract.
Such a situation arose in Niccum v. Niccum, 734 N.E.2d 637 (Ind.Ct.App. 2000), in which we were presented with a dissolution decree which included a benefit plan and investment program. Less than a year after the initial QDRO was entered, the husband moved to modify it because he stated that the trial court intended only to award the wife a set amount and not to provide for any growth during the interim period between the valuation date and the settlement agreement approval date. We noted that ambiguity existed because the agreement did not express in clear terms whether the wife was entitled to growth and losses during the stated period. However, the agreement clearly said she was entitled to half of the plan and the investment program. Therefore, we held that the wife was entitled to the growth on her half during that period, stating: "absent express language stating otherwise, the settlement agreement of the parties implicitly contemplated both parties sharing all of the rewards and risks associated with an investment plan." Id. at 640.
Our court recently examined a similar issue in Case v. Case, 794 N.E.2d 514 (Ind.Ct.App.2003). In Case, the trial court awarded $40,398.48 of the husband's 401(k) plan to the husband and $50,000.00 to the wife. Approximately a month and a half after the dissolution decree was issued, the husband moved to modify the decree because the value of the 401(k) plan had diminished to $67,266.00. Therefore, he argued that it would be impossible to make the awards in the decree. The husband moved the court to modify the decree so that each party would receive their respective *1269 interests in the plan. The trial court granted the motion and modified the decree to say that the wife would receive 55.31% of the 401(k) plan whenever a QDRO was tendered and approved by the court. Significantly, the trial court noted that the decline in the plan was not caused by any action by the husband. Id. at 516.
Upon appeal, we noted that the trial court's decree allocated the value of the 401(k) plan to the husband and wife and therefore, the decree contemplated that both parties would share in the risks and rewards associated with the plan. Although the wife argued that the trial court intended to award her $50,000.00, this court observed that, if we were to give the wife the allocated award, the trial court's intentions toward the husband would be thwarted. Although the wife argued that there were no clear terms regarding growth or loss related to the plan, we stated that, absent express language stating otherwise, the decree implicitly contemplated that both parties would share in the risks and the rewards associated with the plan. Therefore, we affirmed the trial court's modification of the 401(k) plan. Id. at 519.
Here, as in Case, Sandra has not alleged that the decline in the value of Walter's pension was caused by or contributed to by any of Walter's actions. Rather, the value of the pension plan declined due to National Steel's bankruptcy. Therefore, as in Case, absent express language to the contrary, the risks and losses associated with the pension plan should be borne by both parties as their respective interests were allocated by the trial court.
In response to Case and Niccum, Sandra contends that there is express language stating that she is not to share in the risks and rewards of Walter's pension plan. Paragraph 5(b) of the October 15, 1996, Amended QDRO states, in relation to the payments Walter was to make to Sandra: "This amount shall not include subsequent benefits accruals attributable to compensation increases and additional service credited after such date." Appellant's Appendix at 54. However, Sandra is misinterpreting this clause of the Amended QDRO. This language means merely that Sandra is not entitled to any benefits Walter receives for additional employment time after the date of separation. For example, if Walter continued to work at National Steel for another five years after he and Sandra separated and his pension was based on the number of years he worked for National Steel, Sandra would not receive any benefit from the years after their separation. This language does not mean that Sandra could not receive any benefit from an increase in the value of Walter's pension plan.
There is no express language in the QDRO or the Amended QDRO stating that the parties would not share in the risks and rewards associated with Walter's pension benefits. Therefore, the trial court did not abuse its discretion by interpreting the dissolution to reflect the decrease in Walter's pension plan.[2]See Eyler v. Eyler, 492 N.E.2d 1071, 1076 (Ind.1986) (holding that, by amending the distribution of assets, the trial court merely effected a property division consistent with the logic and effect of the evidence before the court).
*1270 Conclusion
The trial court did not abuse its discretion when it granted relief from the decree to ensure that both Sandra and Walter would bear the risks and the rewards of the pension plan. The judgment of the trial court is affirmed.
Affirmed.
SULLIVAN, J., and RATLIFF, Sr.J., concur.
NOTES
[1] The QDRO was amended on October 15, 1996, but the division of Walter's pension plan remained the same.
[2] We note that, had the Partial Final Order stated that Sandra was to receive $353.00 per month, the result of this case may have been different in that the amount would have been set. However, as Sandra was to receive a percentage of the pension plan, it was within the trial court's discretion to ensure that the percentages reflected the decrease in the value of Walter's pension plan.
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88 F.3d 1065
UNITED STATES of America, Appellee,v.Darryl Wayne ASKEW, Appellant.
No. 94-3139.
United States Court of Appeals,District of Columbia Circuit.
Argued Feb. 26, 1996.Decided July 12, 1996.
Appeal from the United States District Court for the District of Columbia (No. 93cr00465-01).
Thomas G. Corcoran, Jr., Washington, DC, appointed by the court, argued the cause and filed the briefs for appellant.
Mary B. McCord, Assistant United States Attorney, Washington, DC, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher, Elizabeth Trosman, and Steven J. McCool, Assistant United States Attorneys, were on the brief, argued the cause for appellee.
Before: WALD, WILLIAMS, and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge:
1
Appellant challenges his conviction for possession of more than fifty grams of cocaine base with intent to distribute, arguing that it was plain error for the trial court to admit certain expert testimony about intent, that he received ineffective assistance of counsel, and that the trial court improperly admitted as rebuttal evidence testimony regarding a prior arrest. Concluding that appellant has not shown prejudice from the admission of the expert testimony or from his counsel's performance and that the district court did not abuse its discretion in allowing the rebuttal testimony, we affirm his conviction.
I.
2
Shortly after midnight, on December 6, 1993, a United States Park Police officer observed appellant Darryl Wayne Askew in the passenger seat of a car parked in front of Washington, D.C.'s Union Station. Another person entered the car and started to drive away with Askew still inside. Noticing that it had no front license plate, the police officer stopped the car. After obtaining the occupants' names and running an information check on them, the officer returned to the car to arrest Askew. Askew stepped out of the car and ran away. Several police officers eventually apprehended him, arrested him, and found in his possession 148.3 grams of cocaine base, five glass pipes, four lighters, and a pager. Askew was charged with one count of unlawful possession with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii).
3
Askew was appointed counsel, Assistant Federal Public Defender Amy Seidman. Less than a week before trial, claiming dissatisfaction with Seidman, Askew requested a different attorney. Another attorney from the Federal Public Defender Office, Assistant Federal Public Defender Michael Wallace, who had spoken with Seidman about the case, was appointed to represent Askew. Wallace reviewed the case files on a Friday evening, met with Askew and Seidman for about an hour the next day, and then left town, returning the following Wednesday, the day before trial.
4
Testifying at Askew's jury trial in the United States District Court for the District of Columbia, the arresting officer described the circumstances of Askew's arrest, noting that afterwards, Askew repeatedly stated that he "need[ed] a hit." The prosecution also presented an expert witness who testified that in his opinion, the amount of cocaine base found in Askew's possession was consistent with intent to distribute.
5
Askew's theory of defense was that he possessed the cocaine base for his personal use, not for distribution. At trial, he testified that he had been addicted to crack cocaine for four or five years. He also asserted that he had obtained the cocaine earlier on the day he was arrested from two boys who were selling drugs in an alley. According to Askew, when a police car pulled up, he snatched the drugs from the boys and ran away. Askew's fiancee testified on his behalf, stating that beginning in the summer of 1993 he began losing weight quickly, his appearance deteriorated, they stopped having sexual relations, and she noticed that money and jewelry were missing from her home.
6
Over the objection of Askew's counsel, the prosecution called as a rebuttal witness a New Jersey state trooper who testified that he arrested Askew in New Jersey in 1989 on drug charges. Askew's attorney, Wallace, was unaware that these charges had been dismissed as a result of a class action alleging trooper bias. The jury was never informed that the New Jersey charges were no longer pending against Askew.
7
The jury convicted Askew, and the district court sentenced him to a prison term of 121 months followed by five years of supervised release. Askew later sought to have his conviction vacated pursuant to 28 U.S.C. § 2255, alleging that he had received ineffective assistance of counsel. After a hearing, the district court rejected his claims, and Askew now appeals.
II.
8
Askew argues for the first time on appeal that the district court committed plain error by admitting into evidence certain statements of opinion regarding intent by the Government's expert witness. The expert, Metropolitan Police Detective Tyrone Thomas, testified that the amount of cocaine base found in Askew's possession was enough to make 1,032 individual doses and that its street value exceeded $20,000. Detective Thomas also gave his opinion that possession of this amount of cocaine was consistent with an intent to distribute rather than with personal use. He stated, "My opinion would be that anyone who possessed the equivalent of 1,032 bags of crack cocaine would be in the business of selling drugs on the streets of Washington, D.C. or wherever for a profit." He also testified, referring to a Government exhibit containing the cocaine, pipes, and lighters that had been found in Askew's possession, "I believe that the 148 grams that are inside of here was intended to be sold on the streets of Washington for a profit for a drug dealer." On cross-examination, Detective Thomas said, "[M]y opinion is that no one is going to possess the equivalent of 1,032 bags of crack cocaine for their personal use." Askew argues that this testimony violated Federal Rule of Evidence 704(b), which provides:
9
No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto.
10
Because Askew did not object to the admission of these particular statements at trial, we review for plain error under Rule 52(b) of the Federal Rules of Criminal Procedure. The Supreme Court has explained that Rule 52(b) allows for correction of a trial error not drawn to the attention of the court if an error is shown, the error is "plain" under current law, and the error affected substantial rights. United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 1776-78, 123 L.Ed.2d 508 (1993). If these requirements are met, we may correct the error, but only if the error " 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " Id. at 736, 113 S.Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)) (alteration in Olano).
11
For the district court's admission of the challenged statements to be plain error, "it must ... have been error under settled law of the Supreme Court or this circuit" at the time of trial. United States v. Mitchell, 996 F.2d 419, 422 (D.C.Cir.1993). Thus, Askew cannot benefit from our holding, more than a year after his trial, that Rule 704(b) is violated when an expert gives an opinion regarding an element of the crime in response to a hypothetical question "exactly mirror[ing]" the facts of the defendant's case. United States v. Boyd, 55 F.3d 667, 672 (D.C.Cir.1995). Instead, Askew must rely on two cases decided prior to his trial, Mitchell and United States v. Williams, 980 F.2d 1463 (D.C.Cir.1992).
12
In Williams, the prosecutor asked an expert witness whether a certain quantity and packaging of zip-lock bags "indicate anything in [the expert's] opinion as to the intentions of the person who possessed those bags." Williams, 980 F.2d at 1465. The witness replied, "Yes, sir. These bags were meant to be distributed at street level." Id. In response to defense counsel's objection, the judge clarified the testimony by obtaining the officer's admissions before the jury that the officer was "giving his opinion" and that he was not referring to and had no knowledge of the particular defendant's case. Id. In response to further questioning, the expert witness again testified that "these bags were intended for" "street level distribution." Id. On appeal, although we acknowledged that "[a]n expert's opinion that a specific defendant had the 'intentions' to distribute cocaine might be thought a determination prohibited by Rule 704(b)," we found no violation because the prosecutor's question was ambiguous--focusing on the bags, not the defendant--and because the judge intervened to clarify that the testimony referred only to a "hypothetical typical individual," not to the defendant in particular. Id. at 1466.
13
In Mitchell, the prosecutor asked an expert witness, "Now, what, if anything, does the packaging of that crack cocaine into nine individual ziplocks tell you about the intent of the person that was carrying those ziplocks?" Mitchell, 996 F.2d at 422. The witness replied, "It was intent to distribute." Id. We held that, absent any corrective instruction by the trial judge, this testimony, pointing more directly than the testimony in Williams to the mental state of "the person that was carrying those ziplocks," violated Rule 704(b). Id.
14
In Askew's case, Detective Thomas made one statement regarding intent that seems to fall somewhere between the facts of Williams and Mitchell: "[T]he 148 grams that are inside of here was intended to be sold on the streets of Washington for a profit for a drug dealer." As in Williams, the statement appears to refer more to the object possessed than to the possessor, but, as in Mitchell, the statement lacked a corrective interjection by the judge. Detective Thomas's statement seems, like the expert's statement in Williams, not to point precisely to the defendant's intent, but rather, in the words of the Williams court, "to answer a different question, i.e., for what purpose [was the cocaine] designed?" Williams, 980 F.2d at 1466. We suggested in Williams that such a "somewhat ambiguous" response would be "troubling" absent intervention by the district court. Id. In Askew's case, although Detective Thomas's statement did not identify who intended to sell the drugs, the district court made no corrective interjection to ensure that the jury did not think that the prosecution's expert was testifying that Askew in particular intended to distribute the cocaine base.
15
Although the question is close, we agree with the Government that at the time of Askew's trial we had not clearly held that questions such as the one answered by Detective Thomas, framed so as not to refer to the intent of the actual defendant, are forbidden under Rule 704(b). Neither Williams nor Mitchell explicitly found impermissible testimony that, while linking an intent with certain contraband, did not go so far as to link intent with a specific person. Although we stated in Williams that such testimony would be "troubling" without a corrective interjection by the district court, see Williams, 980 F.2d at 1466, this expression of concern does not rise to the level of "settled law." Indeed, in Mitchell, where we ruled that the testimony in question violated Rule 704(b), we nevertheless concluded that "[t]he testimony ... though forbidden, was different enough from the strictures of prior cases not to have been plainly forbidden." Mitchell, 996 F.2d at 423. As in Mitchell, then, "[t]he difference may seem subtle, but Rule 704(b) invites the drawing of rather subtle lines." Id.
16
At any rate, we do not think that Askew has shown that admission of this statement " 'seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.' " Olano, 507 U.S. at 736, 113 S.Ct. at 1779 (quoting Atkinson, 297 U.S. at 160, 56 S.Ct. at 392). Because Detective Thomas's statement of his belief that "the 148 grams that are inside of here was intended to be sold on the streets of Washington for a profit for a drug dealer" without referring to Askew in particular was in fact consistent with Askew's own testimony that he stole the cocaine from two young boys who themselves possessed the cocaine for distribution, Askew has not shown a likelihood of unfair prejudice.
17
Askew also challenges two other statements by the expert: "anyone who possessed the equivalent of 1,032 bags of crack cocaine would be in the business of selling drugs on the streets of Washington, D.C. or wherever for a profit" and "no one is going to possess the equivalent of 1,032 bags of crack cocaine for their personal use." Askew argues that, by "categorically exclud[ing] everyone from intending personal use of these particular drugs, [Detective Thomas] 'pointed directly' to Askew's mental state." Reply Brief for Appellant at 12. Askew, however, cites no cases holding that Rule 704(b) renders impermissible expert testimony using categorical terms such as "anyone" or "no one."
18
Although we are troubled by such testimony absent corrective instruction, we need not reach the issue here, for Askew has failed to show unfair prejudice from the admission of this testimony. As the Supreme Court explained in Olano, Rule 52(b) assigns to "the defendant rather than the Government ... the burden of persuasion with respect to prejudice." Olano, 507 U.S. at 734, 113 S.Ct. at 1778. Although we have noted the powerful effect of expert testimony on an ultimate issue of fact, see Boyd, 55 F.3d at 672, the jury could have viewed Detective Thomas's testimony as addressing the ultimate issue of Askew's intent only by reading the words "anyone" and "no one" very literally, that is as definitely including Askew within their scope. Furthermore, other evidence clearly supports the jury's finding that Askew intended to distribute the drugs in his possession. Cf. United States v. Glenn, 64 F.3d 706, 711-12 (D.C.Cir.1995) (finding no plain error when expert testimony "almost identical" to that in Boyd was presented "long before" Boyd was decided and noting as well that the defendant "was not unfairly prejudiced in view of the possession evidence which ... was itself sufficient to support the jury's inference that he intended to distribute the drugs"). Detective Thomas testified that Askew was found in possession of the equivalent of 1,032 doses of cocaine base worth over $20,000. We have held that a sufficiently large amount of drugs can be regarded as adequate evidence of an intent to distribute. See id. at 711 (noting that "[t]he 24.7 grams [of cocaine base] at issue 'significantly exceed[ed] that necessary for personal use' and could itself properly support an inference of intent to distribute" (quoting United States v. Stephens, 23 F.3d 553, 557-58 (D.C.Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 522, 130 L.Ed.2d 427 (1994)) (third alteration in Glenn)). In addition to knowing about the large quantity of drugs found in Askew's possession, the jury knew that Askew had five pipes, four lighters, and a pager. Under these circumstances, we cannot say that any error in admitting the expert's statements was prejudicial or "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings."
III.
19
Askew also challenges the performance of his trial counsel as constitutionally ineffective on numerous grounds. To prevail on these claims, Askew must show that counsel's performance was deficient, falling below "an objective standard of reasonableness" defined by "prevailing professional norms." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). Askew must also show that he was prejudiced by counsel's performance, that is, "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. As the Supreme Court noted in Strickland, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. at 2065. Thus, courts must make "every effort ... to eliminate the distorting effects of hindsight" and "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. Employing these standards, the district court rejected Askew's ineffective assistance claims after the section 2255 hearing. On review, we accept the district court's findings of fact unless they are clearly erroneous. See United States v. Del Rosario, 902 F.2d 55, 58 (D.C.Cir.), cert. denied, 498 U.S. 942, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990). Although the Supreme Court has labeled as mixed questions of law and fact whether counsel's performance was deficient and prejudicial, see Strickland, 466 U.S. at 698, 104 S.Ct. at 2070, that does not settle what standard of appellate review is appropriate, compare Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996) (adopting de novo review for determinations of reasonable suspicion to conduct an investigatory stop and probable cause to make a warrantless search) with Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401-05, 110 S.Ct. 2447, 2458-61, 110 L.Ed.2d 359 (1990) (adopting abuse of discretion standard for review of Rule 11 rulings). We need not decide here which standard of review is appropriate, for even assuming that we should review the district court's determination de novo, cf. Nealy v. Cabana, 764 F.2d 1173, 1176-77 (5th Cir.1985) (adopting de novo review), we affirm its rejection of Askew's claims.
20
Askew first argues that counsel's performance was deficient because he failed to request a continuance in order to obtain the services of an expert to testify that the amount of cocaine base found in Askew's possession could be consistent with personal use. According to Askew, because Wallace knew that the prosecution planned to call an expert witness to testify that the amount of cocaine base found in Askew's possession was consistent with an intent to distribute, Wallace should have either hired an expert to counter that testimony or asked the district court for a continuance until an expert was available to testify. At the section 2255 hearing, Askew's first attorney, Seidman, testified that she had spoken with two experts; one was not willing to say that 148.3 grams of cocaine base was consistent with personal use, and the other told Seidman that it was possible that such an amount could be consistent with personal use but that his schedule would not permit him to participate in the trial. Testifying at the section 2255 hearing, Wallace said that he contacted several experts who told him that they could not testify in good faith that someone could consume such a large amount of cocaine base. Wallace also testified that, as a tactical matter, he generally avoided using such experts because he did not think that "they give a clear indication of what ... the mental state of the defendant is."
21
A special filing by Askew in this appeal demonstrates why he has not shown that counsel's failure to call an expert was unconstitutionally deficient performance. In the course of moving this court for leave to hire expert witnesses and to file their affidavits on appeal, Askew sought to justify his unusual request as follows:
22
[I]t appears that defense narcotic experts are not often called in this jurisdiction so it is difficult to put before the Court what they typically say. Counsel has also attempted to find such testimony in other reported opinions, which the Court could judicially notice, but has been unsuccessful.
23
Appellant's Reply to Opp'n to Mot. for Leave to Hire Expert Witnesses at 1. We quote from this request in light of Strickland's holding that "[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. Because Askew's request to us concedes that the sort of expert testimony on which his claim depends is infrequent in this jurisdiction and because he has pointed to no other case involving such testimony, we have no basis for concluding that Askew's trial counsel breached prevailing professional norms.
24
Further weakening Askew's claim is Wallace's testimony setting forth a reasonable tactical basis for his decision: his doubts about the effectiveness of expert testimony regarding intent. Indeed, in light of Askew's own testimony at trial that he stole the 148.3 grams of cocaine base from street drug dealers, Wallace may have anticipated that testimony by a government expert that 148.3 grams of cocaine base is consistent with an intent to distribute would not be especially harmful to Askew's defense. Askew has thus not "overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).
25
Askew also bases his ineffective assistance claim on counsel's failure to prepare to rebut the testimony of the New Jersey state trooper, in particular, counsel's failure to discover that the New Jersey charges about which the trooper testified had been dropped by the time of Askew's trial. At trial, when the Government sought to introduce the trooper's testimony as part of its case in chief, Wallace requested a thirty-day continuance, stating that he knew "absolutely nothing about" the New Jersey charge. Denying the continuance, the district court noted that the Federal Public Defender's Office had been on notice of the New Jersey arrest for four months. Because the prosecution had given only two days' notice of its intention to use the trooper's testimony, however, the district court permitted the trooper to testify only in rebuttal.
26
In his testimony, the New Jersey trooper described the circumstances under which he had arrested Askew nearly five years earlier. According to the trooper, as part of a narcotics investigation in New Jersey, he interviewed three suspects who had been detained in a road stop on drug charges. With their assistance, Askew was lured to a service station where he retrieved from a car a bag containing a "chunky" substance. At the section 2255 hearing, Wallace testified that he learned after Askew's conviction that the New Jersey case had been dismissed as a result of a class action alleging trooper bias. Although Askew's first attorney, Seidman, testified that she thought she knew before or during the trial that the New Jersey charges had been dropped, the district court thought "[h]er testimony was not very confident on that point."
27
Askew first attempts to satisfy the prejudice prong of Strickland by arguing that had counsel discovered that the New Jersey charges had been dismissed, the district court would have had to exclude the officer's testimony. We disagree. Askew has offered no reason to think that his arrest was based on an improper search of his property or that the officer in his case lacked probable cause to arrest him. Regardless of whether probable cause supported the initial road stop that resulted in the arrest of the three suspects who eventually lured Askew to the service station, Askew has given us no reason to doubt that the three suspects' statements to the trooper that they were transporting cocaine for Askew, combined with Askew's retrieval of the bag containing the chunky substance from a car, were sufficient to establish probable cause to arrest him.
28
Notwithstanding the likely admissibility of the trooper's testimony, Askew may still satisfy Strickland 's prejudice prong by demonstrating a reasonable probability either that, had the jury known that the charges had been dropped for trooper bias, it would have discounted the trooper's testimony and determined that the prosecution had not shown beyond a reasonable doubt that Askew had the intent to distribute the cocaine base in his possession, or that, had the district court known, it would not have admitted the trooper's testimony as rebuttal evidence and the jury might not have convicted Askew. We think Askew's showing is not sufficient for either of these purposes.
29
Askew concedes that he "do[es] not know what Wallace would have found if he had investigated the New Jersey case." Brief for Appellant at 26. The only relevant evidence in the record indicates simply that the case against Askew had been dismissed as part of a class action alleging trooper bias. Askew's suggestions in his brief that the bias at issue was racial and that bias was present in his case in particular are unsupported by any record evidence. The most that the record shows is that his case was dismissed as part of a class action alleging bias on the part of troopers whose identities we do not know against plaintiffs whose identities we likewise do not know. If further investigation by Askew's trial counsel would have shown that the very trooper who arrested Askew was racially motivated, Askew would have a powerful argument for Strickland prejudice. But further investigation might instead have shown simply that, in order to settle a large class action involving other officers, New Jersey officials agreed to drop an entire class of minor drug charges regardless of who the arresting officers were. If this latter reason were the basis for dropping the charges against Askew, then the district court might have admitted the trooper's testimony and the jury might have felt no need to discount it. Without more information about why the New Jersey charges were dropped, we cannot say that Askew has demonstrated a reasonable probability that further investigation by his attorney would have resulted in an acquittal.
30
In so ruling, we agree with the Seventh Circuit that to show prejudice, a defendant basing an inadequate assistance claim on his or her counsel's failure to investigate must make
31
"a comprehensive showing as to what the investigation would have produced. The focus of the inquiry must be on what information would have been obtained from such an investigation and whether such information, assuming its admissibility in court, would have produced a different result."
32
Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th Cir.1987) (quoting United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir.1987)). This approach is fair to defendants and is sensible from an institutional perspective. When a convicted defendant seeks to overturn a jury verdict based on inadequate investigation by counsel, courts should insist that the defendant show to the extent possible precisely what information would have been discovered through further investigation. Any other rule would give defendants an incentive to present as little evidence as is necessary to create some doubt, even when disclosure of more facts would make clear that further investigation by trial counsel would not have created a reasonable probability of a different outcome. Although defendants are entitled to the benefit of reasonable doubt at trial, an appellate court should not overturn a conviction simply because the defendant has teasingly suggested that there may be facts out there that his trial counsel could have discovered and that would have helped his case. If any such facts exist, the defendant must identify them. Askew has failed to do so. Even with highly skilled counsel in this court, Askew has revealed only scant information regarding the dismissal of the New Jersey case against him. The little he has told us is not enough to convince us that there is a reasonable probability that had the jury known it, the jury would have reached a different result, particularly in light of other evidence, including the amount of cocaine base and the drug paraphernalia found in Askew's possession. We cannot speculate about the impact on the jury of what Askew has not told us.
33
Because we find that Askew has not demonstrated prejudice by virtue of counsel's failure to discover that the New Jersey charges were dropped, we need not determine whether the performance of his counsel was deficient. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069-70. Nevertheless, we note that the troubling problem this case presents is one that can be easily avoided in future cases either by defense counsel or by prosecutors who choose to present testimony regarding prior arrests. As the Government itself suggested at oral argument, a simple phone call to the appropriate New Jersey court by counsel for either party would likely have revealed that the charges had been dropped.
34
At his section 2255 hearing, Askew offered several other arguments as to why he received ineffective assistance of counsel at trial. We are unconvinced by each. Askew's assertion that Wallace did not spend enough time on his case does not in and of itself establish prejudice without some showing of how more time spent on his case might have influenced the outcome of the trial. Askew's claim that Wallace's failure to introduce into evidence a photograph showing Askew's weight loss due to drug use does not rise to the level of deficient or prejudicial performance in light of other evidence at trial of Askew's drug use, including his own testimony, his fiancee's testimony, and the arresting officer's testimony.
35
Finally, Askew now points for the first time to several other alleged instances of ineffective assistance. Because Askew failed to raise these claims in his section 2255 hearing, we deem them waived for purposes of this proceeding unless "the trial record alone conclusively shows that the defendant is entitled to no relief " or, to the contrary, that the defendant is entitled to relief. United States v. Fennell, 53 F.3d 1296, 1303-04 (D.C.Cir.1995), on reh'g, 77 F.3d 510 (1996). On the basis of the trial record alone, we can conclude that Wallace's failure to object to the statements of Detective Thomas did not amount to deficient performance. As we indicated above, at least one of the challenged statements was not clearly forbidden by then-existing case law, and the other two present close questions. Furthermore, demonstrating his familiarity with this circuit's cases construing Rule 704(b), Wallace made several objections to Detective Thomas's testimony on intent. We thus have no doubt that Wallace's performance was objectively reasonable under prevailing professional norms.
36
We cannot evaluate Askew's remaining claims on the basis of the trial transcripts alone, for further inquiry into factual matters or potential tactical choices is necessary for each. For example, Askew points to Wallace's failure to object to the New Jersey trooper's reference to "contraband." But this may have involved a tactical choice; Wallace may have decided not to object to the New Jersey trooper's use of the term "contraband" because, having already objected to the trooper's use of the term "cocaine," he wished not to draw any more attention to the issue. Nor can we judge from the trial record alone Askew's claim that Wallace should have asked the district court to exclude any amount of cocaine base that Askew intended for personal use from the amount of cocaine used to calculate his sentence. The record does not indicate what portion of the cocaine base, if any, Askew intended to devote to personal use. Finally, although Askew argues that Wallace misunderstood the personal use defense, we cannot assess counsel's comprehension of the defense on the basis of the trial record alone. Following our practice in Fennell, "we deem [these ineffective assistance claims] waived for purposes of this proceeding and will not remand." Id. at 1304.
IV.
37
We turn finally to Askew's argument that we should reverse his conviction because the trial court improperly admitted as rebuttal evidence the New Jersey trooper's testimony regarding Askew's 1989 arrest on drug charges. According to Askew, the trooper's testimony was not relevant because it did not constitute rebuttal evidence. In his brief, Askew points out that, because the district court made its decision to admit the evidence in chambers without transcription, we do not know the precise evidence that the prosecution expected the New Jersey trooper's testimony to rebut. Askew speculates that the only evidence it could have rebutted was his testimony that the cocaine base was for his own personal use. He then argues that because the trooper was not competent to testify that the substance allegedly being transported for Askew in the New Jersey case was cocaine--indeed, the district court struck from the record the trooper's reference to "cocaine"--the trooper's testimony about Askew's connection five years earlier with a chunky substance similar in appearance to the cocaine base he possessed in the present case could not rebut Askew's claim that he had no intent to distribute that cocaine base. According to the Government, by claiming that he obtained the cocaine base by snatching it from two young boys, Askew implicitly denied his involvement in drug trafficking; because evidence showing that Askew had formerly been arrested for picking up a container with a large quantity of a substance that looked like cocaine rebuts this implicit denial, it is relevant to Askew's intent to distribute the cocaine base.
38
Federal Rule of Evidence 402 states that "[a]ll relevant evidence is admissible, except as otherwise provided." Rule 401 explains that evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." We normally review a district court's relevance determinations for abuse of discretion. See Hamling v. United States, 418 U.S. 87, 124-25, 94 S.Ct. 2887, 2911-12, 41 L.Ed.2d 590 (1974); United States v. Carter, 522 F.2d 666, 685 (D.C.Cir.1975). The Government argues for stricter review under the plain error standard on the ground that Askew's counsel objected to the rebuttal evidence based only on lack of notice, not because it was improper rebuttal evidence.
39
Askew's claim fails under either standard. Because five years had passed and because the trooper was not competent to testify as to whether the substance for which Askew was arrested in New Jersey was in fact cocaine, the trooper's testimony was, as the district court noted, "thready or thin" and "[n]ot the strongest available testimony." Nevertheless, a jury could make reasonable inferences from the trooper's testimony that would make Askew's denial of involvement in drug trafficking less likely. The district court thus did not abuse its discretion or commit plain error in admitting the trooper's testimony as rebuttal evidence.
40
We affirm Askew's conviction.
41
So ordered.
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Filed 8/14/14 P. v. Petitta 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
THE PEOPLE, H040178
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. B1154589)
v.
LAWRENCE JOSEPH PETITTA,
Defendant and Appellant.
Defendant Lawrence Joseph Petitta was charged with second degree robbery (Pen.
Code, §§ 211, 212.5, subd. (c)).1 It was also alleged that he had two prior strike
convictions (§§ 667, subds. (b)-(i), 1170.12) and two five-year enhancements pursuant to
section 667, subdivision (a). Prior to trial, the trial court suspended criminal proceedings
and ordered psychiatric evaluation as to defendant’s competency. Based on three
psychiatric reports, the trial court found that defendant was competent and reinstated
criminal proceedings.
At the change of plea hearing, defendant verified to the trial court that he had
initialed and executed an advisement of rights, waiver, and plea form pursuant to
Boykin/Tahl.2 Defendant also stated that he understood the form, had no questions
1
All further statutory references are to the Penal Code.
2
Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl (1969) 1 Cal.3d 122
(Tahl).
regarding it, and understood the consequences of his plea. The parties stipulated that the
police report constituted a factual basis for the plea.3 Defendant pleaded guilty to the
charged offense and admitted the allegations.
Defendant submitted a request for the trial court to exercise its discretion and
strike the prior strike allegations under section 1385. Following a hearing, the trial court
struck both prior strike allegations in the interest of justice. The trial court then sentenced
defendant to the middle term of three years for the second degree robbery and five years
for each of the prior convictions under section 667, subdivision (a) for a total term of 13
years. Defendant filed a timely notice of appeal.
Appointed counsel initially filed an opening brief in which she argued that
defendant had been deprived of the effective assistance of counsel. However, she
subsequently wrote to defendant and recommended that he abandon his appeal, because
he risked exposure to a longer sentence than he was currently serving. Moreover, in
discussing the matter with trial counsel, she learned that the issue was not in fact a viable
legal issue. Appointed counsel then brought a motion to strike the opening brief and
substitute a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), which was
granted.
Defendant was notified of his right to submit written argument on his own behalf.
He has filed a supplemental brief.
Defendant raises issues relating to the “Three Strikes” law. He contends: (1) “the
retroactive judicial enlargement of prior convictions by the ‘three strike law’ is a
violation of constitutional protection found in the ‘ex-post facto’ clause of the United
States Constitution”; (2) the Three Strikes law is flawed with “scribner errors and a plea
3
Defendant walked into a bank and stated, “This is a robbery . . . give me the
money.” After the teller placed $1,000 on the counter, defendant took the money and
left. About 25 minutes later, police detained defendant at a nearby Starbucks. The teller
then identified defendant as the robber at an infield showup. After waiving his Miranda
rights, defendant stated that he had committed the robbery.
2
bargain agreement statutory prohibition error making it an irresponsible law, which is an
unconstitutional law”; (3) the Three Strikes law “alters the earlier [plea bargain
agreement] by taking the record of conviction out of the negotiated and bargained for
sentencing scheme and retroactively uses it in an entirely new and unnegotiated
sentencing scheme with its own sentencing guideline with a harsher penalty range” and is
a violation of section 1203.4. In his supplemental brief, he also contends that the Three
Strikes law violated his equal protection rights.
As the United States Supreme Court stated: “The duty of this court, as of every
other judicial tribunal, is to decide actual controversies by a judgment which can be
carried into effect, and not to give opinions upon moot questions or abstract propositions,
or to declare principles or rules of law which cannot affect the matter in issue in the case
before it.” (Mills v. Green (1895) 159 U.S. 651, 653.) Here, the trial court struck both
prior strike allegations and thus the issues raised by defendant are moot. Accordingly, we
do not consider defendant’s challenges to the Three Strikes law.
Defendant also claims that he “was never informed with ‘particularity’ what the
charged offense[s] against him were for” nor was he “given the opportunity to cross-
examine the victims in court” in connection with the prior conviction allegations pursuant
to section 667, subdivision (a). The information fully informed defendant regarding these
allegations. Defendant cites no authority for the proposition that he was entitled to cross-
examine the victims of these convictions prior to admitting the allegations that he had
prior convictions under section 667, subdivision (a).
Defendant next argues that “the trial court failed to follow the statutes which
require the sentencing court to consider a defendant’s ‘guilty plea’ to be accepted only in
the ‘strong light’ of full disclosure of the defendant’s rights.”
“[A] trial court normally must admonish a defendant of the direct consequences of
a plea of guilty or nolo contendere. [Citation.] However, a court may rely upon a
3
defendant’s validly executed waiver form as a proper substitute for a personal
admonishment. [Citations.]” (People v. Panizzon (1996) 13 Cal.4th 68, 83.)
Here, defendant executed an “ADVISEMENT OF RIGHTS, WAIVER, AND
PLEA FORM,” which informed him of, among other things, his right to a jury trial, right
to confront and cross-examine witnesses, right against self-incrimination, right to produce
evidence and to present a defense. At the hearing on the change of plea, defendant
represented that he had read, understood, and personally initialed the relevant paragraphs
of the form, and that he had signed and dated it. Defense counsel represented that he had
also signed the form, which stated that he had reviewed the form with defendant and
explained its terms to him. Thus, the record establishes that defendant was fully
informed of his rights prior to waiving them and entering his plea.
Defendant also claims the trial court erred under section 1192.5 because it did not
provide him with an opportunity to withdraw his plea. Section 1192.5 provides that a
defendant may withdraw his or her plea if the trial court withdraws its approval of the
plea. However, here, the trial court did not withdraw its approval.
Defendant contends that he was denied the right to present the defense of
“necessity.” He argues that “the police withheld information from the court how [he]
said he was being tortured from electrodes surgically implanted into his brain and used
for unlawful and vindictive mind control.” Defendant asserts that he gave this
information to his counsel, a court-ordered psychiatrist, and the physicians at the jail.
However, these individuals denied any knowledge of government programs which
implanted electrodes in people’s brains. Defendant’s contention may not be raised in this
appeal, because he failed to obtain a certificate of probable cause. (§ 1237.5.) His
contention relates to the validity of his plea and admissions, which cannot be challenged
without a certificate.
Defendant further contends that “[a] court may deny relief to a party whose
conduct has been inequitable, unfair, and deceitful, but the doctrine applies only when the
4
reprehensible conduct complained of pertains to the controversy at issue.” The unclean
hands doctrine is not applicable to the present case.4
Pursuant to Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and
have concluded that there are no arguable issues on appeal.
The judgment is affirmed.
_______________________________
Mihara, J.
WE CONCUR:
______________________________
Premo, Acting P. J.
______________________________
Elia, J.
4
Defendant requests that this court augment the record on appeal to include various
letters. However, there is no indication that these letters were before the trial court.
Accordingly, the motion to augment is denied.
5
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112 F.3d 519
155 L.R.R.M. (BNA) 2141, 324 U.S.App.D.C. 205,133 Lab.Cas. P 11,798
SCHOOLMAN TRANSPORTATION SYSTEM, INC., d/b/a Classic Coach, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 96-1330.
United States Court of Appeals,District of Columbia Circuit.
Argued April 21, 1997.Decided May 6, 1997.
Martin Gringer, Garden City, NY, argued the cause and filed the briefs, for petitioner.
David A. Seid, Attorney, National Labor Relations Board, Washington, DC, argued the cause for respondent, with whom Linda R. Sher, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, were on the brief. Frederick L. Cornnell, Attorney, Washington, DC, entered an appearance.
Before EDWARDS, Chief Judge, SILBERMAN and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Chief Judge HARRY T. EDWARDS.
HARRY T. EDWARDS, Chief Judge:
1
This case arises from a union representation election involving the employees of Schoolman Transportation System, Inc. ("Schoolman"). Several ballots were challenged during the election, putting into question the eligibility of certain employees to vote. After ruling on the challenges, the National Labor Relations Board ("Board") determined that Local 804 of the International Brotherhood of Teamsters ("Union") had won the election by a vote of 20 to 18. The Board certified the Union as the collective bargaining representative, but Schoolman refused to bargain. The Board then found that Schoolman's refusal to bargain constituted an unfair labor practice under sections 8(a)(1) and (5) of the National Labor Relations Act ("Act"), 29 U.S.C. § 158(a)(1), (5) (1994).
2
In this petition for review, Schoolman argues that the Board abused its discretion in resolving issues over eligibility to vote. We find no merit in Schoolman's arguments. The Board held that the Stipulated Election Agreement, which only included "full time and regular part time" employees, did not include "casual" employees. This finding was consistent with the Board's longstanding policy of excluding "casual" employees unless specifically included. Finding casual employees ineligible to vote, the Board sustained the Union's challenge to the ballot cast by Roger Kai, a casual worker. Schoolman now claims that, because Kai was excluded, other employees who also may have been "casual" (but whose ballots were not challenged) should have been excluded. Schoolman's argument is specious: if the employer wanted to oppose the inclusion of casual employees, it was required to object before the ballots were counted. Schoolman found nothing objectionable to the belatedly disputed ballots until after discovering that it had lost the election.
3
Having determined that the Board did not abuse its discretion in excluding Kai, we need not address Schoolman's challenge to the status of Daniel Mullen, a dispatcher. The final vote was 20 to 18 in favor of the Union, so Mullen's status is immaterial because his vote could not have affected the outcome. We also reject Schoolman's argument that, because Mullen was excluded, all dispatchers should have been excluded; again, if Schoolman had wanted to object to these other employees, it was required to do so before the ballots were counted.
4
Accordingly, we deny Schoolman's petition for review and grant the Board's cross-application for enforcement.
I. BACKGROUND
5
Schoolman operates a charter bus service in Bohemia, New York. Roger Kai worked only occasionally at Schoolman, logging a mere nine days in 1992. From mid-July 1992 through mid-February 1993, Kai did not work a single day at Schoolman. For most of this time, he worked at another job out of state.
6
On December 21, 1992, the Union filed a representation petition with the Board seeking certification as the collective bargaining representative. On January 11, 1993, the Union and Schoolman entered into a Stipulated Election Agreement, approved by the Board's Regional Director, stating that the unit included "[a]ll full time and regular part time bus drivers, mechanics, dispatchers and assistant dispatchers" and excluded "[a]ll office clerical employees, guards and supervisors as defined in the Act." See Stipulated Election Agreement, reprinted in Joint Appendix ("J.A.") 3.
7
On February 9 and 11, 1993, an election was held in which 19 employees voted in favor of union representation and 17 voted against. Four additional ballots were challenged, either by the Union or the Board Agent; Schoolman, however, did not challenge any ballots. Two of the challenged ballots were those of Roger Kai and Daniel Mullen: the Union challenged Kai's ballot on the ground that he was not a regular employee, and Mullen's ballot on the ground that he was a supervisor. The two other challenged ballots were eventually counted, with one vote for the Union and one vote against, bringing the vote totals to 20 to 18 in favor of union representation.
8
On June 10, 1993, the Board's Acting Regional Director recommended sustaining the Union's challenge to Kai's ballot:
9
[I]t has always been the Board's policy to exclude casual employees from the unit, absent a specific agreement to include them. The unit in the instant case was restricted to full time and regular part time bus drivers. I therefore recommend that the challenge to Roger Kai's ballot be sustained.
10
Report on Objections and Challenges at 12, reprinted in J.A. 19. He further recommended a hearing on, among other matters, the challenge to Mullen's ballot. The Board adopted the Acting Regional Director's findings and recommendations.
11
In February and March 1994, an administrative law judge ("ALJ") held a hearing on, inter alia, the challenge to Mullen's ballot. On May 15, 1995, the ALJ issued a decision. He recommended that the Board sustain the Union's challenge to Mullen's ballot because Mullen's interests were aligned with management and because he was a supervisor. On November 22, 1995, the Board issued a Decision, Order, and Direction adopting the ALJ's findings and recommendations. In affirming the ALJ's finding that Mullen was ineligible to vote, the Board concluded that Mullen's "interests are aligned with those of management and that he does not share a community of interest with unit employees." Schoolman Transp. Sys., Inc., 319 N.L.R.B. No. 96, at 1 n. 1, 1995 WL 696535 (1995), reprinted in J.A. 121 n.1. With Kai's and Mullen's ballots excluded, the final vote was 20 to 18 in favor of union representation.
12
On January 10, 1996, the Union was certified as the employees' bargaining agent. Schoolman, however, refused to bargain, and the Union filed an unfair labor practice charge. On March 22, 1996, the Regional Director, on behalf of the General Counsel, issued an unfair labor practice complaint alleging that Schoolman had violated sections 8(a)(1) and (5) of the National Labor Relations Act by its refusal to bargain. Thereafter, the General Counsel filed a motion for summary judgment and a motion to transfer the proceeding to the Board. On June 26, 1996, the Board transferred the proceeding to itself.
13
On August 16, 1996, the Board issued a Decision and Order granting the General Counsel's motion for summary judgment and finding that Schoolman's refusal to bargain violated sections 8(a)(1) and (5) of the Act. The Board's Order required Schoolman to cease and desist from the unfair labor practices and to bargain with the Union collectively on request.
II. ANALYSIS
14
In this petition for review, Schoolman does not contest that it failed to bargain with the Union. Instead, it argues that the Board abused its discretion in determining which ballots to count in the election. Schoolman's arguments border on being frivolous.
15
First, the Board did not abuse its discretion in sustaining the objection to Roger Kai's ballot. The Stipulated Election Agreement stated that only "full time and regular part time" employees were to be included in the unit. Stipulated Election Agreement, reprinted in J.A. 3. Kai had not worked at Schoolman for the seven months before the election, and had only worked a total of nine days in the year before the election. In excluding Roger Kai as a "casual" employee, the Board construed the agreement consistent with its longstanding policy to exclude casual employees unless they are specifically included. See, e.g., Delta Gas, Inc., 283 N.L.R.B. 391, 397, 1987 WL 89553 (1987); Mariposa Press, 273 N.L.R.B. 528, 530 n. 12 (1984). In so doing, it did not abuse its discretion.
16
Schoolman counters that company officials meant to include casual employees in the agreement, and that the Board abused its discretion by failing to grant a hearing on this question. This argument is based on the absurd suggestion that a party to an agreement may enforce something other than what is written if it had something else in mind, even when there is no meaningful extrinsic evidence supporting the alleged contrary intention. Schoolman's contention fails upon recitation, for it is so obviously misguided. There is no case authority of which we are aware, either in administrative law or in general contract law, that supports this bizarre claim.
17
Second, we reject Schoolman's argument that, because Kai was excluded, other employees that Schoolman now alleges were "casual" should also have been excluded. It is well established that a party must challenge voter eligibility prior to the actual casting of ballots. See NLRB v. A.J. Tower Co., 329 U.S. 324, 331-33, 67 S.Ct. 324, 328-29, 91 L.Ed. 322 (1946). This is true even if the voter would have been ineligible if a timely challenge had been made. See id. at 331, 67 S.Ct. at 328 ("The fact that cutting off the right to challenge conceivably may result in the counting of some ineligible votes is thought to be far outweighed by the dangers attendant upon the allowance of indiscriminate challenges after the election."). If Schoolman had wanted to object to other allegedly casual employees, it should have made these objections before the election.1
18
Having determined that the Board did not abuse its discretion in excluding Kai, we need not address the status of Daniel Mullen. Because the vote was 20 to 18 in favor of the Union, and because the Board did not abuse its discretion in excluding Kai, Mullen's status is immaterial because his vote could not have affected the outcome. In addition, for the reasons stated above, we reject Schoolman's argument that all dispatchers should have been excluded because Mullen was excluded; if Schoolman had wanted to object to other dispatchers, it should have done so before the election. See A.J. Tower, 329 U.S. at 331-33, 67 S.Ct. at 328-29.
III. CONCLUSION
19
Accordingly, we deny Schoolman's petition for review and grant the Board's cross-application for enforcement.
1
Under Board procedure, a party is permitted to make multiple objections, but then withdraw selected ones. As a result, a party effectively has the right to file contingent objections. This option was open to Schoolman in the present case; nonetheless, Schoolman failed to file such objections
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996 A.2d 558 (2010)
COM.
v.
TRAUX.
No. 1688 MDA 2009.
Superior Court of Pennsylvania.
March 24, 2010.
Affirmed.
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410 F.2d 528
Raymond A. JAEGER, Appellant,v.Orville L. FREEMAN et al., Appellees.
No. 25748.
United States Court of Appeals Fifth Circuit.
April 28, 1969.
William T. Gerard, Athens, Ga., for appellant.
Jack H. Weiner, Morton Hollander, Stephen R. Felson, Attys., Dept. of Justice, Washington, D.C., Edwin L. Weisl, Jr., Asst. Atty. Gen., Floyd M. Buford, U.S. Atty., for appellees.
Before JOHN R. BROWN, Chief Judge, THORNBERRY, Circuit Judge, and TAYLOR, District Judge.
JOHN R. BROWN, Chief Judge:
1
In his complaint in the court below, appellant Jaeger sought reinstatement to his previous position as a government poultry inspector, together with back pay and various other relief. The District Judge dismissed Jaeger's complaint for failure to state a claim upon which relief could be granted. Since the controlling facts were fully revealed and the uncertainties so often present1 were avoided altogether, the procedure was appropriate and the Trial Judge was substantively correct. We therefore affirm.
2
Dr. Jaeger was hired on June 5, 1966, as a veterinary poultry inspector for the Department of Agriculture Consumer and Marketing Service. His appointment was 'career-conditional,' i.e., with a one-year probationary period. Seven and one-half months later, in January 1967, the Agriculture Department notified Dr. Jaeger that he was being terminated from his position on February 3, 1967. In terminating his position as a professional fowl inspector, the termination letter stated that the Department's 'decision (was) based on your use of foul and abusive language to subordinates while assigned relief duties at Bethlehem, Georgia, and for failure to follow instructions with respect to providing relief to Poultry Inspectors on the line.' After exhausting his administrative remedies, Dr. Jaeger brought the present action.
3
His theory in the District Court and in his argument in this Court is based principally on the contention that the Government rules and regulations pertaining to probationary employees are violative of the constitutional guarantee of due process insofar as they permit summary dismissal of probationary employees without any kind of hearing. Highlighting the basic nature of his claim, it is significant that there is no contention either in the complaint or argument that the Government has failed to follow the applicable statute,2 or rules and regulations.3 This represents no tactical concession, for on this record Dr. Jaeger's dismissal for conduct following appointment and during probation was properly effected under applicable regulations when he was given a notice describing why he was being terminated and the effective date. See 5 C.F.R. 315.804. After his dismissal, he appealed to the regional office of the Civil Service Commission. This appeal was denied, properly we think, on jurisdictional grounds under 5 C.F.R. 315.806 (b). Subsequent appeal to the Board of Appeals and Review of the Civil Service Commission was also denied.
4
We start with the proposition that due process does not in every instance require the Government to afford a trial-type hearing to an employee before discharging him. Cafeteria & Restaurant Workers Union Local 473, A.F.L.-C.I.O. v. McElroy, 1961, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230. See also Chafin v. Pratt, 5 Cir., 1966, 358 F.2d 349, 356-357, cert. denied, 1966, 385 U.S. 878, 87 S.Ct. 159, 17 L.Ed.2d 105. Congress has not provided for a hearing in cases like the one before us, and in the view of this Court there are no compelling reasons for imposing a constitutional requirement of a hearing prior to the dismissal of probationary employees. We are fortified in this position by like decision of the First Circuit in its recent opinion in Medoff v. Freeman, 1 Cir., 1966, 362 F.2d 472. There is ample basis for Congress's concluding that a healthy Civil Service System affording genuine tenure and security to career employees would itself be jeopardized or weakened by denying the Government the benefit available in nearly all selective programs of testing the competency and capacity of the new employee during a fixed but limited probationary or trial period.
5
The constitutional claim fails and since it is conceded that the proper procedures under the regulations were followed, the Agency's action cannot be set aside on this ground.
6
Appellant, stressing principally Pelicone v. Hodges, 1963, 116 U.S.App.D.C. 32, 320 F.2d 754, urges also that we reject his discharge on the ground that the agency acted in an arbitrary or capricious manner. Thus far this Circuit has not claimed any such right of review, and apart from compliance with statutory-regulatory procedures we limit our review to the question whether there is any 'departure from the required standard of procedural due process.' Chiriaco v. United States, 5 Cir., 1964, 339 F.2d 588, 590. But the contention would here be unavailing. Even assuming that this Court could take cognizance of arbitrary or capricious action, the record here demonstrates that the challenged agency action was amply supported by the evidence and could not be considered arbitrary or capricious.
7
Dr. Jaeger fares no better with his contention that the Employee-Management Cooperation Agreement is applicable to this occurrence, and that the friction between the lay-- that is, non-professional-- poultry inspectors and Dr. Jaeger was a 'grievance' under that agreement. Thus he claims that this grievance should have resulted in mediation, as provided for by the agreement, rather than in discharge.
8
The parties to the agreement in question are the Government and the union of lay poultry inspectors.4 Article II provides that the agreement is applicable to 'non-veterinarian, non-supervisory full-time Poultry Inspectors.' Dr. Jaeger was, of course, both a veterinarian and a supervisor. Therefore, the contract obviously confers no enforceable rights on supervisory personnel who, like Dr. Jaeger, were not members of the union.
9
At this point Dr. Jaeger, aware that the management agreement was to protect non-professional employees from action by professional supervisors, tries to get the benefit of it by urging that the Government should have demanded that the employees offended or upset by Dr. Jaeger's language and manners seek a determination of this 'grievance' under the machinery prescribed. But clearly this was the privilege of the employees, not a right accorded the object of their grievance. Nor did it deprive the Government of the right to exert its employer discipline against an offending employee without compelling dissatisfied employees to institute a grievance procedure to require the Government to do what it was willing to do without such pressure.
10
Likewise, there is no merit to Dr. Jaeger's argument that it was error not to follow the alternative grievance procedure set out in the Department of Agriculture's Personnel Manual. Fist, the manual empressly exempts from its terms appeals from 'probationary and trial period disqualifications'. And, more important, the grievance provision of the manual, like that of the Management Cooperation Agreement, note 4 supra, was intended for the benefit of the employees and confers no enforceable rights on supervisory personnel.
11
Every contention, factual and legal, was assayed and found wanting. Denial of relief was proper.
12
Affirmed.
1
See e.g., Barber v. M/V Blue Cat, 5 Cir., 1967, 372 F.2d 626, 1969, A.M.C. 211
2
The basic statute authorizes the issuance of special rules for a probationary period in this type of employment: 'The President may prescribe rules which shall provide, as nearly as conditions of good administration warrant, that there shall be a period of probation before an appointment in the competitive service becomes absolute.' 5 U.S.C.A. 3321
3
Pursuant to the statutory grant of power, the following regulations, among others, have been promulgated:
315
801-- Probationary period; when required
(a) The first year of service of an employee who is given a career or career-conditional appointment under this part is a probationary period * * *.
315
802-- Length of probationary period
(a) The probationary period required by 315.801 is 1 year.
315
803-- Agency action during probationary period (general)
The agency shall utilize the probationary period as fully as possible to determine the fitness of the employee and shall terminate his services during this period if he fails to demonstrate fully his qualifications for continued employment.
315
804-- Termination of probationers for unsatisfactory performance or conduct
When an agency decides to terminate an employee serving a probationary or trial period because his work performance or conduct during this period fails to demonstrate his fitness or his qualifications for continued employment, it shall terminate his services by notifying him in writing as to why he is being separated and the effective date of the action. The information in the notice as to why the employee is being terminated shall, as a minimum, consist of the agency's conclusions as to the inadequacies of his performance or conduct.
315
806-- Appeal rights to the (Civil Service) Commission
(a) Right of appeal. An employee is entitled to appeal to the Commission in writing from the agency's decision to terminate him under 315.804 or 315.805 only as provided in this section. The Commission's review does not include any matter except as provided in paragraphs (b) and (c) of this section.
(b) On discrimination. An employee whose termination is subject to the provisions of 315.804 or 315.805 may appeal on the ground that the action taken was based on political reasons not required by statute * * *.
(c) On improper procedure. A probationer whose termination is subject to 315.805 (termination for conditions arising before appointment) may appeal on the ground that his termination was not effected in accordance with the procedural requirements of that section.
5
C.F.R. 315.801(a), 315.802(a), 315.803, 315.804, 315.806(a)-(c)
4
Specifically, the Atlanta Area Office, Inspection Branch, Poultry Division, Consumer and Marketing Service of the Department of Agriculture and the Southeastern Council of Poultry Inspection Lodges, American Federation of Government Employees
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385 F.Supp. 665 (1974)
Carl GARNETT, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. 1648.
United States District Court, E. D. Kentucky, Covington Division.
September 27, 1974.
*666 Adams, Brooking & Stepner, Covington, Ky., for plaintiff.
Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., for defendant.
MEMORANDUM
SWINFORD, District Judge.
This action commenced against the United States pursuant to 28 U.S.C § 1346(a)(1) seeks a refund of sums paid in partial satisfaction of penalties assessed against a corporate officer for failure to pay federal taxes withheld from employee wages.
"Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over." 26 U.S.C. § 6672.
Late in 1964, Garnett was elected vicepresident and general manager of the Tasty Foods Company, Inc., an enterprise devoted to the processing and packaging of frozen foods. The company began experiencing financial difficulties soon thereafter and ultimately ceased operations in June, 1965. Although Tasty properly deducted income and social security taxes from its employees' wages, 26 U.S.C. §§ 3102 and 3402, the Company was unable to pay the amounts withheld for the first and second quarters of 1965. On April 25, 1967, a penalty was assessed against Garnett as an officer charged with collecting and paying over amounts deducted from wages. This action was subsequently commenced to recover $885.01 paid in partial satisfaction of the assessment; the Internal Revenue Service has counterclaimed under 26 U. S.C. §§ 7401 and 7403 for the unpaid balance of $12,124.11. Trial was held on July 27, 1973, and the record is before the court for decision.
*667 The plaintiff apparently does not contend that his conduct was not "willful" as contemplated by Section 6672; such a position would be unavailing in view of the admission that Garnett was aware of the impending tax liability. See Braden v. United States, 6th Cir., 442 F.2d 342, 344 (1971), cert. denied 404 U.S. 912, 92 S.Ct. 229, 30 L.Ed.2d 185 (1971); Monday v. United States, 7th Cir., 421 F.2d 1210 (1970), cert. denied 400 U.S. 821 (1970); Newsome v. United States, 5th Cir., 431 F.2d 742, 746 (1970); Annot., 22 A.L.R.3d 8, Section 5. Rather, the sole controverted issue is whether the plaintiff is a "person required to . . . truthfully account for, and pay over any tax imposed . . .." 26 U.S.C. § 6672. Garnett admits that his authority as vice-president and general manager embraced daily factory operations, but argues that his power to satisfy the tax liability was precluded by corporate resolutions predicating disbursements exceeding $5,000.00 upon the assent of the corporation's board of directors or three-member "executive committee" and requiring two signatures for withdrawal from the firm's "general account". Although advised of the impending due date, the other directors thwarted Garnett's attempts to pay the amount owing. Further, the plaintiff's initial investiture of broad managerial authority was eroded with the worsening corporate financial profile; thus, the board in 1965 retained James Monroe as a consultant in an effort to improve the company's profits. Monroe's authority effectively divested plaintiff of the responsibilities initially exercised.
While the plaintiff's presentation was appealing, the court must agree with the defendant that Garnett possessed sufficient authority for the imposition of the 100% penalty; an individual assessable under 26 U.S.C. § 6672 need not wield exclusive domain over the affairs of a business:
"Corporate office does not, per se, impose the duty to collect, account for and pay over the withheld taxes. On the other hand, an officer may have such a duty even though he is not the disbursing officer. . . . The existence of the same duty and concomitant liability in another official likewise has no effect on the taxpayer's responsibility. . . . Liability attaches to those with power and responsibility within the corporate structure for seeing that the taxes withheld from various sources are remitted to the Government. . . . This duty is generally found in high corporate officials charged with general control over corporate business affairs who participate in decisions concerning payment of creditors and disbursal of funds. . . ." Monday v. United States, supra, 421 F.2d at 1214-1215.
In Braden v. United States, S.D.Ohio, 318 F.Supp. 1189 (1970), aff'd 6th Cir., 442 F.2d 342 (1971), cert. denied 404 U.S. 912, 92 S.Ct. 229, 30 L.Ed.2d 185 (1971), the district court adopted guidelines for identifying "responsible" corporate officials; the five stated criteria essentially relate to the degree of administrative and financial control exercised by the putative assessee. The record reflects Garnett's pervasive involvement in both realms.
The corporate minutes clearly vest the general manager with exclusive authority over plant operations:
"Said General Manager shall assume all responsibility for the operation of the business of the corporation and shall have such duties as may be designated by the Board of Directors.
He shall agree to devote all of his time, skill and ability to the interests of the corporation and shall not engage in any other business or enterprise during such time except with the consent of the Board of Directors of the corporation." Minutes of Tasty Foods Company Board of Directors Meeting of November 11, 1959. *668 During the ensuing period Garnett rendered daily operational decisions and assumed complete responsibility for personnel decisions. The broad grant of authority was consistent with the relatively passive managerial role played by the other directors. Garnett as the only salaried board member was similarly the only stockholder to devote full time to the enterprise, Transcript, pp. 34-35; by contrast, the other owners were engaged in separate pursuits which permitted only sporadic attention to the affairs of Tasty Company. The contention that Garnett's responsibilities were sharply curtailed by employment of an independent consultant was derectly rebutted by testimony that Monroe functioned solely as an advisor. Transcript, p. 51. Every witness with the exception of Garnett testified that the general manager exercised exclusive managerial control, hired and fired employees and assumed complete responsibility for the factory operations.
The limitations upon the plaintiff's control over corporate financial affairs is not sufficient to abrogate liability. While the absence of unfettered disbursing authority is a relevant consideration, the courts have generally minimized the impact of such formal distinctions:
"Were we to hold . . . that lack of individual authority to sign corporate checks insulated Brown from liability we would surely open the door to protective co-signing arrangements. The effect of such a holding would tend to emasculate section 6672." Brown v. United States, 5th Cir., 464 F.2d 590, 591 (1972), cert. denied 410 U.S. 908, 93 S.Ct. 962, 35 L.Ed.2d 270 (1973).
Rather, liability is predicated upon the existence of "significant" rather than ultimate fiscal control, Turner v. United States, 9th Cir., 423 F.2d 448, 449 (1970), over routine business decisions addressing "`what bills or creditors should . . . be paid and when'." White v. United States, 372 F.2d 513, 516, 178 Ct.Cl. 765, 1967); Dudley v. United States, 9th Cir., 428 F.2d 1196 (1970); Hewitt v. United States, 5th Cir., 377 F.2d 921 (1967); Scherer v. United States, D.Idaho, 228 F.Supp. 168 (1963), and the company payroll. Flan v. United States, 7th Cir., 326 F.2d 356 (1964); Braden v. United States, 318 F.Supp. at 1194; see Annot., 22 A.L.R.3d 8. The general manager was intimately associated with the financial affairs of the corporation. While not permitted to withdraw funds from the general account or make large disbursements without approval or cosignature, the testimony clearly reflected Garnett's control over the payroll and daily disbursements. The plaintiff's responsibility for sums deducted from wages was demonstrated through testimony by the corporate president that in February, 1964, the general manager was instructed to establish a trust fund to insure that company money would no be commingled with amounts withheld from employees. Acknowledging such instructions, the plaintiff was unable to remember whether such an account had been created. Transcript, p. 39. Indeed, Director Charles F. McKenna resigned on April 9, 1965, upon discovering that Garnett was using the trust money for operating capital. Plaintiff's Exhibit 3.
The contention that the plaintiff was unable to procure authorization for the tax was rebutted by evidence that the other directors were not approached by Garnett and were, in fact, ignorant at that juncture that the funds were unavailable. See Transcript, p. 98. A finding of awareness on the part of the other directors would be unavailing in any event: "The existence of the same duty and concomitant liability in another official likewise has no effect on the taxpayer's responsibility." Monday v. United States, supra, 421 F.2d at 1214; Braden v. United States, 442 F.2d at 343; White v. United States, supra, 372 F.2d at 516; United States v. Graham, 9th Cir., 309 F.2d 210 (1962). Further, Garnett's duty under the Code was breached not merely upon *669 non-payment but also when he permitted the use of the funds for operating expenses.
"Once taxes are collected they become a trust fund in the hands of the employer. 26 U.S.C. § 7501. The liability for payment of taxes collected arises upon the collection of those taxes and not at the date when the statute requires that they be paid over to the government. . . ." Long v. Bacon, S.D.Iowa, 239 F.Supp. 911, 912 (1965).
See also Mueller v. Nixon, 6th Cir., 470 F.2d 1348 (1972), cert. denied 412 U.S. 949, 93 S.Ct. 3011, 37 L.Ed.2d 1001 (1973); Newsome v. United States, supra, 431 F.2d at 746.
The plaintiff's usurpation of withheld "trust funds" for daily factory operations reflects the reasons underlying the harsh penalty exacted by Section 6672: "Absent stringent measures to protect these funds, they might easily be available to finance a business which was in a hazardous or failing condition. . . ." Mueller v. Nixon, supra, 470 F.2d at 1351.
Judgment will be entered dismissing the complaint and awarding recovery of the assessed amount under the counterclaim of the United States.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 19 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-30138
Plaintiff - Appellee, D.C. No. 6:08-CR-00009-CCL
v.
MEMORANDUM*
JOHN JAY DIETRICH,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, Senior District Judge, Presiding
Argued and Submitted October 6, 2010
Seattle, Washington
Before: KOZINSKI, Chief Judge, and THOMAS and M. SMITH, Circuit Judges.
The Supreme Court has held that 18 U.S.C. § 2250(a) “does not apply to sex
offenders whose interstate travel occurred prior to SORNA’s effective date.”
United States v. Begay, 622 F.3d 1187, 1195 (9th Cir. 2010) (citing Carr v. United
States, --- U.S. ----, 130 S. Ct. 2229, 2232–33 (2010)). In United States v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Valverde, --- F.3d ----, 2010 WL 5263142, at *8 (9th Cir. Dec. 27, 2010), we held
that, for persons like Dietrich who were convicted of sex offenses prior to the
statute’s enactment, SORNA’s registration requirements became effective on
August 1, 2008. This date is thirty days after the Attorney General published
guidelines that accorded with the APA’s requirements and announced SORNA’s
retroactive applicability. Id.; see 5 U.S.C. § 553; Office of the Attorney General,
The National Guidelines for Sex Offender Registration and Notification, 73 Fed.
Reg. 38,030, 38,046–47 (July 2, 2008); see also United States v. Utesch, 596 F.3d
302, 311 (6th Cir. 2010).
Dietrich’s interstate movement as an unregistered sex offender concluded in
April 2008, several months before SORNA’s registration requirements applied to
him. We therefore reverse his conviction. Carr, 130 S. Ct. at 2233.
REVERSED AND REMANDED.
-2-
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7190
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TYREE TEKO SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:06-cr-01206-DCN-1; 2:11-cv-70043-DCN)
Submitted: December 19, 2013 Decided: December 23, 2013
Before SHEDD, DAVIS, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Tyree Teko Smith, Appellant Pro Se. Sean Kittrell, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tyree Teko Smith seeks to appeal the district court’s
order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2013)
motion. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B) (2006). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). When the
district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the constitutional
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the motion states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Smith has not made the requisite showing. Accordingly, we
deny a certificate of appealability and dismiss the appeal. We
dispense with oral argument because the facts and legal
2
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
3
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447 F.3d 1033
MISSOURI BOARD OF EXAMINERS FOR HEARING INSTRUMENT SPECIALISTS, Plaintiff-Appellee,v.HEARING HELP EXPRESS, INC., Defendant-Appellant.
No. 05-3313.
United States Court of Appeals, Eighth Circuit.
Submitted: April 17, 2006.
Filed: May 11, 2006.
Bradley T. Koch, Rockford, IL (Andrew B. Mayfield, St. Louis, MO), for appellant.
Glen D. Webb, Assistant Missouri Attorney General, Jefferson City, MO (Bart A. Matanic, Assistant Missouri Attorney General, on the brief), for appellee.
Before MURPHY, MELLOY, and GRUENDER, Circuit Judges.
MURPHY, Circuit Judge.
1
The Missouri Board of Examiners for Hearing Instrument Specialists (the Board) brought this action against Hearing Health Express (Hearing Express), an Illinois corporation, to enjoin it from selling hearing aids to residents of Missouri without the prior fitting or testing required by state law. Hearing Express argued in response that the Missouri statute was preempted by the Medical Devices Amendment to the Federal Food, Drug and Cosmetic Act and that it violated the dormant Commerce Clause. Both parties moved for summary judgment. The district court granted the Board's motion and issued a permanent injunction. Hearing Express appeals, and we reverse.
2
Hearing Express is an Illinois corporation that is in the business of selling hearing aids through the mail and on the internet, including sales to customers in Missouri. It has no employees or facilities in Missouri and conducts all of its business with Illinois licensed hearing aid dispensers. It is undisputed that Hearing Express conducts its business in full compliance with the applicable federal law and regulations, which require either a presale hearing evaluation by a physician or a signed waiver of such an evaluation from the consumer seeking a hearing aid.
3
The state of Missouri regulates the sale of hearing instruments within its borders under Missouri Statute § 346.110(1). This statute prohibits the sale of hearing aids through the mail without prior fitting and testing by a Missouri licensed hearing instrument specialist, and it does not contain a written waiver option. In March 2002 the Central Investigations Unit of the Missouri Division of Professional Registration (CIU) purchased a hearing aid from Hearing Express using a fictitious name. The CIU received the hearing aid without a prior fitting or testing by a Missouri licensed specialist as required by the state statute. In February 2004 the Board sued Hearing Express in state court seeking both a preliminary and a permanent injunction. Hearing Express removed the case to the federal district court on the grounds that the Missouri statute is preempted by the Medical Devices Amendment (MDA), 21 U.S.C. § 360(k), to the Federal Food, Drug and Cosmetic Act (the Act) and that it violates the Commerce Clause. Both parties then moved for summary judgment.
4
The district court granted summary judgment in favor of the Board and permanently enjoined Hearing Express from selling hearing aids in Missouri without complying with the Missouri statute. The district court did not consider § 360k(a) to be an express preemption statute and concluded that it is not preempted by the MDA because the state requirements for fitting procedures are not covered by the federal law, relying on Smith v. Pingree, 651 F.2d 1021 (5th Cir.1981). The district court also ruled that the Missouri statute does not violate the Commerce Clause since it regulates evenhandedly and its burdens on interstate commerce do not outweigh the benefits to consumers or the state interest in regulating professionals within its borders. This appeal followed.
5
Hearing Express contends on its appeal that the Missouri statute is preempted by the MDA and regulations promulgated under it because the state law falls directly within the express preemption language of the federal statute. Hearing Express asserts that the Food and Drug Administration (FDA), acting under the authority delegated to it by Congress, has specifically rejected any requirement for mandatory audiological evaluations before the sale of hearing aids. See 45 Fed.Reg. 67329-67330. Appellant also points out that after the passage of the MDA, the FDA concluded that statutes which require mandatory audiological evaluations are preempted and it denied exemptions from the MDA's preemptive reach to states with statutes similar to Missouri's. Id. at 67329-67336. The Board responds that the district court correctly concluded that the Missouri law is not preempted because the federal statute does not regulate the fitting and testing of hearing aids. Appellee urges that the judgment be affirmed. We review challenges to summary judgment de novo, taking the record in the light most favorable to the responding party. Larson v. Kempker, 414 F.3d 936, 939 (8th Cir.2005).
6
A state law may be either expressly or impliedly preempted by federal law. Express preemption exists when a federal law explicitly prohibits state regulation in a particular field. Implied preemption arises when a federal law completely occupies the field of regulation so that by implication there is no room for state regulation and the coexistence of federal and state regulation is not possible. See Chapman v. Lab One, 390 F.3d 620, 624 (8th Cir.2004). Preemptive language in a statute is to be read narrowly, Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518-19, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992), and without clear congressional intent there is a general presumption against finding implied preemption. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996); Cliff v. Payco General American Credits, Inc., 363 F.3d 1113, 1125 (11th Cir.2004); Springston v. Consolidated Rail Corp., 130 F.3d 241, 244 (6th Cir.1997). Implied preemption is therefore rarely found and only when the state law is in direct conflict with or frustrates the purposes of the federal law. See, e.g., CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 78-79, 107 S.Ct. 1637, 95 L.Ed.2d 67 (1987).
7
Whether the MDA preempts the Missouri statute depends upon the specific language used by Congress in drafting § 360k. Section 360k(a) of the MDA provides:
8
Except as provided in subsection (b)...no State...may establish or continue in effect with respect to a device intended for human use any requirement — (1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and (2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.
9
21 U.S.C. § 360k(a).
10
A state law will be preempted under MDA § 360k if any of its requirements (1) are "different from, or in addition to" those in the MDA and (2) "relate[ ] to the safety or effectiveness of the device or any other matter included in a requirement applicable to the device." 21 U.S.C. § 360k(a). Subsection (b) of the statute in turn provides that a state may petition the FDA for an exemption from its preemptive force. Since the language used in § 360k(a) expressly prohibits certain types of state regulation, we conclude this section of the MDA is an express preemption statute evincing congressional intent to prohibit states without a § 360k(b) exemption from regulating medical devices covered by the Act. See, e.g., McMullen v. Medtronic, Inc., 421 F.3d 482, 487 (7th Cir.2005); Brooks v. Howmedica, Inc., 273 F.3d 785, 792 (8th Cir.2001); New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 384 A.2d 795, 809 (1978); 45 Fed.Reg. at 67328.
11
The Missouri statute at issue provides that "[n]o person shall (1) sell through the mails, hearing instruments without prior fitting and testing by a hearing instrument specialist." Mo. Stat. § 346.110(1). A hearing instrument specialist is defined as "a person licensed by the state...who is authorized to engage in the practice of fitting hearing instruments." Mo. Stat. § 346.010(6).
12
The Board does not seriously dispute that the requirements of the Missouri statute are different from or in addition to those found in the MDA. Under the applicable federal regulations a customer wishing to purchase a hearing aid must either undergo an auditory evaluation or provide a signed waiver. 21 C.F.R. § 801.421(a). An auditory examination is thus optional under the MDA. See 45 Fed.Reg. 67328-67330. The Missouri statute contains no option for a customer to submit a waiver in lieu of an auditory examination. If acts which are permitted under the federal scheme are made mandatory by the state, that requirement is "in addition to the federal requirement." McMullen, 421 F.3d at 489; 45 Fed.Reg. at 67327. Although the Board claims that persons over eighteen can waive the requirement of an auditory exam, the text of the Missouri statute provides no such option. We conclude that the requirements in the Missouri statute are "different from or in addition to" those prescribed by the MDA.
13
The second inquiry is whether the Missouri statute relates to the safety or effectiveness of the device or any other requirement of the MDA. The FDA has concluded that a state requirement "of audiological evaluation relates to the safety or effectiveness of hearing aids because it is intended to ensure that the purchaser is fitted properly with a hearing aid." 45 Fed.Reg. at 67327. Moreover, the Board's own witnesses admitted in deposition testimony that the Missouri statute is related to the health of the patient and the effectiveness of the device.
14
The Board nevertheless argues that the Missouri statute is not preempted because it deals only with fitting and testing, which it says is not regulated by the MDA. The Board relies upon a 1981 Fifth Circuit decision dealing with a since repealed Florida statute which required certain minimum procedures and equipment in the fitting of hearing aids. Pingree, 651 F.2d at 1023-24. The Fifth Circuit concluded that the Florida law dealt only with the mechanics of fitting rather than presale testing and that it was not preempted because the federal regulations "did not address the mechanics of fitting hearing aids to patients." Id. at 1024. We might question whether Congress made so broad an "implied reservation of power" to the states as Pingree suggests, id., but there are in any event significant distinctions between the repealed Florida law and Missouri statute. One element of the Florida law required that audiometric tests be conducted in a certified testing room with sound pressure levels at specified frequencies, but unlike the Missouri statute it allowed consumers to waive the requirement. Fl. Stat. § 468.135(7) (quoted in Pingree, 651 F.2d at 1023). The Florida law also had no mandatory testing requirement in contrast to the Missouri statute which mandates presale testing without exception.
15
We conclude that the requirements of Mo. Stat. § 346.110(1) are in addition to the federal requirements applicable to the sale of hearing aids and that they directly relate to the safety of consumers and the effectiveness of the devices. The Missouri statute therefore "interfere[s] with the execution and accomplishment of the objectives of the FDA's hearing aid regulation," 45 Fed.Reg. at 67327, and must be deemed preempted by the MDA. Because of this conclusion it is not necessary to consider any issues raised under the dormant Commerce Clause.
16
For these reasons the judgment and injunction are vacated and the case is remanded to the district court for entry of judgment in favor of Hearing Health Express.
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Case: 13-40869 Document: 00512751056 Page: 1 Date Filed: 08/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40869
Conference Calendar
United States Court of Appeals
Fifth Circuit
FILED
August 29, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
RUBEN DE LA GARZA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:12-CR-1098-1
Before CLEMENT, PRADO, and ELROD, Circuit Judges.
PER CURIAM: *
The Federal Public Defender appointed to represent Ruben De La Garza
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). De La Garza 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: 13-40869 Document: 00512751056 Page: 2 Date Filed: 08/29/2014
No. 13-40869
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
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581 S.E.2d 16 (2003)
276 Ga. 590
CITY of BUFORD
v.
GEORGIA POWER COMPANY.
No. S03A0089.
Supreme Court of Georgia.
May 19, 2003.
*17 Chandler & Britt, LLC, Walt M. Britt, Gregory D. Jay, for appellant.
Webb, Tanner & Powell, LLP, Anthony O.L. Powell, Lawrenceville, Troutman Sanders, Donald W. Janney, Atlanta, for appellee.
FLETCHER, Chief Justice.
This appeal involves the constitutionality of the City of Buford's moratorium on the construction of electric power substations. The trial court held that the ordinance establishing the moratorium was preempted by state law and enjoined its enforcement. Because the City's ordinance conflicts with state law giving the Public Service Commission exclusive authority to regulate the business activity of Georgia Power, it is preempted by state law. Therefore, we affirm the trial court.
In 2002, the City of Buford enacted an ordinance that placed a one-year moratorium on the construction of electric power substations within 500 feet of residentially zoned property. When Georgia Power began construction on a substation, the Shoal Creek Switching Station, within 500 feet of residential property located in the City, the City issued a stop work order. Georgia Power sought an injunction against the ordinance's enforcement and a declaratory judgment that the ordinance was unconstitutional.
1. The Georgia Constitution provides that state statutes generally control over local ordinances: "no local or special law shall be enacted in any case for which provision has been made by an existing general law."[1] The legislature may preempt local enactments expressly, or preemption may be implied from the comprehensive nature of a state statute.[2]
OCGA § 36-35-6(a)(5) provides for the express preemption of local ordinances "expanding the power of regulation over any business activity regulated by the Public Service Commission beyond that authorized by charter or general law or by the Constitution." The City contends that this express preemption provision does not apply because (1) its charter and OCGA § 36-34-2(7) authorize the City to regulate the placement of substations under its police powers, and (2) the building of substations is not within the "business activity" of Georgia Power.[3]
2. The City's authority, found under its charter and OCGA § 36-34-2(7), to exercise police powers with respect to public utilities is limited to a utility's use of City property. The City's charter permits it to place conditions or restrictions upon the grant of franchises to public utilities; however, this authority is expressly confined to areas "in or under or over its streets, alleys, lanes, sidewalks, parks, and other property of the City."[4] Similarly, the legislature's vesting of power in municipalities to grant franchises and make contracts with utilities is limited to "the use and occupancy of the streets of the city."[5] Georgia Power is not using City property. It is constructing the substation on its own property. Neither the City charter nor OCGA § 36-34-2(7) give the City authority to regulate substations on private property.
3. The City contends that because the PSC does not have rules and regulations governing the placement of substations, the building of substations is not part of the business activity of Georgia power, and is thus not within the express preemption of OCGA § 36-35-6(a)(5). Because preemption is a matter of legislative intent,[6] it does not depend on whether the PSC has exercised *18 the power it has been given; it depends on the legislature's intent in granting the power to regulate. "Where the State has established an agency of its own with plenary power to regulate utilities, it is universally recognized that municipalities cannot properly interpose their local restrictions unless and only to the extent any power to do so is expressly reserved to them by statute."[7] The legislature has broadly delegated of authority to the PSC. The PSC
shall have the general supervision of all... electric light and power companies;[8]
may ... require all companies under its supervision to establish and maintain such public services and facilities as may be reasonable and just;[9]
shall have the authority to examine the affairs of all companies under its supervision... not only with respect to the adequacy, security, and accommodation afforded by their service ... but also with reference to their compliance with all laws, orders of the commission, and charter requirements;[10]
shall have the power and authority to allocate any utility service in such manner as it deems proper in order to protect the public health, safety, or welfare.[11]
Because of the breadth and scope of the legislature's delegation of authority to the PSC, we conclude that the regulation of electric power substations by municipalities is preempted.
Judgment affirmed.
All the Justices concur.
NOTES
[1] Ga. Const.1983, Art. III, Sec. VI, Par. IV(a).
[2] City of Atlanta v. S.W.A.N. Consulting & Sec. Services, Inc., 274 Ga. 277, 553 S.E.2d 594 (2001); Franklin County v. Fieldale Farms Corp., 270 Ga. 272, 276, 507 S.E.2d 460 (1998).
[3] Because a county's exercise of eminent domain power is not involved, the home rule provision of the Constitution, Ga. Const.1983, Art. IX, Sec. II, Par. I(c), is not applicable in this case. Compare Cobb County v. Georgia Transmission Corp., 276 Ga. 367, 578 S.E.2d 852 (2003); Rabun County v. Georgia Transmission Corp., 276 Ga. 81, 575 S.E.2d 474 (2003).
[4] City of Buford Charter, Ga. L.1937-38, Ex. Sess., pp. 953, 1031.
[5] OCGA § 36-34-2(7).
[6] Fieldale Farms, 270 Ga. at 273, 507 S.E.2d 460.
[7] City of Doraville v. Southern Railway Co., 227 Ga. 504, 511, 181 S.E.2d 346 (1971).
[8] OCGA § 46-2-20(a).
[9] OCGA § 46-2-20(c).
[10] OCGA § 46-2-20(e).
[11] OCGA § 46-2-71(a).
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FIFTH DIVISION
MARCH 31, 2004
No. 1-03-0855
DHR INTERNATIONAL, INC., and ) Appeal From The
DAVID H. HOFFMAN, ) Circuit Court of
Plaintiffs-Appellants, ) Cook County.
)
v. )
) No. 03 CH 3137
WINSTON AND STRAWN, )
Defendant-Appellee, )
)
(SPHERION ATLANTIC ENTERPRISES, LLC, )
SPHERION PACIFIC ENTERPRISES, LLC, ) Honorable
and AMERICAN ARBITRATION ASSOCIATION, ) Bernetta D. Bush,
Defendants). ) Judge Presiding.
PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:
Following an evidentiary hearing, the circuit court of Cook County entered an order denying a motion of plaintiffs DHR International, Inc. (DHR), and David H. Hoffman, chief executive officer and shareholder of DHR, for a preliminary injunction to stop defendant law firm Winston & Strawn (W&S) from representing defendants Spherion Atlantic Enterprises, LLC, and Spherion Pacific Enterprises, LLC (Spherion), in an arbitration proceeding Spherion brought against DHR in New York City before the defendant American Arbitration Association (AAA), based on an alleged conflict of interest. Plaintiffs now appeal.
The record on appeal discloses the following facts. On February 18, 2003, plaintiffs filed a three-count "Complaint for Declaratory Relief and Preliminary and Permanent Injunction" against defendants. Count I sought a declaration that a conflict of interest existed arising out of W&S's representation of Spherion in an arbitration proceeding Spherion brought against DHR before the AAA in a dispute arising from an asset purchase agreement. Plaintiffs alleged that William Doyle, an attorney who joined W&S after Spherion filed its claim with the AAA, also had represented plaintiffs and that W&S failed to timely erect an ethical screen to prevent disclosure of plaintiffs' confidences to other attorneys at W&S. Count II sought to preliminarily enjoin Spherion and the AAA from moving forward with the arbitration proceeding pending resolution of the conflict of interest issue. Count III sought to permanently enjoin: W&S from further representing Spherion in the arbitration; Spherion from continuing with the arbitration so long as W&S represented it in the arbitration; and the AAA from moving forward until the alleged conflict of interest was ended.
Plaintiffs filed an emergency motion for a preliminary injunction. Although this motion is time-stamped as filed February 10, 2003, its reference to filing of the complaint and the certificate of service both suggest it was filed after the initial complaint.
(footnote: 1) This motion sought to preliminarily enjoin: W&S from further representing Spherion in the arbitration; Spherion from continuing with the arbitration so long as W&S represented it in the arbitration; and the AAA from moving forward until the alleged conflict of interest was ended.
On February 19, 2003, plaintiffs moved for a temporary restraining order (TRO). On February 21, 2003, the trial court found that it lacked jurisdiction over an arbitration that was to occur in New York and hence declined to order the AAA to stay the arbitration. The trial court also declined to order Spherion not to proceed. The trial court entered a TRO restraining W&S from representing Spherion in the arbitration, pending an expedited evidentiary hearing to begin on February 28, 2003.
On March 14, 2003, following a five-day hearing on the matter, the trial court issued a written order denying the motion for a preliminary injunction for the reasons set forth by the court in court on March 10, 2003 (the order stating that a true and correct copy of that decision is annexed as an "exhibit" to the order). The attached transcript shows that the trial court found that "there was no indication nor was there any evidence really ever present that Mr. Doyle ever represented DHR." The trial court found that plaintiffs failed to show that Doyle had any specific confidential information of DHR in the Spherion matter. The trial court noted that Hoffman did not initially raise a conflict issue, though he or his agents received the statement of claim showing that Spherion was being represented by W&S. The trial court found Hoffman's testimony that he did not initially pay attention to the matter to be not credible, as Hoffman appeared to be a successful and articulate businessman who knew everything that went on in his business. The trial court further found that W&S had represented DHR, but had not represented DHR after 1998.
On March 17, 2003, plaintiffs filed a motion to voluntarily dismiss Spherion and the AAA as defendants, which the trial court granted that same day. Plaintiffs also filed their notice of interlocutory appeal to this court on that date. On March 18, 2003, plaintiffs moved for a stay of the denial of the preliminary injunction. The parties agree that the trial court denied a stay of enforcement, but do not identify where an order denying the stay appears in the record. W&S filed a motion to amend the record to include a transcript of the hearing denying the stay. In response, plaintiffs filed a motion to strike portions of W&S's brief referring to said transcript. On November 19, 2003, this court entered an order denying without prejudice a motion by W&S to dismiss the appeal as moot.
I
Initially, there is the issue of this court's jurisdiction over the appeal. Plaintiffs assert that this court has jurisdiction over this appeal pursuant to Supreme Court Rule 307(a)(1), which permits appeals as of right from an interlocutory order "granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction." 188 Ill. 2d R. 307(a)(1); see also
Official Reports Advance Sheet No. 5 (March 5, 2003),
R. 307,
effective January 1, 2003
. However, it is well-established that
an order regarding disqualification of counsel is neither final and appealable, nor an interlocutory ruling for injunctive relief from which a party may take an immediate appeal under Rule 307(a)(1).
In re Estate of French
, 166 Ill. 2d 95, 98-101, 651 N.E.2d 1125, 1126-28 (1995),
reaffirming
Almon v. American Carloading Corp
., 380 Ill. 524, 44 N.E.2d 592 (1942).
(footnote: 2)
This court has reviewed the
propriety of granting a disqualification order in appeals of contempt findings based on such orders.
E.g.
,
SK Handtool Corp. v. Dresser Industries, Inc.
, 246 Ill. App. 3d 979, 986
, 619 N.E.2d 1282, 1286 (1993)
;
Index Futures Group, Inc. v. Street
, 163 Ill. App. 3d 654, 657, 516 N.E.2d 890, 892-93 (1987)
. In
Hasco, Inc. v. Roche
, 299 Ill. App. 3d 118, 123-124
, 700 N.E.2d 768, 772 (1998), this court reviewed an order granting permanent injunctive relief that effectively disqualif
ied opposing counsel in an arbitration proceeding, reasoning that the permanent injunction was a final appealable order.
In
Hannan v. Watt
, 147 Ill. App. 3d 456, 458
, 497 N.E.2d 1307, 1308 (1986)
, this court reviewed the denial of a preliminary injunction effectively seeking disqualification of opposing counsel in
seniority list integration proceedings, but this court did not expressly address its jurisdiction therein and the
order reviewed also dismissed the complaint.
(footnote: 3)
In this case, plaintiffs seek review of an order denying a preliminary injunction that effectively sought disqualification of opposing counsel
in an arbitration, but the complaint was not dismissed. Without considering whether
Hasco
or
Hannan
is consistent with
Estate of French
, this case does not fall within the scope of cases where this court has reviewed effective disqualification orders. Accordingly, following
Estate of French
, this court lacks jurisdiction to hear this appeal under Rule 307(a)(1).
We note that after its decision in
Estate of French
,
the Illinois Supreme Court amended Supreme Court Rule 306 to allow for permissive appeals of orders granting motions to disqualify counsel. 166 Ill. 2d R. 306(a)(7) (amended effective March 26, 1996). Plaintiffs could have argued (though they did not) that even if the order at issue is nonfinal, this court should nevertheless consider whether to hear the case under Rule 306.
Cf.
In re Curtis B.
, 203 Ill. 2d 53, 63
, 784 N.E.2d 219, 225 (2002)
(nonfinal permanency order in child custody proceedings remanded to appellate court for consideration under Rule 306(a)(5)). However,
Curtis B.
involved Rule 306(a)(5), the broad language of which the supreme court noted plainly encompassed permanency orders.
Curtis B.
, 203 Ill. 2d at 61
, 784 N.E.2d
at 224. In contrast, the plain language of Rule 306(a)(7) does
not
expressly refer to orders
denying
motions to disqualify counsel. Other provisions of Rule 306 demonstrate that the supreme court will specify that jurisdiction may extend to the denial of certain orders where the supreme court so intends.
Official Reports Advance Sheet No. 5 (March 5, 2003),
Rs. 306(a)(2)
(allowing appeal from grant or denial of dismissal based on
forum non conveniens
), 306(a)(4) (allowing appeal from grant or denial of
certain other motions for transfer of venue), effective January 1, 2003. Indeed, Rule 307(a)(1)--the very rule plaintiffs rely upon--expressly refers to orders granting or refusing injunctive relief.
188 Ill. 2d R. 307(a)(1); see also
Official Reports Advance Sheet No. 5 (March 5, 2003),
R. 307,
effective January 1, 2003.
Moreover, in
Curtis B.
, the case was remanded to this court for consideration under Rule 306(a)(5) because the statute purporting to make the permanency order final was not struck down as unconstitutional by this court prior to the appeal
.
Curtis B.
, 203 Ill. 2d at 63
, 784 N.E.2d at 225. In contrast
,
Estate of French
reaffirms a rule of jurisdiction set forth in 1942. The law did not change while this case was on appeal.
(footnote: 4)
In short, this court does not have jurisdiction of this case under Rule 307(a)(1). Nor is this the only jurisdictional problem with this case.
There is also the issue of mootness, which W&S first raised in its motion to dismiss.
A case on appeal becomes moot where events occurring after the filing of the appeal render it impossible for the appellate court to grant the complaining party effectual relief.
In re A Minor
, 127 Ill. 2d 247, 255
, 537 N.E.2d 292, 295 (1989)
. In this case, defendant's motion states that the underlying arbitration went forward beginning on July 7, 2003. Defendant's motion states that on October 21, 2003, the arbitration panel issued a partial final award, which included $982,516 to be paid to Spherion, as well as declaratory relief providing for future payments depending on DHR's financial performance. The award states that it retains jurisdiction solely on the issue of attorney fees.
Plaintiffs respond that the appeal is not moot because the arbitration panel has not entered a full final award, which has not been reduced to a judgment or collected. Plaintiffs state that DHR recently discovered correspondence from
an associate at
Doyle's former firm (attached as an exhibit to the response), asking DHR's chief financial officer for copies of the shareholder agreement, bylaws, the most recent annual minutes where directors and officers were elected, and the most recent balance sheet. Plaintiff argues in the alternative that even if the case is moot, it
qualifies for review as involving a question of great public interest based on: (1) the public nature of the question, (2) the desirability of an authoritative determination for the purpose of guiding public officers, and (3) the likelihood that the question will generally recur.
A Minor
, 127 Ill. 2d at 257
, 537 N.E.2d at 296.
The determination of attorney fees, like disqualification, is an issue collateral to the merits of the arbitration. DHR lost the arbitration of the merits; curiously, plaintiffs in this case have failed to point to any unfair prejudice arising from W&S's representation of Spherion in the arbitration. Plaintiffs' exhibit shows a request for DHR's balance sheet and other documents, but this letter goes to the issue of whether the decision should be reconsidered, not whether the action is moot.
Nor would this case appear to fall within the public interest exception to the mootness doctrine. Plaintiffs were refused a
preliminary
injunction. Plaintiffs fail to explain how an opinion on the denial of
preliminary
relief, including an assessment of plaintiffs'
likelihood
of success, would provide an
authoritative
determination of the conflict issue.
In addition, while this case did not progress to the stage where W&S may have filed a motion to dismiss pursuant to section 2--619(a)(9) of the Code (735 ILCS 5/2--619(a)(9) (West 2000)), we note in passing that Hoffman's standing in this case could be questioned, as he was not a party to the arbitration. It is the secrets and confidences of DHR, a separate corporate entity, which are allegedly in danger of being used or disclosed. Neither party has suggested this is a case where the corporate veil is likely to be pierced. During oral argument, plaintiffs' counsel suggested that Hoffman had standing to sue to protect his attorney-client privilege. Such a response assumes that Hoffman's personal secrets and confidences were in danger of being disclosed in the arbitration proceeding. There is no support in the record for that assumption.
(footnote: 5)
We further note that
section 7.12 of the asset purchase agreement at the heart of the underlying dispute provides for arbitration to occur in New York (absent an agreement of the parties to the contrary), and section 7.13 of the asset purchase agreement provides in part:
"All actions or proceedings arising in connection with this Agreement for preliminary or injunctive relief or matters not subject to arbitration, if any, shall be tried and litigated exclusively in the state or federal court located in New York City, New York. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties with respect to or arising out of this Agreement in any jurisdiction other than specified in this paragraph. Each party hereby waives any right it may have to assert the doctrine of
forum non conveniens
or similar doctrines or object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulates that the State and Federal located in the shall have
in personam
jurisdiction over each of them for the purpose of litigating any such dispute, controversy or proceeding." (Words missing in last sentence in original)
Where the parties have expressly agreed to arbitrate in another state, Illinois courts lack subject matter jurisdiction over judicial proceedings pertaining to the award, even where a party has acquiesced in holding the arbitration in Illinois.
Chicago Southshore & South Bend R.R. v. Northern Indiana Commuter Transp. Dist.
, 184 Ill. 2d 151, 152
, 703 N.E.2d 7, 8 (1998)
.
The defendant in
Chicago Southshore & South Bend R.R.
, 184 Ill. 2d at 158, 703 N.E.2d at 11, "
steadfastly opposed the exercise of subject matter jurisdiction by the Illinois trial court," which did not occur in this case. Although subject matter jurisdiction cannot be waived,
the defendant's objection may have been significant because
Chicago Southshore & South Bend R.R.
rests in part on section 16 of the Uniform Arbitration Act, which provides that "[t]he making of an agreement ***
providing for arbitration in this State
confers jurisdiction on the court to enforce the agreement under this Act and to enter judgment on an award thereunder." (Emphasis added.) 710 ILCS 5/16 (West 2000). In creating rights and duties unknown at common law, the legislature was free to limit the circuit courts' jurisdiction over arbitration matters. See
Board of Education of Warren Township High School District 121 v. Warren Township High School Federation of Teachers, Local 504
, 128 Ill. 2d 155, 166,
538 N.E.2d 524, 529 (1989) (
discussing arbitration under Illinois Educational Labor Relations Act).
However, the supreme court's reference in
Chicago Southshore & South Bend R.R.
to the objection suggests that it views the Uniform Arbitration Act as creating "justiciable matter" over which
the circuit court has original jurisdiction under the Illinois Constitution of 1970 and that a failure to comply with a jurisdictional limit may be the subject of an objection, but does not by itself divest the circuit court of that jurisdiction. See
Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A.
, 199 Ill. 2d 325, 340
, 770 N.E.2d 177, 188 (2002)
.
Thus, in this case, Winston & Strawn might have been able to object to the proceedings here based on section 16 of the Uniform Arbitration Act, but waived that objection by failing to lodge it in the circuit court.
In sum, an order refusing to disqualify counsel is not final or the sort of injunctive relief immediately appealable as a matter of right under Rule 307(a). The plaintiffs have not raised the sort of issues that would weigh in favor of granting an appeal under Rule 306(a)(7), particularly given that the case law already firmly established the nonappealability of the order. In addition, the matter is moot in light of the arbitrator's determination of the merits of the dispute.
For all of the aforementioned reasons, the case is dismissed for lack of jurisdiction.
Dismissed.
REID and HARTIGAN, JJ., concur.
FOOTNOTES
1: Plaintiffs' brief notes that the time stamp may be in error.
2:
Estate of French
also implies that a disqualification order does not
dispose of the rights of the parties, either upon the entire controversy or some definite and separate part thereof. See
Estate of French
, 166 Ill. 2d at 101-02, 651 N.E.2d
at 1128.
"[A] disqualification order grants no relief with respect to the substantive merits of a claim between the parties that has been raised in the actual controversy between them."
Estate of French
, 166 Ill. 2d at 102, 651 N.E.2d
at 1129.
Indeed,
Estate of French
suggests that disqualification orders should not be considered injunctive in nature. See
Estate of French
, 166 Ill. 2d at 100, 651 N.E.2d
at 1128, citing
Almgren v. Rush-Presbyterian-St. Luke's Medical Center
, 162 Ill. 2d 205, 642 N.E.2d 1264 (1994).
3: During oral argument, plaintiffs' counsel cited
Westinghouse Electric Corp. v. Kerr-McGee Corp.
, 580 F.2d 1311, 1312 (7th Cir. 1978), as an example of a case where a trial court denied disqualification, but was reversed on appeal. However, the United States Supreme Court later held that
an order denying a motion to disqualify counsel is a collateral order not appealable prior to final judgment in the underlying litigation.
Firestone Tire & Rubber Co. v. Risjord
, 449 U.S. 368, 379
, 66 L. Ed. 2d 571, 581
, 101 S. Ct. 669, 676 (1981)
.
Estate of French
also noted that this is the law in federal court proceedings.
Estate of French
, 166 Ill. 2d at 103-04, 651 N.E.2d at 1129-30.
4: We note that plaintiffs initially sought to enjoin the arbitration proceedings. Thus, a liberal construction of the pleadings might have led this court to view the pleadings as a motion to stay arbitration under section 2 of the Uniform Arbitration Act. 710 ILCS 5/2 (West 2000). The denial of such a motion in some cases might arguably be analogous to a denial of injunctive relief appealable under Supreme Court Rule 307(a)(1). See
Notaro v. Nor-Evan Corp.
, 98 Ill. 2d 268, 456 N.E.2d 93 (1983).
In this case, however, the trial court refused to enter a TRO against the arbitration proceedings in New York on the ground that the court lacked jurisdiction to do so. Plaintiffs did not appeal that order under Rule 307 and had the trial court dismiss Spherion and the AAA as defendants in this case. Thus, this court does not address issues relating to that issue.
5: Regarding DHR's secrets and confidences, we note in passing that, in connection with the asset purchase, Spherion and DHR had entered into a confidentiality agreement (later amended) permitting the mutual disclosure of confidential information. At the hearing on the motion for a preliminary injunction, Hoffman testified that he did not know whether DHR gave Spherion its balance sheets and income statements under the confidentiality agreement, but he "would guess that we gave them a lot more information than that."
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902 F.2d 1576
Harden (Richard)v.Federal Land Bank of Omaha
NO. 90-1175
United States Court of Appeals,Eighth Circuit.
FEB 26, 1990
Appeal From: S.D.Iowa
1
DISMISSED.
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209 N.W.2d 913 (1973)
STATE of Minnesota, Respondent,
v.
James Mingus STEWART, Appellant.
No. 42822.
Supreme Court of Minnesota.
July 20, 1973.
Rehearing Denied August 23, 1973.
*914 Thomson Wylde & Nordby and Jack S. Nordby, St. Paul, for appellant.
Warren Spannaus, Atty. Gen., St. Paul, William B. Randall, County Atty., Steven C. DeCoster, Robert Kittel, Asst. County Attys., St. Paul, for Minn. Co. Atty's Assoc.
George M. Scott, Henry W. McCarr, Jr., and David G. Roston, Minneapolis, for Minn. Urban Co. Atty's Bd.
Heard before KNUTSON, C. J., and OTIS, ROGOSHESKE, and TODD, JJ.
Reheard and considered en banc.
PER CURIAM.
Defendant appeals from the trial court's order denying his motion for judgment of acquittal or a new trial and from the judgment of conviction of manslaughter in the first degree. He alleges that he is entitled to a new trial on the grounds that the evidence clearly establishes grave doubts as to his guilt. Defendant further assigns as error the refusal of the trial court to restrain the prosecutor from impeaching the defendant by using evidence of his conviction for burglary some 9 years earlier in the State of Washington.
On Sunday, July 27, 1969, defendant in the company of friends appeared at the Ebony Lounge located in the city of St. Paul to hear a musician who was performing that evening. A sizable audience was in attendance. The defendant was carrying a .38-caliber revolver. At about 11 p. m. the deceased, Elmer Caldwell, arrived at the bar in the company of a female companion. He, too, was armed, with a .32-caliber automatic. Caldwell apparently was a co-owner of the bar and was generally regarded as a violent man. He drank excessively and had on one occasion, in the presence of the defendant, fired his revolver into the air. On another prior occasion in defendant's presence, Caldwell had shot a woman in the foot.
About midnight defendant approached a woman he had previously dated and requested her to leave the bar with him. Apparently she refused and there was some discussion. The manager of the Ebony Lounge came over and was able to quiet whatever disturbance there was. At this time the deceased interjected himself into the discussion and grabbed the defendant by the collar and raised him up and released him. At that point both men drew their guns and emptied them at one another.
The evidence is in dispute as to who fired first. In any event, the defendant, after emptying his gun, noticed the deceased still standing and ran from the lounge. The deceased, despite being struck by several bullets, was apparently able to turn and walk a slight distance before he collapsed. He died on the way to the hospital. Defendant alleged that he was unaware of the death of the decedent and afraid of the consequences of his actions that evening and fled to the State of Washington. Upon becoming aware that a fugitive warrant was out for his arrest, he submitted to the Washington authorities, waived extradition, and was returned to Minnesota for trial, bringing his hand gun back with him.
*915 At the time of his first trial, the matter was submitted to a jury on the sole question of first-degree murder and resulted in a mistrial, when the jury was hopelessly deadlocked. In the second trial, the matter was submitted on first-degree murder together with lesser included offenses of second-degree murder and first-degree manslaughter, and the jury returned the verdict of guilty of manslaughter in the first degree.
The issue before the court is the use of a 9-year-old prior burglary conviction as impeachment of defendant in a prosecution for first-degree murder where the jury returned a verdict of guilty of first-degree manslaughter. We reverse and remand for a new trial.
This court has carefully reviewed its decision in State v. West, 285 Minn. 188, 173 N.W.2d 468 (1969). At this time, we again decline to revise our rule as enunciated in the West case.
However, in the instant case the court expresses grave doubts as to the propriety of the use of a 9-year-old burglary conviction in a prosecution for first-degree murder. The use of this old conviction in the prosecution under consideration appears to have little relevance to the truth-seeking process or to the present character of the defendant. In addition, as we have previously noted, the first trial of defendant resulted in a deadlocked jury and the second jury was out for more than 20 hours before returning a verdict of guilty of the lesser included offense. It is impossible to determine what weight, if any, the jury ascribed to the prior conviction, but the interests of justice mandate a new trial for defendant without the burden of such irrelevant testimony.
The opinion filed on April 21, 1972, in this case is withdrawn and this opinion is substituted in its place.
Reversed and remanded.
YETKA and SCOTT, JJ., not having been members of this court at the time of the argument and submission, took no part in the consideration or decision of this case.
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5 F.3d 1494
U.S.v.Boyenga*
NO. 93-2113
United States Court of Appeals,Fifth Circuit.
Sept 21, 1993
1
Appeal From: S.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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543 F.3d 627 (2008)
UNITED STATES of America, Plaintiff-Appellee,
v.
Jay Martin SCHENE, Defendant-Appellant.
No. 07-6177.
United States Court of Appeals, Tenth Circuit.
September 29, 2008.
*630 Robert L. Wyatt, IV, Wyatt Law Office, Oklahoma City, OK, for Defendant-Appellant.
Randal A. Sengel, Assistant U.S. Attorney (John C. Richter, United States Attorney, with him on the brief), Oklahoma City, OK, for Plaintiff-Appellee.
Before BRISCOE, SEYMOUR, and HARTZ, Circuit Judges.
*631 BRISCOE, Circuit Judge.
Defendant Jay Martin Schene was convicted by a jury of five counts of knowingly possessing material that contained an image of child pornography that was produced using materials that had been mailed, shipped, or transported in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B). Schene contends that: (1) the evidence was insufficient to show that the images of child pornography were produced using materials that had been mailed, shipped, or transported in interstate commerce; (2) the evidence was insufficient to show that Schene committed the crime; (3) the district court abused its discretion by admitting into evidence certain testimony regarding gender and homosexuality; and (4) the district court abused its discretion by admitting into evidence images of child pornography, and related exhibits. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
I.
In February 2005, the Federal Bureau of Investigation ("FBI") in Allentown, Pennsylvania, searched the computer of an individual suspected of having child pornography. In the process, they discovered emails from a second individual, whose screen name with America Online ("AOL") was "skitie33." The FBI served a subpoena on AOL, and AOL disclosed that skitie33 was Donald Black, of Duncansville, Pennsylvania. In April 2005, the FBI executed a search warrant on Black's residence and seized four computers. Black admitted trading child pornography with a number of individuals online, although he could not remember any of their names or screen names.
The FBI performed a search of Black's computer, and one of the screen names that they uncovered was "outdoorguy104166."[1] The FBI served another subpoena on AOL, and AOL disclosed that the screen name corresponded to the account of Defendant Schene, who lived in Edmond, Oklahoma. Several other screen names were associated with Schene's account, including "ccarlin317," "myebayshades," "ebayshades," and "okseecat." The FBI referred this information to its Oklahoma City office.
In Oklahoma City, FBI special agent William Weaver performed a search of public records and determined that Schene's home address was in Edmond, Oklahoma. Agent Weaver stopped by Schene's home several times to investigate, and eventually, near the end of May 2006, a woman answered the door. Agent Weaver left his business card with her, and he requested that Schene contact him. Later that morning, Schene called Agent Weaver, who asked Schene to come to the FBI office for an interview. Schene agreed.
At the interview, Schene stated that he had never used, or heard of, outdoorguy. Schene admitted, however, that he used two of the other screen names: ccarlin317 and okseecat. He stated that he worked as a financial advisor for Chase Bank, and that he was married to Cathy Carlin, whose email address was carlincathy@ yahoo.com. When asked, Schene consented to a search of his home computer, and FBI agents accompanied him to his house to perform the search. During the search, Schene told the agents that there were no children in the house, and only he and his wife used the computer.
*632 The FBI agents searched Schene's computer using a software tool called "Presearch," which finds all of the images on the computer's hard drive and shows them one-by-one. At first, the agents only saw images of homes and other generic images from the internet, but eventually, images of child pornography began to appear. Schene denied that the images were his, and he stated that he had no idea how the images had come to be on his computer. The agents seized the computer.
At the FBI office, Bryan Carter, a computer forensics expert, examined the computer in detail. Mr. Carter focused on the hard drive because everything on the computer was stored there, and any visual images came from information on the hard drive. He used several software tools to look for images, and these tools enabled him to search for specific file types such as images and emails and to uncover a lot of information about each file. The tools even enabled him to find files that the user had attempted to delete.
Mr. Carter discovered two operating systems on Schene's computer: Windows XP Professional and Windows XP Home Edition. The user had to choose between the two operating systems immediately after starting the computer. Within each operating system were two user names one for Jay Schene and another for Cathy Carlin and none of the user names required a password. The email service on the computer was AOL, and Mr. Carter found all of the screen names that AOL had listed in its response to the FBI's subpoena. He also found the email address book that AOL automatically created for outdoorguy. Included within the address book was the screen name skitie33, which the FBI had previously determined to be the AOL screen name for Donald Black of Duncansville, Pennsylvania, who had admitted trading child pornography with a number of individuals online.
During his search of the computer, moreover, Mr. Carter found over 1900 images of child pornography, about half of which the user had attempted to delete. He discovered most of the images in emails associated with outdoorguy and ccarlin317. He also found pornographic movies involving children, as well as a history of movies that had been "created" and viewed on the computer. Some legitimate emails i.e., emails not containing child pornography had been sent from ccarlin317 with Jay Schene's signature at the bottom. There was also a wiper/shredder program on the computer,[2] scheduled to run daily on Cathy Carlin's user profile but accessible from either of the user profiles.
At Schene's trial, the government presented the evidence described above, including the images of child pornography that pertained to each of the five counts in the indictment. In addition, the government read into evidence a stipulation to which all parties had agreed, which stated:
The parties to this case stipulate and agree that the following fact may be accepted as proven:
The hard drive from the defendant's computer is a Seagate 20 gigabyte hard drive. This hard drive was manufactured in the country of Singapore.
Stip., ROA, Vol. I, at 62; Tr. at 104.
The government then called as a witness Jeffrey Elliott, a captain with the Oklahoma Highway Patrol who had been assigned to the FBI cyber crimes task force to investigate crimes involving computers *633 and the sexual exploitation of children. Officer Elliott testified, without contemporaneous objection from Schene, about the content of the images:
A I would say probably 90 to 95 percent of the images that were child pornography were images of young boys. They may be nude by themselves in a sexually provocative position, they may be engaged in a homosexual act with another young boy or an adult male.
Q And in your experience in working with cyber crimes and these types of investigations, have you ever seen a woman who trafficked in child pornography showing homosexual acts between males?
A I have not.
Tr. at 107. Officer Elliott also described an exchange of emails between outdoorguy and an individual using the screen names "butwhoishe" and "handsomehorn." The emails contained images of child pornography, and outdoorguy sent and received several such emails within an hour-long period on the evening of April 28, 2006. Officer Elliott explained further that outdoorguy had sent an email to himself, with seventy-six images of child pornography attached, which would have enabled outdoorguy to access these images on other computers. Finally, on redirect examination, Officer Elliott testified:
Q Now, on the internet history, were there instances you could find where websites with homosexual themes had been visited?
A Yes, sir. I saw repeatedly, I saw the user under the Jay Martin Schene account visit www.menforsexnow.com, www.menforrentnow.com, www. cruisingforsex.com. And there was an address at library.gaycafe.com that was visited very frequently.
Q And did you look at a few of these websites?
A I did. I visited each of those. Each of them are gay oriented for males. They all offered child pornography to view. They are kind of a social networking site where you can post your profile or post an ad requesting to meet with someone and that kind of thing.
Tr. at 126.
As his defense, Schene tried to show that the government had not proven that it was he who had knowingly possessed the pornography. On cross examination, Agent Weaver admitted that he did not know the identity of the woman who first answered the door at Schene's address. He admitted that he never attempted to interview Schene's wife; he never searched her business computer; he never searched Schene's work computer; and he never put together a time-line of Schene's computer usage. Further, Agent Weaver agreed that Schene contacted him very quickly after Agent Weaver left his business card at the residence, and Schene cooperated fully with the investigation answering all questions and granting the FBI access to his computer. Agent Weaver agreed that families commonly share an AOL screen name and email account, and that neither Jay Schene's nor Cathy Carlin's user name required a password. Schene also questioned Agent Weaver about whether the FBI had unduly focused on Schene rather than his wife because Schene was a man:
A I believe we asked if he had any children in the home and he said no. And then it was asked whether he had any nephews or nieces that would have access.
Q You would agree, though, that in your report there's nothing that mentions nieces?
*634 A Correct.
Q Your report only mentions there were no nephews in the teenage years?
A Correct.
Q You never considered the possibility of a woman viewing these images, did you?
A We tried to consider all people in the house. In this case, the images were of young boys, young mostly males, and generally you can consider men, but we try to consider both parties.
Tr. at 52. Shortly thereafter, Agent Weaver testified:
A You just assumed that a man looked at these images?
Q Yes.
Tr. at 53. On redirect examination, the following exchange occurred:
Q Has your training with the FBI taught you about the frequency with which women traffic in child pornography?
MR. WYATT: Your Honor, I'm going to object. Calls for speculation, and there's no foundation for this, and it's beyond Daubert and Kumho Tire.
THE COURT: Overruled.
Q (By Mr. Sengel) You may answer the question.
A Yes. It's usually men.
Q It's very rarely found to be women who traffic in child pornography?
* * *
Q So in this instance, that's one of the reasons you were focusing on Jay Schene as you go out there?
A Right. Another reason was when we did the search, the computer was kind of there was an account for the wife and an account for the husband. When the images came up the first images that I saw I could see the path where they were stored, and it was in the wife's account and they were pictures of real estate and different things that she was interested in. There were family, I think, trips to a river rafting trip. And I could see on the path it was still in her account. And soon as that switched to show Jay's account, that's when the images of child pornography started popping up.
Tr. at 55-56.
Likewise, on cross examination, Bryan Carter admitted that neither Jay Schene's nor Cathy Carlin's user name required a password. A person could have accessed the outdoorguy screen name from either of the user names, and there was no way to determine that Schene was the individual sitting at the computer, viewing the images of child pornography. In addition, Officer Elliott admitted that law enforcement had not conducted a sting to catch Schene in the act of looking at child pornography, and only through the use of a camera could he prove that Schene was the person sitting at the computer looking at the images of child pornography. Officer Elliott further admitted that he never interviewed Cathy Carlin because she refused to talk with him, and he never examined Schene's work computer.
Schene moved for a mistrial at several points. The first time, he argued:
Your Honor, also the government has advised the Court that it is to show homosexual activity but they have no evidence of homosexual acts or homosexual nature of the defendant. In absence of that I suggest to the Court that it is unduly unfairly discriminatory and an improper suggestion, and even based on previous testimony, I would state that I did not object, but I'm going to now and move for a mistrial on the grounds that you can't assume that someone is homosexual *635 because of information that involves homosexuality or bisexuality that a man looked at it.
Tr. at 82-83. The court denied the motion. Later, after Officer Elliott testified about the images recovered from Schene's computer, the following exchange occurred:
MR. WYATT: I ask the Court for a limiting instruction. There's no evidence to be presented of any homosexual activity by my client of Jay Martin Schene, no evidence from anyone of any evidence they have provided to me, no discovery that he is homosexual, gay, bisexual, and I ask the jury be instructed on that.
THE COURT: What would be the basis for me instructing them what the evidence hasn't shown?
MR. WYATT: Well, I've objected to the fact that they have attempted to introduce this without any Daubert showing and without any, it's just opinions of lay people once you get to that point. For a witness to stand up here and say that we've never seen a woman look at pictures of homosexual men, that is totally beyond the scope of the expertise of these people, whether he has seen that or not. It doesn't establish whether it does or does not exist or who might have been looking at any of the images.
THE COURT: Insofar as the Daubert related objection, there was a sufficient showing made. Beyond that I don't have any basis to give a limiting instruction on what you're asking for. You can inquire into it on cross and put on your evidence, but at any rate, your request will be denied.
MR. WYATT: For the record I move for mistrial.
THE COURT: Be overruled.
Tr. at 109-10.
Schene called several witnesses to testify on his behalf. First, Jay Penrod, a computer forensics specialist, testified that all of the AOL screen names outdoorguy, okseecat, ccarlin317, and myebayshades were originally set up under Cathy Carlin's user profile.[3] He also testified that it was impossible to identify who was sitting at the keyboard looking at the images of child pornography; that outdoorguy was not necessarily a man; and that family members commonly share one AOL account and often view inappropriate material without other family members knowing. Schene then called three character witnesses, who testified to their opinion of Schene's high character as an honest and law-abiding individual.
Pursuant to Rule 29 of the Federal Rules of Criminal Procedure, Schene moved for a judgment of acquittal which the district court denied at the close of the government's case, at the close of Schene's case, and at the close of the government's rebuttal evidence. Ultimately, the jury returned a verdict of guilty on all five counts. The district court sentenced Schene to sixty months' imprisonment, followed by two years of supervised release.
II.
A. Sufficiency of the evidence: the interstate commerce element of 18 U.S.C. § 2252A (a)(5)(B)
Schene appeals the sufficiency of the evidence as to the "interstate commerce" *636 element of 18 U.S.C. § 2252A(a)(5)(B). He did not raise this issue in his Rule 29 motions for judgment of acquittal, so we review for plain error. See United States v. Schaefer, 501 F.3d 1197, 1199-1200 (10th Cir.2007); see also United States v. Goode, 483 F.3d 676, 680-81 & n. 1 (10th Cir.2007).[4] "To obtain relief under this doctrine, [Schene] must show: (1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights." Goode, 483 F.3d at 681 (citation and internal quotation marks omitted). "If he satisfies these criteria, this Court may exercise discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (citation and internal quotation marks omitted).
The statute at issue, 18 U.S.C. § 2252A(a)(5)(B), prohibits "[a]ny person" from
knowingly possess[ing] any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer[.]
18 U.S.C. § 2252A(a)(5)(B). To meet the "interstate commerce" element here, the government has relied solely on the second prong of § 2252A(a)(5)(B) i.e., that the images of child pornography were "produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce."
At trial, the government's theory was that Schene's hard drive which was "mailed, or shipped or transported in interstate or foreign commerce" had "produced" the images of child pornography when it caused them to appear visually on Schene's computer monitor. The parties stipulated that "[t]his hard drive was manufactured in the country of Singapore." Stip., ROA, Vol. I, at 62; Tr. at 104. Also, Bryan Carter testified to the following:
Q In the forensic exam when you're focusing on the hard drive, is that because for those that didn't grow up with computers, like me, that's where everything is stored?
A Correct.
Q And in the instance of like images to be seen on a computer, are those images going to be produced from the information that's on that hard drive?
A Yes. It is an exact copy of that information.
Tr. at 60.
The government's attempt to prove production of the images by their display on a computer monitor is foreclosed by our decision in United States v. Wilson, 182 F.3d 737, 743 (10th Cir.1999). In Wilson, the defendant had been convicted under 18 U.S.C. § 2252(a)(4)(B) (1996),[5] and we reversed *637 the conviction under the jurisdictional prong of that statute. We first explained that, contrary to the government's "extremely vague" theory at trial, and even though "the evidence was uncontroverted that the diskettes [containing child pornography] traveled in interstate commerce, there was an alarming lack of proof that the diskettes were used to actually produce the graphics files." Wilson, 182 F.3d at 742. The government's witnesses
did not support the conclusion that computer diskettes are used to actually produce graphics files. To the contrary, their testimony left unanswered the question of whether a computer graphics file is produced or created prior to being recorded on a particular storage media, or whether, instead, it only comes into being at or after the point it is recorded on the storage media. Although we have no doubt this question has an answer (and thus do not foreclose the possibility that a diskette is a "material" used to produce a graphics file contained thereon), we conclude the evidence produced by the government in this case was insufficient to allow a reasonable juror to answer the question.
Id. at 743. We also declined to affirm the conviction under the government's "alternate theory": "that the act of converting a computer graphics file stored on a diskette into a visual image on a computer monitor could constitute `production' of a visual depiction for purposes of the statute." Id. We explained:
Without foreclosing application of this theory under different circumstances, we find it of no value here. As previously noted, the stipulated amended superseding indictment narrowly charged defendant with violating § 2252(a)(4)(B) by possessing three or more computer diskettes that contained visual depictions, i.e., computer graphics files. Under § 2252(a)(4)(B), a computer graphics file is considered a "visual depiction" as it resides on a computer diskette in binary form; no act of viewing the file with software and a monitor is necessary. Thus, the focal point of the statute's jurisdictional element, as applied to the circumstances of this case, is whether the graphics files were produced using materials that traveled in interstate commerce. In other words, in determining whether the jurisdictional element is satisfied, the statute requires us to focus on the graphics files as they reside or are contained on the diskettes, and to determine what materials went into producing those files. It is irrelevant that defendant may have actually viewed the graphics files, using a computer, viewing software, and a monitor, because such viewing did not result in production of the graphics files; instead, such production necessarily had to have occurred either at or prior to the time the graphics files were recorded on the diskettes.
Id. (citation omitted).
The government's argument in the instant case mirrors the government's "alternate theory" that we rejected in Wilson, and despite the differences in the statutory texts at issue in the two cases, Wilson still controls here. Section 2252A(a)(5)(B) requires that the "image of child pornography ... was produced using *638 materials that have been mailed, or shipped or transported in interstate or foreign commerce." Although the statute does not define "image," it defines "child pornography" to mean "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means...." 18 U.S.C. § 2256(8). The phrase "visual depiction," in turn, "includes undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image." Id. § 2256(5). Thus, under 18 U.S.C. § 2252A(a)(5)(B) as under § 2252(a)(4)(B) in Wilson "[i]t is irrelevant that defendant may have actually viewed the graphics files, ... because such viewing did not result in production of the graphics files; instead, such production necessarily had to have occurred either at or prior to the time the graphics files were recorded on the diskette." Wilson, 182 F.3d at 743.
That is not the end of our analysis, however, because, as we have noted, Schene did not challenge the sufficiency of the evidence below and must therefore establish his entitlement to relief under the plain error standard of review. Under that standard, Schene must establish not only the existence of an error that is clear or obvious under current law, but also that such error affects his substantial rights and seriously affects the fairness, integrity, or public reputation of judicial proceedings. For the reasons that follow, we are not persuaded that Schene can make these latter two showings.
Since our decision in Wilson, both the Seventh and Ninth Circuits have addressed the very question that we held was unanswered by the evidence presented in Wilson, i.e., "whether a computer graphics file is produced or created prior to being recorded on a particular storage media, or whether, instead, it only comes into being at or after the point it is recorded on the storage media." 182 F.3d at 743. More specifically, both the Seventh and Ninth Circuits have held, as a matter of law, that computerized images are "produced" for purposes of § 2252A(a)(5)(B) when computer equipment, including both hard drives and computer diskettes, are used to copy or download the images. United States v. Anderson, 280 F.3d 1121, 1125 (7th Cir.2002); United States v. Guagliardo, 278 F.3d 868, 871 (9th Cir.2002); United States v. Angle, 234 F.3d 326, 341 (7th Cir.2000). As the Ninth Circuit explained in Guagliardo, "[w]hen the file containing the image is copied onto a disk" or hard drive, "the original is left intact and a new copy of the image is created, so the process `produces' an image." 278 F.3d at 871.
Armed with these more recent decisions clarifying how and when a downloaded or copied computer image is "produced," we turn to the evidence presented in Schene's case. It was uncontroverted that all of the charged materials were found on Schene's hard drive. The government introduced the following testimony regarding the movie at issue in Count 1 of the indictment:
Q Now, the date here created where it's viewed and so on, is that because someone took the file over to Real Player to look at it?
A Yes.
Q And that's different from the temporary directory?
A Correct.
Q So it would take an intentional act of someone to move that movie over and play it?
A Yes.
*639 Tr. at 85. The Real Player history, moreover, stated that the movie was "[c]reated" on February 5, 2005. Gov't Ex. 6. While some of this testimony appears to relate to the viewing of the movie, the testimony and government's Exhibit 6 also support the "creation" or downloading of the movie onto the computer hard drive. The image charged in Count 2 was "an active file" that "had been saved to the computer from e-mail coming in." Tr. at 87. Likewise, the images charged in Counts 3 and 4 were "all from e-mail recovered from Jay Schene's computer" and were all "active on the computer." Tr. at 89. The image charged in Count 5 was "recovered from the defendant's computer," "from an e-mail," and was an "active file[]" on the computer. Tr. at 89-90. The government also showed that at least two of the charged images the images from Exhibits 10 and 13 had appeared on Exhibit 14, the email that outdoorguy sent to himself, and an image sent in this fashion "had to be stored on [Schene's] computer." Tr. at 119.
It is obvious that the government's evidence was sufficient, under the more recent Seventh and Ninth Circuit decisions, to show that each "image of child pornography" had been copied or downloaded to Schene's hard drive in one capacity or another, and was therefore "produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce." 18 U.S.C. § 2252A(a)(5)(B); see Anderson, 280 F.3d at 1125; Guagliardo, 278 F.3d at 871; cf. United States v. Lacy, 119 F.3d 742, 750 (9th Cir.1997) (reviewing for plain error and affirming a conviction under 18 U.S.C. § 2252(a)(4)(B) because the images "were created `produced' when Lacy used his computer to download data," and under the statute, "it does not matter that the depictions on Lacy's computer were copies rather than originals"). In light of this conclusion, we would be hard-pressed to say that the claimed insufficiency of the evidence violated Schene's substantial rights or seriously affected the fairness, integrity, or public reputation of his judicial proceedings. Accordingly, we reject Schene's sufficiency-of-the-evidence challenge to the interstate commerce element of § 2252A(a)(5)(B).
B. Sufficiency of the evidence: Schene committing the crime
Schene next appeals the sufficiency of the evidence that he and not his wife committed the offenses. Schene raised this issue in his Rule 29 motions for judgment of acquittal, and it was the thrust of his defense at trial.
The evidence was sufficient to establish that it was Schene, and not someone else, who committed the crimes charged. "`Evidence is sufficient to support a conviction if a reasonable jury could find the defendant guilty beyond a reasonable doubt, given the direct and circumstantial evidence, along with reasonable inferences therefrom, taken in a light most favorable to the government.'" United States v. Nelson, 383 F.3d 1227, 1229 (10th Cir.2004) (quoting United States v. Wilson, 107 F.3d 774, 778 (10th Cir.1997)). "We will not weigh conflicting evidence or second-guess the fact-finding decisions of the jury." United States v. Summers, 414 F.3d 1287, 1293 (10th Cir.2005). "Rather than examining the evidence in `bits and pieces,' we evaluate the sufficiency of the evidence by `considering the collective inferences to be drawn from the evidence as a whole.'" Nelson, 383 F.3d at 1229 (quoting Wilson, 107 F.3d at 778).
Schene does not contest that the computer contained the charged images of child pornography, or that the only people with access to the computer were Schene *640 and his wife. Government investigators found over 1900 images of child pornography, with images appearing under both of the operating system's user accounts and under two AOL screen names outdoorguy and ccarlin317. Schene had access to both user accounts, and he admitted to using the screen name ccarlin317.
Also, two of the government's witnesses testified regarding the likelihood of Schene rather than his wife viewing the child pornography. One of the witnesses, Agent Weaver, explained that when the officers first examined Schene's computer, "the images of child pornography started popping up" only after they "switched to show [Schene]'s account." Tr. at 56. From this collection of evidence, a reasonable jury could have found beyond a reasonable doubt that Schene and not his wife knowingly possessed the child pornography, and the evidence was sufficient to support Schene's conviction.
C. Testimony regarding gender and homosexuality
Schene next argues that the government erred in admitting testimony regarding the propensity of women to traffic in, and view, child pornography. Specifically, Schene claims that this testimony was unreliable and failed to meet the standards established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), and Rule 702 of the Federal Rules of Evidence. Also, he claims that the government's witnesses violated Rule 704(b) by testifying to the "ultimate issue" of Schene's mental state. Finally, he claims that the government suggested that Schene was a homosexual, which violated his right to due process and a fundamentally fair trial. "`We review challenges to admissibility of evidence solely for abuse of discretion.'" United States v. Chisum, 502 F.3d 1237, 1241 (10th Cir.2007) (quoting United States v. Reddeck, 22 F.3d 1504, 1508 (10th Cir.1994)).
1. Agent Weaver's and Officer Elliott's testimony regarding the likelihood of a woman possessing child pornography
We discern no reversible error in admission of the testimony by Agent Weaver and Officer Elliott about the likelihood of a woman possessing child pornography. Agent Weaver's testimony came on redirect examination after Schene had cross-examined him regarding his failure to investigate Carlin with respect to the images of child pornography. The clear purpose of the questioning on redirect was to explain why Agent Weaver had focused his attention on Schene. For that purpose, it was unnecessary to establish the "scientific" basis for Agent Weaver's testimony. The point was not that the information he received in training was correct; it was that he was acting in accordance with his training.
As for Officer Elliott's testimony, we review for plain error because Schene raised no contemporaneous objection. Under the plain-error standard, we cannot reverse because any error in admitting the testimony was not plain. Officer Elliott's testimony could be justified on the same basis as Agent Weaver's; and it is hardly "plain" that the testimony lacked sufficient support in his training and experience. Moreover, even assuming for purposes of argument that Schene could establish the existence of an error that was plain, we are not persuaded that Schene's substantial rights were violated by the introduction of Officer Elliott's testimony in this regard. In particular, the jury had already heard similar testimony from Agent *641 Weaver, and the other evidence of Schene's guilt was substantial.[6]
2. Alleged violations of Fed.R.Evid. 704(b)
Schene's second argumentthat the government's witnesses violated Rule 704(b) by testifying to the "ultimate issue" of Schene's mental state-was not raised before the district court and is largely incomprehensible in Schene's appellate brief. There is no indication in the trial transcript that the government's witnesses violated Rule 704(b).
3. Alleged references to homosexuality
Schene also claims that the government suggested that he was a homosexual, which violated his right to due process and a fundamentally fair trial. "When prosecutorial misconduct deprives a criminal defendant of a fair trial, the defendant's due process rights are violated, and reversal is warranted." United States v. Gabaldon, 91 F.3d 91, 93 (10th Cir.1996) (citations omitted). As we have explained previously, a prosecutor's emphasis on a defendant's homosexuality can have "a tremendous negative impact on jurors" and is often "designed solely to inflame the jury's prejudices." Neill v. Gibson, 263 F.3d 1184, 1201-02 (10th Cir. 2001) (citing cases). If a defendant "has both objected contemporaneously and unsuccessfully moved the district court for a mistrial" based on alleged prosecutorial misconduct, the appropriate standard of review is for "an abuse of discretion." Gabaldon, 91 F.3d at 93.
The government made two references to homosexuality during Schene's trial. The first was Officer Elliott's description of the type of child pornography found on Schene's computer:
A I would say probably 90 to 95 percent of the images that were child pornography were images of young boys. They may be nude by themselves in a sexually provocative position, they may be engaged in a homosexual act with another young boy or an adult male.
Q And in your experience in working with cyber crimes and these types of investigations, have you ever seen a woman who trafficked in child pornography showing homosexual acts between males?
A I have not.
Tr. at 107. Contrary to Schene's contention, the government did not accuse him of being a homosexual in this testimony, or suggest that homosexuals are more likely to view child pornography. The government's use of the word "homosexual" was solely to describe the type of child pornography found on Schene's computer.
The second reference to homosexuality, however, is more problematic. Officer Elliott testified:
Q Now, on the internet history, were there instances you could find where websites with homosexual themes had been visited?
A Yes, sir. I saw repeatedly, I saw the user under the Jay Martin Schene account visit www.menforsexnow.com, www.menforrentnow.com, www. cruisingforsex.com. And there was an address at library, gaycafe.com that was visited very frequently.
Q And did you look at a few of these websites?
*642 A I did. I visited each of those. Each of them are gay oriented for males. They all offered child pornography to view. They are kind of a social networking site where you can post your profile or post an ad requesting to meet with someone and that kind of thing.
Tr. at 126. The prosecutor's initial question in this exchange was arguably improper. See Neill, 263 F.3d at 1201-02.
Neverthelessand even assuming, arguendo, that Schene preserved this argument for appeal by objecting and moving for a mistrial on this ground earlier in the trialthe district court did not abuse its discretion in failing to grant a mistrial based on the prosecutorial misconduct. The prosecutor's question was "singular and isolated," United States v. Ivy, 83 F.3d 1266, 1288 (10th Cir.1996) (citation and internal quotation marks omitted), and Officer Elliott quickly refocused his testimony on the fact that the websites "all offered child pornography to view." Tr. at 126. Given the evidence against Schene, moreover, the alleged prosecutorial misconduct was not "flagrant enough to influence the jury to convict on grounds other than the evidence presented." Ivy, 83 F.3d at 1288 (citations and internal quotation marks omitted). Reversal is not warranted on these grounds.
D. Allegedly irrelevant and prejudicial evidence
Lastly, Schene challenges the district court's decision to admit Exhibits 5, 6, 7, 8, 9, 10, 11, and 14. He argues that, given his willingness to stipulate that the images were child pornography, any images were irrelevant and unfairly prejudicial under Rules 402 and 403 of the Federal Rules of Evidence. Schene also contends that Exhibits 8, 9, and 14i.e., the exhibits containing images not linked to a specific count in the indictmentwere admitted in violation of Rule 404(b), as was the Real Player history in Exhibit 6.[7]
Our review of the district court's decision to admit evidence is for an abuse of discretion. Chisum, 502 F.3d at 1241. Under Rule 403 of the Federal Rules of Evidence, otherwise relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403. In addition, Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts ... [may be] admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Fed.R.Evid. 404(b). Evidence is admissible under Rule 404(b) if the following factors are satisfied: "(1) the evidence must be offered for a proper purpose; (2) it must be relevant; (3) its probative value must not be substantially outweighed by its potential for unfair prejudice under Rule 403; and (4) the court must give a proper limiting instruction, if it is requested *643 by the defendant." United States v. Moran, 503 F.3d at 1135, 1143-44 (10th Cir.2007) (citing Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)).
The district court did not abuse its discretion in admitting the exhibits that Schene challenges on appeal. In United States v. Campos, 221 F.3d 1143, 1148 (10th Cir.2000), we rejected a defendant's argument that, under Rule 403, and "in light of his offer to stipulate that those images constituted child pornography, there was no reason to show them to the jury and to do so was unduly prejudicial." We explained that, in contrast to the evidence at issue in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), the offer to stipulate in Campos involved "the gist of the government's current case against [the defendant]the two pornographic images that he allegedly transported via computer." Campos, 221 F.3d at 1149. Likewise, in the instant case, the images charged in the indictmentand admitted as evidence in Exhibits 5, 7, 10, 11, and 13were the gist of the government's current case against Schene. The government was entitled to prove its case, and given the charges against Schene, those images were not unfairly prejudicial under Rule 403. See Old Chief, 519 U.S. at 186-87, 117 S.Ct. 644 (explaining that it is "unquestionably true as a general matter," that "the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it").[8]
The uncharged images in Exhibits 8, 9, and 14 are a closer call, but the district court did not abuse its discretion in admitting them into evidence. Exhibits 8 and 9 were emails containing images of child pornography, sent from outdoorguy to butwhoishe within minutes of other emails from butwhoishe to outdoorguy. Exhibit 14 was an email containing seventy-six images of child pornography that outdoorguy sent to himself. The government introduced these emails to show intent and knowledge under Rule 404(b), and the district court gave a limiting instruction on the matter. See Tr. at 88 ("Ladies and gentlemen, to the extent that this evidence relates to anything other than the specific files that are charged in the indictment, I would instruct you that it's to be considered only as it bears on the defendant's knowledge or intent, and you should consider it only for that limited purpose."). Under 18 U.S.C. § 2252A(a)(5)(B), the government had to prove that Schene "knowingly possess[ed]" the images of child pornography, and the district court did not abuse its discretion under Rules 403 and 404(b) in admitting these uncharged images for this limited purpose. See United States v. Simpson, 152 F.3d 1241, 1249 (10th Cir.1998) (affirming the district court's decision to admit similar evidence "to prove that (1) [the defendant's] possession of child pornography on his computer was not a mistake or accident, and (2) he had knowledge of the nature of the material he was receiving").
Likewise, the district court did not abuse its discretion in admitting Exhibit 6 into evidence. Exhibit 6the Real Player history pertaining to the video charged in Count 1was introduced to show knowledge and intent, and the district court gave a limiting instruction on the matter. See Tr. at 84 (explaining that "the evidence comes in only as it bears or as it suggests intent or knowledge on behalf of the defendant, *644 and you should consider it only for that limited purpose"). Exhibit 6 was not unfairly prejudicial under Rule 403. It was a limited segment of the much broader Real Player history, and it pertained directly to Schene's knowing and intentional playing of the video charged in Count 1. The district court did not abuse its discretion.[9]
AFFIRMED.
NOTES
[1] All parties refer to this screen name as "outdoorguy," without including the numbers. We will use the same reference.
[2] A wiper/shredder program is a program that attempts to erase the tracks of internet activity or confidential information.
[3] On cross examination, Mr. Penrod admitted that images containing child pornography had been opened and viewed under Schene's user profile. The government also countered Mr. Penrod's testimony by introducing rebuttal testimony from Bryan Carter, who testified that the AOL version on which the screen names were originally installed was older than the version on which many of the images were viewed.
[4] Schene argues that he preserved this argument by raising it during a jury instruction conference. An argument during a jury instruction conference does not preserve a sufficiency-of-the-evidence issue for appeal where a defendant omits it from his Rule 29 motion, and our plain error standard applies here. Cf. Goode, 483 F.3d at 681 ("When a defendant challenges in district court the sufficiency of the evidence on specific grounds, `all grounds not specified in the motion are waived.'" (quoting United States v. Kimler, 335 F.3d 1132, 1141 (10th Cir.2003))).
[5] The statute provided that any person who
knowingly possesses 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction... which was produced using materials which have been mailed or ... shipped or transported [in interstate or foreign commerce], by any means including by computer, if
(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section.
Wilson, 182 F.3d at 740 (quoting 18 U.S.C. § 2252(a)(4)(B) (1996)) (alterations in original).
[6] We emphasize that Schene opened the door to this testimony and we stress that our holding on this point is very limited, and should not be interpreted as carte blanche to introduce this type of evidence in every case involving child pornography.
[7] Schene also mentions Exhibit 12 in passing, but he does not explain how this piece of evidence would violate Rule 402, 403, or 404(b). Exhibit 12 is AOL's disclosure of the identity of butwhoishe and handsomehorn, and the district court did not abuse its discretion in admitting it into evidence. We will not address Exhibit 12 in additional detail.
[8] In his Reply Brief, Schene concedes that, under Campos, the images charged in the indictment were appropriately admitted into evidence.
[9] For many of the same reasons discussed above, we reject Schene's relevance arguments under Rules 401 and 402 as to all of the exhibits being appealed, and we will not address them in detail. See Old Chief, 519 U.S. at 178-79, 117 S.Ct. 644.
| {
"pile_set_name": "FreeLaw"
} |
Filed 5/27/14 In re H.C. CA2/7
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 SEVEN
In re H.C., a Person Coming Under the B250994
Juvenile Court Law.
(L.A.S.C. No. CK44585)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
K.C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County,
Tony L. Richardson, Judge. Affirmed in part, and reversed and remanded.
Liana Serobian, under appointment by the Court of Appeal, for Defendant
and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County
Counsel, and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
_____________________________
Appellant K.C, the mother of minor H.C., appeals from an order of the juvenile
court that declared H.C. a dependent of the court under Welfare and Institutions Code
section 300,1 subdivision (b) based on a number of allegations relating to appellant’s
inadequate parenting skills as well as allegations that appellant had mental and emotional
problems that led to her involuntary hospitalization. Before this court, appellant
challenges the juvenile court’s jurisdictional findings and disposition orders. She argues
that the court erred in failing to grant the request of the Department of Children and
Family Services (“DCFS”) to continue the jurisdictional proceedings for two weeks in
view of the DCFS’s admission that it had not completed its investigation and was not
prepared to make an assessment and recommendation to the court. The respondent
asserts that appellant cannot complain about the court’s failure to grant a continuance
because she effectively objected to continuing the proceedings, and instead she urged the
court to decide the merits. As we shall explain, we agree the appellant forfeit any
complaint about the continuance. We also find that sufficient evidence supported at least
one of the jurisdictional allegations. Nonetheless, we also conclude the court’s
disposition orders must be reversed.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant came to the attention of the DCFS in February 2013, when a section 300
petition was filed on behalf of appellant (who was then 16 years old) and her siblings,
alleging that appellant had been sexually abused by her stepfather and that her mother
failed to protect her. Appellant, who was pregnant at the time, was detained in shelter
care. DCFS was ordered to provide appellant with counseling and to assess relatives for
placement.
Appellant gave birth to H.C. in March of 2013. After H.C.’s birth, appellant and
the infant lived at St. Mary’s Shelter. In early May 2013, the DCFS received a report that
1
All further code references, unless indicated otherwise, are to the Welfare and
Institutions Code.
2
appellant was co-sleeping with H.C. even after the staff at the shelter had advised
appellant of the dangers of co-sleeping with an infant. Shelter staff reported that in April
2013, appellant had agreed to a safety plan requiring her to stop co-sleeping with the
baby, but nonetheless, appellant continued to do so. It was also reported that appellant
had made verbal threats to the shelter staff; she did not support the baby’s head and neck
when she held the baby; and that appellant had spilled hot soup on the infant.2
When the DCFS social worker spoke to appellant she initially denied co-sleeping
with H.C. but eventually admitted to a few incidents when appellant “was really tired.”
She also said she spilled soup on the baby by accident. She stated that the shelter staff
would not hold the infant while she ate, so she had to eat while holding the baby. Mother
denied being on medication or having a history of drug use, but admitted to “smoking
marijuana before.” Appellant agreed to a second safety plan requiring that she not co-
sleep with the baby, or eat while holding the child.
Thereafter, the DCFS received a report that appellant had left H.C. strapped into a
small baby swing at 8:45 p.m. while she visited a friend next door in the shelter. The
next day, appellant was found sleeping on the couch with the baby lying across her chest.
Later, appellant confronted a staff member about an incident between the staff member
and another resident, and while holding H.C., appellant hit a wall with her fist. A few
days later, it was reported that appellant put H.C. in a car seat in the front seat of a
vehicle, and failed to secure the car seat when she went back into the shelter. When
appellant returned, she told staff not to open the car door because the baby might fall out.
DCFS facilitated a Team Decision Making meeting (“TDM”) on May 21, 2013.
During the meeting the shelter staff indicated appellant had fallen asleep with the infant
approximately 13 times. They also discussed her angry and defiant behavior, and
appellant’s inability to properly supervise and care for H.C. Appellant agreed to
participate in individual counseling, and parenting classes, and to attend group therapy.
2
The infant was taken to the emergency room, but did not sustain any injuries from
the incident.
3
However, later that evening, appellant had another angry outburst and punched a wall
while carrying the baby.
Thereafter, in early June 2013, St. Mary’s shelter gave a seven-day notice to
terminate placement with appellant and the baby because of appellant’s aggressive
behavior towards the shelter staff. It was further reported to DCFS that appellant had fed
the baby a bottle of formula with baby food bananas in it, placed rice cereal in the child’s
formula, and gave the baby juice. In addition, shelter representatives reported that
appellant was not properly holding the child.
On June 13, 2013, DCFS took the baby into protective custody. On June 18, 2013,
the DCFS filed a section 300, subdivision (b) petition on behalf of H.C. The initial
petition alleged that appellant had a history of substance abuse and co-sleeping with the
baby, and that appellant’s conduct placed the child at substantial risk of serious physical
harm.
At the detention hearing on June 18, 2013, the court found the baby was a person
described under section 300, subdivision (b), but released H.C. to appellant on the
condition that appellant no longer co-sleep with the baby and receive hands-on parenting
training. The court also ordered the DCFS to find a placement for appellant and the baby
and to provide family maintenance services. During the hearing, appellant’s counsel
informed the court that appellant would “prefer not to waive time” on the case and to
proceed to adjudication as soon as possible. Counsel also observed that because the child
was released to the parent the adjudication should be held within 30 days. The court set
the adjudication for July 10, 2013.
A week later on June 25, 2013, the court received an Ex Parte Application from
the DCFS indicating that it had not found a placement for appellant and the baby, and
therefore they were residing at the Children’s Welcome Center. The application also
noted that it was reported appellant was not caring for the baby during the night, and was
trying to keep the baby awake all day in an effort to get the baby to sleep through the
night. As a result, the baby had been distressed and was crying so much that the baby
had sustained a hernia.
4
It was further reported that appellant was not properly feeding the baby, and did
not know how to hold the baby while breast-feeding. The baby had also become sick and
was prescribed medicine. The staff expressed concern that appellant would fail to
administer the medication unless instructed to do so by an adult. The reporting party,
whose identity is not disclosed in the report, also alleged appellant had been diagnosed
with impulse control disorder, depression, post traumatic stress disorder (“PTSD”),
anxiety, obsessive compulsive disorder, mood disorder, and attention deficit hyperactivity
disorder (“ADHD”), but was not taking any medication.
The DCFS also received emails from staff at Children’s Welcome Center
indicating appellant was easily frustrated with the baby and combative with staff. The
DCFS requested a Psychiatric Mobile Response Team (“PMRT”) assess appellant’s
mental health status.
On June 24, 2013, the PMRT evaluated appellant and placed her on an involuntary
hospital hold, pursuant to section 5585,3 as being a danger to others, including the baby.
Appellant was further evaluated at Exodus Urgent Care Center and it was determined she
would be hospitalized for medication management and stabilization. Because of
appellant’s erratic behavior, the DCFS believed there was a substantial risk of danger to
appellant’s physical and/or emotional health, detained the child, and recommended she be
placed in protective custody. Based on the DCFS’s Ex Parte Application, the court
detained H.C. in foster care, and granted appellant monitored visits.
On June 28, 2013, DCFS filed an amended section 300 petition to add allegations
that appellant suffered from mental and emotional problems and had been involuntarily
hospitalized. ~ (1CT 103, 105)~ Attached to the amended petition was a Detention
Report dated June 27, 2013, in which DCFS recommended continued detention of the
baby order to ensure her safety. On June 28, 2013, the juvenile court held a detention
3
Section 5585, known as the Children’s Civil Commitment and Mental Health
Treatment Act of 1988, allows a minor to be placed on a 72-hour hold for evaluation and
treatment of mental disorders. (§ 5585 et seq.)
5
hearing on the amended section 300 petition. Appellant’s counsel informed the court she
had been released from the hospital. The court found there was a significant risk of harm
to H.C. in mother’s custody, ordered the child detained in foster care and ordered the
DCFS to make its best effort to place H.C. and appellant in the same location.
On July 8, 2013, the juvenile court received DCFS’s Jurisdiction/Disposition
Report. In the report, DCFS stated that it had not yet completed its investigation and had
been unable to obtain a statement from appellant for the Jurisdiction/Disposition Report
due to difficulties arranging an interview. As a result, DCFS stated: “[a]t this time the
Department is unable to provide a full assessment and recommendations. . . . Therefore,
it is respectfully requested that the matter be trailed two weeks to allow the Department
time to interview [appellant] and obtain any and all pertinent records related to the case.”
On July 10, 2013, counsel for DCFS asked the juvenile court for a continuance to
allow time for DCFS to conduct a more thorough investigation and to make some
effective recommendations. The juvenile court inquired, “Was this here on a no time
waiver?” Appellant's counsel replied, “Yes,” and after an additional inquiry as to the date
the time would expire, appellant’s counsel noted that “we are at the time limit.” Without
any additional discussion of the continuance at that point, the court then proceeded to
admit the jurisdiction and disposition report, and asked appellant’s counsel for his
response to the information and concerns contained in the report about appellant’s
conduct. Appellant’s counsel responded: “Well, your honor, I’d like to adjudicate the
matter. . . . the Department, it is my position has not met its burden. There’s no evidence.
There’s a report, your honor, but the report lacks hard evidence of any of the counts. . . .”
After appellant’s counsel and the court discussed that there were “two units” set
for the matter, appellant’s counsel stated that he was “ready to go by argument, your
honor.” DCFS’s counsel then asked: “So the request for the continuance is denied?” The
juvenile court responded in the affirmative, and further explained: “This is a no-time-
waiver. I’m honoring that. I believe that I’m duty bound. I understand the Department
has asked for a continuance and the ground is because the Department feels it needs more
information.”
6
The court then admitted the DCFS’s reports into evidence and heard argument
from counsel. The minor’s counsel asked the court to dismiss the new allegations (§ 300,
subd. (b)-(3)) in the petition for lack of evidence. Counsel pointed out that the
jurisdiction and disposition report lacked evidence to support the allegations against
appellant; that the purported “mental and emotional problems” were not identified with
specificity; and that there was no diagnosis and no doctor’s report or any evidence to
demonstration the claims against appellant. The minor’s counsel also complained that
the DCFS had not complied with the court’s original orders to place appellant and her
child together and to provide appellant with assistance in parenting the child. The child
counsel’s agreed there was evidence supporting the original allegations that appellant had
slept with the child, but that even those allegations did not support detaining the child in
the first instance.
Appellant’s counsel asked the court to dismiss the petition, noting the baby was
released to appellant’s custody with services when the original petition was filed. With
respect to the allegation added in the amended petition, appellant’s attorney argued it was
“supported by no evidence, zero, no witness statements. It just says ‘a reporting party -
an anonymous reporting party.’” He added: “It’s impossible for myself or minor’s
counsel to investigate this matter without knowing who to speak to, who to call to the
stand, who to cross-examine. The mother has a right to cross-examine parties or
witnesses that have been named in the report. We can’t do that.”
The juvenile court responded: “[Appellant’s counsel], this started out with
[counsel for DCFS]. . . asking for additional time . . . so that [DCFS] could interview
witnesses and as you said obtain any and all pertinent records relating to the case. . . . So
this is a no time waiver, what you requested. This is the situation we’re in. We’re
dealing with the information [DCFS] has. I’m not going to allow you to have your cake
and eat it too. I’m not going to allow you to say, ‘we’ve got to move forward on this’ and
then argue, ‘well, I don’t have all the information I need’ . . .”
7
The court sustained the amended section 300 petition,4 declared H.C. a dependent
of the juvenile court. The court then proceeded to the disposition and ordered H.C.
removed from appellant’s custody, and ordered the care, custody, and control of H.C. to
be placed under DCFS supervision for placement in the approved home of a relative or
nonrelative extended family member, ordered reunification services consisting of a
hands-on parenting program and individual counseling to address case issues, and granted
appellant monitored visitation.
4
The petition was sustained as follows: “b-1 [¶] On numerous prior occasions, the
child, [H.C.]’s mother, [K.C.] placed the three month old child in a detrimental and
endangering situation in that the mother continued to sleep with the child in a bed and
sofa including falling asleep with the child in the mother’s arms and chest. The mother
continued to place the child in danger despite being told repeatedly by staff of the danger
of sleeping with the child. On a prior occasion, the mother fed the child solid food. Such
a detrimental and endangering situation established for the child by the mother endangers
the child’s physical health, safety and well being and places the child at risk of physical
harm, damage and danger.
“b-2 [¶] The child, [H.C.]’s mother, [K.C.] has a history of substance abuse
including marijuana, which renders the mother incapable of providing regular care of the
child. The mother’s substance abuse endangers the child’s physical health and safety,
placing the child at risk of physical harm, damage and danger.
“b-3 [¶] On numerous occasions, the [child’s] mother has mental and emotional
problems[,] including[] anger outburst[s] with staff at her placement and placement
holding facility, including mother punching holes on the wall, and threatening staff by
screaming at them while standing a couple of inches away from their face while holding
child [H.C.] in her arms which renders the mother unable to provide regular care of the
[child]. Further, on June 24, 2013, the child’s mother was involuntarily hospitalized for
evaluation and treatment of her psychiatric condition. Further, the mother has failed to
take her psychotropic medications as prescribed. Due to the mother[’s] mental health
limitations, the mother is unable to provide regular care for the [child]. Such mental and
emotional condition on the part of the mother endangers the child’s physical and
emotional health and safety and places the child at risk of physical and emotional harm
and damage.”
8
Appellant timely filed a notice of appeal.5
DISCUSSION
Before this court appellant argues that sufficient evidence did not support the
juvenile dependency court’s jurisdiction findings and disposition orders. Before reaching
the merits of those matters, however, we first turn our attention to an issue appellant has
raised relating to the court’s denial of the DCFS’s request to continue the jurisdiction and
disposition proceedings.
A. Request for a Continuance
After a dependency petition is filed seeking to have a child declared a dependent
of the court, the juvenile court must set a jurisdictional hearing within a specified period.
(§ 334 [jurisdictional hearing must be set within 30 days of filing of petition if children
are not detained; if detained, within 15 court days of the date of the judicial order
directing the children be detained]; Cal. Rules of Court, rule 1442(f).)
Thereafter, pursuant to section 352, a juvenile court may continue a hearing,
including a jurisdictional hearing, on a showing of good cause and if the continuance is
not contrary to the minor’s interest. (See § 352, subd. (a).)6 Except on a finding of
5
Orders from status review hearings in January and March 2014, disclose that the
DCFS is investigating placement of H.C. with relatives out of state and that appellant has
been residing in a group home.
6
Section 352 provides, in pertinent part: “(a) Upon request of counsel for the
parent, guardian, minor, or petitioner, the court may continue any hearing under this
chapter beyond the time limit within which the hearing is otherwise required to be held,
provided that no continuance shall be granted that is contrary to the interest of the minor.
In considering the minor’s interests, the court shall give substantial weight to a minor’s
need for prompt resolution of his or her custody status, the need to provide children with
stable environments, and the damage to a minor of prolonged temporary placements.
“Continuances shall be granted only upon a showing of good cause and only for
that period of time shown to be necessary by the evidence presented at the hearing on the
motion for the continuance. Neither a stipulation between counsel nor the convenience of
the parties is in and of itself a good cause. Further, neither a pending criminal
prosecution nor family law matter shall be considered in and of itself as good cause.
9
exceptional circumstances, when a minor has been removed from his or her parents’
custody, a juvenile court may not grant a continuance that would cause the dispositional
hearing to be completed over 60 days after the hearing at which the minor was ordered
remove or detained. (§ 352, subd. (b).)7 The Legislature has recognized the existence of
“tension between the timely resolution of dependency cases and the thoughtful exercise
of judicial discretion.” (In re Sean E. (1992) 3 Cal.App.4th 1594, 1599.) In some cases
the necessity for some delay may be unavoidable. (Ibid.) However, the discretion of the
juvenile court is limited by the general time constraints governing dependency hearings.
(Id. at p. 1598, fn. 4.) In addition, if a parent or minor who is represented by counsel fails
Whenever any continuance is granted, the facts proven which require the continuance
shall be entered upon the minutes of the court. . . . [¶]
“(b) Notwithstanding any other provision of law, if a minor has been removed
from the parents’ or guardians’ custody, no continuance shall be granted that would result
in the dispositional hearing, held pursuant to Section 361, being completed longer than 60
days after the hearing at which the minor was ordered removed or detained, unless the
court finds that there are exceptional circumstances requiring such a continuance. The
facts supporting such a continuance shall be entered upon the minutes of the court. In no
event shall the court grant continuances that would cause the hearing pursuant to Section
361 to be completed more than six months after the hearing pursuant to Section 319.
“(c) In any case in which the parent, guardian, or minor is represented by counsel
and no objection is made to an order continuing any such hearing beyond the time limit
within which the hearing is otherwise required to be held, the absence of such an
objection shall be deemed a consent to the continuance. The consent does not affect the
requirements of subdivision (a).”
7
In In re Richard H. (1991) 234 Cal.App.3d 1351, 1361, the jurisdiction hearing
was not held until almost nine months after the minors were detained and the disposition
hearing was not held until nearly a year after detention and more than 50 days after the
jurisdiction hearing. In affirming the judgment, the Court of Appeal held there is no
requirement that the petition be dismissed if the time limits are not satisfied. (Id. at p.
1362.) The court concluded the limitations contained in subdivision (b) of section 352
“are not mandatory in the jurisdictional sense.” (Ibid.)
10
to object to an order continuing the dispositional hearing beyond the stated time limit,
such failure is deemed consent to the continuance. (§ 352, subd. (c).)
Here appellant argues that the dependency court erred in failing to continue the
jurisdictional proceedings based on the DCFS’s admission that it had not completed its
investigation and was not prepared to make an assessment and recommendation.
Appellant complains the juvenile court failed to appreciate its discretion under section
352 and that the court’s proceeding with the jurisdictional hearing in light of these
circumstances denied her due process and left her unprepared to defend against the
petition.
The respondent maintains, however, that appellant forfeited any complaint about
the court’s failure to grant a continuance because she effectively objected to it. Appellant
counters that she did not “object” to the request for a continuance. Rather, she asserts
that she simply refused to waive the statutory time in which to proceed with the
jurisdiction hearing. She also maintains that pursuant to section 352, the dependency
court had authority to continue the proceedings, notwithstanding her position on the
issue.
Under section 352, the court has discretion to grant the continuance whether or not
the parties agree to it. (See § 352, subd. (a).) The dependency court’s comments here
reflect its view that it lacked discretion to grant a continuance because appellant would
not consent to it. The court’s view of the limits of its discretion is erroneous. This
conclusion does not warrant reversal of the court’s orders, however.
Where, as here, a parent objects to a request for a continuance below, that parent
cannot complain on appeal that dependency court denied the request. In our view,
appellant’s comments amount to an implicit objection to the DCFS’s request for a
continuance. Appellant’s counsel’s comments were more than an expression of her
desire not to waive time in the proceedings. Instead, they appear to reflect a strategic
choice—to encourage the court to proceed without delay to adjudication in the hope that
the court would dismiss the first amended petition as lacking in evidentiary support.
After confirming to the court that the matter was on a “no time waiver,” appellant’s
11
counsel responded to the court’s inquiry about the DCFS’s new allegations in the first
amended petition, saying: “I’d like to adjudicate the matter . . . . The Department it’s my
position has not met its burden. There’s no evidence. There’s a report, your honor, but
the report lacks hard evidence of any of the counts. . . .” The DCFS pointed out that the
DCFS had been unable to obtain certain statements and evidence. Appellant’s counsel
responded: “Unfortunately that’s the Department’s burden. The law is the law in terms
as to time.” Appellant’s counsel then told the court that she was “ready to go by
argument.” Shortly thereafter when DCFS counsel inquired again whether the court had
denied the request for a continuance, appellant’s counsel remained silent.
Although in theory there may be a difference between refusing to waive time and
objecting to a continuance, this was not a situation where counsel sought to make those
distinctions. Appellant did not seek to preserve statutory time and at the same time
acquiesce to the request for a continuance. Likewise, she did not inform the court that
she was neutral on the issue or would take no position on the request. In contrast,
appellant refused to “waive time” while urging the court to proceed immediately on the
record before it to adjudication. Viewed in its context, appellant’s conduct is tantamount
to an objection to a continuance. Therefore, she forfeited her argument on appeal that the
court erred in refusing to grant the DCFS’s request to continue the jurisdictional
proceedings.8
B. Jurisdictional Findings
We review the jurisdictional findings for “any substantial evidence, whether or not
contradicted, which will support the conclusion of the trier of fact.” (In re David M.
(2005) 134 Cal.App.4th 822, 828 [jurisdictional findings]; Angela S. v. Superior Court
(1995) 36 Cal.App.4th 758, 762 [dispositional orders].) “Under the substantial evidence
8
In any event, even were we to agree with appellant that the court erred in failing to
grant a continuance, the error is harmless. As we explain elsewhere in this opinion,
sufficient evidence supported jurisdiction based on allegations in the petition under
section 300, subdivision (b), count b-1, and we are reversing the dispositional order
removing H.C. from appellant’s custody.
12
rule, we have no power to pass on the credibility of witnesses, attempt to resolve conflicts
in the evidence or determine where the weight of the evidence lies.” (In re Diamond H.
(2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v.
Superior Court (2001) 26 Cal.4th 735, 748-749, fn. 6.) “Where there is more than one
inference which can reasonably be deduced from the facts, the appellate court is without
power to substitute its decisions for those of the trier of fact.” (In re Katrina C., supra,
201 Cal.App.3d at p. 547.) Under this standard, we review the evidentiary record in the
light most favorable to the order. (In re Diamond H., supra, 82 Cal.App.4th at p. 1135.)
At issue here is the juvenile court’s assumption of jurisdiction under section 300,
subdivision (b).9 To warrant jurisdiction under that subdivision, there must be evidence
of “three elements: (1) neglectful conduct by the parent in one of the specified forms; (2)
causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk of
such harm or illness.’” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
Here the court sustained allegations under section 300, subdivision (b), that
appellant endangered H.C.’s health by: co-sleeping with the baby, and by feeding the
infant solid food (count b-1); by abusing marijuana (count b-2); and because of her
“mental health limitations,” her emotional problems and angry outbursts at her
placements towards the staff, her “involuntary hospitalization for evaluation and
treatment of her psychiatric condition,” and failure to “take her psychiatric medications
as prescribed” (count b-3).
9
That provision reads in pertinent part as follows: “Any child who comes within
any of the following descriptions is within the jurisdiction of the juvenile court which
may adjudge that person to be a dependent child of the court: [¶] . . . [¶] (b) The child has
suffered, or there is a substantial risk that the child will suffer, serious physical harm or
illness, as a result of the failure or inability of his or her parent or guardian to adequately
supervise or protect the child, or the willful or negligent failure of the child’s parent or
guardian to adequately supervise or protect the child from the conduct of the custodian
with whom the child has been left, or by the willful or negligent failure of the parent or
guardian to provide the child with adequate food, clothing, shelter, or medical treatment,
or by the inability of the parent or guardian to provide regular care for the child due to the
parent’s or guardian’s mental illness, developmental disability, or substance abuse. . . .”
(§ 300, subd. (b).)
13
With respect to the allegations in counts b-1, we conclude there was sufficient
evidence that appellant co-slept with the infant H.C. on numerous occasions even after
she was instructed that doing so posed a grave danger to the baby’s health, and that at
least on one occasion appellant fed the baby solid food before the baby was three months
old which also endangered the baby’s health. Even though by the time of the
jurisdictional hearing, there were no additional reports that appellant had continued to
engage in the exact behaviors alleged in count b-1, these allegations must be viewed in
the context of the interventions with appellant by the DCFS and the staff at her
placements who attempted to work with appellant to correct her parenting behavior to no
avail prior to court intervention. Although “the question under section 300 is whether
circumstances at the time of the hearing subject the minor to the defined risk of harm” (In
re Rocco M., supra, 1 Cal.App.4th at p. 824), a showing of prior harm is sufficient to
support the initial exercise of jurisdiction under section 300, subdivision (b). (In re J.K.
(2009) 174 Cal.App.4th 1426, 1434-1439.) Indeed, the court may consider past events
when determining whether a child presently needs the juvenile court’s protection. (In re
Diamond H., supra, 82 Cal.App.4th at p.1135; In re Troy D. (1989) 215 Cal.App.3d 889,
899-900.) A parent’s past conduct is a good predictor of future behavior. (In re Petra B.
(1989) 216 Cal.App.3d 1163, 1169-1170.) “Facts supporting allegations that a child is
one described by section 300 are cumulative.” (In re Hadley B. (2007) 148 Cal.App.4th
1041, 1050.) Thus, the court “must consider all the circumstances affecting the child,
wherever they occur.” (Id. at pp. 1048, 1049.) In light of all the circumstances, in our
view, sufficient evidence supported the court’s exercise of jurisdiction under section 300
based on the allegation in count b-1.
With respect to allegation b-2 in the petition, as the respondent correctly concedes,
there was insufficient evidence to support a finding that appellant abused marijuana.
There was no evidence presented in the record that appellant was a currently or regularly
abused drugs. As a result, the allegations in the petition under section 300, subdivision
b-2 must be stricken from the sustained petition.
14
Similarly, the evidence in the record before the court was not sufficient to sustain
the new claims in the amended petition – the most serious of which related to appellant’s
behavior and mental instability, and her involuntary hospitalization alleged in b-3. The
reports prepared by the DCFS lacked specific evidence about these matters. The reports
contain no evidence describing appellant’s conduct that led to her hospitalization and do
not disclose the witnesses’ knowledge about the situation. The reports contained no
information as to appellant’s diagnosis, treatment plan or prescribed medications before
or after appellant’s release from the hospital. Although the petition alleges that appellant
failed to take her medication, there was no evidence in the record to support the claim.
Indeed, the DCFS appreciated that its evidence was insufficient because it had not
completed its investigation, and thus it did not provide an assessment or recommendation
before the hearing. In view of the foregoing, we conclude that the court’s findings on
count b-3 cannot stand.
This notwithstanding, because as described elsewhere here, substantial evidence
supports the section 300, subdivision b allegation in count b-1, the court properly
exercised dependency jurisdiction under subdivision (b) of section 300. When a
dependency petition alleges multiple grounds for its assertion that a minor comes within
the dependency court’s jurisdiction, a reviewing court can affirm the juvenile court’s
finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that
are enumerated in the petition is supported by substantial evidence. (In re Alexis E.
(2009) 171 Cal.App.4th 438, 451.)
C. Disposition Order
After the juvenile court finds a child to be within its jurisdiction, the court must
conduct a dispositional hearing. At the dispositional hearing, the court must decide
where the child will live while under the court’s supervision. Before the juvenile court
may order a child physically removed from his or her parent, it must find, by clear and
convincing evidence, that “[t]here is or would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of the minor if the minor
were returned home, and there are no reasonable means by which the minor’s physical
15
health can be protected without removing the minor from the minor’s parent’s or
guardian’s physical custody. . . .” (§ 361, subd. (c)(1)10; see In re Heather A. (1996) 52
Cal.App.4th 183, 193.) At the dispositional phase of dependency proceedings the burden
of proof is clear and convincing evidence. (See § 361; In re Sheila S. (2000) 84
Cal.App.4th 872, 881.) “Whether the conditions in the home present a risk of harm to the
child is a factual issue.” (In re N.M. (2011) 197 Cal.App.4th 159, 170.) The court’s
dispositional finding is also subject to a sufficiency of the evidence standard of review.
(Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078.)
The court proceeded to the dispositional proceedings immediately after conducting
the jurisdictional phase. The DCFS counsel pointed out that the DCFS had not made a
disposition recommendation in its report. Both appellant and H.C.’s counsel asked that
the court release H.C. to appellant or continue the disposition proceeding. Appellant and
H.C.’s counsel argued that DCFS had not provided the “hands-on” parenting training
previously ordered for appellant, nor had the DCFS made sufficient efforts to find a
relative or foster care placement which would allow appellant and her baby to be placed
together. Nonetheless, the court found by clear and convincing evidence under section
361, subdivision (c) that there would be a substantial danger if the baby were returned to
appellant’s care, that there were no reasonable means to protect the child absent removal
and that the DCFS had made reasonable efforts to prevent or eliminate the need for the
child’s removal.
The court’s dispositional orders must be reversed for several reasons. To be sure,
the dispositional orders were premised on all of the jurisdictional allegations the
dependency court found to be true. However, as we have concluded here, on the record
before it, the exercise of dependency jurisdiction was proper only as to count b-1-relating
10
The guidelines and limitations for removal of a child from the custody of the
parents are set forth in section 361. Section 361 provides, in pertinent part: “(c) A
dependent child may not be taken from the physical custody of his or her parents . . .
with whom the child resides at the time the petition was initiated, unless the juvenile
court finds clear and convincing evidence of any of the following circumstances listed in
paragraphs (1) to (5) . . . .” (§ 361, subd. (c)(1).)
16
to the co-sleeping and feeding of H.C. This allegation, standing alone, was not sufficient
to support removal of H.C. Indeed, earlier in the dependency proceedings after these
same allegations arose and the court was made aware of them, the court nonetheless
returned H.C. to the care of appellant, concluding that they did not warrant detaining the
baby. Instead, the circumstances alleged in b-1 obliged the DCFS to intervene to provide
appropriate parenting education, individual counseling for appellant and to find a proper
placement for appellant and H.C. together. The DCFS did not show that it had complied
with those court-imposed obligations—a fact which further undermines the disposition
orders. The DCFS did not present any evidence that it had made reasonable efforts to
prevent or eliminate the need for removal. It appears the DCFS never provided the court
ordered hands-on parenting for H.C., and never found the family appropriate housing
prior to removal of the baby from appellant’s care. Accordingly, the court’s disposition
orders cannot be affirmed.
DISPOSITION
The disposition orders are reversed and the matter is remanded to the dependency
court for a new disposition hearing. At the disposition hearing the dependency court is
directed to assess and consider evidence of the current conditions and living
circumstances of H.C. and appellant.
On remand, the court is also directed to modify the jurisdictional order by striking
the allegations contained in counts b-2 and b-3 of the petition. The jurisdiction order is
affirmed in all other respects.
WOODS, J.
We concur:
PERLUSS, P. J. ZELON, J.
17
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0157p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
AVELINO CRUZ MARTINEZ, ┐
Petitioner-Appellant, │
│
> No. 14-5860
v. │
│
│
UNITED STATES OF AMERICA, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:14-cv-00174—Aleta Arthur Trauger, District Judge.
Argued: March 9, 2016
Decided and Filed: July 7, 2016
Before: COLE, Chief Judge; BOGGS, BATCHELDER, MOORE, CLAY, GILMAN,
GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE,
WHITE, STRANCH, and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Michael C. Holley, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville,
Tennessee, for Appellant. David M. Lieberman, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Michael C. Holley, FEDERAL
PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. David M. Lieberman,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Lynne T. Ingram,
UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee.
SUTTON, J., delivered the opinion of the court in which BOGGS, BATCHELDER,
GIBBONS, ROGERS, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, and STRANCH, JJ.,
joined. WHITE, J. (pp. 26–27), delivered a separate opinion concurring in the judgment in
which MOORE and GILMAN, JJ., joined. CLAY, J. (pp. 28–51), delivered a separate
dissenting opinion. DONALD, J. (pg. 52), delivered a separate dissenting opinion in which
COLE, C.J., joined.
1
No. 14-5860 Cruz Martinez v. United States Page 2
_________________
OPINION
_________________
SUTTON, Circuit Judge. After people commit violent crimes, they sometimes flee,
leaving the city of the crime in some instances, even leaving the country in others. If a fugitive
leaves the country, that complicates law enforcement efforts. One trait of sovereignty is that
countries have no legal, as opposed to moral, obligation to turn criminal suspects over to another
country for prosecution. The point of extradition treaties is to prevent such crimes from going
unpunished by imposing a golden rule obligation on each party to the treaty—an agreement by
each country to return haven-seeking fugitives to the other.
The golden rule is not the first thing that came to anyone’s mind after two murders
occurred at a New Year’s Eve party gone awry in a small Mexican village in 2006. Avelino
Cruz Martinez, now a citizen of the United States, attended the party and admits that there is
probable cause to believe he was the assailant. After the murders, Cruz Martinez returned to his
home in the United States.
Invoking a 1978 extradition treaty, Mexico asked its northern neighbor to return Cruz
Martinez to Mexico to be tried for murder. Cruz Martinez filed a habeas corpus petition,
claiming that his extradition would violate Article 7 of the treaty, which prohibits extradition
when “prosecution” or “enforcement of the penalty” for the charged offense “has become barred
by lapse of time according to the laws of the requesting or requested Party.” Extradition Treaty,
U.S.-Mex., art. 7, May 4, 1978, 31 U.S.T. 5059, 5064–65. In particular, he argued that his
extradition would violate (1) the relevant statute of limitations and (2) his Sixth Amendment
right to a speedy trial. The district court rejected his arguments and denied his petition for
habeas corpus. So do we.
I.
Santa María Natividad, a village in the State of Oaxaca, Mexico, is home to about fifty
families and two hundred residents. One of those residents was Samuel Francisco Solano Cruz,
who was to host a goat roast for municipal leaders and members of the town band on New Year’s
No. 14-5860 Cruz Martinez v. United States Page 3
Day 2006. In the waning hours of 2005, he went to a party outside the local municipal hall to
deliver the invitations. But shortly after he arrived, a man approached him, screamed “son of a
bitch!”, and shot him six times. R. 2-13 at 14 (emphasis omitted). A bystander, Antolín Cruz
Reyes, who tried to help Solano Cruz was shot as well. Both men died from the gunshot
wounds, while the murderer got in his truck and fled the scene.
Solano Cruz’s family accused Avelino Cruz Martinez, then a United States permanent
resident (and a citizen since 2010) whose family lived in Santa María Natividad, of the murders.
Within two weeks of the shooting, Solano Cruz’s widow and parents met with Cruz Martinez’s
wife and brother before a town clerk. Although Cruz Martinez’s wife maintains her husband’s
innocence, she, along with the four others present at the meeting, signed an agreement stating
that Cruz Martinez had “committed the homicide.” R. 2-17 at 12. It also provided that “the
family of the perpetrator” would pay 50,000 pesos for “the expenses incurred” by Solano Cruz’s
relatives as a result of the “unfortunate incident.” Id. “Once the parties accept this agreement
and commit to enact its terms,” the contract concluded, “the matter shall be closed.” Id. at 13.
The matter did not close. A few days after Solano Cruz’s family agreed to settle, two
eyewitnesses made sworn statements before public officials, pointing to Cruz Martinez as the
New Year’s Eve murderer. An Oaxacan judge issued an arrest warrant charging Cruz Martinez
with “murder with the aggravating circumstance of unfair advantage,” R. 2-13 at 11 (emphasis
omitted), which covers homicides that occur when the perpetrator “is superior in physical force”
and the victim “is not armed,” or when the perpetrator “is superior by the weapons [he] use[s]”
as compared to the victim, id. at 52. The court issued the warrant on February 23, 2006, and
notified the public prosecutor’s office the next day.
That is how things stood for the next few years. Cruz Martinez, following the murders,
returned to the United States, although he traveled back to Mexico a couple times. His family
remained in Santa María Natividad for a time but eventually joined him in the United States—
Lebanon, Tennessee, to be precise.
In 2009, an American consular official asked about the status of Cruz Martinez’s arrest
warrant, and the Oaxacan court responded that it was “still pending and executable.” Id. at 59.
No. 14-5860 Cruz Martinez v. United States Page 4
In May 2012, the Mexican government filed a diplomatic note with the United States
Department of State, informing it of the charges against Cruz Martinez and requesting his
“provisional arrest” (a procedure authorized by the extradition treaty between the two nations).
R. 2-6 at 16 (emphasis omitted); see Extradition Treaty, U.S.-Mex., supra, art. 11, 31 U.S.T. at
5068. American authorities arrested him a little over a year later, and Mexican officials filed a
formal extradition request in August 2013.
That filing triggered a set of diplomatic, judicial, and quasi-judicial procedures. Federal
law authorizes the United States Secretary of State to designate federal and state judges or
magistrate judges to conduct hearings whenever a foreign nation requests an individual’s
extradition under the terms of a treaty. 18 U.S.C. § 3184. If the judge “deems the evidence
sufficient to sustain the charge,” the statute provides, “he shall certify . . . to the Secretary of
State” that the individual is extraditable. Id. The certification decision is not appealable,
although the accused may challenge it through a petition for habeas corpus. In re Mackin,
668 F.2d 122, 125–30 (2d Cir. 1981); see In re Metzger, 46 U.S. 176, 191–92 (1847). Following
certification, the Secretary of State decides, as a matter of discretion, whether to extradite the
accused. 18 U.S.C. § 3186; see Nezirovic v. Holt, 779 F.3d 233, 237 (4th Cir. 2015).
Complying with these procedures, the Secretary of State filed Mexico’s extradition
request with a federal magistrate judge in Tennessee. Cruz Martinez raised multiple challenges
to his provisional arrest and to the extradition proceedings. But the magistrate judge rejected all
of them, certifying to the Secretary of State that Cruz Martinez could be extradited. Cruz
Martinez filed a habeas corpus action contesting the magistrate judge’s certification decision, see
28 U.S.C. § 2241(a), but the district court denied his petition. Cruz Martinez appealed.
II.
“Extradition shall not be granted,” Article 7 of the United States-Mexico Extradition
Treaty says, “when the prosecution or the enforcement of the penalty” for the charged offense
“has become barred by lapse of time according to the laws of the requesting or requested Party.”
Extradition Treaty, U.S.-Mex., supra, art. 7, 31 U.S.T. at 5064–65. Cruz Martinez argues that
his prosecution has become barred by (1) the relevant American statute of limitations and (2) the
No. 14-5860 Cruz Martinez v. United States Page 5
Speedy Trial Clause of the Sixth Amendment to the United States Constitution. We consider
each argument in turn.
A.
Cruz Martinez argues that the charged offense is analogous to second-degree murder
under American federal law, which means a five-year limitations period applies to the charge.
18 U.S.C. §§ 1111(a)–(b), 3282(a). The government disagrees, comparing the offense to first-
degree murder, which comes with no limitations period. Id. §§ 1111(a)–(b), 3281, 3591(a)(2).
We need not take sides on this dispute because, for the reasons forcefully expressed in the panel
majority’s opinion, the statute of limitations did not expire even if the five-year period applies.
Cruz Martinez v. United States, 793 F.3d 533, 542–44 (6th Cir. 2015).
“[N]o person shall be prosecuted, tried, or punished for any [non-capital] offense,” the
five-year limitations statute provides, “unless the indictment is found or the information is
instituted within five years next after such offense shall have been committed.” 18 U.S.C.
§ 3282(a). Because statutes of limitations protect defendants from excessive delay between the
time of the offense and the time of prosecution, they stop running when the prosecution begins—
which means, in American federal courts, when an indictment or information is returned. United
States v. Marion, 404 U.S. 307, 320–23 (1971). But Mexico, which models its legal system not
on Blackstone’s common law but on Napoleon’s civil law, lacks the sort of indictment and
information procedures that exist in the United States. Miguel Sarré & Jan Perlin, “Mexico,” in
Criminal Procedure: A Worldwide Study 351, 372 (Craig M. Bradley ed., 2d ed. 2007). Does
that mean there is nothing Mexico can do under § 3282 to prevent a “lapse of time” from
occurring? No: Because the issuance of an arrest warrant marks the end of the preliminary
investigation and the beginning of the prosecution in Mexico, that event stops the American
statute of limitations from running. And because a Mexican court issued an arrest warrant within
two months of Cruz Martinez’s alleged offense, the five-year limitations period does not bar his
prosecution.
The only other circuit to consider this question agrees. It held that “a Mexican arrest
warrant is the equivalent of a United States indictment and may toll the United States statute of
No. 14-5860 Cruz Martinez v. United States Page 6
limitations” for purposes of an extradition treaty. Sainez v. Venables, 588 F.3d 713, 717 (9th Cir.
2009). The Third Restatement of Foreign Relations Law echoes the point. “For purposes of
applying statutes of limitation to requests for extradition,” it notes, courts generally calculate the
limitations period “from the time of the alleged commission of the offense to the time of the
warrant, arrest, indictment, or similar step in the requesting state, or of the filing of the request
for extradition, whichever occurs first.” Restatement (Third) of the Foreign Relations Law of the
United States § 476 cmt. e (1987).
Cruz Martinez concedes that Mexico should be able to satisfy § 3282 even though it does
not have an indictment or information procedure. Cruz Martinez Principal Br. 34. But the
American clock keeps ticking, he argues, until Mexico does something (such as “designat[e]”
Cruz Martinez “a fugitive from justice”) that would stop the limitations period from running
under Mexican law. R. 2-19 at 2. An arrest warrant, he says, does not do the trick. The
extradition treaty, however, offers a defense to extradition when prosecution is barred “according
to the laws of the requesting or requested Party,” Extradition Treaty, U.S.-Mex., supra, art. 7, 31
U.S.T. at 5065—a formulation that does not require us to mix and match national laws by
applying Mexican legal requirements to American limitations periods. That language is
especially significant given that some extradition treaties do demand this sort of jumbling,
requiring the requested State to “take[] into consideration insofar as possible” any “acts
constituting an interruption or a suspension of the time-bar in the Requesting State.” Extradition
Treaty, U.S.-Belg., art. 2(6), Apr. 27, 1987, T.I.A.S. No. 97-901, at 2; see also Extradition
Treaty, U.S.-Lux., art. 2(6), Oct. 1, 1996, T.I.A.S. No. 12,804, at 4. The American statute of
limitations does not bar Cruz Martinez’s prosecution.
B.
1.
Cruz Martinez separately argues that the treaty’s “barred by lapse of time” provision
picks up the Speedy Trial Clause of the Sixth Amendment to the United States Constitution,
which says that, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial.” At the outset, it is worth clarifying what he does, and does not, argue in this
No. 14-5860 Cruz Martinez v. United States Page 7
respect. He does not argue that the speedy-trial guarantee applies to an American (like Cruz
Martinez) who is tried in a Mexican court for violating Mexican law. When the Sixth
Amendment says “all criminal prosecutions,” it refers to all prosecutions in this country, not
anywhere in the world. See United States v. Balsys, 524 U.S. 666, 672–75 (1998). And he does
not argue that the guarantee applies to extradition proceedings, which are not “criminal
prosecutions.” See Martin v. Warden, 993 F.2d 824, 829 (11th Cir. 1993). He instead argues
that the treaty’s “barred by lapse of time” language incorporates the speedy-trial guarantee and
prohibits extradition when a Mexican prosecution would violate that right. As he sees it, a non-
speedy trial is one that takes too long to start and to finish, which creates a lapse-of-time defect
in the prosecution. It is not that easy. The text and context of the treaty provision, the
illuminating history behind it, and all precedential authority and scholarly commentary establish
that the phrase “barred by lapse of time” does not incorporate the American Constitution’s
speedy-trial guarantee.
Text. Article 7, recall, prohibits extradition “when the prosecution or the enforcement of
the penalty for the offense for which extradition has been sought has become barred by lapse of
time according to the laws of the requesting or requested Party.” Extradition Treaty, U.S.-Mex.,
supra, art. 7, 31 U.S.T. at 5064–65. Put less passively, time must do the barring. Yet the Sixth
Amendment does not create a fixed time bar on trial initiation—a time limit after which the trial
must be called off. As the Supreme Court has explained, the speedy-trial right is “consistent
with delays” (and thus consistent with lapses of time) and “depends upon circumstances,” as it is
“impossible to determine with precision when the right has been denied” in our system of “swift
but deliberate” justice. Barker v. Wingo, 407 U.S. 514, 521–22 (1972) (emphasis added)
(quotation omitted). The right is a “relative,” “amorphous,” and “slippery” one. Id. at 522
(quotation omitted). Because the Sixth Amendment does not establish a time limit, fixed or
otherwise, before a trial must start, it does not create a rule that “bar[s]” criminal prosecutions
due to “lapse of time.”
Not only does Cruz Martinez’s argument require us to add something to the Sixth
Amendment that does not exist (a time bar), it requires us to subtract requirements of the Sixth
Amendment that do exist. A criminal defendant cannot win a Sixth Amendment challenge by
No. 14-5860 Cruz Martinez v. United States Page 8
pointing to a calendar and counting off the days. He instead must show that, by balancing the
four factors the Supreme Court has instructed us to consider in speedy-trial cases, he should
receive relief. Id. at 530–33. The “[l]ength of delay,” it is true, is one of those factors—but only
one. Id. at 530. Courts also must weigh “the reason for the delay, the defendant’s assertion of
his right, and prejudice to the defendant” in determining whether a speedy-trial violation
occurred. Id. Even if there has been considerable delay, for example, “a valid reason” for that
delay, “such as a missing witness, should serve to justify” it. Id. at 531. If a defendant fails to
object contemporaneously to the lapse of time, the Supreme Court has told us, that will also
“make it difficult for [him] to prove that he was denied a speedy trial.” Id. at 532. “[N]one of
the four factors”—not even delay of a specified length—is “a necessary or sufficient condition to
the finding of a deprivation of the right of speedy trial.” Id. at 533. The Court could not be
clearer: Lapse of time, standing alone, does not—cannot—violate the Speedy Trial Clause in the
absence of at least some of the other factors. We know of no case in which a lapse of time by
itself created a speedy-trial violation—or, to put it in the words of the treaty, in which the
prosecution was “barred by lapse of time.”
Another textual clue points in the same direction. The treaty does not cover any and all
“lapse[s] of time” that may occur in a criminal case. It applies only to time lapses with respect to
“the prosecution or the enforcement of the penalty” for the charged offense. Extradition Treaty,
U.S.-Mex., supra, art. 7, 31 U.S.T. at 5064–65. That language naturally applies to statutes-of-
limitations periods that “bar[]” the commencement of a “prosecution” or “enforcement”
proceeding. It also naturally applies to limitations periods that “bar[]” “penalt[ies]” already
handed down from being “enforce[d]” to the extent any exist—limitations periods that, while
generally unknown in the United States, are common in civil law countries like Mexico. See
Yapp v. Reno, 26 F.3d 1562, 1568 (11th Cir. 1994). The same is not true for guarantees that
apply after an indictment (or its equivalent) through the end of trial. Just as this treaty provision
would not cover criminal procedure guarantees that apply to a trial already begun, it does not
naturally apply to speedy-trial requirements that prohibit the criminal process, once started, from
continuing. The speedy-trial right after all operates not by barring the initiation of a prosecution
but by preventing it from continuing, see Marion, 404 U.S. at 320–23, and may not apply to the
execution of sentences already pronounced, cf. United States v. Melody, 863 F.2d 499, 504–05
No. 14-5860 Cruz Martinez v. United States Page 9
(7th Cir. 1988). These rights, like trial guarantees, usually kick in outside the two periods in
which extradition limits apply: (1) the initiation of a prosecution and (2) the enforcement of a
“judicially pronounced penalty of deprivation of liberty.” Extradition Treaty, U.S.-Mex., supra,
art. 1(1), 31 U.S.T. at 5061.
Another linguistic clue supports this interpretation. In this case, as in many cases
involving treaty interpretation, we have not one official text but two—the English and Spanish
versions of the treaty, each of which is “equally authentic.” Id., 31 U.S.T. at 5075. The English
version of Article 7 bears the title “Lapse of Time,” while the Spanish version says
“Prescripción.” Compare id., art. 7, 31 U.S.T. at 5064, with id., art. 7, 31 U.S.T. at 5083. And
the phrase “barred by lapse of time” reads, in the Spanish version of the text, “haya prescrito,”
using a verb form related to the noun “prescripción.” Compare id., art. 7, 31 U.S.T. at 5065,
with id., art. 7, 31 U.S.T. at 5083. We must interpret the translated documents in tandem,
because, “[i]f the English and the Spanish parts can, without violence, be made to agree, that
construction which establishes this conformity ought to prevail.” United States v. Percheman,
32 U.S. (7 Pet.) 51, 88 (1833). In unearthing the best translation of non-English terms, we may
refer to foreign “cases,” “dictionaries,” “legislative provisions,” “treatises and scholarly writing,”
and other “legal materials,” as the Supreme Court has done when assessing the “legal meaning”
of foreign words. E. Airlines, Inc. v. Floyd, 499 U.S. 530, 536–40 (1991); Air France v. Saks,
470 U.S. 392, 399 (1985).
The English and Spanish texts of the 1978 extradition treaty “conform[]” quite easily, it
turns out, because “prescripción” means “statute of limitations.” Bilingual legal dictionaries tell
us as much, with one Spanish–English dictionary providing “[s]tatute of limitations” as the first
definition of “prescripción.” Henry Saint Dahl, Dahl’s Law Dictionary 385 (6th ed. 2015).
Mexican legal provisions tell us as much, because Article 88 of the Code of Criminal Procedure
of Oaxaca—the state where Cruz Martinez’s alleged crimes occurred—uses the phrase
“[c]ómputo de la prescripción” to describe the “[c]alculation of the [s]tatute of [l]imitations.” R.
2-19 at 2, 7. Previous treaties tell us as much, because the 1899 United States-Mexico
extradition treaty translates the phrase “has become barred by limitation” (a phrase that, as Cruz
Martinez concedes, refers only to statutes of limitations) as “la prescripción impida.” Treaty of
No. 14-5860 Cruz Martinez v. United States Page 10
Extradition, U.S.-Mex., art. III(3), Feb. 22, 1899, 31 Stat. 1818, 1821. The Department of State
tells us as much, because, in a 1959 letter to the Department of Justice, it used the phrases
“prescription” and “statute of limitations” interchangeably. 6 Marjorie M. Whiteman, Digest of
International Law § 17, at 864 (1968). And English legal dictionaries tell us as much, indicating
that the word “prescription” means “[t]he effect of the lapse of time in creating and destroying
rights” and that the phrase “liberative prescription” refers to “the civil-law equivalent of a statute
of limitations.” Black’s Law Dictionary 1373 (10th ed. 2014) (emphasis added). When writing
the words “lapse of time” in Spanish, the treaty’s drafters thus chose language that reflected the
phrase’s status as a term of art within the law of extradition—a term of art interchangeable with
the phrase “statute of limitations.”
Context. Article 7’s neighbors reinforce this conclusion. Article 10(2) of the treaty sets
forth the extradition procedures that a requesting State must follow and requires every request to
include “[t]he text of the legal provisions relating to the time limit on the prosecution or the
execution of the punishment of the offense.” Extradition Treaty, U.S.-Mex., supra, art. 10(2)(d),
31 U.S.T. at 5066 (emphasis added). This disclosure requirement provides an enforcement
mechanism for Article 7, allowing the requested State to verify whether extradition is “barred by
lapse of time” without embarking on a self-guided tour of another country’s laws. Article 10(2)
in other words interprets “lapse of time” to mean “time limit,” confirming that the language
covers only statutes of limitations. See Cruz Martinez Principal Br. 11 (equating “time limit”
and “statute of limitations”).
History. A few pages of history confirm the logic of this interpretation. Extradition
treaties have been a part of American international relations since 1794, when Jay’s Treaty
provided that “his Majesty and the United States, on mutual requisitions, . . . will deliver up to
justice all persons, who, being charged with murder or forgery, committed within the jurisdiction
of either, shall seek an asylum within any of the countries of the other.” Treaty of Amity,
Commerce and Navigation, U.S.-Gr. Brit., art. XXVII, Nov. 19, 1794, 8 Stat. 116, 129. Mexico
entered the picture in 1861, when the United States signed an extradition treaty with its southern
neighbor at the start of the Civil War. Treaty for the Extradition of Criminals, U.S.-Mex., Dec.
11, 1861, 12 Stat. 1199. The parties agreed to a new treaty in 1899, adding a provision that
No. 14-5860 Cruz Martinez v. United States Page 11
forbade extradition “[w]hen the legal proceedings or the enforcement of the penalty for the act
committed by the person demanded has become barred by limitation according to the laws of the
country to which the requisition is addressed.” Treaty of Extradition, U.S.-Mex., supra, art.
III(3), 31 Stat. at 1821 (emphasis added). The parties renegotiated yet again in the late 1970s,
producing the treaty that still governs extraditions between the United States and Mexico.
Extradition Treaty, U.S.-Mex., supra, 31 U.S.T. 5059. That treaty revised the “barred by
limitation” provision into its current form, prohibiting extradition “when the prosecution or the
enforcement of the penalty” for the charged offense “has become barred by lapse of time
according to the laws of the requesting or requested Party.” Id., art. 7, 31 U.S.T. at 5064–65.
When the treaty drafters incorporated the phrase “lapse of time” into the United States-
Mexico extradition agreement, they were not working on a blank slate. A “lapse of time”
provision appeared as early as the United States’ 1877 extradition treaty with Spain, which
prohibited extradition when “prosecution or punishment” for the charged offense was barred by
“lapse of time or other lawful cause.” Convention on Extradition, U.S.-Spain, art. V, Jan. 5,
1877, 19 Stat. 650, 653; see also Convention for the Extradition of Criminals, U.S.-Neth., art. V,
May 22, 1880, 21 Stat. 769, 772. From the start, that language bore a close relationship to
statutes of limitations. An 1891 treatise, for example, described the Spanish treaty’s “lapse of
time” provision as a rule of “prescription,” employing a synonym for “statute of limitations” in
English and Spanish, and went on to use the phrases “lapse of time,” “barred by limitation,” and
“statutes of limitation” interchangeably in the course of a single paragraph. I John Bassett
Moore, A Treatise on Extradition and Interstate Rendition § 373, at 569–70 (1891); see Black’s
Law Dictionary, supra, at 1321, 1373 (defining “period of prescription,” “prescription,” and
“liberative prescription”); Henry Saint Dahl, Dahl’s Law Dictionary, supra, at 385.
The practice of using these terms as synonyms within the law of extradition continues
today. Take our treaty with South Korea, which, in a section titled “Lapse of Time,” permits the
parties to deny extradition “when the prosecution or the execution of punishment” for the
charged offense “would have been barred because of the statute of limitations of the Requested
State.” Extradition Treaty, U.S.-S. Kor., art. 6, June 9, 1998, T.I.A.S. No. 12,962, at 4; see
Extradition Treaty, U.S.-Arg., art. 7, June 10, 1997, T.I.A.S. No. 12,866, at 5 (stating, in an
No. 14-5860 Cruz Martinez v. United States Page 12
article titled “Lapse of Time,” that “[e]xtradition shall not be denied on the ground that the
prosecution or the penalty would be barred under the statute of limitations in the Requested
State”); see also Extradition Treaty, U.S.-Costa Rica, art. 7, Dec. 16, 1982, S. Treaty Doc. No.
98-17, at 3 (1984) (stating, in an article titled “Statute of Limitations,” that “[e]xtradition shall
not be granted when the prosecution or the enforcement of the penalty . . . has become barred by
lapse of time”); Extradition Treaty, U.S.-Colom., art. 6, Sept. 14, 1979, S. Treaty Doc. No. 97-8,
at 3 (1981) (same). Or take our treaty with France, which forbids extradition if prosecution is
“barred by lapse of time” in the requested State but qualifies that prohibition by requiring the
requested State to account for certain “[a]cts in the Requesting State that would interrupt or
suspend the prescriptive period.” Extradition Treaty, U.S.-Fr., art. 9, Apr. 23, 1996, T.I.A.S. No.
02-201, at 8 (emphasis added); see Extradition Treaty, U.S.-Bulg., art. 6, Sept. 19, 2007, S.
Treaty Doc. No. 110-12, at 9 (2008) (using similar language); Extradition Treaty, U.S.-Rom., art.
6, Sept. 10, 2007, S. Treaty Doc. No. 110-11, at 7 (2008) (similar); Extradition Treaty, U.S.-
Lux., supra, art. 2(6), T.I.A.S. No. 12,804, at 4 (similar); see also Black’s Law Dictionary,
supra, at 1321 (defining “period of prescription”).
Or take our six treaties with six of the countries in the Organization of Eastern Caribbean
States. In sections headed “Lapse of Time,” they all say that “[e]xtradition shall not be denied
because of the prescriptive laws of either the Requesting State or the Requested State.”
Extradition Treaties with Organization of Eastern Caribbean States, S. Treaty Doc. No. 105-19,
at 11, 33, 55, 77, 98, 120 (1997); see Extradition Treaty, U.S.-Belize, art. 8, Mar. 30, 2000,
T.I.A.S. No. 13,089, at 5 (using the same language); Extradition Treaty, U.S.-Barb., art. 8, Feb.
28, 1996, S. Treaty Doc. No. 105-20, at 10 (1997) (same); see also Extradition Treaty, U.S.-
Cyprus, art. 7, June 17, 1996, S. Treaty Doc. No. 105-16, at 7 (1997) (using similar language);
Extradition Treaty, U.S.-Trin. & Tobago, art. 6, Mar. 4, 1996, S. Treaty Doc. No. 105-21, at 8
(1997) (similar). When transmitting these treaties to the Senate for its advice and consent, the
President described the six identical lapse-of-time provisions as “enabl[ing] extradition requests
to be granted irrespective of statutes of limitations” in any State. Extradition Treaties with
Organization of Eastern Caribbean States, supra, S. Treaty Doc. No. 105-19, at vii; see also
Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. for S. Dist. of Iowa, 482 U.S. 522,
529–32, 535 n.19 (1987) (referencing transmittal materials and Senate documents in the course
No. 14-5860 Cruz Martinez v. United States Page 13
of interpreting a treaty). Cruz Martinez offers no contrary drafting or signatory history with
respect to these six treaties or the others mentioned above in which anyone thought that the
phrase “lapse of time” incorporated the Sixth Amendment’s speedy-trial guarantee.
The phrase “lapse of time” also holds a similar meaning in American law, where it has
been used in the context of state laws applying out-of-state statutes of limitations to out-of-state
causes of action. Consider the Minnesota borrowing statute upheld by the Supreme Court in
Canadian Northern Railway Co. v. Eggen. 252 U.S. 553 (1920). The statute provided that,
“[w]hen a cause of action has arisen outside of this state, and, by the laws of the place where it
arose, an action thereon is there barred by lapse of time, no such action shall be maintained in
this state unless the plaintiff be a citizen of the state who has owned the cause of action ever
since it accrued.” Id. at 558 (emphasis added) (quotation omitted). The Court characterized this
statute, phrased in “precisely the same” terms “as those of several other states,” as granting a
“nonresident the same rights in the Minnesota courts as a resident citizen has, for a time equal to
that of the statute of limitations where his cause of action arose.” Id. at 560 (emphasis added).
Viewed against this backdrop—against over a century of law equating “lapse of time”
with statutes of limitations—Article 7 of the United States-Mexico Extradition Treaty comes into
focus. The article’s “lapse of time” language does not incorporate the Sixth Amendment’s
speedy-trial protections.
Precedent. Every case on the books has concluded that this phrase encompasses only
statutes of limitations. The Eleventh Circuit faced Cruz Martinez’s precise argument and
rejected it. Here is what the court said: “Weighing heavily against [the accused’s] position is the
fact that for over a century, the term ‘lapse of time’ has been commonly associated with a statute
of limitations violation. . . . Thus, we hold that the ‘lapse of time’ provision in Article 5 of the
[United States-Bahamas] Extradition Treaty refers to the running of a statute of limitations and
not to a defendant’s Sixth Amendment right to a speedy trial.” Yapp, 26 F.3d at 1567–68. A
district court has reached the same conclusion. Gonzalez v. O’Keefe, No. C 12-2681 LHK (PR),
2014 WL 6065880, at *2–4 (N.D. Cal. Nov. 12, 2014). So too have several magistrate judges.
In re Extradition of Flores Ortiz, No. 10-MJ-2016-JMA, 2011 WL 3441618, at *5–6 (S.D. Cal.
Feb. 9, 2011); In re Extradition of Salazar, No. 09MJ2545-BLM, 2010 WL 2925444, at *6–7
No. 14-5860 Cruz Martinez v. United States Page 14
(S.D. Cal. July 23, 2010); United States v. Garfias, No. CR-09-xr-90128 EMC, 2009 WL
2580641, at *2–3 (N.D. Cal. Aug. 20, 2009).
Also illustrative of the argument’s novelty are the many cases where accused individuals
challenged their extradition under treaties with a “lapse of time” provision but failed to even
raise a speedy-trial claim, despite long delays in the proceedings. Skaftouros v. United States,
667 F.3d 144, 161–62 (2d Cir. 2011) (Greece); Sainez, 588 F.3d at 715–17 (Mexico); Ross v.
U.S. Marshal, 168 F.3d 1190, 1193–95 (10th Cir. 1999) (United Kingdom); In re Extradition of
Ramos Herrera, 268 F. Supp. 2d 688, 697–99 (W.D. Tex. 2003) (Mexico); In re Extradition of
Suarez-Mason, 694 F. Supp. 676, 686–87 (N.D. Cal. 1988) (Argentina); In re Extradition of
Liuksila, 74 F. Supp. 3d 4, 12–15 (D.D.C. 2014) (Finland); United States v. Gonzalez, No. CV
13-1867 R(FFM), 2014 WL 1383972, at *7–10 (C.D. Cal. Apr. 9, 2014) (Mexico); In re
Extradition of Johnson, No. 12-65M, 2012 WL 4973938, at *8–10 (W.D. Pa. Oct. 17, 2012)
(Mexico). Not one of the extraditees in these cases thought the speedy-trial point was worth
their time—and thus did not argue that the phrase “lapse of time” incorporated the Sixth
Amendment right. If imitation is the sincerest form of flattery, its opposite must be the most
credible form of disagreement. In another case, the accused did raise a speedy-trial claim, but—
even though the treaty in question contained a “lapse of time” provision—he grounded his claim
in a different clause, one giving fugitives “the right to use such remedies and recourses as are
provided by the law of the requested Party.” In re Extradition of Kraiselburd, 786 F.2d 1395,
1397–99 (9th Cir. 1986) (quotation omitted). That’s not just the case of the dog who didn’t bark.
See Chisom v. Roemer, 501 U.S. 380, 396 n.23 (1991). It’s the case of the dog who, even when
he did bark, chose to bark up a different tree.
Commentary. So far as our research and the research of the parties have revealed, all
scholars see it the same way. The Third Restatement of Foreign Relations Law notes that,
“[u]nder most international agreements, state laws, and state practice,” an individual “will not be
extradited . . . if the applicable period of limitation has expired.” Restatement, supra, § 476. The
commentary to that provision notes that some treaties prohibit extradition if prosecution “has
become barred by lapse of time,” “if either state’s statute of limitations has run,” or if there is a
“time-bar.” Id. § 476 cmt. e. Eliminating any doubt, the section concludes by noting that, “[i]f
No. 14-5860 Cruz Martinez v. United States Page 15
the treaty contains no reference to the effect of a lapse of time, neither state’s statute of
limitations will be applied.” Id. The only way to make sense of the Restatement’s discussion is
to recognize that each of these terms—“period of limitation,” “lapse of time,” “time-bar,”
“statute of limitations”—means the same thing.
The model treaty promulgated by the United Nations to help countries create new
extradition regimes points in the same direction. A supplement to that document gives States a
variety of options for dealing with a “lapse of time,” noting that they may “wish . . . to provide
that acts of interruption in the requesting State should be recognized in the requested State.”
G.A. Res. 52/88, Annex, art. 3(2), U.N. Doc. A/RES/52/88 (Dec. 12, 1997); see also G.A. Res.
45/116, Annex, art. 3(e), U.N. Doc. A/RES/45/116 (Dec. 14, 1990). This flexibility, the
accompanying best-practices manual explains, stems from the reality that “domestic legal
frameworks governing lapse of time often vary widely, with various formulae for calculating the
expiration of the statutory period.” U.N. Office on Drugs & Crime, Revised Manuals on the
Model Treaty on Extradition and on the Model Treaty on Mutual Assistance in Criminal Matters
19 (2006), http://www.unodc.org/pdf/model_treaty_extradition_revised_manual.pdf (emphasis
added).
Default rule. All of these interpretive indicators reveal that the phrase “lapse of time”
excludes speedy-trial protections. But even if there were ambiguity about the point, that would
not change things. For ambiguity in an extradition treaty must be construed in favor of the
“rights” the “parties” may claim under it. Factor v. Laubenheimer, 290 U.S. 276, 293–94
(1933). The parties to the treaty are countries, and the right the treaty creates is the right of one
country to demand the extradition of fugitives in the other country—“to facilitate extradition
between the parties to the treaty.” M. Cherif Bassiouni, International Extradition: United States
Law and Practice 142 (6th ed. 2014). As the First Circuit explained, Factor requires courts to
“interpret extradition treaties to produce reciprocity between, and expanded rights on behalf of,
the signatories.” In re Extradition of Howard, 996 F.2d 1320, 1330–31 (1st Cir. 1993); see also
Nezirovic, 779 F.3d at 239; Ludecke v. U.S. Marshal, 15 F.3d 496, 498 (5th Cir. 1994); United
States v. Wiebe, 733 F.2d 549, 554 (8th Cir. 1984). The point of an extradition treaty after all is
to facilitate extradition, as any country surely would agree at the time of signing. See, e.g.,
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Ludecke, 15 F.3d at 498. In the face of one reading of “lapse of time” that excludes the speedy-
trial right and another reading that embraces it, Factor says we must prefer the former.
This default rule accords with comity considerations that lurk beneath the surface of all
extradition cases. Courts must take care to avoid “supervising the integrity of the judicial system
of another sovereign nation” because doing so “would directly conflict with the principle of
comity upon which extradition is based.” Jhirad v. Ferrandina, 536 F.2d 478, 484–85 (2d Cir.
1976). Respect for the sovereignty of other countries explains why an American citizen who
“commits a crime in a foreign country . . . cannot complain if required to submit to such modes
of trial . . . as the laws of that country may prescribe for its own people.” Neely v. Henkel,
180 U.S. 109, 123 (1901). And it explains why “[w]e are bound by the existence of an
extradition treaty to assume that the trial [that occurs after extradition is granted] will be fair.”
Glucksman v. Henkel, 221 U.S. 508, 512 (1911). These constraints reflect the reality that
“political actors,” not judicial ones, are best equipped to make the “sensitive foreign policy
judgments” an extradition request demands. Hoxha v. Levi, 465 F.3d 554, 563 (3d Cir. 2006).
The habeas power does not come with the authority to interfere with proceedings “inevitably
entangled in the conduct of our international relations” unless the treaty demands it. Romero v.
Int’l Terminal Operating Co., 358 U.S. 354, 383 (1959). Just last year, the Supreme Court
reminded Congress to tread carefully before entangling itself in American foreign policies
customarily overseen by the Executive Branch. Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct.
2076, 2094–96 (2015).
Interpreting this treaty in a way that suddenly sweeps speedy-trial rights into its coverage
does not honor these objectives and would affirmatively disserve them. Because the
constitutional speedy-trial right has no fixed time limit, in contrast to statutes of limitations, what
extraditee will not raise the claim in all of its indeterminate glory? The mutability of the right
makes it impossible to know how much delay is too much delay. Take the alleged delay in Cruz
Martinez’s case: around six years. Although a delay of one year or more is presumptively
prejudicial, six years may not be enough to state a speedy-trial claim in view of other
considerations, our court has said, when the government is not to blame for the delay and the
defendant does not identify any evidence of prejudice. See United States v. Bass, 460 F.3d 830,
No. 14-5860 Cruz Martinez v. United States Page 17
838 (6th Cir. 2006). But it very well could be enough to state a claim, another court has said,
when the government is to blame and does not “overcome the presumption of general prejudice
that applies with considerable force in a case of such extraordinary delay.” See United States v.
Velazquez, 749 F.3d 161, 174, 186 (3d Cir. 2014). What of the question of fault? Whether the
State or a defendant is more to blame for untoward delays is “[t]he flag all litigants seek to
capture” in a speedy-trial case. United States v. Loud Hawk, 474 U.S. 302, 315 (1986). Before
we task the courts of both countries with refereeing these elusive and deeply sensitive inquiries,
we should be sure the negotiating countries wanted them as umpires.
In the final analysis, Cruz Martinez’s argument comes up short. No matter where we
look—to the text of this treaty (in English and Spanish), to the text of other treaties, to historical
principles underlying those treaties, to judicial decisions interpreting those treaties, to
commentaries explaining those treaties, to guidance explaining how to draft those treaties, to the
Factor default rule—all roads lead to the same conclusion. The United States and Mexico did
not impose a speedy-trial limit when they forbade the extradition of fugitives whose
“prosecution” was “barred by lapse of time.”
2.
In arguing that “lapse of time” means something else, Cruz Martinez notes that this is not
the first extradition treaty between the United States and Mexico. The present version, he points
out, replaced the phrase “barred by limitation” from the previous treaty with the phrase “barred
by lapse of time.” Compare Treaty of Extradition, U.S.-Mex., supra, art. III(3), 31 Stat. at 1821,
with Extradition Treaty, U.S.-Mex., supra, art. 7, 31 U.S.T. at 5064–65. In the process, he
submits, it expanded the scope of the provision to cover speedy-trial rights.
But this argument assumes that the new phrase captures more ground than the old phrase
with respect to the issue at hand. It does not. The word “time” appears nowhere in the phrase
“barred by limitation.” But the context of the treaty and all authority interpreting it show that the
phrase refers only to time limitations—not anything and everything that might “limit[]” a
criminal prosecution, such as all of the criminal procedure protections that appear in the Bill of
Rights and all of the state and federal laws that protect criminal suspects. That the old phrase
No. 14-5860 Cruz Martinez v. United States Page 18
impliedly included a time limitation eliminates the significance of the new phrase’s reference to
“time” no matter how the phrase is glossed: “time bar,” “time limitation,” “lapse of time,”
“lapse in time,” “passage of time,” and so on. Cruz Martinez recognizes as much when he
concedes that the phrase “barred by limitation” restricted the old treaty’s “time-bar provision to
the operation of statutes of limitation.” Cruz Martinez Principal Br. 48 (emphasis added). If the
old treaty contained a “time-bar provision,” there is nothing about the new language that adds to
the provision’s breadth—and thus nothing that gives Cruz Martinez traction in claiming that it
suddenly extends to speedy-trial rights.
The treaty’s drafting history confirms as much. Its transmittal materials do not mention
the Sixth Amendment once, an omission that takes on special significance in light of the Senate
Committee on Foreign Relations’ decision to include a list of differences between the new treaty
and “previously ratified” ones. S. Exec. Rep. No. 96-21, at 19 (1979). The speedy-trial right
appears nowhere on that list.
One court at one point, it is true, agreed with Cruz Martinez’s reading of the phrase
“lapse of time.” The district court in In re Extradition of Mylonas ruled that “lapse of time or
other lawful cause” in the United States-Greece extradition treaty applied to speedy-trial
violations. 187 F. Supp. 716, 721 (N.D. Ala. 1960). But this was hardly a landmark extradition
decision. The opinion contained no analysis of the issue, just a half-sentence conclusion. Id.
And when it came time to assess whether an explanation for the Mylonas court’s conclusion
could be found, the Eleventh Circuit came up dry, and “expressly disapprove[d]” the district
court’s ruling. Martin, 993 F.2d at 829 n.8. The Eleventh Circuit disapproved of Mylonas again
the next year, stating that it did “not find [the opinion] persuasive.” Yapp, 26 F.3d at 1567. We
need not resurrect this twice-buried decision by concluding that the extradition treaty drafters
incorporated it into the phrase “lapse of time,” contradicting over a century of jurisprudence in
the process.
Nor does it matter that Mylonas was still on the books when the United States and
Mexico negotiated their revised extradition treaty, because this treaty does not use the same
language as the treaty discussed in Mylonas. That one said “lapse of time or other lawful cause,”
187 F. Supp. at 721 (emphasis added); this one says “lapse of time” alone. It would be odd to
No. 14-5860 Cruz Martinez v. United States Page 19
conclude that the treaty’s drafters meant to adopt this trial court’s decision (if indeed they had
ever heard of it) but then used different—and narrower—language.
Other agreements drafted during the same period as the United States-Mexico treaty
confirm that Mylonas was not on anyone’s radar. At least seven extradition treaties drafted
between 1960 (when Mylonas was handed down) and 1993 (when the Eleventh Circuit
disapproved it) include provisions similar to Article 7 of the United States-Mexico treaty. Treaty
Relating to Extradition, U.S.-Thai., art. 7, Dec. 14, 1983, S. Treaty Doc. No. 98-16, at 3;
Extradition Treaty, U.S.-It., art. VIII, Oct. 13, 1983, 35 U.S.T. 3023, 3030; Extradition Treaty,
U.S.-Costa Rica, supra, art. 7, S. Treaty Doc. No. 98-17, at 3; Treaty on Extradition and Mutual
Assistance in Criminal Matters, U.S.-Turk., art. 3(c), June 7, 1979, 32 U.S.T. 3111, 3116–17;
Treaty on Extradition, U.S.-Para., art. 5(3), May 24, 1973, 25 U.S.T. 967, 973; Treaty on
Extradition and Cooperation in Penal Matters, U.S.-Uru., art. 5(3), Apr. 6, 1973, 35 U.S.T. 3197,
3207; Treaty on Extradition, U.S.-N.Z., art. VI(3), Jan. 12, 1970, 22 U.S.T. 1, 4. The Senate
Executive Reports accompanying each of these documents indicated that “lapse of time” referred
to statutes of limitations. S. Exec. Rep. No. 98-29, at 5 (1984) (Thailand); S. Exec. Rep. No. 98-
33, at 4–5 (1984) (Italy); S. Exec. Rep. No. 98-30, at 6 (1984) (Costa Rica); S. Exec. Rep. No.
96-18, at 6 (1979) (Turkey); S. Exec. Rep. No. 93-19, at 3 (1973) (Paraguay, Uruguay); S. Exec.
Rep. No. 91-20, at 3–4 (1970) (New Zealand). A 1968 State Department digest on international
law points in the same direction, noting that “[o]ne of the most common exemptions from
extradition relates to offenses for which prosecution or punishment is barred by lapse of time,
usually referred to as barring by ‘lapse of time’, prescription, or statute of limitation.”
6 Whiteman, Digest of International Law, supra, § 17, at 859. We have not found, and Cruz
Martinez has not produced, evidence suggesting that anyone meant to deviate so drastically from
a consensus so settled.
But, Cruz Martinez persists, doesn’t Doggett v. United States indicate that time alone may
do the barring in some speedy-trial cases—which means the phrase “lapse of time” necessarily
incorporates, as a textual matter, constitutional speedy-trial protections? 505 U.S. 647 (1992).
Cruz Martinez points in particular to Doggett’s statement that, “[w]hen the Government’s
negligence . . . causes [a six-year delay], and when the presumption of prejudice, albeit
No. 14-5860 Cruz Martinez v. United States Page 20
unspecified, is neither extenuated, as by the defendant’s acquiescence, nor persuasively rebutted,
the defendant is entitled to relief.” Id. at 658. Far from validating Cruz Martinez’s inference,
however, that sentence supports the opposite one. Even though a lengthy lapse of time occurred,
Doggett was “entitled to relief” only because he pointed to several other factors, including “the
Government’s negligence” and his failure to “acquiesce[]” in the postponed proceedings. Id.
That holding comports with the Court’s statement in Barker that none of the four factors
analyzed in speedy-trial cases, not even the passage of time, has “talismanic qualities” and that
courts must always “engage in a difficult and sensitive balancing process.” 407 U.S. at 533.
Nor does Doggett tell us anything about the role of the Speedy Trial Clause when the
United States extradites an American citizen to a foreign nation. Doggett, it is true, establishes
that individuals who are extradited to the United States from a foreign country receive speedy-
trial protections in American courts, just like any litigant who faces “domestic criminal
proceedings.” Balsys, 524 U.S. at 672. But that observation breaks no new ground: Individuals
tried in American courts receive American protections, including all of the criminal procedure
guarantees of the Bill of Rights, just as individuals tried in Mexican courts (as Cruz Martinez
might be) receive Mexican protections. Doggett merely explains how the Speedy Trial Clause
affects extraditees after their return to the United States, but it sheds no light on the meaning of
“lapse of time” as applied to the threshold decision whether to extradite an individual under the
terms of a treaty.
The dissent raises two concerns about our translation of the word “prescripción” from the
official Spanish language version of the treaty: that the parties did not raise the point in their
appellate briefs and that we are not experts in Spanish. Both are fair points, but they submit to
fair answers. During oral argument, one of our colleagues (Judge Rogers) asked the parties
about the meaning of the Spanish term and about his understanding that the term is associated
with statutes of limitations in civil law countries. The parties responded to his point at argument
and filed letters in response after the argument. Use of dictionaries by courts, even dictionary
definitions not cited by the parties, is not an unusual phenomenon. As for the second concern,
the dissent is correct that we do not speak Spanish fluently. But that explains why we have
consulted Spanish–English dictionaries and English–Spanish dictionaries, just as the Supreme
No. 14-5860 Cruz Martinez v. United States Page 21
Court has done in interpreting other treaties. Floyd, 499 U.S. at 536–37; Saks, 470 U.S. at 399–
400.
The context of this interpretive dispute—language in an extradition treaty—dispenses
with another of Cruz Martinez’s rejoinders: that, in other circumstances, the lapse-of-time
shorthand can refer not just to statutes of limitations but also to other doctrines rooted in the
passage of time. Take a comment in the Third Restatement equating “[l]apse of time” with a
“delay in presentation” due to “negligence or laches.” Restatement, supra, § 902 cmt. c
(emphasis omitted). Section 902, however, concerns not extradition but country-versus-country
disputes where one State violates an obligation owed to another. The section thus does not prove
that the phrase “lapse of time” incorporates an individual speedy-trial right in this setting,
especially when the one pertinent comment from the Restatement indicates that, for extradition
purposes, the term “lapse of time” extends to limitations periods only. Id. § 476 cmt. e.
“Lapse of time,” it is true, might well have a broader meaning in isolation. It might mean
all kinds of things in other settings. Witness Hamlet’s plaintive request to his father’s ghost:
“Do you not come your tardy son to chide, [t]hat, lapsed in time and passion, lets go by [t]he
important acting of your dread command?” William Shakespeare, Hamlet act 3, sc. 4. The
question, however, is what words mean in their context, not in the abstract or in other settings.
To think otherwise about the matter calls to mind the spelunker who leaves home with an
excellent map and a broken headlamp. One is of no use without the other. So too of text without
context. Not a single extant source of authority in this context—the language of an international
extradition treaty—equates “barred by lapse of time” with “barred by the Sixth Amendment.”
By shearing the phrase “lapse of time” from its context, moreover, Cruz Martinez
introduces a serious complication. If “lapse of time” covers the constitutional speedy-trial
guarantee, there is no reason to think it would not cover the statutory one. The Speedy Trial Act
says that “the trial of a defendant charged . . . with the commission of an offense shall commence
within seventy days” of the indictment, information, or the defendant’s appearance before the
court, whichever occurs later. 18 U.S.C. § 3161(c)(1). When the Act’s provisions are violated,
the court has discretion (after considering several statutorily defined factors) to dismiss the case
with or without prejudice. Id. § 3162(a)(2); United States v. Taylor, 487 U.S. 326, 332–37
No. 14-5860 Cruz Martinez v. United States Page 22
(1988). These provisions would leave foreign nations with just seventy days to issue any
extradition request after the Act’s clock starts ticking if they want to avoid debates about whether
any delay was excusable. See 18 U.S.C. § 3161(h). What will happen next is the kudzu-like
spreading of Speedy Trial Act claims and the choking out of statute-of-limitations claims—and
thus the choking out of the one claim that all agree is covered by the phrase “barred by lapse of
time.” In case after case, extradition requests that violate no statute of limitations will be denied
for Speedy Trial Act violations.
Think about Cruz Martinez’s situation. The American and Mexican statutes of
limitations have not run, but because more than seventy days have passed since Mexico issued an
arrest warrant for Cruz Martinez, the Speedy Trial Act would (if applied) likely prevent his
extradition. The same is true of other cases. Consider United States v. Garfias, where the
United States’ statute of limitations did not bar Garfias’s extradition, but the Speedy Trial Act
would likely have done so due to the nearly eight-year delay between Mexico’s arrest warrant
and its extradition request. 2009 WL 2580641, at *1, *3–5. And the list goes on. E.g., Sainez,
588 F.3d at 715–17 (no statute of limitations violation in a case where there was a seven-year
gap between the issuance of a Mexican arrest warrant and the extradition request); In re Flores
Ortiz, 2011 WL 3441618, at *1, *6–7 (no statute of limitations violation in a case where there
was a nearly three-year delay between the issuance of a Mexican arrest warrant and the
extradition request); In re Salazar, 2010 WL 2925444, at *4–5 (no statute of limitations violation
in a case where there was a nearly ten-year delay between the issuance of a Mexican arrest
warrant and the extradition request). Were Cruz Martinez’s argument to succeed, it is difficult to
imagine a lapse-of-time case where the most fruitful line of attack would not be the statutory, or
for that matter the constitutional, speedy-trial claim.
Cruz Martinez concludes by noting that, because the phrase “barred by lapse of time”
could be read broadly, it must be read broadly. He quotes the Supreme Court’s admonition in
Factor that treaty “obligations should be liberally construed so as to effect the apparent intention
of the parties to secure equality and reciprocity between them.” 290 U.S. at 293. And he tells us
to look at each section of the extradition treaty individually, classifying every provision as either
an extradition-authorizing or extradition-limiting one. After we have done so, he adds, we
No. 14-5860 Cruz Martinez v. United States Page 23
should expansively interpret the authorizing provisions in favor of the nation that seeks
extradition, and we should expansively interpret the limiting provisions in favor of the fugitive.
Because the “lapse of time” provision places limits on extradition and accords rights to the
accused, Cruz Martinez insists, a “liberal[]” interpretation requires us to infer that this language
incorporates speedy-trial protections. Id.
But a distinction between authorizing and limiting provisions does not exist in extradition
law and would not work in any event. The provision at issue in Factor, for example, listed the
specific crimes for which an individual could be extradited—but is that provision better
conceived as authorizing extradition for the specified crimes or as limiting extradition to those
crimes? Id. at 287–90 & nn.1–2. Even if we assume that the provision authorizes extradition,
what do we do when there are two provisions at issue? In Factor itself, the Court asked whether
the section listing extraditable offenses was limited by a provision stating that individuals could
be extradited “only . . . upon such evidence of criminality as, according to the laws of the place
where the fugitive or person so charged shall be found, would justify his apprehension and
commitment for trial, if the crime or offence had there been committed.” Id. at 287 n.1, 290–91
(quotation omitted). If Cruz Martinez’s reading were correct, the Court in Factor would have
found itself at a standstill—required to interpret the authorizing provision in favor of extradition
but the limiting provision in favor of the fugitive. That’s not very useful. This granular, section-
by-section approach not only fails to explain Factor; it fails to provide courts with any
administrable rule at all.
No such rule exists, as the cases cited by Cruz Martinez demonstrate. In some of those
cases, the Supreme Court simply assessed treaty language using conventional interpretive
techniques without resorting to the Factor canon (and even, in one case, rejecting that canon’s
applicability). Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 10–18 (1936); Pettit v.
Walshe, 194 U.S. 205, 217–20 (1904); United States v. Rauscher, 119 U.S. 407, 419–30 (1886).
In others, the Court interpreted “[f]riendship, [c]ommerce and [n]avigation treaties,” not
extradition treaties, between the United States and another country—treaties that “were primarily
concerned with the trade and shipping rights of individuals.” Sumitomo Shoji Am., Inc. v.
Avagliano, 457 U.S. 176, 186–87 (1982). The Court, no surprise, interpreted ambiguous
No. 14-5860 Cruz Martinez v. United States Page 24
individual-rights-creating provisions in those treaties, as opposed to extradition treaties, with an
eye toward maximizing individuals’ rights. Nielsen v. Johnson, 279 U.S. 47, 51–52, 57–58
(1929); Jordan v. Tashiro, 278 U.S. 123, 127–30 (1928); Asakura v. City of Seattle, 265 U.S.
332, 342–44 (1924); Geofroy v. Riggs, 133 U.S. 258, 271–73 (1890). The same reasoning does
not apply to an extradition treaty designed to create a right that would not exist in the treaty’s
absence: the right of a State to demand the “surrender of a fugitive” living in another State.
Factor, 290 U.S. at 298.
That leaves what may be Cruz Martinez’s ultimate worry: that rejecting his interpretation
of the treaty would allow Mexico to seek extradition of an American citizen years after a valid
Mexican arrest warrant has issued. Just such a prospect exists here, he says, given his claim that
he never tried to hide his address from American or Mexican authorities. But it is not this
court’s “province” to limit the treaty’s scope in search of a seemingly “desirable result.” Cf.
EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015). Otherwise, the treaty
would mean one thing for some fact patterns and something else for other fact patterns. Treaty
interpretation, as opposed to executive branch discretion, does not turn on shifting fact patterns.
Cruz Martinez’s arguments on this score are most productively (and, we would add, quite fairly)
directed to the Secretary of State, who retains “sole discretion to determine whether or not [an
individual] should actually be extradited.” United States v. Kin-Hong, 110 F.3d 103, 109 (1st
Cir. 1997); see 18 U.S.C. § 3186; Restatement, supra, § 478 cmt. d. That discretion would
prevent any untoward extradition from going forward, potentially including this one—which is
why Cruz Martinez’s requests for relief are better directed to our diplomats than to our judges.
III.
Cruz Martinez raises two final challenges. He argues that the magistrate judge abused his
discretion by denying discovery of documents related to 2009 communications between
American officials and the Oaxacan court. So far as the record shows, however, the magistrate
judge did not deny anything. He ordered the United States to produce “any exculpatory
materials in its possession that would undercut a finding that there is probable cause” that Cruz
Martinez committed the double murder. R. 2-7 at 1. The government confirmed that it had
inquired with the relevant entities, that it did “not have any exculpatory evidence,” and that all
No. 14-5860 Cruz Martinez v. United States Page 25
pertinent evidence had “been provided to the [c]ourt.” R. 2-9 at 4. Cruz Martinez received all
the discovery he was entitled to in an extradition proceeding. In re Extradition of Drayer,
190 F.3d 410, 415 (6th Cir. 1999).
Cruz Martinez next claims that his provisional arrest was illegal because the extradition
treaty permits this sort of arrest only “[i]n the case of urgency.” Extradition Treaty, U.S.-Mex.,
supra, art. 11(1), 31 U.S.T. at 5068. Relatedly, he says he was denied procedural due process
because the magistrate judge never held a hearing to address the “urgency” issue within the
sixty-day period during which he was provisionally detained. But Cruz Martinez’s provisional
arrest ended when Mexico submitted its formal extradition request, which means, as the panel
majority correctly concluded, that his challenges to that arrest are moot. Nor is there any risk
that he will “again be subjected to the alleged illegality” of an unjustified provisional detention.
City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). If the United States hands him over to
Mexico, his troubles here will be over (though his troubles there will be starting). And if the
Secretary of State elects not to honor the extradition request, Mexico will be able to seek Cruz
Martinez’s extradition a second time without requesting a provisional arrest; it can trigger the
United States’ statutory detention authority simply by resubmitting its already prepared formal
extradition request. 18 U.S.C. § 3184. Absent any realistic risk of future provisional arrests, we
have no authority to hear Cruz Martinez’s challenges to this one.
IV.
For these reasons, we affirm.
No. 14-5860 Cruz Martinez v. United States Page 26
_________________________________________
CONCURRENCE IN THE JUDGMENT
_________________________________________
HELENE N. WHITE, Circuit Judge, concurring in the judgment. I agree that Article 7
does not incorporate the Sixth Amendment right to a speedy trial, but cannot join in the
majority’s textual analysis.
As the principal dissent observes, the phrase “barred by lapse of time according to the
laws of the requesting or requested Party” does not clearly exclude the speedy-trial right. The
majority reads Article 7 to apply only to fixed-time limitations, Maj. Op. 7–8, but this conclusion
does not follow from the text alone. True, the determination whether prosecution violates a
defendant’s speedy-trial right requires consideration of factors other than the mere lapse of time,
but the statute-of-limitations defense may involve consideration of other factors as well. For
example, federal statutes of limitation are tolled if the defendant is “fleeing from justice,”
18 U.S.C. § 3290, which requires the government “to prove by a preponderance of the evidence
that [the defendant] concealed himself with the intent of avoiding prosecution,” United States v.
Greever, 134 F.3d 777, 781 (6th Cir. 1998), and Tennessee statutes of limitation are tolled if the
defendant “conceals the fact of the crime” or “was not usually and publicly resident within the
state.” Tenn. Code Ann. § 40-2-103. Thus, the statute-of-limitations analysis does not always
involve simply “pointing to a calendar and counting off the days,” Maj. Op. 8, and cannot be
distinguished from the speedy-trial inquiry on that basis. In any event, the speedy-trial right is
fundamentally a protection against undue prosecutorial delay, which is, essentially, a lapse of
time. Barker v. Wingo, 407 U.S. 514, 519–22 (1972).
The majority also contends that the speedy-trial right does not bar “prosecution” because
the right operates after indictment or its equivalent. Maj. Op. 8–9. But a violation of the right
requires dismissal, and thus bars “the prosecution or the enforcement of the penalty.” Indeed, it
is unclear whether the majority would hold that the provision of the Oaxacan statute of
limitations that addresses post-arraignment and post-verdict delay is applicable under the “lapse
of time” clause, Dis. Op. 43, or whether it too fails to fall within the meaning of the phrase.
No. 14-5860 Cruz Martinez v. United States Page 27
Nevertheless, I agree with the majority that the history and context of the Treaty—
particularly the transmittal materials and the meaning given the identical phrase in other
treaties—persuasively support the conclusion that Article 7 does not incorporate the speedy-trial
right.1
1
The absence of a change to the Spanish-language version of the new treaty also supports the conclusion
that the change of language in the English-language version was not intended to incorporate the speedy-trial right.
No. 14-5860 Cruz Martinez v. United States Page 28
_________________
DISSENT
_________________
CLAY, Circuit Judge, dissenting. The majority rejects the possibility that a clause
incorporating “lapse of time” defenses in the extradition treaty in question may include
constitutional speedy trial protections. Rather, the majority claims, the phrase “lapse of time”
refers only to a fixed statutory limitations period. But the majority cannot point to any part of
the 1978 Treaty that supports its interpretation of Article 7. Instead, the majority leaves out the
most important facts, disregards both the plain language and the plain purpose of Article 7, relies
on a cascade of inapposite citations, and rests its conclusion on an erroneous presumption in
favor of extradition.
In assessing whether Cruz Martinez’s speedy trial rights were violated, here is what the
majority left out of its opinion. Unexplained and lengthy delays stretched more than six years
from the issuance of the Mexican arrest warrant to the time Mexico requested Cruz Martinez’s
arrest. Cruz Martinez was not a fugitive, nor had he any knowledge that he was wanted by U.S.
or Mexican authorities. To the contrary, he lived openly in the United States under his own
name and had willingly returned to Mexico multiple times both for immigration purposes and to
vacation with his family. Yet, prior to his arrest, which came nearly seven and a half years after
Cruz Martinez’s alleged crime was reported to the Mexican authorities, neither he nor his family
was ever informed of the outstanding warrant.
What happened to Cruz Martinez is precisely the sort of delay against which Article 7
was designed to protect. In applying the unambiguous textual prerequisites of the 1978 Treaty to
the facts of this case, it is clear that the rights guaranteed to those facing extradition under Article
7 include the protection against untimely prosecution—a protection embodied in the Sixth
Amendment’s Speedy Trial Clause. Read for its ordinary meaning, this language incorporates
those bodies of law in both countries that protect against untimely criminal prosecution.
The Sixth Amendment’s Speedy Trial Clause falls squarely within this scope.
No. 14-5860 Cruz Martinez v. United States Page 29
Since a literal reading of Article 7 incorporates the speedy trial right, Cruz Martinez
should be able to raise as a defense that his extradition is barred under the terms of the governing
treaty. But the analysis does not end there. Contrary to what the majority suggests, this dissent
does not contend that Cruz Martinez’s speedy trial rights under the Sixth Amendment have in
fact been violated; rather, that determination should be made by the district court on remand. To
arrive at such a determination, the Supreme Court has outlined four factors to be weighed in a
balancing test. See Barker v. Wingo, 407 U.S. 514, 529-30 (1972) (holding that courts are to
consider the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right,
and prejudice to the defendant.”). Because the district court never reached the Barker v. Wingo
test for constitutional speedy trial violations, it is imperative that this case be remanded for
further consideration.
Regrettably, the majority fundamentally misapprehends the principal issue. The
majority’s holding would allow the United States government to extradite one of its own citizens
to face prosecution in Mexico even if doing so would result in a criminal prosecution of the U.S.
citizen in violation of the U.S. Constitution. The 1978 Treaty between the United States and
Mexico was designed to prevent this outcome: it forbids extradition if criminal prosecution “has
become barred by lapse of time according to the laws of the requesting or requested Party.”
Extradition Treaty, U.S.-Mex., art. 7, May 4, 1978, 31 U.S.T. 5059 (emphasis added).1 This
reciprocal language is not ambiguous and means only one thing: if an extraditee’s criminal
prosecution would be barred due to the lapse of time in the United States, then his extradition to
the requesting country must be refused; and vice versa, if an extraditee’s criminal prosecution of
a Mexican citizen would be barred by the laws of Mexico, his extradition to the requesting
country would likewise be prohibited.
1
Judge White’s separate concurrence completely misunderstands or glosses over the Treaty’s reciprocal
effect. The conclusory concurrence gives the misimpression that the crux of this case is reducible to whether the
phrase “barred by lapse of time” gives Cruz Martinez a right to a speedy trial. But that phrase should not be read in
isolation from the phrase that follows it—namely, “according to the laws of the requesting or requested Party.”
1978 Treaty, art. 7. Construed together, this language means that the Treaty incorporates the body of relevant law of
both countries. And because the United States recognizes the speedy trial right, Cruz Martinez can raise that as a
defense to his extradition to Mexico.
No. 14-5860 Cruz Martinez v. United States Page 30
I.
Again, what the majority fails to acknowledge is the total absence of any indication that
Cruz Martinez was a fugitive who fled Mexico to avoid prosecution. Here is the full story.
At the time of the shooting, Cruz Martinez was a lawful permanent resident of the United
States and had been continuously living and working in this country, with that status, for more
than fifteen years. Despite his residence in the United States, Cruz Martinez frequently traveled
back to Santa María Natividad, where his family lived, including his wife and children. Santa
María Natividad “is a very small village where basically everyone knows each other.” (R. 2-17,
Declaration of Antolina Flores Alfaro, PageID# 327.)
As the majority indicates, after the shooting on December 31, 2005, in which Cruz
Martinez was allegedly involved, the town clerk of Santa María Natividad presided over a
meeting between Cruz Martinez’s wife and brother, on the one side, and the widow and parents
of one of the shooting victims, Solano Cruz, on the other. At that meeting, both families signed
an agreement that had been drafted by the “District Court for San Pedro Silacayoapan, Oaxaca.”
(Id. at 335.) The agreement identified Cruz Martinez as the person “who committed the
homicide” and provided that his family would pay 50,000 pesos to the family of Solano Cruz.
(Id.) The 50,000 peso payment, however, was not the only purpose of the agreement.
The agreement concluded with the following language:
The Town Clerk, for his part, as an authority of the community, asks that both
parties respect these agreements, which were issued in the district to which we
belong. He also asks that none of the parties in this matter holds a grudge, as we
maintain respect towards one another in our community, especially because this
unfortunate act took place between families. He asks that once the parties accept
this agreement and commit to enact its terms, that the matter shall be closed.
(Id. at 335-36.)
Cruz Martinez’s wife “understood that the agreement resolved the case and that [Cruz
Martinez] would not be charged with any crime.” (Id. at 328.) She explained that the family of
the other victim, Antolín Cruz Reyes, “has never claimed that [Cruz Martinez] committed any
crime against Cruz Reyes.” (Id. at 327.)
No. 14-5860 Cruz Martinez v. United States Page 31
But in an entirely separate series of events, and unbeknownst to Cruz Martinez and his
family, a cousin of Solano Cruz who was not a party to the agreement reported the homicide to
the Attorney General for the State of Oaxaca in January 2006. The cousin, a witness to the
shooting, gave the state authorities a firsthand account of what happened. A deputy municipal
official who was also present at the scene gave a corroborating statement on the same date.
Based on these statements and the investigation that followed, on February 23, 2006, the
Oaxacan authorities issued a warrant for Cruz Martinez’s arrest on charges of homicide with
“unfair advantage” resulting from his use of a firearm. (R. 2-13, Extradition Packet, PageID#
202.)
Meanwhile, Cruz Martinez had returned to the United States, where he continued to live
openly under his own name. His landlord verified in a letter submitted to the district court that
he had lived in the same apartment in Lebanon, Tennessee since April 2006. The uncontested
evidence below established that Cruz Martinez’s family in Santa María Natividad was never
informed of the warrant for his arrest. Cruz Martinez’s wife and children continued to live in
Santa María Natividad until 2007, when they left to join him in the United States, in part because
of harassment from the family of Solano Cruz. Even after 2007, Cruz Martinez’s brother and
father continued to live in the community and remained there as of the commencement of the
extradition proceedings in 2013. Yet in all this time, Cruz Martinez’s family was never informed
of a warrant or of any case pending against him. Even beyond Cruz Martinez’s family, it was
common knowledge in the tight-knit community of Santa María Natividad that he lived and
worked in the United States.
There is no indication at all in the record of when the Mexican government first learned
of Cruz Martinez’s whereabouts in the United States. Certainly no obstacle to discovering his
location has ever been identified. It is more accurate to say that despite the existence of a variety
of avenues readily available for ascertaining Cruz Martinez’s location—whether by
communication with his family or acquaintances in Santa María Natividad, or by simple inquiry
or background check within the United States—the Mexican government made no effort that is
reflected in the record of these proceedings to search for him or to obtain his extradition for more
than six years.
No. 14-5860 Cruz Martinez v. United States Page 32
In an unexplained turn of events, it was the United States government that next followed
up on the Mexican arrest warrant. In September 2009, more than three and a half years after the
shooting, a U.S. Consular Official contacted the Silacayoapan district court to inquire about the
status of the warrant. The court responded that the warrant was still “pending and executable.”
(Id. at 250-51.) The record does not reflect that any further action was taken and the United
States government has refused to disclose any records related to the 2009 inquiry.
On May 21, 2012, Mexico submitted a diplomatic note to the U.S. Department of State
invoking the “urgency” clause of the 1978 Treaty to request Cruz Martinez’s provisional arrest.
See 1978 Treaty, art. 11. The note explained that “[t]he URGENCY to present the request . . . is
justified by the fact that AVELINO CRUZ MARTINEZ has been located” at a given address in
Lebanon, Tennessee and that “[i]t is feared that he may move elsewhere and his whereabouts
will become unknown.” (R. 2-6, Initial Extradition Request, PageID# 80.) In October 2012,
months after Mexico submitted its request for Cruz Martinez’s provisional arrest, both the United
States and Mexico issued posters identifying Cruz Martinez as wanted on murder charges in
Mexico. Nevertheless, no attempt was made to arrest him in 2012.
During this period, Cruz Martinez, who had obtained U.S. citizenship in October 2010,
was working to obtain lawful permanent resident status for his wife and children. In late 2012 or
early 2013, he made a number of trips to Mexico to meet with U.S. consular officials—the very
same governmental agency that made the 2009 inquiry. The purpose of his trip was to seek
immigration waivers for his family. During these multiple trips, neither Mexican nor U.S.
authorities took any steps to detain him or to inform him of the pending warrant and extradition
request; nor was he prevented from returning to the United States.
On June 11, 2013, acting on behalf of the Mexican government, the United States filed a
complaint in the Middle District of Tennessee seeking Cruz Martinez’s provisional arrest for the
purposes of extradition. Cruz Martinez was finally arrested on June 21, 2013, nearly seven and a
half years after the shooting was reported to the Mexican authorities, and seven years and four
months after the issuance of the arrest warrant.
No. 14-5860 Cruz Martinez v. United States Page 33
II.
I concur in the majority’s holding that Cruz Martinez’s extradition is not barred under
Article 7 by the U.S. statute of limitations. The Mexican arrest warrant was the functional
equivalent of an indictment and should be granted the same tolling effect. See Sainez v.
Venables, 588 F.3d 713, 717 (9th Cir. 2009) (“[F]or the purpose of a civil proceeding such as an
extradition, a Mexican arrest warrant is the equivalent of a United States indictment and may toll
the United States statute of limitations.”). However, I part ways with the majority as to whether
Article 7 incorporates the Sixth Amendment’s right to a speedy trial.
A. Treaty Interpretation
The Supreme Court has made clear that any analysis of whether Article 7 incorporates the
Sixth Amendment’s Speedy Trial Clause must begin “with the text of the treaty and the context
in which the written words are used.” Air France v. Saks, 470 U.S. 392, 397 (1985). And where
the text is clear, as it is here, neither pages of inapposite citations, nor an erroneous presumption
in favor of extradition, provides a basis for deviating from this “time-honored textual approach.”
Medellín v. Texas, 552 U.S. 491, 514 (2008); see also Chan v. Korean Air Lines, Ltd., 490 U.S.
122, 134 (1989) (“[W]here the text is clear, as it is here, we have no power to insert an
amendment.”).
In interpreting a treaty, as in interpreting a statute, the Supreme Court has directed that
courts must first look to its plain language. See Medellín, 552 U.S. at 506 (“The interpretation of
a treaty, like the interpretation of a statute, begins with its text.); Air France, 470 U.S. at 399
(noting that courts must give “the specific words of the treaty a meaning consistent with the
shared expectations of the contracting parties.”). The text of a treaty must be “interpreted in
good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their
context and in light of its object and purpose.” Vienna Convention on the Law of Treaties, May
23, 1969, art. 31(1), 1155 U.N.T.S. 331; Restatement (Third) of Foreign Relations Law of the
United States (“Restatement”) § 325(1) (1986). Only if the language of a treaty, when read in
the context of its structure and purpose, is ambiguous may courts “resort to extraneous
information like the history of the treaty, the content of negotiations concerning the treaty, and
No. 14-5860 Cruz Martinez v. United States Page 34
the practical construction adopted by the contracting parties.” Kreimerman v. Casa Veerkamp,
S.A. de C.V., 22 F.3d 634, 638 (5th Cir. 1994) (citing Eastern Airlines, 499 U.S. at 535).
Finally, courts may not “alter, amend, or add to any treaty, by inserting any clause,
whether small or great, important or trivial,” for doing so “would be . . . an usurpation of power,
and not an exercise of judicial function.” Id. (quoting Chan, 490 U.S. at 135). Therefore, a high
bar must be met before a court can read into a treaty a meaning which its words do not import.
See Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 180 (1982) (“The clear import of
treaty language controls unless ‘application of the words of the treaty according to their obvious
meaning effects a result inconsistent with the intent or expectations of its signatories.’”) (quoting
Maximov v. United States, 373 U.S. 49, 54 (1963)).
B. Plain Meaning Analysis
Again, Article 7 provides that “[e]xtradition shall not be granted when the prosecution or
the enforcement of the penalty for the offense for which extradition has been sought has become
barred by lapse of time according to the laws of the requesting or requested Party.” 1978 Treaty,
art. 7. Read for its ordinary meaning, this language incorporates those bodies of law in both
countries that protect against untimely criminal prosecution. The Speedy Trial Clause of the
Sixth Amendment falls squarely within this scope. In accordance with that fundamental
constitutional guarantee, a criminal prosecution “become[s] barred by lapse of time according to
the laws” of the United States—to borrow the language of Article 7—when unjustified post-
accusation delay results in prejudice to the defendant, or when it extends over so significant a
period that prejudice will be presumed. Doggett v. United States, 505 U.S. 647, 651, 657-58
(1992); Klopfer v. North Carolina, 386 U.S. 213, 226 (1967) (holding that the right to a speedy
trial “is one of the most basic rights preserved by our Constitution.”).
While it is true, as the majority observes, that the passage or lapse of time is never alone
dispositive of a speedy trial claim, the same may be said of statutes of limitations challenges.
Both bodies of law take into account the timely or untimely action of the government, as the
majority explains in its tolling discussion. Similarly, defendants may be precluded from relying
on either defense if the delay results from their own intentional flight from justice. See
No. 14-5860 Cruz Martinez v. United States Page 35
18 U.S.C. § 3290; Doggett, 505 U.S. at 652-54 (analyzing whether the defendant was aware of
the charges against him during the eight years that elapsed before his discovery and arrest).
Although these caveats introduce additional factors into the analysis, the essential force and
fundamental basis of both the Speedy Trial Clause and statutes of limitation is the same: the
passage or “lapse” of time.
Indeed, under our legal system, the protection against untimely prosecution is incomplete
without the Speedy Trial Clause, which operates in concert with statutes of limitation and the
Due Process Clause to protect against prejudicial prosecutorial delay. See United States v.
Marion, 404 U.S. 307, 320-25 (1971) (discussing the interlocking protection provided by statutes
of limitation, the Speedy Trial Clause, and the Due Process Clause); see also United States v.
Lovasco, 431 U.S. 783, 788-89 (1977) (same); Klopfer, 386 U.S. at 226 (observing that each of
the fifty states guarantees the right to a speedy trial). The Eleventh Circuit explained the
complementary roles played by statutes of limitation and the Speedy Trial Clause in protecting
against prejudice arising from the “lapse of time” in Stoner v. Graddick, 751 F.2d 1535 (11th
Cir. 1985):
The statute of limitations is the principal device, created by the people of a state
through their legislature, to protect against prejudice arising from a lapse of time
between the commission of a crime and an indictment or arrest. Statutes of
limitation represent legislative assessments of relative interest of the state and the
defendant in administering and receiving justice. Limitations statutes, however,
are not the only available protection against prejudice. The particular provisions
of the Speedy Trial Clause of the Sixth Amendment are available with respect to
prejudicial delay after formal indictment or information, or actual arrest.
Id. at 1540-41 (citations and quotation marks omitted).
It is therefore simply inaccurate to suggest, as the majority does, that a criminal
prosecution is “barred by lapse of time according to the laws” of the United States only where
there is a statute of limitations framework in place to protect the rights of the accused. See
1978 Treaty, art. 7. The corresponding post-accusation protection found in the Speedy Trial
Clause is an equally important defense “against prejudice arising from a lapse of time” under
U.S. law. Stoner, 751 F.2d at 1540. The only way to give full effect to Article 7’s lapse of time
language is to find that the provision incorporates these complementary protections.
No. 14-5860 Cruz Martinez v. United States Page 36
Not only is the Speedy Trial Clause a central component of the protection against
untimely prosecution, but it is also well established that criminal defendants may raise a speedy
trial defense when the U.S. government has failed to timely pursue their extradition. See
Doggett, 505 U.S. at 651-58 (finding a speedy trial violation where the U.S. government did not
request the defendant’s extradition from Panama and did not seek to confirm his location during
the following eight years); United States v. Heshelman, 521 F. App’x 501, 505-10 (6th Cir.
2013) (holding that the U.S. government’s failure over more than three years to pursue
extradition of a suspect living in Switzerland, where the suspect was not informed of the charges
against him, constituted a speedy trial violation); United States v. Mendoza, 530 F.3d 758, 763
(9th Cir. 2008) (“[T]he government was required to make some effort to notify Mendoza of the
indictment, or otherwise continue to actively attempt to bring him to trial, or else risk that
Mendoza would remain abroad while the constitutional speedy-trial clock ticked. However, the
government made no serious effort to do so.”).
If the roles of the two countries here were reversed, there is no doubt that Cruz Martinez
would be able to invoke his constitutional speedy trial right in a U.S. prosecution based on the
government’s failure to timely seek his extradition from Mexico; and in fact, he would stand a
good chance of succeeding in his challenge and thereby barring his prosecution. See Doggett,
505 U.S. at 651-58 (finding a speedy trial violation in comparable circumstances). Article 7
incorporates precisely that result: if criminal prosecution would be barred due to the lapse of
time in the United States, then Cruz Martinez’s extradition must be refused. See 1978 Treaty,
art. 7 (forbidding extradition where criminal prosecution “has become barred by lapse of time
according to the laws of the requesting or requested Party.”) (emphasis added).2
2
The majority misapprehends this dissent’s discussion of Doggett. Nowhere in this dissent is there any
suggestion that Doggett sheds light on the meaning of “lapse of time.” Doggett tells us two things. First, that
extraditees can raise a speedy trial defense when the U.S. government has failed to timely pursue their extradition to
the United States. The result should be no different in this case, where the roles of the two countries are simply
reversed. Article 7 offers a defense against extradition if prosecution would be “barred by lapse of time according
to the laws of the requesting or requested Party.” The Treaty has a reciprocal effect: if criminal prosecution would
be barred due to the lapse of time in the United States, then Cruz Martinez’s extradition to Mexico must be refused.
Second, the point of Doggett is to show that in some cases, there is a presumption of prejudice when the delay is
significant (as it is here). As discussed on pages 16-17 of this dissent, Doggett is simply meant to illustrate that if
Cruz Martinez was actually able to raise a speedy trial claim, he would probably prevail due to the similarities
between his case and Doggett (where the delay of over eight years established a presumption of prejudice).
No. 14-5860 Cruz Martinez v. United States Page 37
Additionally, Article 7 is designed to serve purposes other than facilitating the reciprocal
extradition of criminals, as it limits extradition rather than enables it. The apparent “object and
purpose” of the provision is to provide persons facing extradition the same degree of protection
against stale prosecution that the laws of the United States or of Mexico would grant in a
domestic criminal prosecution. See Restatement, § 325(1). The two countries may also quite
reasonably have sought to incentivize the timely extradition and prosecution of criminals. See
Barker, 407 U.S. at 520 (identifying “a societal interest in providing a speedy trial which exists
separate from, and at times in opposition to, the interests of the accused.”). Interpreting Article 7
to incorporate the Sixth Amendment’s protection against untimely prosecution furthers these
purposes and is consistent with the Treaty’s protective purpose. At the very least, such an
interpretation does not “effect[] a result inconsistent with the intent or expectations of its
signatories.” Maximov, 373 U.S. at 54.
Consequently, there is no reason to believe that the text of Article 7 gives rise to any
ambiguity or doubt as to what the Treaty’s drafters intended; there is no reason to question
whether the drafters really meant what they wrote into the Treaty. Indeed, courts have long
recognized that “treaties are the subject of careful consideration before they are entered into, and
are drawn by persons competent to express their meaning, and to choose apt words in which to
embody the purposes of the high contracting parties.” Rocca v. Thompson, 223 U.S. 317, 332
(1912).
But even if the language of Article 7 could somehow be seen as ambiguous, the result
would be the same. The majority misreads Factor v. Laubenheimer, 290 U.S. 276 (1933) as
requiring a blanket presumption in favor of the rights of the signatory countries, and therefore in
favor of extradition. But that is not what Factor stands for. What that case actually stands for is
that strained or overly narrow treaty interpretations should be avoided. The Supreme Court
specifically directed that “[i]n choosing between conflicting interpretations of a treaty obligation,
a narrow and restricted construction is to be avoided as not consonant with the principles deemed
controlling in the interpretation of international agreements,” and, in the same vein, that “if a
treaty fairly admits of two constructions, one restricting the rights which may be claimed under
it, and the other enlarging it, the more liberal construction is to be preferred.” 290 U.S. at 293-
No. 14-5860 Cruz Martinez v. United States Page 38
94. Factor therefore directs us to reject a “narrow and restricted construction” of Article 7,
resolving any ambiguity in favor of a broader reading of the rights it grants to persons facing
extradition.
Other cases relying on the same language favoring broad construction of rights granted
by a treaty make clear that the rights accorded liberal construction under this presumption
include rights granted to individuals rather than governments. See Nielsen v. Johnson, 279 U.S.
47, 52, 57-58 (1929) (adopting a broad construction of rights under a treaty to liberally construe
a Danish citizen’s right to be free from discriminatory taxes in the United States under a treaty
between the United States and Denmark); Jordan v. Tashiro, 278 U.S. 123, 127-29 (1928)
(adopting a broad construction of rights under a treaty to liberally construe the rights of Japanese
Americans to engage in commerce under a treaty between the United States and Japan).
Despite what the majority says, Factor did not announce any broad default rule in favor
of extradition when interpreting an extradition treaty. All the Supreme Court did in that case was
apply existing principles of treaty interpretation—principles that in no way presume that the
rights of foreign governments must always be given precedence over individual rights granted by
a treaty. Applying a presumption in favor of extradition under Article 7 would be to distort the
holding of Factor beyond recognition. If anything, we should honor Factor’s guidance by
construing Article 7 liberally to affirm the rights which may be claimed under the Article—
namely, the right to avoid extradition if criminal prosecution for the offense would be “barred by
lapse of time according to the laws” of either country. 1978 Treaty, art. 7.
It is worth noting though that Factor is more than eighty years old, and hardly the only
source of guidance as to how to interpret ambiguous treaty provisions. More recent cases tell us
that we should look to historical evidence of the drafters’ intent “to resolve ambiguities in the
text.” Air France, 470 U.S. at 400; see also Medellín, 552 U.S. at 506-07 (instructing that
although “[t]he interpretation of a treaty . . . begins with its text,” the Court also relies on
historical materials as “aids to its interpretation” (internal quotation marks omitted)); United
States v. Stuart, 489 U.S. 353, 366 (1989) (“Nontextual sources . . . often assist us in giving
effect to the intent of the Treaty parties, such as a treaty’s ratification history and its subsequent
operation.” (citation and quotation marks omitted)).
No. 14-5860 Cruz Martinez v. United States Page 39
The limited history available supports the interpretation that Article 7 incorporates the
Sixth Amendment’s right to a speedy trial. First, Article 7 uses notably broader language than
the corresponding provision in the United States’ previous extradition treaty with Mexico. The
prior treaty barred extradition in cases where criminal prosecution for the offense would be
“barred by limitation according to the laws of the country to which the requisition is addressed.”
Extradition Treaty, U.S.-Mexico, art. III, Feb. 22, 1899, 31 Stat. 1818 (emphasis added). Had
the drafters of the 1978 Treaty intended only to incorporate statutes of limitation, they could
have easily used the same “barred by limitation” language to clearly limit the scope of
protection.
Moreover, the U.S. negotiators were almost certainly aware that language incorporating
defenses based on the “lapse of time” could be interpreted to include the Speedy Trial Clause.
When the United States negotiated and entered into the 1978 Treaty with Mexico, the only
published case in the United States addressing whether the Speedy Trial Clause was incorporated
by “lapse of time” language in extradition treaties was In re Extradition of Mylonas, 187 F.
Supp. 716 (N.D. Ala. 1960). That case found it a matter of common sense that defenses barring
prosecution based on the “lapse of time” included the Speedy Trial Clause. Id. at 721.
The majority’s response to Mylonas—or as the majority puts it, this “twice-buried
decision”—is that “Mylonas was not on anyone’s radar.” Maj. Opn. at 23. But this is
misleading and wrong. For one, it was not until some fifteen years after the United States
negotiated and entered into the 1978 Treaty with Mexico that Mylonas was disavowed. See
Martin v. Warden, 993 F.2d 824, 829 n.8 (11th Cir. 1993). In 1978, Mylonas not only remained
good law, it was the only law on point. The Mylonas decision, at the very least, allows an
inference that the drafters were aware of the possibility that Article 7 could be interpreted to
include the Speedy Trial Clause. Indeed, the U.S. State Department was certainly aware of the
potential scope of Mylonas, as evidenced by a June 22, 1960 letter from the State Department’s
Assistant Legal Advisor to a U.S. Attorney concerning the Mylonas decision. See In re
Extradition of Mackin, 668 F.2d 122, 136 (2d Cir. 1981) (quoting from that letter).
At the time of the negotiations, Mylonas provided the most reliable guide for how the
“barred by lapse of time” provision should apply to extradition cases. By replacing the 1978
No. 14-5860 Cruz Martinez v. United States Page 40
Treaty’s “barred by limitation” phrase with “barred by lapse of time,” the drafters incorporated a
broader set of rights into the new version. There is no other reason why the drafters would have
chosen to replace the original “barred by limitation” language with the broader “barred by lapse
of time” phrase—a phrase that describes an entire class of laws, not just statutes of limitation.
Again, even assuming the language of Article 7 were considered ambiguous, the only
conclusion to be drawn from the historical evidence is that the drafters intended to incorporate
the right to a speedy trial. At a minimum, the context of Mylonas and the departure from the
more restrictive formulation of the previous treaty confirms that “application of the words of the
treaty according to their obvious meaning”—i.e., to incorporate the Sixth Amendment’s right to
a speedy trial—would not “effect[] a result inconsistent with the intent or expectations of its
signatories.” Maximov, 373 U.S. at 54. We should give effect to the “apt words” chosen by the
drafters of the 1978 Treaty and hold that Cruz Martinez may raise a defense to extradition on the
grounds that his prosecution has become barred due to lapse of time under the Speedy Trial
Clause. See Rocca, 223 U.S. at 332.
C. Cruz Martinez’s Speedy Trial Claim
What is particularly troubling about this case is that if Cruz Martinez was actually able to
raise a speedy trial claim, he would probably prevail. To determine whether the lapse of time
between accusation and trial constitutes a violation of the Sixth Amendment, courts balance
‘“whether delay before trial was uncommonly long, whether the government or the criminal
defendant is more to blame for that delay, whether, in due course, the defendant asserted his right
to a speedy trial, and whether he suffered prejudice as the delay’s result.’” United States v.
O’Dell, 247 F.3d 655, 667 (6th Cir. 2001) (quoting Doggett, 505 U.S. at 651). If the government
uses “reasonable diligence” in seeking to bring an accused to justice, a speedy trial claim will
generally fail “as a matter of course however great the delay, so long as [the accused] could not
show specific prejudice to his defense.” Doggett, 505 U.S. at 656. “[O]fficial bad faith in
causing delay will be weighed heavily against the government,” resulting in dismissal if the
delay is significant. Id. Where delay results from “official negligence in bringing an accused to
trial,” the need for the accused to show prejudice from the delay lessens with the length of time
elapsed. Id.
No. 14-5860 Cruz Martinez v. United States Page 41
The similarities between this case and Doggett—a case where the Supreme Court found a
speedy trial violation in a delay of over eight years—bring this case within the limited
parameters of a presumption of prejudice. Like Cruz Martinez, Doggett left the country without
knowing he was being charged with a crime. 505 U.S. at 648-49. The United States declined to
seek his extradition from Panama, despite knowing he was there, and instead asked Panama to
“expel” Doggett to the United States. Id. at 649. Although the Panamanian authorities agreed to
do so, they ultimately released Doggett and let him go to Colombia, where he lived with a
relative. Id. Several months later, Doggett “passed unhindered through Customs in New York
City and settled down in Virginia.” Id.
Just like Cruz Martinez, Doggett lived openly under his own name in the United States
for six years. Id. at 649-50. He was ultimately discovered “when the Marshal’s Service ran a
simple credit check on several thousand people subject to outstanding arrest warrants and, within
minutes, found out where Doggett lived and worked.” Id. at 650. Nearly six years after his
return to the United States, Doggett was arrested. Id.
Beginning with its failure to request Doggett’s extradition from Panama, and continuing
through its failure to follow up on his whereabouts, the government had demonstrated, in the
words of the Supreme Court, an “egregious persistence in failing to prosecute Doggett.” Id. at
657. Indeed, “[f]or six years, the Government’s investigators made no serious effort to test their
progressively more questionable assumption that Doggett was living abroad.” Id. at 652-53.
Based on the length of the delay, the Court held that Doggett did not have to show how he was
prejudiced:
When the Government’s negligence thus causes delay six times as long as that
generally sufficient to trigger judicial review, and when the presumption of
prejudice, albeit unspecified, is neither extenuated, as by the defendant’s
acquiescence, nor persuasively rebutted, the defendant is entitled to relief.
Id. at 658 (citations omitted).
The similarities between this case and Doggett are striking. More than six years elapsed
between the alleged shooting on December 31, 2005 and Mexico’s informal request for Cruz
Martinez’s extradition in May 2012. Another year and three months passed before Mexico
No. 14-5860 Cruz Martinez v. United States Page 42
formalized its extradition request with the delivery of a complete packet in August 2013. And in
all this time, Cruz Martinez, like Doggett, had no idea he was wanted by U.S. or Mexican
authorities. Meanwhile, he lived openly in the United States under his own name and returned to
Mexico multiple times—presumably “pass[ing] unhindered through Customs” each time. Id. at
649. At the very least, there is circumstantial evidence of negligence and unjustified failure to
prosecute on the part of the Mexican government. These circumstances certainly raise a
presumption of prejudice that might justify relief.
We do not, however, have the benefit of a district court decision making factual findings
on these issues or analyzing the application of the Barker factors. Nor has the government been
asked to present evidence that Mexico diligently sought Cruz Martinez during the period that he
was living in the United States. That is why remand is necessary.
The majority suggests that it would be infeasible to conduct the fact-finding necessary to
adjudicate Cruz Martinez’s speedy trial claim. Yet, the administrative challenges are not nearly
as grave as the majority would suggest. Application of the Barker factors in an extradition
setting is not likely to result in a searching inquiry into the actions of foreign officials. In most
cases, introduction of evidence that the requesting country pursued the suspect with “reasonable
diligence” will end the inquiry, since under Doggett, a showing of diligence will nearly always
defeat a speedy trial claim “however great the delay.” 505 U.S. at 656. In other cases, where the
accused is alleged to be a fugitive from justice, the speedy trial analysis will be comparable to
the analysis already implemented by courts considering claims that the person’s flight from
justice tolled the statute of limitations. See 18 U.S.C. § 3290; Jhirad v. Ferrandina, 536 F.2d
478 (2d Cir. 1976).
The 1978 Treaty offers a ready mechanism, in the form of Article 12, for the United
States to obtain the evidence necessary to make such a showing. That provision anticipates that
there may be cases where the executive of the requested country “considers that the evidence
furnished in support of the request for extradition is not sufficient to fulfill the requirements of
[the] Treaty,” and therefore allows the requested country to “request the presentation of the
necessary evidence.” 1978 Treaty, art. 12. This is not a discovery rule, but rather a diplomatic
mechanism. There is therefore no risk that Mexico will be forced to offer up evidence of bad-
No. 14-5860 Cruz Martinez v. United States Page 43
faith delay for review by a U.S. court. Additionally, in light of the relaxed rules of evidence
applicable in extradition hearings, proof of Mexico’s diligence may be presented in any
reasonably reliable form adequate to document the country’s efforts in seeking Cruz Martinez.
Because all of this may be easily and properly accomplished well within the scope of the
1978 Treaty and the competence of U.S. magistrate judges,3 concerns about the factual inquiry
necessary for the Barker factors do not provide a reason for construing Article 7’s lapse of time
defense as excluding the right to a speedy trial.
D. The Majority Opinion
The majority makes a number of arguments in its attempt to evade the plain meaning of
Article 7. None of them are persuasive. First, contrary to what the majority says, no word or
turn of phrase in Article 7 suggests that its application is restricted to the commencement of
criminal proceedings—in fact, the express inclusion of lapse of time protection against the
“enforcement of the penalty” for an offense settles any doubt that the scope of Article 7 extends
beyond the initiation of prosecution. 1978 Treaty, art. 7. The majority mischaracterizes the
Oaxacan statute of limitations as supporting its interpretation, glossing over the statutory
language that specifically protects against undue delay during criminal proceedings. Rather than
dropping out of the picture at the commencement of the prosecution, the Oaxacan statute of
limitations “reset[s] and shall begin anew[] at the time of the reading of the charges at
arraignment.” (R. 2-19, Law of the State of Oaxaca, PageID# 378.) This effectively secures to
criminal defendants protection comparable to the Speedy Trial Clause under U.S. law. Article
10(2), also cited by the majority, offers no guidance because it does not even mention the phrase
“lapse of time,” much less purport to define or limit it. 1978 Treaty, art. 10(2).
The majority then relies on a number of inapposite citations in support of its theory that
Article 7’s “lapse of time” language is most naturally read to refer only to a fixed statutory
limitations period. The difficulty is that, with the exception of Yapp v. Reno, 26 F.3d 1562 (11th
Cir. 1994), and a handful of unpublished district court cases from California, none of the
3
See 18 U.S.C. § 3184 (conferring authority upon magistrate judges to issue warrants and conduct
extradition proceedings).
No. 14-5860 Cruz Martinez v. United States Page 44
multitude of cases, treaties, or texts cited by the majority considers, much less rejects, the
possibility that a clause incorporating “lapse of time” defenses in an extradition treaty may
include constitutional speedy trial protections. Instead, most of these citations merely point to
the use of the term “lapse of time” in some proximity to the statute of limitations. See, e.g.,
Extradition Treaty, U.S.-Arg., art. 7, June 10, 1997, T.I.A.S. No. 12,866 (providing, in an article
titled “Lapse of Time” that “[e]xtradition shall not be denied on the ground that the prosecution
or the penalty would be barred under the statute of limitations in the Requested State.”); Black’s
Law Dictionary 1321 (10th ed. 2014) (referring to the lapse of time in defining a period of
prescription, but in no way equating the two as synonymous); Canadian N. Ry. Co. v. Eggen,
252 U.S. 553 (1920) (interpreting the term “lapse of time” to incorporate statutes of limitation in
a civil maritime context).
These citations prove little, if anything. Comparison with other extradition treaties that
make express reference to statutes of limitation in fact highlights the comparatively broad
language employed in the U.S.-Mexico Treaty at issue today. Moreover, the extradition treaties
with both Argentina and the Organization of Eastern Caribbean States, cited by the majority,
mention the lapse of time and statutes of limitation in particular only to establish that a person
facing extradition does not have recourse to those protections. See Extradition Treaty, U.S.-Arg.,
art. 7, June 10, 1997, T.I.A.S. No. 12,866; S. Treaty Doc. No. 105-13 (1997); Extradition
Treaties, U.S.-O.E.C.S., art. 8, S. Treaty Doc. No. 105-19 (1997). The extradition treaty with
France does contain language comparable to that with Mexico—but its specification about the
treatment of acts of interruption emphasized by the majority does nothing to define or limit its
incorporation of defenses to prosecution based on “lapse of time.” See Extradition Treaty, U.S.-
Fr., art. 9, Apr. 23, 1996, S. Treaty Doc. No. 105-13 (1997). Nor does the UN model treaty
support the majority’s unduly restricted reading of Article 7. The model treaty in fact
recommends even broader language that would mandatorily bar extradition “[i]f the person
whose extradition is requested has, under the law of either Party, become immune from
prosecution or punishment for any reason, including lapse of time or amnesty.” G.A. Res.
52/88, U.N. Model Treaty on Extradition, art. 3(e) (emphasis added).
No. 14-5860 Cruz Martinez v. United States Page 45
Somewhere along the way, the majority has a “Eureka!” moment, pointing out that the
Spanish version of the 1978 Treaty is titled “Prescripción.” Maj. Opn. at 10. But how this
matters to our analysis is completely beyond rationality. To the best of my knowledge, the writer
for the majority does not speak or read Spanish. And since cutting and pasting the Spanish
version’s text into the less than authoritative Google Translate provides the same translations as
those used by the majority, we may assume that the translations may have been taken from this
questionable source. The majority’s argument is less than persuasive when one realizes that its
legal argument is predicated on a popularized and less than precise translation source. Language
is complex and the meaning of a word can vary greatly depending on its context, as any native
speaker can attest. It would seem that the majority is defining various phrases in a vacuum
without considering the appropriate contexts in which they were used.
In any event, by making this argument, the majority reveals how result-oriented it is in its
attempt to reach its own conclusions. Not only is the majority willing to look beyond the
Treaty’s text, and beyond our own drafters’ intent as expressed in the text, the majority even
purports to rely on the presumed intent of a foreign legislature—all while pretending to
understand Spanish.
Moreover, whatever the phrase “lapse of time” means in Spanish is irrelevant. All that
matters is that under our own legal system, “lapse of time” incorporates the speedy trial right.
The answer to the question of whether Article 7 incorporates the Speedy Trial Clause has
nothing to do with what the Spanish version of the 1978 Treaty says. By offering a defense
against extradition if prosecution would be “barred by lapse of time according to the laws of the
requesting or requested Party,” Article 7 incorporates the body of relevant law of both countries.
1978 Treaty, art. 7 (emphasis added). Therefore, even if Mexico does not recognize the speedy
trial right, the United States certainly does, and that is enough to raise a defense under Article 7
of the Treaty.
The majority’s citing to United States v. Percheman, 32 U.S. (7 Pet.) 51, 8 L.Ed. 604
(1833) is totally meaningless inasmuch as that case is of little or no importance to the analysis.
That case applies only when a court looks to another version of a treaty for interpretative clues,
but there is no need to do so here. Certainly, there is no need to look to the Spanish version of
No. 14-5860 Cruz Martinez v. United States Page 46
the 1978 Treaty because whether the drafters of the Spanish version thought the phrase “lapse of
time” incorporates only statutory limitation periods is totally beside the point. The only relevant
question is whether under our own legal system, “lapse of time” incorporates the speedy trial
right, and the answer to that question is unequivocally “yes.”
At the same time, the majority does not recognize the contradiction it falls into in making
this argument. The majority argues that in some cases the litigants did not argue that a “lapse of
time” provision incorporated the speedy trial right: “[n]ot one of the extraditees in these cases
thought the speedy-trial point was worth their time.” Maj. Opn. at 17. Their failure to do so, the
majority colorfully argues, makes this “the case of the dog who didn’t bark.” Id. But the
litigants in this case did not raise the “prescripción!” argument—this is something the majority
came up with on its own. Under the majority’s logic, then, the litigants in this case must not
have thought the argument was worth their time—and consequently, neither should we.
More importantly, the fact that a particular argument was not made in a particular case
offers no sound guidance, much less authority, for the question before us today; it is completely
baffling why the majority thinks this is important. I do not know why the litigants in the cases
cited by the majority did not make certain arguments—and neither does the majority. See id. at
16-17. But in any event, Cruz Martinez did “bark”; and the majority’s canine metaphor is no
solace to him, as he has been held in detention since June 21, 2013 and is now being extradited
for a crime he allegedly committed seven and a half years before Mexico signaled its intent to
prosecute him.
Similarly, the unpublished district court opinions cited by the majority are neither
authoritative nor persuasive. Lacking direct authority on whether Article 7 incorporates the
speedy trial right, each of these cases conflates the issue with precedent addressing whether there
is an inherent right to a speedy extradition, or whether the speedy trial right is incorporated by
generic “remedies and recourses” language. See Gonzalez v. O’Keefe, No. C 12-2681, 2014 WL
6065880, at *2-4 (N.D. Cal. Nov. 12, 2014); In re Extradition of Flores Ortiz, No. 10-MJ-2016-
JMA, 2011 WL 3441618, at *5-6 (S.D. Cal. Feb. 9, 2011); In re Extradition of Salazar, No.
09MJ2545-BLM, 2010 WL 2925444, at *6 (S.D. Cal. July 23, 2010); United States v. Garfias,
No. 14-5860 Cruz Martinez v. United States Page 47
No. CR-09-xr-90128, 2009 WL 2580641, at *2-3 (N.D. Cal. Aug. 20, 2009). These unpublished
district court cases from California offer no more guidance than what a particular litigant did or
did not argue in some prior case.
The sole appellate case on point, Yapp v. Reno, 26 F.3d 1562 (11th Cir. 1994), offers no
more intellectually robust support for the majority’s position. There, the Eleventh Circuit relied
on the same definition-by-proximity method of reasoning as the majority to conclude that the
phrase “lapse of time” referred primarily, and ultimately exclusively, to the statute of limitations.
26 F.3d at 1566. Both Yapp and the majority cite to a comment to Restatement § 476 that
discusses the applicability of statutes of limitation under various formulations of “lapse of time”
protections against extradition. Id. at 1567 (citing Restatement § 476, comment (e)). That
comment, however, does not purport to restrict the term “lapse of time” to statutes of limitation.
Significantly, the same Restatement elsewhere indicates that the phrase “lapse of time” may
encompass other defenses, such as laches:
c. Lapse of time. No general rule of international law limits the time within which
a claim can be made. However, international tribunals have barred claims
because of a delay in presentation to the respondent state if the delay was due to
the negligence or laches of the claimant state.
Restatement § 902, comment (c) (emphasis added).
Of course, § 902 addresses interstate claims and remedies rather than extradition;
nonetheless, it demonstrates that the phrase “lapse of time” may easily be used in connection
with a broader set of claims and defenses than simply statutes of limitation.
Moreover, “lapse of time” is a phrase frequently used in American law in connection
with any number of legal doctrines that operate based on the passage of time. For example, the
term is frequently used with reference to laches and due process claims deriving from alleged
unjustifiable delays. See, e.g., King v. Alaska S.S. Co., 431 F.2d 994, 996 (9th Cir. 1970) (“[T]he
right to bar an action for lapse of time is a substantive right. It is conceded that the relevant lapse
of time standard in maritime law is the doctrine of laches.” (citation omitted)); Costello v. United
States, 365 U.S. 265, 281 (1961) (“In contending that lapse of time should be deemed to bar the
Government from instituting this proceeding, the petitioner argues that the doctrine of laches
No. 14-5860 Cruz Martinez v. United States Page 48
should be applied to denaturalization proceedings, and that in any event, the delay of 27 years
. . . denied him due process of law in the circumstances of the case.”).
In other circumstances, “lapse of time” is used in reference to rights that are claimed to
have vested based on the passage of time. See, e.g., Chase Secs. Corp. v. Donaldson, 325 U.S.
304, 311-12 (1945) (“[W]here lapse of time has not invested a party with title to real or personal
property, a state legislature, consistently with the Fourteenth Amendment, may repeal or extend a
statute of limitations.”); Fed. Trade Comm’n v. Algoma Lumber Co., 291 U.S. 67, 79-80 (1934)
(holding that misleading advertising was still actionable thirty years after initial use because
“[t]here is no bar through lapse of time to a proceeding in the public interest to set an industry in
order by removing the occasion for deception or mistake . . .”). Additionally, the concept of
“lapse of time” is sometimes invoked in arguments about proper judicial procedure or the proofs
required to meet an evidentiary standard. See, e.g., Davis v. Adult Parole Auth., 610 F.2d 410,
414-15 (6th Cir. 1979) (discussing other courts’ holding that “the lapse of time affects the
quantum of required proof as well as the good faith and credibility of the moving party.”
(internal quotation marks omitted)); Berkshire Land Co. v. Fed. Sec. Co., 199 F.2d 438, 441 (3d
Cir. 1952) (“The presumption of payment arising from lapse of time does not work an
extinguishment of the debt, nor, unlike the bar of the statute of limitations, does it require a new
promise or its equivalent to revive it.” (internal quotation marks omitted)).
Finally, and of course most relevant here, “lapse of time” is used in reference to
constitutional speedy trial claims. See, e.g., Doggett, 505 U.S. at 658-69 (O’Connor, J.,
dissenting) (“The only harm to petitioner from the lapse of time was potential prejudice to his
ability to defend his case.”); Robinson v. Whitley, 2 F.3d 562, 569 (5th Cir. 1993)
(“[A] defendant will not be heard to complain of a lapse of time attributable to continuances he
sought and received from the trial court. In such a situation, the speedy trial clock is properly
tolled.” (internal quotation marks omitted)); United States v. Greene, 737 F.2d 572, 575, n.3 (6th
Cir. 1984) (“Greene makes no contention to this Court that the lapse of time from May 10, 1983
until August 22, 1983 when the initial trial began, or the time period from August 25, 1983 when
a mistrial was declared, until October 24, 1983 when the second trial began, infringed upon his
constitutional or statutory rights.”); United States v. Hauff, 461 F.2d 1061, 1063 (7th Cir. 1972)
No. 14-5860 Cruz Martinez v. United States Page 49
(“With regard to the lapse of time between the accusation and the trial, the Speedy Trial Clause
guarantees to a criminal defendant[] that the Government will move with the dispatch which is
appropriate to assure him an early and proper disposition of the charges against him.”
(internal quotation marks omitted)); Moser v. United States, 381 F.2d 363, 364 (9th Cir. 1967)
(holding that the defendants’ speedy trial claim failed where they did not “assert, nor does
anything in the trial record tend to show, that because of the lapse of time they were prejudiced
in making their defense.”); see also Burns v. Lafler, 328 F. Supp. 2d 711, 719 (E.D. Mich. 2004)
(“To prosecute a defendant following an investigative delay does not deprive him of due process,
even if his defense is somewhat prejudiced by the lapse of time.”).
All of the above completely undermines the majority’s suggestion that interpreting
Article 7 to incorporate the Sixth Amendment’s protection against untimely prosecution is a
drastic deviation “from a consensus so settled.” Maj. Opn. at 23. The issue can hardly be
considered “so settled” with only one appellate decision directly on point (Yapp v. Reno), a
decision that was wrongly decided for the reasons just stated.
The majority next asserts that the understanding of Article 7 set forth by this dissent
would open the door for people like Cruz Martinez to argue that the “lapse of time” provision
also incorporates the Speedy Trial Act. This, the majority says, “introduces a serious
complication” because the Speedy Trial Act’s provisions would be difficult to apply in
extradition proceedings. Maj. Opn. at 25. But this concern is misplaced because Article 7,
despite what the majority thinks, does not incorporate the statutory right. In contrast to the
constitutional right, violations of the Speedy Trial Act do not “bar” a prosecution—i.e., require
that the charges be dismissed with prejudice. See 18 U.S.C. § 3162 (leaving the decision of
whether to dismiss with prejudice to the discretion of the district court). The discretionary
remedy provided by statute is inconsistent with the language of Article 7, which incorporates
mandatory bars to prosecution. And even if the statute somehow did fall within Article 7, it
contains an exclusion for “[a]ny period of delay resulting from the absence or unavailability of
the defendant” that would render the seventy-day clock essentially irrelevant in extradition cases.
18 U.S.C. § 3161(h)(3)(A). The majority’s alarmist concern is therefore completely without
merit.
No. 14-5860 Cruz Martinez v. United States Page 50
The majority also argues that comity requires a narrow interpretation of Article 7, but it
fundamentally misunderstands the nature of the comity principles it cites. The majority suggests
that we should be guided by the principle that U.S. courts must avoid “supervising the integrity
of the judicial system of another sovereign nation.” Maj. Opn. at 19 (quoting Jhirad, 536 F.2d at
484-85). This principle, known as the rule of non-inquiry, “‘bars courts from evaluating the
fairness and humaneness of another country’s criminal justice system, requiring deference to the
Executive Branch on such matters.’” Hilton v. Kerry, 754 F.3d 79, 84-85 (1st Cir. 2014)
(quoting Khouzam v. Att’y Gen. of U.S., 549 F.3d 235, 253 (3d Cir. 2008)).
This rule has a narrow scope and is typically cited only to bar inquiry into humanitarian
concerns or a lack of procedural rights in a foreign criminal justice system. See id. at 83;
Khouzam, 549 F.3d at 253; Prasoprat v. Benov, 421 F.3d 1009, 1016-17 (9th Cir. 2005); Ahmad
v. Wigen, 910 F.2d 1063, 1067 (2d Cir. 1990); see also Glucksman v. Henkel, 221 U.S. 508, 512
(1911) (“We are bound by the existence of an extradition treaty to assume that the trial will be
fair.”).
Although courts do not inquire into the fairness of criminal procedure or punishment
under the laws of the country seeking extradition, it is clearly a court’s role to determine whether
extradition is permissible under the terms of the governing treaty. Valentine v. United States ex
rel. Neidecker, 299 U.S. 5, 8-9 (1936). Similarly, the executive’s discretion to grant or deny
extradition arises only after a person has been certified as extraditable under the governing
treaty. Hoxha v. Levi, 465 F.3d 554, 564-65 (3d Cir. 2006). Nor, contrary to the majority’s
suggestion, is it in any way inappropriate in our constitutional system for courts to enforce
individual rights granted by a treaty in the appropriate exercise of habeas jurisdiction. Hamdi v.
Rumsfeld, 542 U.S. 507, 536 (2004) (“[T]he Great Writ of habeas corpus allows the Judicial
Branch to play a necessary role in maintaining th[e] delicate balance of governance, serving as
an important judicial check on the Executive’s discretion in the realm of detentions.”).
Nowhere in this dissent is there any consideration or discussion of whether Cruz
Martinez would face unfair treatment in Mexico. Cruz Martinez does not even make that
argument. Rather, he is claiming that his extradition is barred under the terms of the governing
No. 14-5860 Cruz Martinez v. United States Page 51
treaty. The comity rule simply does not apply here, where both countries have willingly entered
into a treaty granting and preserving the right which Cruz Martinez seeks to enforce.
III.
The majority’s premise—that the phrase “lapse of time” refers only to a fixed statutory
limitations period—is not supported by any of the multitude of cases, treaties, or texts it cites.
The majority points to no authority of any kind that associates this distinctive language with,
much less restricts it to, statutes of limitation. “Lapse of time” is a phrase frequently used in
connection with any number of legal doctrines that operate based on the passage of time—
including speedy trial rights. These uses are too numerous and varied to permit the conclusion
that the term “lapse of time” is so strongly or so inherently associated exclusively with statutes of
limitation that the treaty’s drafters relied on it as a term of art to refer solely to statutes of
limitation. Instead, the frequent use of the phrase in connection with constitutional speedy trial
claims confirms that a literal reading of the text of Article 7 incorporates the Speedy Trial
Clause.
For these reasons, this case should be remanded for the district court to determine
whether Cruz Martinez’s Speedy Trial Clause rights were violated.
No. 14-5860 Cruz Martinez v. United States Page 52
_________________
DISSENT
_________________
BERNICE BOUIE DONALD, Circuit Judge, dissenting. The treaty’s text is ambiguous.
The English version’s “lapse of time” language is broad enough to include the Sixth
Amendment’s speedy trial guarantee as Judge White’s concurrence and Judge Clay’s dissent
ably demonstrate. However, the Spanish version’s use of “prescripción” is narrow enough to
exclude the Sixth Amendment’s speedy trial guarantee as the majority’s erudite opinion makes
clear. Since the treaty appears to say one thing in English and another in Spanish, we cannot
resolve this case through a plain-meaning textual analysis. That said, I agree with Judge Clay
that history and policy considerations support reading the Sixth Amendment’s speedy trial clause
into the treaty.
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218 F.2d 266
UNITED STATES of America, Appellant,v.Violet S. GUYER and State of Maryland for the use of Violet S. Guyer, Joyce E. Guyer, infant, Frederick I. Guyer, infant, Roslyn M. Guyer, infant, Appellees.UNITED STATES of America, Appellant,v.Robert R. BAIR, Administrator of the Maryland Estate of Irvin N. Guyer, deceased, for himself as Administrator and for the use of The Continental Insurance Co., a body corporate, Appellee.UNITED STATES of America, Appellant,v.Samuel R. SNYDER, Administrator of the Estate of Renee Denise Snyder, deceased, Appellee.UNITED STATES of America, Appellant,v.Samuel R. SNYDER, Administrator of the Estate of Kaye Erin Snyder, deceased, Appellee.UNITED STATES of America, Appellant,v.Dorothea SNYDER, Appellee.UNITED STATES of America, Appellant,v.Samuel R. SNYDER, Appellee.
No. 6840.
No. 6841.
Nos. 6863-6866.
United States Court of Appeals, Fourth Circuit.
Argued November 18 and 19, 1954.
Decided December 28, 1954.
George Cochran Doub, U. S. Atty., Baltimore, Md. (Herbert F. Murray, Asst. U. S. Atty., Baltimore, on brief), for appellant.
Norwood B. Orrick and Richard W. Emory, Baltimore, Md., for appellees, in Nos. 6840 and 6841.
Herbert F. Murray, Asst. U. S. Atty., Baltimore, Md. (George Cochran Doub, U. S. Atty., Baltimore, Md., on brief), for appellant.
John Geyer Tausig, Washington, D. C. (Smith, Ristig & Smith, Washington, D. C., on brief), for appellees, in Nos. 6863, 6864, 6865 and 6866.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
1
These are appeals by the United States from judgments rendered under the Federal Tort Claims Act, 28 U.S.C.A. §§ 2201, 2202, for damages sustained when a government airplane crashed into the residence of Sergeant Samuel R. Snyder, near Andrews Air Base in the State of Maryland. The residence of Sergeant Snyder and its contents were totally destroyed, he and his wife were injured and his two little girls were killed. His brother-in-law Irvin N. Guyer and Mrs. Guyer were in the house at the time and Mr. Guyer was killed and Mrs. Guyer injured. The government's liability for negligence in the operation of the plane is admitted and the only questions in the case are questions as to damages.
2
In No. 6840, the trial judge gave judgment for $131,250 on account of the death of Mr. Guyer and $33,061.89 for the damages sustained by Mrs. Guyer. In No. 6841 he gave judgment in favor of Mr. Guyer's administrator in the sum of $6,446.23. In Nos. 6863 and 6864 he gave judgments in the sum of $8,147.50 each on account of the deaths of the Snyder children. In No. 6865 he gave judgment in favor of Mrs. Snyder for the sum of $20,152.38, of which amount $14,850 was for personal injuries and the remainder for property damage. And in No. 6866 he gave judgment in favor of Sergeant Snyder in the sum of $20,302.38, of which amount $15,000 was for personal injuries and the remainder for property damage.
3
While a number of evidentiary questions are presented by the appeals, they go to the weight rather than the admissibility of the testimony to which they relate and none would justify our sending the cases back to the District Court, since we review them on the facts as well as on the law. The real questions in the case relate to the amounts awarded; and, although there has been some discussion in the briefs and at the bar with regard to our power to review the findings of the lower court as to damages, we think there can be no doubt as to our power and duty to review these as we do other findings of fact in cases tried by a judge without a jury. Under Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C.A., we accept them unless "clearly erroneous"; and a finding is "clearly erroneous" when the "reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed". United States v. U. S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L. Ed. 746. When convinced that a finding as to damages is clearly erroneous because in excess of any amount justified by the evidence, it is our duty to make a finding ourselves on the evidence in the record if this can reasonably be done.
4
No. 6840.
5
Of the $131,250 awarded by the court below on account of the death of Mr. Guyer, $92,100 was awarded his widow, $11,600 to his eldest child, $13,100 to the next child and $14,450 to the youngest. Under the law of Maryland the measure of recovery for wrongful death in a case such as this is the present value of the pecuniary benefit which the wife and children of the deceased might reasonably have expected to receive from him if he had not been killed. He and his wife had a joint life expectancy of 26.84 years according to the mortality tables. The award of $131,250 was computed on the basis of a contribution by deceased of $7,500 per year to his wife and children during this period, computing the earning power of money at 3½%. We think that this award, which was more than twice as much as any award in the State of Maryland on account of wrongful death, was clearly erroneous. The deceased was not shown to be a man of a high degree of earning power. Prior to 1946 for about 15 years he had been engaged in operating a trucking business which he gave up in 1946 and operated a service station and then organized an automotive parts business, being half owner at first and then taking over the entire business. There is evidence that for 1948, 1949 and 1950 his gross income was around $10,000 per year, although this was not substantiated by production of books and records. There was evidence that income of around $17,000 was returned for the first three months of 1951, the year of his death, but this spurt in earnings is not adequately explained. Mrs. Guyer testified that they had six or seven hundred dollars a month to live on; and it was on this testimony that the trial judge arrived at the $7,500 per year. Of course, the deceased's living expenses were a substantial part of the living expenses of the family of which he was a part; and, all things considered, we think that $5,000 per year would more nearly approximate the pecuniary loss which his wife and children could reasonably be held to have sustained as a result of his death. Accepting this as a basis, the award should be one-third less, or $87,500 instead of $131,250. Life expectancy, earnings and contribution to family support in a case such as this are largely a matter of speculation; but on the whole record we do not think that an award of more than $87,500 for the death of Mr. Guyer can be justified. This is almost one and one-half times as great as the largest wrongful death award ever to be given in the State of Maryland. If the tragic death had occurred twenty-five miles south in the State of Virginia, the award would have been limited by law to $25,000.
6
Of the $33,061.89 awarded Mrs. Guyer $3,061.89 was for medical expenses and personal property loss and is not contested. $30,000 was for personal injuries. The government contends that she should not receive in excess of $10,000. While she is entitled to recover substantial damages on account of the fright and painful injuries that she received, it does not appear that any of her bones were broken or that she sustained any injury to vital organs or any serious disfigurement. There is evidence that she has been rendered nervous and suffers from headaches and that a depigmentation of the skin has been aggravated where she received skin wounds; but she has not received injury resulting in any serious permanent disability and on the whole record we do not think that an award of more than $15,000 on account of her personal injuries is justified and that an award in a greater amount is clearly erroneous.
7
In appeal No. 6840, therefore, the award of damages on account of the wrongful death of Irvin N. Guyer will be reduced by one-third, i. e., the total award will be reduced to $87,500, and the apportionment of this among the widow and children will be in the same proportions as in the original award. The award of damages to Violet S. Guyer, will be reduced to $18,061.89.
8
No. 6841.
9
In this case the administrator of Irvin N. Guyer was given a recovery of $5,000 on account of the pain and suffering of deceased prior to his death and $1,446.23 on account of funeral expenses and property loss and damage. While we think that the award for pain and suffering was high, we are not prepared to say it was clearly erroneous in view of the fact that deceased must have suffered terribly before death came to his relief. The judgment in this case will accordingly be affirmed.
10
Nos. 6863 and 6864.
11
These were awards for the deaths of two little girls aged 8 weeks and 6½ years respectively. Funeral expenses in the sum of $147.50 each were not contested. The trial judge awarded the sum of $8,000 each for pecuniary loss to the parents resulting from the deaths of these children. Whether parents will realize any pecuniary benefit from the life of infant children over and above the cost of maintenance and education is highly speculative. The court admitted evidence of the earnings of stenographers, but this had no probative value whatever in the case. We cannot say that the life of a little child is without pecuniary value, although it is practically impossible to determine what the value is. We do not think, however, that an award in excess of $5,000 should be sustained in the absence of a showing of special circumstances establishing pecuniary value not here shown. Of course no decent parent would be willing to lose a child for this or any other sum of money; but this does not mean that he has reasonable expectation of pecuniary benefit from the child's life. Under the Maryland law here applicable it is only such pecuniary benefit that may be recovered. In each of the cases of the minor children the judgment will be reduced to $5,147.50.
12
Nos. 6865 and 6866.
13
There is no controversy as to the amount awarded Sergeant and Mrs. Snyder on account of the destruction of their house; contention is made, however, that the award for the destruction of personal property and the personal injuries sustained by Sergeant and Mrs. Snyder is excessive. As to the personal property, it appears that an itemized list of the property destroyed was prepared by Sergeant Snyder and that the various articles were valued on the basis of prices of similar articles appearing in a Sears-Roebuck & Company catalogue, which he testified was less by $500 than the amount actually paid for them. The damages asked on this basis amounted to $8,004.76. The court reduced this because of assumed wear and obsolescence to $6,504.76. While this appears to us to be a high valuation, we do not feel that we would be justified in holding it to be clearly wrong, in the face of a finding by the trial judge who saw and heard the witnesses with regard thereto. Likewise as to the awards for the personal injuries sustained by Sergeant and Mrs. Snyder. They unquestionably received serious and painful injuries accompanied by fright and terror in the dreadful calamity which destroyed their home. Mrs. Snyder is left with permanent impairment of her hearing, some facial disfigurement and 10% general disability as a result of impairment of her nervous system. Sergeant Snyder, who suffered a fractured jaw and other painful injuries, is said to have a 30% mental disability. All of these matters were carefully considered by the trial judge and we cannot say that his findings are so clearly excessive under all the circumstances of the case as to justify us in holding them clearly erroneous on that account; and this we must do before we can substitute our judgment for his. The judgments in Nos. 6865 and 6866 will accordingly be affirmed.
14
Nos. 6840, 6863 and 6864, modified.
15
Nos. 6841, 6865 and 6866, affirmed.
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990 P.2d 309 (1999)
In the Matter of: F.B., P.B., C.B., W.B., B.B., and V.B., deprived juveniles,
Esther Bales, Appellant,
v.
State of Oklahoma, ex rel. Department of Human Services, Appellee.
No. 92217.
Court of Civil Appeals of Oklahoma, Division 1.
May 6, 1999.
Rehearing Denied June 3, 1999.
Certiorari Denied September 30, 1999.
Michael C. Trewitt, Ponca City, Oklahoma, For Appellant,
Elizabeth Carroll Hocker, Assistant District Attorney, Newkirk, Oklahoma, For Appellee.
Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.
*310 ADAMS, Judge:
¶ 1 Appellant (Mother) seeks reversal of a trial court order, entered upon a jury verdict, which terminated her parental rights to the six children who are the subject of this action. Mother contends the trial court erred in admitting evidence of a child molestation conviction by a friend of Mother which occurred after the children were removed from her home by the Department of Human Services (DHS) pursuant to a trial court order. Mother also claims the termination order is not supported by sufficient evidence. Although the children were represented by counsel in the trial court and notice of this appeal and copies of the briefs appear to have been mailed to their attorney, no brief on their behalf has been filed in this appeal.
¶ 2 The children were adjudicated deprived based upon a petition which alleged that
[Mother] has failed to protect these children from an alleged child molester. [Mother] has been told on two (2) separate occassions [sic] to not allow her children to be around this man. She has failed to do this by allowing the children to stay in his home several times. The children slept in the same bed with him. She has also allowed him to buy these children school supplies and clothes.
The adjudication order makes no specific findings concerning the basis for the deprived finding. In the disposition order, the trial court adopted a "treatment plan" which included several requirements. The only *311 portions of the "treatment plan" which make any reference to protection of the children from sexual abuse required Mother to "seek individual counseling to address issues of child protection, sexual abuse, the role of the mother in the family, proper supervision of children and any other areas that the counselor deems necessary."
¶ 3 Approximately eighteen months later, the trial court adopted "Amended Termination Guidelines." Those guidelines refer to sexual abuse prevention only by requiring Mother to "attend counseling from a qualified therapist, regarding child sexual abuse with emphasis on learning about the effects and strategies for prevention." Six months later State filed its termination motion alleging only as grounds that Mother had failed to correct the conditions that led to the deprived finding.
¶ 4 During the jury trial, State produced evidence that Mother had not fully complied with various aspects of both court ordered "service plans." Mother herself testified that she had stopped the counseling because she thought it was not productive. In response to a question concerning whether she was aware that her friend, Mr. S., had been convicted of child molestation, Mother replied that she had learned of it on the day of trial, in essence confirming that Mr. S had been convicted. Although Mother's counsel had urged in a pre-trial motion that evidence of the conviction be excluded, no contemporaneous objection was made to this question, and it is not even challenged in this appeal.
¶ 5 Rather, Mother argues in this appeal that the trial court erred in admitting certified copies of the judgment and sentence by which Mr. S was convicted. According to Mother, because the conviction occurred after the children were removed from her custody, the evidence was not relevant to the issue presented, i.e. whether Mother knew Mr. S was a danger to her children when she allowed them to stay with him and be around him. We need not determine whether the trial court erred in admitting this evidence because the same essential information, i.e. Mr. S was a convicted child molester, was revealed to the jury by Mother's earlier testimony. Because other evidence of the same tenor was admitted without objection by Mother, any error in the admission of the judgment and sentence was harmless. Gaskins v. State, 1967 OK 49, 425 P.2d 979.
¶ 6 In her remaining proposition of error, Mother contends there was insufficient evidence to sustain the verdict. "In a termination proceeding tried to a jury, the verdict of the jury is conclusive as to all disputed facts, and where there is any competent evidence reasonably tending to support the verdict, we will not disturb the judgment based on that verdict." Matter of K.L.H., 1993 OK CIV APP 127, ¶ 22, 858 P.2d 1296, 1299.
¶ 7 In applying that standard of review, Mother contends that we may consider only the failure to complete those portions of the "service plan" which are shown to directly relate to the conditions which led to the deprived adjudication, citing In re L.G., 1993 OK CIV APP 162, 864 P.2d 1301. Because, according to Mother, the adjudication order contained no findings which demonstrated any basis for the deprived adjudication other than the facts alleged in the petition, we must examine the evidence to determine whether Mother had corrected the problem as it related to failure to protect the children from the alleged child molester. We agree.
¶ 8 Termination of parental rights may not be based solely on the failure to complete a "service plan." Unless some independent statutory grounds for termination appears, the inquiry must be focused on whether the parent has corrected the condition or conditions that led to the adjudication in the first place. Matter of J.M., 1993 OK CIV APP 121, 858 P.2d 118. Performing that task is extremely difficult where, as here, the adjudication order does not precisely identify the reasons for the adjudication. Because the adjudication order provides no grounds other than those alleged in the petition, we are confined to the condition alleged in the petition in determining whether there was sufficient evidence that Mother had not corrected the condition which led to her children being declared deprived.[1]
*312 ¶ 9 Because the children had not been in her custody for most of the time since the order, Mother could not demonstrate by consistent action that she was able to protect them from potential sexual abuse. Under those circumstances, the most effective way of determining whether the condition which led to the children being deprived, i.e., Mother's failure to recognize the danger to her children of sexual abuse, had been corrected was to demonstrate that Mother had completed the sexual abuse awareness counseling required by the Court's order. As noted previously, Mother testified she did not complete this counseling.
¶ 10 Such evidence, combined with other evidence of Mother's lack of judgment supports the conclusion that Mother had not corrected her inability to perceive potential harm to her children from other individuals in her life and take steps to minimize the risk of that harm. The record contains competent evidence which reasonably tends to support the verdict of the jury. The trial court's order is affirmed.
AFFIRMED
HANSEN, P.J., and JONES, C.J., concur.
NOTES
[1] In the trial court, Mother raised some error in the language of the instructions which her counsel was concerned might suggest that the jury could consider the failure to correct other conditions affecting the children, but Mother raises no error in the instructions in this appeal. In any event, the trial court specifically instructed the jury that it was to consider whether a requirement of the service plan was "directly related to the conditions that led to the adjudication of the children as deprived." Mother did not request any specific instruction concerning what the conditions which led to the adjudication were in this case.
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685 F.Supp. 956 (1988)
Donald TRUEHART, Personal Representative as Administrator of the Estate of Victor A. Truehart and His Heirs, Donald Truehart, Joan Robienczak Truehart, Terri A. Truehart, and Thomas J. Truehart
v.
Peter C. BLANDON, J. Robert Lee III, the M/V Buccaneer, Her Engines, etc., in rem, United States Fidelity and Guaranty Company, the North River Insurance Company, and United States Fire Insurance Company.
Civ. A. No. 87-0708.
United States District Court, E.D. Louisiana.
June 13, 1988.
John R. Martzell, Martzell, Thomas & Bickford, New Orleans, La., for plaintiff.
Ashton R. O'Dwyer Jr., J. Dwight LeBlanc III, Lemle, Kelleher, Kohlmeyer, Dennery, Hunley, Moss & Frilot, New Orleans, *957 La., for defendants Blandon and USF & G.
Hugh M. Glenn Jr., Franklin H. Jones III, Bienvenu, Foster, Ryan & O'Bannon, New Orleans, La., for defendants Lee, North River Ins. Co. and U.S. Fire Ins. Co.
Order and Reasons
CHARLES SCHWARTZ, Jr., District Judge.
At the final pre-trial conference held June 3, 1988, the Court STRUCK plaintiff's jury demand. The Court now gives written reasons for its ruling.
This is Installment Four of the ever-appearing legal issues over Victor Truehart's tragic death. As Judge Wisdom has written, "[t]he time has not yet come when a plaintiff is entitled to a jury in every admiralty action." Durden v. Exxon Corp., 803 F.2d 845, 849 (5th Cir.1986). Because plaintiff has effectively made a Rule 9(h) designation by bringing an in rem claim, he is not entitled to a jury trial.
In the pre-trial order, submitted to the Court for the pre-trial conference, defendants assert that plaintiff is not entitled to a jury trial. See Pre-Trial Order §§ IV, XIV, at 4, 33. The Court deemed their assertion to be a motion to strike plaintiff's jury demand and granted their motion. See also Pre-Trial Order, § XVI, at 33 ("A prompt determination of whether or not this case will be tried to a jury may expedite the disposition of this case.").
I.
The complaint asserts two bases for federal subject matter jurisdiction. As Paragraph I of the complaint reads:
The jurisdiction of this matter is based on diversity of citizenship of the parties, 28 U.S.C. 1332(a) and on the maritime jurisdiction of the United States, 28 U.S. C. 1333.
Named as defendants in personam are Peter C. Blandon; his vessel insurer, United States Fidelity and Guaranty Co. (USF & G); J. Robert Lee III; his homeowner liability insurer, The North River Insurance Co.; and his umbrella, or excess, liability insurer, United States Fire Insurance Co. Named as defendant in rem is Mr. Blandon's vessel, the M/V BUCCANEER. See also Truehart v. Blandon (Truehart I), 672 F.Supp. 929, 930 (E.D.La.1987). The complaint includes a request for a jury trial.
While service of process was never made on the vessel, Mr. Blandon has appeared in the action not only as a defendant in personam, but also as the vessel claimant. Specifically, his verified claim reads as follows:
COMES NOW Peter C. Blandon ... and shows that he is the owner of the M/V BUCCANEER, proceeded against herein, and claims the said vessel as owner, praying that he be permitted to defend according to law.
Record Document No. 12 (filed March 26, 1987).
The answer filed by Mr. Blandon and USF & G provides as their eighth defense a prayer for limitation of liability. Specifically, this defense reads as follows:
Peter C. Blandon, as owner of the M/V BUCCANEER, avers that all of the matters pertinent herein were incurred without his privity or knowledge and, therefore, invokes the benefits of the provisions of the Revised States of the United States and more particularly, 46 U.S.C. § 183, et seq., pertaining to limitation of liability of the owners, which serves to limit the liability of Peter C. Blandon to the value of his interests in the M/V BUCCANEER at the conclusion of her voyage, together with her freight then pending.
Record Document No. 13, at 5 (filed March 26, 1987). Mr. Blandon and USF & G have apparently abandoned the limitation of liability defense, for nowhere in the Pre-Trial Order is the defense expressly referred to or mentioned or implicitly alluded to. See F.R.Civ.P. 16(e) (the pre-trial order "shall control the subsequent course of action").
Section IV of the Pre-Trial Order sets forth the parties' contentions on jurisdiction. Plaintiff asserts the Court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332. Defendants, however, *958 assert that jurisdiction rests solely on admiralty jurisdiction pursuant to 28 U.S.C. § 1333; further, they will not stipulate that $10,000 is in controversy. Section XIV of the Pre-Trial Order reads in part: "The parties disagree as to whether or not this is a jury case (see Section 4)."
II.
A.
Jurisdiction in admiralty law is indeed a curious thing. Its peculiarities are well-known to most who read these words; therefore, the Court will forgo a full review of the law and its background. Rather, a few comments appear all that is needed.
First, plaintiff could have chosen to assert jurisdiction based solely upon diversity. It is undisputed that complete diversity exists between plaintiff and all defendants. Defendants' comment to the contrary notwithstanding, the amount in controversy over the undisputed $3500 funeral expense claim and the disputed pre-death pain and suffering and punitive damage claims well exceeds $10,000. Having denied defendants' summary judgment motion to dismiss these latter two claims because of genuine factual disputes, see Minute Entry of Sept. 17, 1987, the Court cannot find the judgment value of such claims, if proved, to be below a mere $6500.[1]See Haley v. Pan American World Airways, 746 F.2d 311, 317-18 (5th Cir.1984) (affirming award of $15,000 for pre-death mental anguish of no more than four to six seconds); In re Merry Shipping, Inc., 650 F.2d 622 (5th Cir. Unit B 1981) (holding that punitive damages are recoverable under general maritime law upon a showing of wilful and wanton misconduct for death of seaman); see also Evich v. Morris, 819 F.2d 256, 258 (9th Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 261, 98 L.Ed.2d 218 (1987).
Second, like all plaintiffs who can assert alternative bases of jurisdiction under diversity and admiralty, Mr. Truehart had the power to wholly control whether there was a jury. On the one hand, if a complaint asserts diversity as the sole basis of jurisdiction, then the plaintiff is guaranteed a jury. Romero v. Bethlehem Steel Corp., 515 F.2d 1249, 1253-54 (5th Cir. 1975) (citing Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355, 360, 82 S.Ct. 780, 784, 7 L.Ed.2d 798 (1962)). On the other hand, if his complaint asserts admiralty as the sole basis of jurisdiction or makes an effective Rule 9(h)[2] designation, then he is guaranteed (and must accept) a bench trial. See F.R.Civ.P. 38(e); see also 9 C. Wright & A. Miller, Federal Practice and Procedure § 2315, at 76 & n. 71 (1971); cf. Powell v. Offshore Navigation, Inc., 644 F.2d 1063 (5th Cir.1981) (there is no right to a jury as to diverse defendants if the sole basis for jurisdiction as to the nondiverse defendant is in admiralty).
Third, an actual arrest of the M/V BUCCANEER is not necessary for plaintiff to perfect in rem jurisdiction over the vessel. Mr. Blandon's act of appearing as vessel claimant was alone sufficient to perfect such jurisdiction. Cactus Pipe & Supply Co. v. M/V MONTMARTRE, 756 F.2d 1103, 1107-11 (5th Cir.1985); see Pacific *959 Employers Insurance Co. v. M/V GLORIA, 767 F.2d 229, 234 (5th Cir.1985) (vacating an in rem judgment where no in rem process was ever issued, the vessel was not arrested, and no answer was filed on behalf of the vessel). While in Cactus Pipe and Pacific Employers, the vessel owners were seeking to avoid in rem jurisdiction whereas Mr. Blandon is seeking just the opposite, such a distinction is but one of gossamer; courts ought not to spin everchanging rules of jurisdiction, and the rules for determining when in rem jurisdiction exists ought to remain constant and dependable in order to promote uniformity in maritime affairs.
Fourth, when a complaint simultaneously makes a Rule 9(h) designation and demands a jury trial, the jury demand must give way to the Rule 9(h) designation and be stricken. See Romero, 515 F.2d 1249. This is true, even if diversity jurisdiction exists as well. T.N.T. Marine Service, Inc. v. Weaver Shipyards & Dry Docks, Inc., 702 F.2d 585, 587 (5th Cir.) (per curiam) (citing Romero), cert. denied, 464 U.S. 847, 104 S.Ct. 151, 78 L.Ed.2d 141 (1983).
Fifth, in order to make a Rule 9(h) designation, it is not necessary for the plaintiff explicitly to write "Rule 9(h)" in his complaint; such a designation may be inferred from identifying statements made in the complaint. Durden v. Exxon Corp., 803 F.2d 845, 849 (5th Cir.1986) (citing T.N.T., 702 F.2d at 587-88).
The instant matter appears to come wholly within the holding in T.N.T. There, the Fifth Circuit held that the plaintiff had no right to a jury where it sued a dry dock owner in personam and a tug in rem. In addition to alleging diversity jurisdiction, the complaint in T.N.T. included the statement, "[t]his is also a suit for breach of a maritime contract and for maritime tort." Id. at 587. The court said that by both asserting an in rem claim and making the above statement, plaintiff had effectively made a Rule 9(h) designation and thus, not having amended its complaint to delete such designation, was not entitled to a jury trial. See also Durden, 803 F.2d at 848-50.
In T.N.T., the relationship between the defendant dry dock owner and the defendant vessel is not made known. While one might argue that Mr. Truehart is still entitled to a jury trial as to defendant Lee (the boat driver) and his two insurers (provided that Mr. Truehart promptly amend his complaint to allege diversity as the sole basis for jurisdiction) on the grounds that these defendants are not vessel owners, who can appear as a vessel claimant and assert a limitation-of-liability defense,[3] the argument is unwarranted, especially in light of no such distinction made in T.N.T. Further, Judge Davis' opinion in Gilmore v. Waterman Steamship Corp., 790 F.2d 1244 (5th Cir.1986), appears to reject this very argument. See id. at 1246 (finding a 9(h) designation against one defendant, where plaintiff conceded she had no right to a jury against the remaining defendants).
Often, a plaintiff's quandary from inattentive jurisdictional pleading is easily remedied. Where a plaintiff has solely brought in personam claims, or has brought in rem claims that were never perfected, this Court routinely grants him leave, even after a final pre-trial conference, to amend his complaint to delete any Rule 9(h) designations and to assert diversity as the sole basis of jurisdiction.[4]See *960 F.R.Civ. 15(a) (leave shall be freely given when justice so requires). But the instant case is different, for Mr. Truehart has also asserted an in rem claim that has now been perfected. Granted that Mr. Blandon is using his claimant status as a sword in order to fend off plaintiff's jury demand, plaintiff is not freely entitled to dismiss his in rem claim at this time.[5] For the policies of Rule 41(a)(2) temper the liberality of pleading amendments under Rule 15. F.R. Civ.P. 41(a)(2) requires court order to dismiss a defendant if that defendant has answered or moved for summary judgment. To quote Professors Wright and Miller, "usually the courts have refused to allow dismissal to avoid a previous waiver of trial by jury." 9 C. Wright & A. Miller, Federal Practice and Procedure § 2364, at 167 & n. 73 (1971) (citing, among other cases, Mistretta v. S/S OCEAN EVELYN, 250 F.Supp. 868 (E.D.N.Y.1966) (denying motion to dismiss libel in order that personal injury libelant could obtain a jury trial)); see also Annotation, Waiver of Right to Trial by Jury as Affecting Right to Trial by Jury on Subsequent Trial of Same Case in Federal Court, 66 A.L.R.Fed. 859, 864-65 (1984). The rule is not harsh; it merely requires a plaintiff to make a Rule 11 reasonable inquiry before bringing an in rem claim.
Plaintiff's fatal flaw was in suing the vessel in rem and not dismissing that claim before Mr. Blandon appeared as claimant and answered the complaint. Distinctions between law and admiralty, such as the distinction concerning juries, are often merely remnants of historical anomalies. But the cure for these arcane rules lies with Congress and not with this Court.
B.
The entire discussion in Part II(A) is now largely irrelevant, for at the final pre-trial conference, plaintiff's counsel expressly waived any right to a jury trial. See F.R. Civ.P. 38(d). At the conference, the Court originally proposed using an advisory jury in order to avoid the remote possibility that a reviewing authority would determine that a jury trial should have been held. See F.R.Civ.P. 39(c). Upon suggesting to plaintiff's counsel that the Court might reconsider plaintiff's motion to amend the complaint to add a claim for loss of inheritance, see Truehart II, 684 F.Supp. 1368 (E.D.La. 1988), if there was no advisory jury because the Court could hold the trial open as to this single issue in order to give defendants adequate time to prepare this issue, plaintiff's counsel expressly requested that the Court not use an advisory jury. Defendants' counsel concurring in the request, the Court acquiesced.
III.
Accordingly, the Court struck plaintiff's jury demand.
NOTES
[1] Because the three presently-remaining claims exceed $10,000, the Court need not determine whether the previously dismissed loss-of society claims, see Truehart I, 672 F.Supp. 929, or the proposed loss-of-inheritance claims, see Truehart II, 684 F.Supp. 1368 (E.D.La.1988), should also be included for calculating the amount in dispute. Cf. 14A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3702, at 33 & n. 39, 35 & n. 41 (2d ed. 1985).
[2] Rule 9(h) reads as follows:
A pleading or count setting forth a claim for relief within the admiralty and maritime jurisdiction that is also within the jurisdiction of the district court on some other ground may contain a statement identifying the claim as an admiralty or maritime claim for the purposes of Rules 14(c), 38(e), 82, and the Supplemental Rules for Certain Admiralty and Maritime Claims. If the claim is cognizable only in admiralty, it is an admiralty or maritime claim for these purposes whether so identified or not. The amendment of a pleading to add or withdraw an identifying statement is governed by the principals of Rule 15. The reference in Title 28, U.S.C. § 1293(a)(3), to admiralty cases shall be construed to mean admiralty and maritime claims within the meaning of this subdivision (h).
[3] Even in cases where a vessel is not sued in rem, a vessel owner named as a defendant in personam may effectively be entitled to a jury-less trial by properly asserting limitation of liability either as a defense or in a separate injunctive admiralty proceeding. See generally 46 U.S. C. § 183 et seq.
From what the Court has learned of this case so far, it wholly concurs in the decision of counsel for Mr. Blandon and USF & G not to pursue their limitation-of-liability defense. As a factual matter, this Court strongly doubts that Mr. Blandon could have established an absence of "privity or knowledge."
[4] A sufficient pleading to achieve this result would read something like the following:
"Jurisdiction over this matter exists pursuant to 28 U.S.C. § 1332, made applicable by the saving-to-suitors clause in 28 U.S.C. § 1333(1). Complete diversity exists between the parties, and the amount in controversy, exclusive of costs and interests, exceeds $10,000."
[5] Section V of the Pre-Trial Order, on motions pending or contemplated, does not include any statement that plaintiff intended to amend his complaint to delete his reference to admiralty jurisdiction and to drop his in rem claim. See Romero, 515 F.2d at 1252.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4090
ALEXANDER MARTINEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-95-568)
Submitted: September 28, 1999
Decided: November 9, 1999
Before WIDENER, WILLIAMS, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Neil M. Schuster, Miami Beach, Florida, for Appellant. J. Rene Josey,
United States Attorney, Miller W. Shealy, Jr., Assistant United States
Attorney, Charleston, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Alexander Martinez appeals the 108-month sentence he received
after he pled guilty to conspiracy to possess with intent to distribute
and distribute cocaine. See 21 U.S.C.A.§ 846 (West Supp. 1999). He
disputes the district court's finding that he had an aggravating role in
the offense, which resulted in a two-level adjustment under U.S. Sen-
tencing Guidelines Manual § 3B1.1(c) (1995).* Alternatively, he con-
tends that the district court departed upward without giving him
adequate notice. We affirm.
Martinez agreed to buy forty kilograms of cocaine from a drug task
force undercover agent and a Colombian informant, and suggested
that he take delivery in Charleston, South Carolina, where he had a
customer. Martinez and co-defendant Oliver Landaetta arrived in
Charleston a few days later and were met at the airport by co-
defendant Wendell Green. Martinez then called the informant and
asked for more time to collect the money he needed. Later that day
he and Landaetta came to the motel where the deal was to take place
for further negotiations. The agent and the informant agreed to wait
a bit longer. The next day, Martinez came to the motel alone with
$66,000 in two plastic bags. Landaetta and another man (presumably
Green) were to bring the rest of the money shortly. Martinez was then
arrested. Landaetta and Green, who were driving around in the vicin-
ity of the motel, were apprehended after a high-speed chase. Green
had $17,350 in a plastic bag.
Martinez contends that the district court either clearly erred by bas-
_________________________________________________________________
*Martinez was sentenced in 1996. No appeal was noted. In 1998, he
moved to vacate his sentence pursuant to 28 U.S.C.A.§ 2255 (West
Supp. 1999), alleging that he had asked his attorney to appeal. At an evi-
dentiary hearing, the government stipulated that§ 2255 relief was appro-
priate to allow Martinez to appeal the role adjustment. Martinez agreed
to forego a criminal history issue and any further claims against his attor-
ney. The district court then re-entered the judgment, see United States v.
Peak, 992 F.2d 39, 42 (4th Cir. 1993), and Martinez filed this timely
appeal.
2
ing the adjustment on a finding that he managed"the property, assets,
or activities" of the conspiracy, or departed without giving him proper
notice. See United States v. Withers, 100 F.3d 1142, 1147 (4th Cir.
1996) (standard of review); U.S.S.G. § 3B1.1, comment. (n.2) (defen-
dant must exercise authority over another participant to qualify for the
adjustment, but departure may be warranted for defendant who has
management responsibility for property, assets, or activities of crimi-
nal organization).
The district court mentioned, in making its finding, that the evi-
dence showed that Martinez exercised management responsibility
over the property, assets, and activities of the conspirators and, were
this all it found, the adjustment would be improper. However, the
court also found that Martinez conducted all the negotiations in Flor-
ida, suggested Charleston as the place where the sale should take
place because he had a contact there, and took the lead in negotiations
even when Landaetta was present. Based on these findings, which
were supported by the evidence, the adjustment was not clearly erro-
neous. Because adjustments are mandatory if supported by the evi-
dence, use of an adjustment is correct if any factor validly supports
it. See United States v. Ashers, 968 F.2d 411, 414 (4th Cir. 1992).
Therefore, the district court did not err in making the adjustment. The
second issue Martinez raises is without merit; because the district
court did not depart, advance notice of a possible departure was not
necessary.
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
3
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 25, 2003
Charles R. Fulbruge III
Clerk
No. 03-40038
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
J. GUADALUPE HERNANDEZ-DUQUE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-450-1
--------------------
Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
J. Guadalupe Hernandez-Duque appeals the sentence imposed
following his guilty plea conviction of being found in the United
States after deportation/removal in violation of 8 U.S.C. § 1326.
Hernandez-Duque contends that 8 U.S.C. § 1326(a) and 8 U.S.C.
§ 1326(b) are unconstitutional. He argues that the prior
conviction that resulted in his increased sentence is an element
of a separate offense under 8 U.S.C. § 1326(b) that should have
been alleged in his indictment. Hernandez-Duque maintains that
*
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. 03-40038
-2-
he pleaded guilty to an indictment which charged only simple
reentry under 8 U.S.C. § 1326(a). He argues that his sentence
exceeds the maximum term of imprisonment and supervised release
which may be imposed for that offense.
In Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), the Supreme Court held that the enhanced penalties in
8 U.S.C. § 1326(b) are sentencing provisions, not elements of
separate offenses. The Court further held that the sentencing
provisions do not violate the Due Process Clause. Id. at 239-47.
Hernandez-Duque acknowledges that his arguments are foreclosed by
Almendarez-Torres, but asserts that the decision has been cast
into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
He seeks to preserve his arguments for further review.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000). This court must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation marks and
citation omitted). The judgment of the district court is
AFFIRMED.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that an appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.
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1 So.3d 186 (2009)
LENOCE
v.
PASCO COUNTY BD. OF COUNTY COM'RS.
No. 2D08-6187.
District Court of Appeal of Florida, Second District.
January 30, 2009.
Decision without published opinion. App.dismissed.
| {
"pile_set_name": "FreeLaw"
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